Friday, January 7, 2011

AAO (Partially) Unmasked

Carlos Holguín writes:

In September 2009 the Center for Human Rights & Constitutional Law submitted a request under the Freedom of Information Act for documents shedding light on CIS's Administrative Appeals Office, an agency about which little information has been made public.

As you may know, 8 C.F.R. § 103.3(a)(1)(iv) provides: "The AAU is the appellate body which considers cases under the appellate jurisdiction of the Associate Commissioner, Examinations." 8 C.F.R. § 103.3(a)(1)(ii), in turn, states: "Certain unfavorable decisions on applications, petitions, and other types of cases may be appealed. ... Decisions under the appellate jurisdiction of the Associate Commissioner, Examinations, are listed in § 103.1(f)(2) of this part." Yet 8 C.F.R. § 103.1 contains no subsection (f)(2). Apparently due to a "drafting error" there haven't been any regs fixing the AAO's jurisdiction (apart from 245A and 210 legalization appeals) since 2003.

In addition to exercising a largely undefined jurisdiction, Angelo Paparelli makes these further points about the AAO in his blog:

This week USCIS convened an Administrative Appeals Office (AAO) "Listening Session" which offered the following highlights [with my response in brackets]:

•    The practice of filing one or more petitions after the initial request is denied constitutes an "abuse" of process, according to USCIS. [If the AAO did not take years to decide petitions, and the economy could be held in suspended animation while an appeal wends its way to its dilatory conclusion, there would be little need to pursue a legitimate practice, not prohibited by current regulations, to file a second or subsequent petition seeking to resolve perceived deficiencies cited by the adjudicator.]

•    The AAO engages in de novo review of facts and law and will deny petitions on grounds never asserted by the initial USCIS adjudicator.  [The Board of Immigration Appeals, unlike the AAO, has issued detailed regulations to govern its proceedings, including a regulation, 8 C.F.R. § 1003.1(d)(3), that eschews fact finding and only considers de novo "questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges."  Although the AAO conceivably could give appealing parties a chance to argue issues not raised in the first instance below, it rarely does.]

•    The AAO intends to issue many more precedent decisions but will not make USCIS policy, although it does claim the authority to follow the reasoning of non-precedent decisions. [The problem with this approach is that development of the law is not advanced through notice-and-comment rulemaking as the Administrative Procedures Act contemplates, but by the advocacy skills of the single lawyer raising the appeal for the single party who appeals.  Increasingly, however, multiple parties have tangible legal interests that are adversely affected even though USCIS regulations provides no right to appeal and requires the loss of interim legal rights as the cost of an appeal.]

•    The AAO regularly consults with the Office of the Chief Legal Counsel on issues raised in appellate cases. [In tribunals that follow the rule of law, canons of legal and judicial ethics bar such unilateral contacts without notice and an opportunity for a hearing in which all parties and the court participate and the proceedings are transcribed for the sake of further legal proceedings.]

•    The AAO adheres to USCIS policy but could not precisely define the sources of authority that constitute agency policy. [When a caller asked during the Listening Session to clarify, e.g., whether any of the many Neufeld Memorandums stand as USCIS policy, she was given no clear answer.  Instead, she was asked to send in samples of agency documents to determine if the documents constituted policy, to which she replied that she would send in the documents once the agency defined what constitutes agency "policy."]

•    Although the AAO considers itself a tribunal, not all of its "jurists" are lawyers.  [While, as was claimed during the Listening Session, non-lawyer decision-makers can issue opinions as solidly as their attorney counterparts, persons not licensed as lawyers are not subject to discipline under the rules governing judges and lawyers.]

We met with much resistance to our request. In the end, we had to sue to compel release of the requested information, but CIS has now disclosed most of what we had asked. Our FOIA request, the agency's cover letter, and the documents it has released in response to our request are available here:

Please feel free to publicize these documents as widely as you see fit.

Thank you,

Carlos Holguin
General Counsel
Center for Human Rights and Constitutional Law
256 S. Occidental Blvd.
Los Angeles, Ca. 90057
Telephone: (213) 388-8693 ext. 309
Facsimile: (213) 386-9484
Electronic mail:

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