Advance COMMENTS ON NPRM ON REQUIREMENTS FOR FILING MOTIONS AND ADMINISTRATIVE APPEALS
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Transcript of Advance COMMENTS ON NPRM ON REQUIREMENTS FOR FILING MOTIONS AND ADMINISTRATIVE APPEALS
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COMMENTS ON NPRM: REQUIREMENTS FOR FILING MOTIONS AND ADMINISTRATIVE APPEALS PAGE 1
Submitted by:
Joseph P. Whalen
238 Ontario Street, No. 6
Buffalo, NY 14207
(716) 604-4322 (cell/text)
(716) 768-6506 (land-line)
ADMINISTRATIVE APPEALS OFFICE (AAO)
U.S. CITIZENSHIP AND IMMIGRATION SERVICES (USCIS)
DEPARTMENT OF HOMELAND SECURITY (DHS)
ATTN: CHARLES "LOCKY" NIMICK
20 Massachusetts Ave., NW, MS 2090
Washington, D.C. 20529-2090
RIN 1615-AB98
DUPLICATE OF 1615-AB29
ADVANCE COMMENTS ON NPRM:
REQUIREMENTS FOR FILING MOTIONS
AND ADMINISTRATIVE APPEALS
I. Notice of Proposed Rule Making (NPRM).
The Department of Homeland Security (DHS) published routine notice1 in the Federal
Register on December 15, 2015, at 80 FR 77710, 77778-79,2 which is included in Part II of
the issue and attributed to the Regulatory Information Service Center. The notice
announced, inter alia, the Departments upcoming intended regulatory and/or deregulatory
actions, listed by agency. Among the items listed therein is one for USCIS which is the
focus of this brief. AAO has been in need of its own regulatory update for many years, long
before the creation of DHS. Its rule has been on and off the regulatory agenda numerous
times in those years. It is imperative that this effort not fail to reach fruition once again.
1 This preliminary item in a regulatory agenda is not a formal Notice of Proposed Rule Making (NPRM). 2 https://www.gpo.gov/fdsys/pkg/FR-2015-12-15/pdf/2015-30690.pdf
mailto:[email protected]://www.regulations.gov/#!documentDetail;D=DHS-2015-0080-0002http://www.regulations.gov/#!documentDetail;D=DHS-2015-0080-0002https://www.gpo.gov/fdsys/pkg/FR-2015-12-15/pdf/2015-30690.pdfhttps://www.gpo.gov/fdsys/pkg/FR-2015-12-15/pdf/2015-30690.pdf
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COMMENTS ON NPRM: REQUIREMENTS FOR FILING MOTIONS AND ADMINISTRATIVE APPEALS PAGE 2
There have been paradigmatic shifts in the realm of immigration, nationality,
naturalization, and citizenship law that beg a regulatory update for administrative appeals.
II. Background and Form I-290B.3
The Form I-290B, Notice of Appeal or Motion, is available for use by dissatisfied
customers in order to challenge a decision issued by USCIS, including AAO. This form
may be submitted in order to file a motion to whosoever made the last decision on the
merits of the case. It is important to note that a motion to reopen an application or petition
that was denied due to abandonment (also described as for a lack of prosecution) has
special restrictive rules which will not be mentioned further in this brief.
Anyway, the above statement means that the same form is used for multiple types of
requests. It is critical for the person filing the I-290B to be absolutely certain that they
check the correct box on the form indicating what type of request is actually being filed. If
the wrong box is checked, the file containing that form and request might be misdirected
from the start, only to be ultimately rejected, dismissed, or denied on a technicality. Folks
need to remember that it will not be a fully trained Adjudicator that will be opening the
mail and processing the payment. That is basic clerical work which will be performed by a
clerk who is probably not a federal employee at all but instead, a contractor who is trained
only to perform a very limited function and no more.
III. Improvements to the Immigration System.
As things now stand, the exhaustion of administrative appeals is not mandatory for
the vast majority of adjudications performed by USCIS. In the recent Federal Register
announcement, under the heading Improvements to the Immigration System very
little detail was offered about the anticipated AAO rule making. However, in my opinion,
3 http://www.uscis.gov/i-290b
http://www.uscis.gov/i-290b
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COMMENTS ON NPRM: REQUIREMENTS FOR FILING MOTIONS AND ADMINISTRATIVE APPEALS PAGE 3
the most telling information is buried in the middle of the single paragraph displayed
below.
