a specific allegation of error in law or fact

[email protected] of 9

A Specific Allegation of Error in Law or Fact By Joseph P. Whalen (Sunday, September 20, 2015)

An administrative appeal might work slightly differently than its judicial cousin 1

but both types require a specific allegation of error in law or fact. Vague 2

assertions and overly generalized statements will not suffice because they lack the 3

required specificity. These different types of alleged errors are of distinctive characters 4

and natures; and are therefore, evaluated under different standards of review. The two 5

principle administrative appellate bodies in immigration proceedings are the Board of 6

Immigration Appeals (BIA or Board) and the Administrative Appeals Office (AAO). There 7

are major differences between these two immigration authorities. 8

The BIA mainly hears appeals arising from adversarial Removal Proceedings 9

which can have harsh punitive consequences including continued confinement and 10

expulsion from the United States. The AAO, on the other hand, hears appeals from 11

inquisitorial Benefits Determination Adjudications. While AAO decisions do not 12

involve the same harsh punitive consequences that can flow from Removal Proceedings, 13

the benefits which can be denied rise to the highest prize under the INA – U.S. citizenship. 14

These two distinctive types of adjudicatory frameworks must be fully understood in order 15

to effectively approach them. 16

Adversarial proceedings pit one side against the other in a fight. Inquisitorial 17

adjudications involve a search for the truth. The adversaries consist of ICE and the alien. 18

ICE Counsel seeks to prove 1.) alienage, and 2.) removability. The alien, alone or through 19

counsel, might fight alienage, removability, or both. However, in the vast majority of 20

Removal Proceedings, the alien respondent will admit the charges and seek some form 21

mailto:[email protected]


of relief from removal. It is at this point that the very nature of the proceeding transforms 1

from adversarial to inquisitorial. When one seeks relief from removal, in the vast 2

majority of cases, this means that they are applying for a benefit. There are a few such 3

benefits that may only be bestowed by an Immigration Judge just as there are some 4

benefits that may only be bestowed by a DHS Immigration Officer, whether with ICE, 5

CBP, or mostly USCIS. With the above basics in mind, let us have a look at DHS’ 6

controlling appeal regulations. 7

8 C.F.R. §103.3 Denials, appeals, and precedent decisions. 8

(a) Denials and appeals— 9

(1) General— 10

(i) Denial of application or petition. When a Service officer denies an 11 application or petition filed under §103.2 of this part, the officer shall explain in 12 writing the specific reasons for denial. If Form I-292 (a denial form including 13 notification of the right of appeal) is used to notify the applicant or petitioner, the 14 duplicate of Form I-292 constitutes the denial order. 15

(ii) Appealable decisions. Certain unfavorable decisions on applications, 16 petitions, and other types of cases may be appealed. Decisions under the appellate 17 jurisdiction of the Board of Immigration Appeals (Board) are listed in §3.1(b) of 18 this chapter. Decisions under the appellate jurisdiction of the Associate 19 Commissioner, Examinations, are listed in §103.1(f)(2)1 of this part. 20

(iii) Appeal— 21

(A) Jurisdiction. When an unfavorable decision may be appealed, 22 the official making the decision shall state the appellate jurisdiction and 23 shall furnish the appropriate appeal form. 24

(B) Meaning of affected party. For purposes of this section and 25 §§103.4 and 103.5 of this part, affected party (in addition to the Service) 26 means the person or entity with legal standing in a proceeding. It does not 27 include the beneficiary of a visa petition. An affected party may be 28 represented by an attorney or representative in accordance with part 292 29 of this chapter. 30

(C) Record of proceeding. An appeal and any cross-appeal or briefs 31 become part of the record of proceeding. 32

1 This section was repealed in 2003, and has not been amended or replaced. It is more useful to consult the USCIS website. Also, AAU has been renamed and is now known as AAO.



(D) Appeal filed by Service officer in case within jurisdiction of 1 Board. If an appeal is filed by a Service officer, a copy must be served on 2 the affected party. 3

(iv) Function of Administrative Appeals Unit (AAU). The AAU is the 4 appellate body which considers cases under the appellate jurisdiction of the 5 Associate Commissioner, Examinations. 6

(v) Summary dismissal. An officer to whom an appeal is taken shall 7 summarily dismiss any appeal when the party concerned fails to identify 8 specifically any erroneous conclusion of law or statement of fact for the appeal. The 9 filing by an attorney or representative accredited under 8 CFR 292.2(d) of an 10 appeal which is summarily dismissed under this section may constitute frivolous 11 behavior as defined in 8 CFR 292.3(a)(15). Summary dismissal of an appeal under 12 §103.3(a)(1)(v) in no way limits the other grounds and procedures for disciplinary 13 action against attorneys or representatives provided in 8 CFR 292.2 or in any other 14 statute or regulation. 15

(2) AAU appeals in other than special agricultural worker and legalization 16 cases— 17

(i) Filing appeal. The affected party must submit an appeal on Form I-18 290B. Except as otherwise provided in this chapter, the affected party must pay 19 the fee required by §103.7 of this part. The affected party must submit the complete 20 appeal including any supporting brief as indicated in the applicable form 21 instructions within 30 days after service of the decision. 22

(ii) Reviewing official. The official who made the unfavorable decision 23 being appealed shall review the appeal unless the affected party moves to a new 24 jurisdiction. In that instance, the official who has jurisdiction over such a 25 proceeding in that geographic location shall review it. 26

(iii) Favorable action instead of forwarding appeal to AAU. The reviewing 27 official shall decide whether or not favorable action is warranted. Within 45 days 28 of receipt of the appeal, the reviewing official may treat the appeal as a motion to 29 reopen or reconsider and take favorable action. However, that official is not 30 precluded from reopening a proceeding or reconsidering a decision on his or her 31 own motion under §103.5(a)(5)(i) of this part in order to make a new decision 32 favorable to the affected party after 45 days of receipt of the appeal. 33

(iv) Forwarding appeal to AAU. If the reviewing official will not be 34 taking favorable action or decides favorable action is not warranted, that 35 official shall promptly forward the appeal and the related record of proceeding to 36 the AAU in Washington, DC. 37

(v) Improperly filed appeal— 38

(A) Appeal filed by person or entity not entitled to file it— 39

(1) Rejection without refund of filing fee. An appeal filed by 40 a person or entity not entitled to file it must be rejected as 41 improperly filed. In such a case, any filing fee the Service has 42 accepted will not be refunded. 43



(2) Appeal by attorney or representative without proper 1 Form G-28— 2

(i) General. If an appeal is filed by an attorney or 3 representative without a properly executed Notice of Entry 4 of Appearance as Attorney or Representative (Form G-28) 5 entitling that person to file the appeal, the appeal is 6 considered improperly filed. In such a case, any filing fee the 7 Service has accepted will not be refunded regardless of the 8 action taken. 9

(ii) When favorable action warranted. If the 10 reviewing official decides favorable action is warranted with 11 respect to an otherwise properly filed appeal, that official 12 shall ask the attorney or representative to submit Form G-13 28 to the official's office within 15 days of the request. If 14 Form G-28 is not submitted within the time allowed, the 15 official may, on his or her own motion, under §103.5(a)(5)(i) 16 of this part, make a new decision favorable to the affected 17 party without notifying the attorney or representative. 18

(iii) When favorable action not warranted. If the 19 reviewing official decides favorable action is not warranted 20 with respect to an otherwise properly filed appeal, that 21 official shall ask the attorney or representative to submit 22 Form G-28 directly to the AAU. The official shall also 23 forward the appeal and the relating record of proceeding to 24 the AAU. The appeal may be considered properly filed as of 25 its original filing date if the attorney or representative 26 submits a properly executed Form G-28 entitling that 27 person to file the appeal. 28

(B) Untimely appeal— 29

(1) Rejection without refund of filing fee. An appeal which 30 is not filed within the time allowed must be rejected as improperly 31 filed. In such a case, any filing fee the Service has accepted will not 32 be refunded. 33

(2) Untimely appeal treated as motion. If an untimely 34 appeal meets the requirements of a motion to reopen as described 35 in §103.5(a)(2) of this part or a motion to reconsider as described 36 in §103.5(a)(3) of this part, the appeal must be treated as a motion, 37 and a decision must be made on the merits of the case. 38

(vi) Brief. The affected party may submit a brief with Form I-290B. 39

(vii) Additional time to submit a brief. The affected party may make a 40 written request to the AAU for additional time to submit a brief. The 41 AAU may, for good cause shown, allow the affected party additional time to submit 42 one. 43

(viii) Where to submit supporting brief if additional time is granted. If the 44 AAU grants additional time, the affected party shall submit the brief directly to the 45 AAU. 46



(ix) Withdrawal of appeal. The affected party may withdraw the appeal, in 1 writing, before a decision is made. 2

(x) Decision on appeal. The decision must be in writing. A copy of the 3 decision must be served on the affected party and the attorney or representative of 4 record, if any. 5