Requirements for Filing Motions and Administrative Appeals. USCIS will
propose to revise the procedural regulations governing appeals and motions to reopen
or reconsider before its Administrative Appeals Office, and to require that
applicants and petitioners exhaust administrative remedies before seeking
judicial review of an unfavorable decision. The changes proposed by the rule will
streamline the procedures before the Administrative Appeals Office and improve the
efficiency of the adjudication process. 80 FR 77710, 77778 (12-15-2015).
Based on a comprehensive review of the planned USCIS regulatory agenda, it is
evident that USCIS is slated to promulgate several rulemakings to directly support its
commitment to, and goals of:
providing clear and useful information regarding the immigration process;
especially regarding processes and procedures for submitting, and supporting
benefits requests;
promoting the values of citizenship; and
assisting those in need of humanitarian protection.
It is the substance of the second bullet point above which will best be served through
an AAO rule making. The public and agency personnel need better guidance on the
processes and procedures in the realm of motions and appeals. With that said, USCIS in
general, and AAO in particular need to resist the urge to embed too much process and
procedure in the regulations. This was a problem for INS, and USCIS has unfortunately
inherited a lot of it. Effective procedural regulations will be broad-based and flexible but
still have clear outer limits.
IV. Requirements for Filing Motions and Administrative Appeals.
The current USCIS (including AAO) regulations pertaining to motions and appeals are
outdated and inadequate. That statement is nothing more than what the agency itself has
openly acknowledged and publicly proclaimed. However, before moving forward, we
need to look back, or at least take stock of where we currently are. The following
observations are based on a quick study of current motion regulations.
https://www.gpo.gov/fdsys/pkg/FR-2015-12-15/pdf/2015-30690.pdf
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COMMENTS ON NPRM: REQUIREMENTS FOR FILING MOTIONS AND ADMINISTRATIVE APPEALS PAGE 4
Please take for example the regulation at 8 C.F.R. 103.5(3). To say that a motion to
reconsider must be supported by precedent decisions, is too restrictive. It ignores that such
a motion could be based on a change in the law, perhaps when, as does happen, the
Supreme Court strikes down a law as unconstitutional. On the other hand, to say that a
motion to reconsider must explain how and/or why a decision, was then, or is now, (as
applicable) legally incorrect, is specific yet still open-ended. It is my opinion that the
latter (open) is preferable to the former (closed), in a processual or procedural regulation.
A. MOTION TO REOPEN (MTR or MTReopen)
The current regulation requires that [a] motion to reopen must state the new facts
to be provided in the reopened proceeding and be supported by affidavits or other
documentary evidence. See 8 C.F.R. 103.5(2). So this type of motion is based on
new facts. New facts ought to be based upon newly discovered and thus newly
acquired, documentary evidence, and/or newly discovered information. Often AAO will
make a big stink about dates on documents that show that the document existed at the
time of the prior adjudication. Notwithstanding the prior existence of the document, if it
is pertinent to eligibility, AAO will usually thoroughly examine it. If the previously
existing documents prove worthless, AAO will state something like: even if they were
properly submitted, they would have: made no difference, or proven nothing, or not
have helped demonstrate eligibility. The underlying principles of the rules of evidence
evolved in a different context than benefits adjudications and need to be distinguished
from them. In other words, benefits adjudications need their own modified rules.
B. MOTION TO RECONSIDER (MTR or MTReconsider)
The current regulation requires that [a] motion to reconsider must state the reasons
for reconsideration and be supported by any pertinent precedent decisions to establish
that the decision was based on an incorrect application of law or [DHS or USCIS]
policy. A motion to reconsider a decision on an application or petition must, when filed,
also establish that the decision was incorrect based on the evidence of record at the time
http://www.ecfr.gov/cgi-bin/text-idx?SID=3040d7a11d75c063d7b617b37f35b154&mc=true&node=se8.1.103_15&rgn=div8http://www.ecfr.gov/cgi-bin/text-idx?SID=3040d7a11d75c063d7b617b37f35b154&mc=true&node=se8.1.103_15&rgn=div8
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COMMENTS ON NPRM: REQUIREMENTS FOR FILING MOTIONS AND ADMINISTRATIVE APPEALS PAGE 5
of the initial decision. See 8 C.F.R. 103.5(3). This type of motion hinges on a
legal question being answered differently than it was previously. It is based on a
mistake, a different legal interpretation usually explained in brilliant argument in a
brief, or possibly new law has come into existence which is retroactive or favorable
even if only applied prospectively, or as AAO has stated below, new arguments may
flow from new law or could lead to legal reinterpretation, i.e. a de novo interpretation.
A motion to reconsider cannot be used to raise a legal argument that could have
been raised earlier in the proceedings. See Matter of Medrano, 20 I&N Dec. 216, 220
(BIA 1990, 1991).4 Rather, the "additional legal arguments" that may be raised in a
motion to reconsider should flow from new law or a de novo legal determination
reached in its decision that could not have been addressed by the party. Matter of O-
S-G-, 24 I&N Dec. 56, 58 (BIA 2006).5 Further, a motion to reconsider is not a
process by which a party may submit, in essence, the same brief presented on appeal
and seek reconsideration by generally alleging error in the prior decision. Id. Rather,
the moving party must specify the factual and legal issues raised on appeal that were
decided in error or overlooked in the initial decision or must show how a change in
law materially affects the prior decision. Id. at 60.
Matter of C-B-A-, ID# 14665 (AAO Dec. 10, 2015), at 2, or DEC102015_01B5203.pdf6
C. COMBINED MOTION TO REOPEN & RECONSIDER (MTRR)
To say the least, this type of motion is the most difficult to support and sustain in
full because it must meet more points than either type alone. One might think that this
would be the least frequent type submitted but one would be wrong. Many desperate
and/or confused people submit combined motions because of profound uncertainty.
They do not know which type, if either, would be the correct type for their case or if
they could meet one set of criteria but not the other and hope that the USCIS or AAO
4 http://www.justice.gov/eoir/vll/intdec/vol20/3138.pdf 5 http://www.justice.gov/eoir/vll/intdec/vol24/3548.pdf 6 http://www.uscis.gov/sites/default/files/err/B5%20-
%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%2
0Exceptional%20Ability/Decisions_Issued_in_2015/DEC102015_01B5203.pdf
http://www.ecfr.gov/cgi-bin/text-idx?SID=3040d7a11d75c063d7b617b37f35b154&mc=true&node=se8.1.103_15&rgn=div8http://www.justice.gov/eoir/vll/intdec/vol20/3138.pdfhttp://www.justice.gov/eoir/vll/intdec/vol20/3138.pdfhttp://www.justice.gov/eoir/vll/intdec/vol24/3548.pdfhttp://www.justice.gov/eoir/vll/intdec/vol24/3548.pdfhttp://www.uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2015/DEC102015_01B5203.pdfhttp://www.uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2015/DEC102015_01B5203.pdfhttp://www.justice.gov/eoir/vll/intdec/vol20/3138.pdfhttp://www.justice.gov/eoir/vll/intdec/vol24/3548.pdfhttp://www.uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2015/DEC102015_01B5203.pdfhttp://www.uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2015/DEC102015_01B5203.pdfhttp://www.uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2015/DEC102015_01B5203.pdf
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COMMENTS ON NPRM: REQUIREMENTS FOR FILING MOTIONS AND ADMINISTRATIVE APPEALS PAGE 6
adjudicator will figure it out for them. This is a back-end kitchen sink approach to
case preparation and presentation. In fact, if only one type of motion is sufficiently
presented, AAO can and frequently does address only that one motion, on the merits.
The above statement does not mean that it is successful on the merits. It only means
that it met prima facie eligibility criteria in order to be considered a properly filed and
submitted motion. In other words, at least one type of motion meets the antecedent
procedural hurdle in order to make it eligible to be assessed on the merits. If either or
both types of motion does not suffice on a technical level, it or they will frequently be
summarily dismissed without reaching the merits. With that said, even a sloppily
prepared case can succeed on the merits if it is meritorious and dismissal would result
in a grave injustice. I believe that the quintessential example would be the claim to
United States citizenship. Even the most hard-hearted adjudicator cannot withhold a
finding of citizenship and thus a certificate based on a nonsensical technicality. To do
so would undoubtedly leave the agency, as a whole, wide open for negative criticism.