* * * * * 6 (b) Oral argument regarding appeal before AAU— 7

(1) Request. If the affected party desires oral argument, the affected party must 8 explain in writing specifically why oral argument is necessary. For such a 9 request to be considered, it must be submitted within the time allowed for meeting other 10 requirements. 11

(2) Decision about oral argument. The Service has sole authority to grant or 12 deny a request for oral argument. Upon approval of a request for oral argument, the AAU 13 shall set the time, date, place, and conditions of oral argument. 14

(c) Service precedent decisions. The Secretary of Homeland Security, or specific officials 15 of the Department of Homeland Security designated by the Secretary with the concurrence of the 16 Attorney General, may file with the Attorney General decisions relating to the administration of 17 the immigration laws of the United States for publication as precedent in future proceedings, and 18 upon approval of the Attorney General as to the lawfulness of such decision, the Director of the 19 Executive Office for Immigration Review shall cause such decisions to be published in the same 20 manner as decisions of the Board and the Attorney General. In addition to Attorney General and 21 Board decisions referred to in §1003.1(g) of chapter V, designated Service decisions are to serve 22 as precedents in all proceedings involving the same issue(s). Except as these decisions may be 23 modified or overruled by later precedent decisions, they are binding on all Service employees in 24 the administration of the Act. Precedent decisions must be published and made available to the 25 public as described in 8 CFR 103.10(e). 26

[31 FR 3062, Feb. 24, 1966, as amended at 37 FR 927, Jan. 21, 1972; 48 FR 36441, Aug. 11, 27 1983; 49 FR 7355, Feb. 29, 1984; 52 FR 16192, May 1, 1987; 54 FR 29881, July 17, 1989; 55 FR 28 20769, 20775, May 21, 1990; 55 FR 23345, June 7, 1990; 57 FR 11573, Apr. 6, 1992; 68 FR 9832, 29 Feb. 28, 2003; 76 FR 53781, Aug. 29, 2011] 30

8 C.F.R. §103.2 Submission and adjudication of benefit requests. 31

(a) Filing. 32

(1) Preparation and submission. Every benefit request or other document 33 submitted to DHS must be executed and filed in accordance with the form 34 instructions, notwithstanding any provision of 8 CFR chapter 1 to the contrary, and 35 such instructions are incorporated into the regulations requiring its submission. 36 Each benefit request or other document must be filed with fee(s) as required by regulation. 37 Benefit requests which require a person to submit biometric information must also be filed 38 with the biometric service fee in 8 CFR 103.7(b)(1), for each individual who is required to 39 provide biometrics. Filing fees and biometric service fees are non-refundable and, except 40 as otherwise provided in this chapter I, must be paid when the benefit request is filed. 41



The instructions for USCIS Form I-290B, Notice of Appeal or Motion, require that 1

the applicant “[p]rovide a statement that specifically identifies an erroneous conclusion 2

of fact or law in the decision being appealed.” It is somewhat odd that the regulations do 3

not simply state what the requirements are for an appeal. The regulations define the 4

requirements in a backhanded fashion by stating what is appropriate for a summary 5

dismissal which is: “any appeal when the party concerned fails to identify specifically any 6

erroneous conclusion of law or statement of fact for the appeal.” Supra. The regulations 7

concerning appeals are rather weak and of little use. They contain no information 8

concerning the standards of review. AAO has assumed authority and defined its powers 9

through case law, the Administrative Procedures Act (APA), and general legal principles. 10

The BIA hears appeals from Removal Proceedings which are hearings that take 11

place in Immigration Court and are presided over by an Immigration Judge (IJ). These 12

proceedings involve face-to-face interactions between adversaries. The BIA has restricted 13

its review authorities as to fact-finding. It reviews fact-finding for clear errors only. Legal 14

interpretations are reviewed de novo, owing zero deference to such interpretations and 15

conclusions drawn in the proceedings below. 16

AAO on the other hand, claims full plenary powers to review both the legal 17

interpretations and fact-finding, de novo. AAO has described its relationship with the 18

service centers as being in the same position of Circuit Courts of Appeals over District 19

Courts. AAO has singled out the service centers in its analogy because the vast majority 20

of cases appealed to it arise from them. This is because AAO performs faceless paper-21

based appellate reviews of faceless paper-based adjudications. The service centers do not 22

interview applicants or petitioners so, the vast majority of their decisions are appealable 23



to AAO completely de novo in all respects. The few “technically” faceless paper-based 1

adjudications performed at local Field Offices are also appealable to AAO. I have qualified 2

that last description as being “technically” so because some adjudications are combined 3

such as an I-601 waiver application with an I-485 adjustment application and an I-130 4

relative petition. Of those, only the I-485 is routinely adjudicated during or following an 5

interview, the others could be and usually are, adjudicated without any need for an 6

interview. Of those three forms, the I-485 has no administrative appeal but may be 7