An unjust result would easily be overturned by any sane District Court Judge in an
APA review as arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law. See 5 U.S.C. 706(2)(A). AAO would be serving its own
interests in adopting flexible regulations, written to support an adjudication style for its
appellate reviews geared to result in decisions that would be upheld on APA review.
Only by recognizing the endgame, can one plan to win.
D. APPEALS
An administrative appeal is a request for a higher administrative authority to
reexamine the case in full. How do I know this? Well, after searching the regulations,
the USCIS website, including the AAO pages and Practice Manual, I could not find a
definition and had to look elsewhere. Online, I looked for legal definitions which
spoke only of lower and higher courts. Then I searched for the term Administrative
Appeal which generally ascribed them to State Agencies but can easily be translated to
any government agency review of a decision by a higher authority. It was only left to
http://uscode.house.gov/view.xhtml?req=(title:5%20section:706%20edition:prelim)%20OR%20(granuleid:USC-prelim-title5-section706)&f=treesort&edition=prelim&num=0&jumpTo=true
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COMMENTS ON NPRM: REQUIREMENTS FOR FILING MOTIONS AND ADMINISTRATIVE APPEALS PAGE 7
determine a workable definition of the word appeal. I settled for what I found from
thefreedictionary.com which told me this:
Timely resort by an unsuccessful party in a lawsuit or administrative proceeding
to an appropriate superior court empowered to review a finaldecision on the ground
that it was based upon an erroneous application of law.
When a case is initially denied, the written decision will inform the recipient about
appeal rights. Some case types are not afforded administrative appeal rights. When
there is no administrative appeal, there is still the option to submit a motion. Some folks
will skip the filing of a motion and instead file a lawsuit in a U. S. District Court under
the Administrative Procedures Act (APA). Certain very limited situations prohibit this
course when the administrative case is instead referred to the Immigration Court
system. When a case goes through EOIR and is ultimately dismissed in an appeal to the
BIA and an Order of Removal issues, the Circuit Court of Appeals will be the correct
venue for further action.
Unfortunately, 8 C.F.R. 103.3 fails to define the word appeal or state its
purpose or requirements. Instead, the regulation addresses disqualifications. Other
general regulations state that form instructions are incorporated into the pertinent
regulation. In the case of the Form I-290B, there is one pertinent item that tells us about
an appeal. It states that for an Appeal: Provide a statement that specifically identifies
an erroneous conclusion of law or fact in the decision being appealed. Elsewhere, the
dissatisfied customer is informed that a brief and/or additional evidence may be filed
but none is required. In fact, nothing is required beyond the simple statement in
challenge of the initial decision. When it comes to filing the form and initial
processing, the appeal is filed at the address indicated on a chart found at
http://www.uscis.gov/i-290b-addresses which is referenced in the form instructions and
thereby incorporated in the regulations. Regarding initial case processing, AAO
http://legal-dictionary.thefreedictionary.com/appealhttp://www.uscis.gov/i-290b-addresses
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COMMENTS ON NPRM: REQUIREMENTS FOR FILING MOTIONS AND ADMINISTRATIVE APPEALS PAGE 8
recently issued a Policy Memorandum7 about that. In short, whosoever issued the
denial must look over the case in light of whatever was submitted and may treat it like a
motion but only for the purpose of approving the underlying benefit request.
AAO is in a unique position among immigration-related administrative appellate
bodies. Its Appeals Officers are still adjudicators firmly attached to USCIS. If the
decision of AAO is to sustain an appeal, it can also grant the underlying application or
petition, or order it approved. I have argued before that AAO and BIA exist in
qualitatively different adjudicative systems, and because of that, many precedents by
one is not always applicable to the other.
V. Suggestions for Changes to Regulations for Motions and Appeals.
A. Mandatory Exhaustion of Administrative Appeals to AAO
Presently, there is no legal requirement to exhaust administrative appeals before
seeking judicial review for most benefits requests adjudicated by USCIS. The
anticipated AAO NPRM is expected to change that situation. Even though USCIS has
not yet mandated its appeals forum through regulation, many courts include strong
language in their analyses advocating administrative exhaustion. I cannot recall finding
a mandamus action being approved when readily available AAO appeals have been
bypassed. There are certain benefits requests that have no appeal rights but do have
motion rights. I have not seen courts demand that course be exhausted. Lastly, there are
certain benefits requests that have statutorily proscribed procedures to follow before
reaching any court for review and judicial review procedures when they get there.
77 http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/2015-1104_Initial_Field_Review_PM_APPROVED.pdf
http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/2015-1104_Initial_Field_Review_PM_APPROVED.pdfhttp://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/2015-1104_Initial_Field_Review_PM_APPROVED.pdf
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COMMENTS ON NPRM: REQUIREMENTS FOR FILING MOTIONS AND ADMINISTRATIVE APPEALS PAGE 9
B. Standard of Review
In virtually every appeal before it, AAO reserves the plenary power to review
anything on a de novo basis. This standard is not specified in the Immigration and
Nationality Act (INA) or USCIS implementing regulations. The blanket de novo review
employed by AAO has been ascribed to a cobbled together string of federal cases.
Aside from several oft-cited Circuit Court and District Court cases, AAO relies on a
general statute for its wide-open appellate review. The Administrative Procedures Act8
(APA) Pub. L. 79404, 60 Stat. 237, enacted June 11, 1946, was passed by Congress in
order to provide uniformity and relief to the millions of Americans who routinely dealt
with federal government agencies and regulations. AAO quite frequently uses the
following blurb as a footnote; see also my footnote 10, which repeats Dors footnote 9:
We conduct appellate review on a de novo basis. Matter of Simeio Solutions,
LLC, 26 I&N Dec. 542 (AAO 2015)9; see also 5 U.S.C. 557(b) ("On appeal from or
review of the initial decision, the agency has all the powers which it would have in
making the initial decision except as it may limit the issues on notice or by rule.");
Dor v. INS, 891 F.2d 997, 1002 n.910 (2d Cir. 1989). We follow the preponderance of
8 See: http://www.justice.gov/jmd/ls/administrative-procedure-act-pl-79-404 9 https://edit.justice.gov/sites/default/files/eoir/pages/attachments/2015/04/16/3832.pdf
10 [9] The principal Justice Department units with adjudicative roles in immigration are: 1) the Executive Office for Immigration Review, (which is composed of the Immigration Judges, and as appellate authority, the BIA); and 2)
the INS (which is composed of District Directors, and as appellate authority, the AAU). See Legomsky, Forum Choices for
the Review of Agency Adjudication: A Study of the Immigration Process, 71 Iowa L.Rev. 1297, 1308 (1986). To avoid
confusion, it should be stressed that the BIA and the Immigration Judges are no longer (since 1983) formally part of
the INS.
The Attorney General sits atop these two divisions. The allocation of adjudicatory responsibility between the
Executive Office for Immigration Review and the INS does not lend itself to simple explanation or summary. The
Immigration Judges issue both exclusion and deportation orders, among other things. INA 236(a), 242(b), 8 U.S.C.
1226(a), 1252(b) (1982). District Directors decide visa petitions, (8 C.F.R. 204.1), adjustment of status applications, (
245.2, 245.6), extensions of stays for nonimmigrants, ( 214.1-2, etc.)
The AAU consists of five "appellate examiners" and the Chief of the Unit, none of whom is an attorney. Each case is
considered de novo by one of the appellate examiners and reviewed by the Chief, whose decision prevails in the event of a
conflict. Decisions of the AAU are published very infrequently.