“renewed” for a fresh adjudication during Removal Proceeding; the I-130 is appealable 8

to the BIA; and the I-601 is appealable to the AAO. Is it any wonder why our immigration 9

system is always being accused of being “broken” and in need of “comprehensive reform”? 10

The AAO conducts appellate review on a de novo basis. See Soltane v. Department 11

of Justice, 381 F.3d 143, 145 (3d Cir. 2004). Here are more typical statements of authority. 12

It is incumbent upon an applicant to resolve any inconsistencies in the record by 13

independent objective evidence. Attempts to explain or reconcile such inconsistencies will 14

not suffice without competent evidence pointing to where the truth lies. See Matter of Ho, 15

19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the applicant's evidence 16

also reflects on the reliability of the applicant's remaining evidence. See id. 17

The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 18

Ability of prospective employer to pay wage. Any petition filed by or for an employment-19 based immigrant which requires an offer of employment must be accompanied by 20 evidence that the prospective United States employer has the ability to pay the proffered 21 wage. The petitioner must demonstrate this ability at the time the priority date is 22 established and continuing until the beneficiary obtains lawful permanent residence. 23 Evidence of this ability shall be either in the form of copies of annual reports, federal tax 24 returns, or audited financial statements. 25



The petitioner's ability to pay the proffered wage is an essential element in 1

evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 2

(Acting Reg'l Comm'r 1977); see also 8 C.F.R. § 204.5(g)(2). In evaluating whether a job 3

offer is realistic, United States Citizenship and Immigration Services (USCIS) requires the 4

petitioner to demonstrate financial resources sufficient to pay the beneficiary's proffered 5

wages, although the totality of the circumstances affecting the petitioning business will be 6

considered if the evidence warrants such consideration. Without all of the evidence 7

requested in the regulations, form instructions, or an RFE, it is not possible to complete 8

an analysis of the petitioner's ability to pay the proffered wage based on the totality of its 9

circumstances, as in Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l. Comm'r. 1967). 10

AAO considers all pertinent evidence, including new evidence properly submitted 11

upon appeal because the instructions to Form I-290B, Notice of Appeal or Motion, which 12

are incorporated into the regulations by 8 C.F.R. § 103.2(a)(1), allow the submission of 13

additional evidence on appeal. The instant record provides no reason to preclude 14

consideration of any documents newly submitted on appeal. See Matter of Soriano, 19 15

I&N Dec. 764, 766 (BIA 1988). 16

The beneficiary must meet all of the job requirements set forth on the labor 17

certification by the priority date of the petition. 8 C.F.R. § 103.2(b)(l), (12). See Matter of 18

Wing's Tea House, 16 I&N Dec. 158, 159 (Act. Reg. Comm. 1977); see also Matter of 19

Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971 ). The priority date of the instant petition, 20

which is the date the DOL accepted the labor certification for processing, is June 20, 2013. 21

See 8 C.F.R. § 204.5(d). 22



See 5 U.S.C. § 557(b) ("On appeal from or review of the initial decision, the agency 1

has all the powers which it would have in making the initial decision except as it may limit 2

the issues on notice or by rule."); see also Janka v. US. Dep 't of Transp., NTSB, 925 F.2d 3

1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the 4

federal courts. See, e.g., Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 5

There has been an item on the regulatory agenda off and on for many years 6

proclaiming that a Notice of Proposed Rule Making (NPRM) concerning AAO Procedural 7

Reform is in the works. It is healthier not to hold your breath waiting for it to materialize. 8

Now, to bring this essay around full circle, when one files an appeal the appeal must state 9

an allegation of error as to a statement of fact, or conclusion of law, or both. Such stated 10

allegations must be clear and precise. In other words, stated with specificity. On the 11

flipside of this, AAO has admonished USCIS adjudicators when their written notices of 12

denial have failed to provide the applicant or petitioner with a meaningful basis for 13

appeal. That means that the reasons for denial are not explained well enough to be 14

understood. Unfortunately, that situation happens too often. 15

I believe that this situation is the result of various factors including, but not limited to: 16

Poor grasp of the English language; 17

Poor understanding of English grammar rules; 18

Poor legal interpretation skills; 19

Poor legal research skills; 20

Poor legal writing skills; and 21

Poor initial, in-service, and follow-up training by USCIS. 22

23

That’s my two-cents, for now!


a specific allegation of error in law or fact

News & Politics