The BIA has five members, all attorneys, and all of whom participate in every case. See 8 C.F.R. 3.1(a)(1), and
Legomsky, Forum Choices, supra. They are assisted by a staff of attorney examiners. The BIA selects, for publication,
precedent decisions that will bind the INS and the Immigration Judges. 8 C.F.R. 3.1(g).
https://edit.justice.gov/sites/default/files/eoir/pages/attachments/2015/04/16/3832.pdfhttps://edit.justice.gov/sites/default/files/eoir/pages/attachments/2015/04/16/3832.pdfhttps://scholar.google.com/scholar_case?case=8118772906451688760&q=Dor+v.+INS,+891+F.2d+997&hl=en&as_sdt=6,33&as_vis=1http://www.justice.gov/jmd/ls/administrative-procedure-act-pl-79-404https://edit.justice.gov/sites/default/files/eoir/pages/attachments/2015/04/16/3832.pdfhttps://scholar.google.com/scholar_case?case=8118772906451688760&q=Dor+v.+INS,+891+F.2d+997&hl=en&as_sdt=6,33&as_vis=1#r[10]
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COMMENTS ON NPRM: REQUIREMENTS FOR FILING MOTIONS AND ADMINISTRATIVE APPEALS PAGE 10
the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369,375-76
(AAO 2010).
Matter of S-S-, Inc., ID# 15195 (AAO Dec. 9, 2015) or DEC092015_04D2101.pdf at 1.11
The aforementioned cases that seem to embrace the de novo review standard are
actually superfluous in that the APA already allows for it without any judicial blessing
required. 5 U.S.C. 557(b) provides in pertinent part, On appeal from or review of
the initial decision, the agency has all the powers which it would have in making the
initial decision except as it may limit the issues on notice or by rule. Unlike the
BIA, AAO has issued no regulation that would actually limit or guide its appellate
reviews. I believe that the failure to do so is a disservice to USCIS customers and
Officers who cannot plan for an unknown standard.
C. Presumption of Reasonableness
When an appellant has failed to demonstrate that the adjudicator below did not
consider a factor that:
(1.) should have received significant weight,
(2.) gave significant weight to a factor it should have discounted, or
(3.) made a clear error of judgment when it balanced the relevant factors;
then he has not rebutted the presumption of reasonableness when the outcome of his
case is in line with applicants or petitioners similarly situated. See United States v.
Cooks, 589 F. 3d 173, 186 (5th Cir. 2009); United States v. Nikonova, 480 F. 3d 371,
376 (5th Cir. 2007). Where an argument that boils down to a disagreement with the
balancing of the pertinent factors in a fact-specific, fact-dependent judgement will not
be entertained by reviewing courts; the same refusal to consider such an argument is
appropriate in administrative appeals. See Gall v. United States, 552 U.S. 38, 51- 52
(2007) and United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621
11 http://www.uscis.gov/sites/default/files/err/D2%20-
%20Temporary%20Worker%20in%20a%20Specialty%20Occupation%20or%20Fashion%20Model%20(H-
1B)/Decisions_Issued_in_2015/DEC092015_04D2101.pdf
http://www.justice.gov/eoir/vll/intdec/vol25/3700.pdfhttp://www.justice.gov/eoir/vll/intdec/vol25/3700.pdfhttp://www.uscis.gov/sites/default/files/err/D2%20-%20Temporary%20Worker%20in%20a%20Specialty%20Occupation%20or%20Fashion%20Model%20(H-1B)/Decisions_Issued_in_2015/DEC092015_04D2101.pdfhttp://www.uscis.gov/sites/default/files/err/D2%20-%20Temporary%20Worker%20in%20a%20Specialty%20Occupation%20or%20Fashion%20Model%20(H-1B)/Decisions_Issued_in_2015/DEC092015_04D2101.pdfhttp://uscode.house.gov/view.xhtml?req=(title:5%20section:557%20edition:prelim)%20OR%20(granuleid:USC-prelim-title5-section557)&f=treesort&edition=prelim&num=0&jumpTo=truehttps://www.courtlistener.com/opinion/69193/united-states-v-cooks/?https://www.courtlistener.com/opinion/69193/united-states-v-cooks/?https://www.courtlistener.com/opinion/48277/usa-v-nikonova/http://www.ca5.uscourts.gov/opinions/unpub/15/15-50449.0.pdfhttp://www.ca5.uscourts.gov/opinions/unpub/15/15-50449.0.pdfhttps://law.resource.org/pub/us/case/reporter/US/543/543.US.220.htmlhttp://www.uscis.gov/sites/default/files/err/D2%20-%20Temporary%20Worker%20in%20a%20Specialty%20Occupation%20or%20Fashion%20Model%20(H-1B)/Decisions_Issued_in_2015/DEC092015_04D2101.pdfhttp://www.uscis.gov/sites/default/files/err/D2%20-%20Temporary%20Worker%20in%20a%20Specialty%20Occupation%20or%20Fashion%20Model%20(H-1B)/Decisions_Issued_in_2015/DEC092015_04D2101.pdfhttp://www.uscis.gov/sites/default/files/err/D2%20-%20Temporary%20Worker%20in%20a%20Specialty%20Occupation%20or%20Fashion%20Model%20(H-1B)/Decisions_Issued_in_2015/DEC092015_04D2101.pdf
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(2005). While Booker primarily deals with sentencing guidelines (and states that they
are advisory only, not mandatory), it also provides basic guidance on the concept of
reasonableness and counsels against blind rigidity in what are essentially subjective but
not discretionary areas of consideration. In other words, balancing tests are qualitative
analyses and evaluations which must be reviewed in the same or similar manner as the
initial determination, generally for reasonableness based upon substantial evidence.
D. MTReopen
In appeals to the BIA, it is possible for an individual to assert a claim to ineffective
assistance of counsel (IAC) due to the injustice than can result from it. Motions to
reopen may be based on IAC claims must meet the requirements set forth in Matter of
Lozada, 19 I&N Dec. 637 (BIA 1988). Lozada held, in pertinent part:
(1) A motion to reopen or reconsider based upon a claim of ineffective assistance
of counsel requires:
(1) that the motion be supported by an affidavit of the allegedly aggrieved
respondent setting forth in detail the agreement that was entered into with
counsel with respect to the actions to be taken and what representations
counsel did or did not make to the respondent in this regard,
(2) that counsel whose integrity or competence is being impugned be
informed of the allegations leveled against him and be given an opportunity
to respond, and
(3) that the motion reflect whether a complaint has been filed with
appropriate disciplinary authorities with respect to any violation of counsel's
ethical or legal responsibilities, and if not, why not.
[Slight reformatting for clarity.]
The problem with Lozada is that it is virtually inapplicable to benefits requests. In
benefits adjudications, the primary consideration is eligibility. The requestor is either
eligible or ineligible. The only potential effects that an IAC claim might have are in
tolling a response deadline which was missed due to negligence of counsel, or allowing
a late filing because the option was unidentified by ineffective counsel. The Lozada
https://law.resource.org/pub/us/case/reporter/US/543/543.US.220.htmlhttp://www.justice.gov/eoir/vll/intdec/vol19/3059.pdfhttp://www.justice.gov/eoir/vll/intdec/vol19/3059.pdf
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factors go further than necessary for the extremely limited relief potentially available in
the benefits context. In acquiescence to Lozada (1)(3), the errant attorney or accredited
representative should probably, as a minimum requirement, be reported to DHS and/or
EOIR Disciplinary Counsel12 but be allowed to do it concurrently.13 As for Lozada
(1)(1), without it there is no claim, but (1)(2), could be dropped if the suggestion for
(1)(3) is accepted and implemented because disciplinary proceedings before the BIA
are fair, with safeguards already built in. If agreeable to any of these suggestions, they
would not take up much space in a new regulation. These points are offered as
comments from an advocate for quality adjudications.
E. MTReconsider
If motions to reconsider are themselves reconsidered in a new AAO processual and
procedural rule then I urge openness and flexibility over limitations and
restrictions. The current regulation demands support from Precedent Decisions but
what about situations and cases that challenge the status quo? Moving forward will it
forever be necessary for a Circuit Court of Appeals to invalidate an earlier INS
Precedent? Will AAO never even consider revisiting earlier Administrative Precedents?
Looking to the past for guidance is worthwhile, but AAO seems to have missed those
many cases that overruled, modified, distinguished, reaffirmed, followed, or reinstated
earlier decisions, in part or in whole. In sum, reconsideration can be supported by new
law, matters of first impression, reinterpretations, or efforts to keep pace in a rapidly,
radically changing world. Serious legal arguments need serious consideration by AAO.
12 DHS and EOIR Disciplinary Counsel always alert each other of complaints anyway.
13 http://www.justice.gov/eoir/submit-complaint & http://www.justice.gov/sites/default/files/eoir/legacy/2014/08/26/eoir44.pdf
http://www.justice.gov/eoir/submit-complainthttp://www.justice.gov/sites/default/files/eoir/legacy/2014/08/26/eoir44.pdf
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COMMENTS ON NPRM: REQUIREMENTS FOR FILING MOTIONS AND ADMINISTRATIVE APPEALS PAGE 13
F. MTRR (Combined Motion)
As mentioned above, combined motions are the most difficult to craft and support.
They require meeting the independent criteria for two separate types of motions. It is
also important to keep in mind that combined motions are frequently the last bastion of
the incompetent or desperate. When pro se combined motions are filed, it is often a
direct result of an inability to pay for professional legal assistance. However, when a
combined motion is filed by counsel or accredited representative it will either be worth
serious consideration or be frivolous (or darn close). I urge AAO to adopted sanction
authority via notice-and-comment rule making, so that it may publicly and privately
censure practitioners due to filing patently frivolous appeals or motions. It would also
be worth the effort for AAO to adopt an expedited process for referral to Disciplinary
Counsel.
G. Motions In General
AAO sometimes wastes its efforts with bizarre and convoluted forays into the
absurd. Such absurdities usually come along in its weird and strict efforts to avoid
addressing the merits of the case before it. I suggest that AAO adopt a rule that allows
and encourages reaching the merits of the case whenever possible. On the other hand,
AAO should also have the authority to summarily dismiss meritless motions and
appeals, perhaps utilizing a simple form or form-letter, and maybe such simple form
could have standard language and check-boxes. Those motions and appeals that are
truly meritless and a waste of time and effort should be treated in summary fashion for
pure utilitarian reasons, i.e. waste as little time and effort as possible.
H. Appeals
The number one item for consideration for the NPRM is to actually define the word
appeal in AAOs regulations. The number two item on the AAO agenda needs to be
codification of the basic requirement for an appeal. As already recognized in the Form
I-290B instructions, an appellant must include a statement that specifically identifies an
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COMMENTS ON NPRM: REQUIREMENTS FOR FILING MOTIONS AND ADMINISTRATIVE APPEALS PAGE 14
erroneous conclusion of law or statement of fact in the decision being appealed but may
also include new evidence and additional arguments because AAO can review de novo.
Another major area of concern that AAO may wish to address in its regulations are
the maximum timeframes for the filing of appeals and motions. Such regulations need
to provide more flexibility while seeking to prevent abuse of the system. Perhaps
allowing a longer initial filing period, such as 90 days, but discontinuing the ability to
request an automatic extra 30 days to file a brief. In addition, since the initial period
suggested here is triple the current time, AAO should discourage requesting an
extension by making it highly difficult to obtain and assigning the ability to do so as
purely discretionary but only upon a clear and convincing demonstration of a need for
one. If the ability for practitioners to drag out filings in a piecemeal fashion in order to
demand multiple payments from clients is curtailed, quality of briefs should improve.
I. Federal Rules of Practice and Procedure As Models
The Chief Justice just released the Supreme Courts 2015 Year-End Report in
which he emphasized the significance of the newly released updated version of The
Federal Rules of Practice and Procedure14 which consists of a set of five volumes, plus
a set of standard forms, now being posted online as opposed to strictly printed versions.
Parts of these rules may be of use to AAO in creating some of its rules and/or guidance.
The first three of the volumes linked below will probably be more useful than the rest.
1) Federal Rules of Appellate Procedure:15
Table of Contents
Title I Applicability of Rules
14 http://www.uscourts.gov/rules-policies/current-rules-practice-procedure
15 FORMS: http://www.uscourts.gov/rules-policies/current-rules-practice-procedure/appellate-rules-forms
https://www.federalrulesofappellateprocedure.org/https://www.federalrulesofappellateprocedure.org/table-of-contents/https://www.federalrulesofappellateprocedure.org/title-i/http://www.uscourts.gov/rules-policies/current-rules-practice-procedurehttp://www.uscourts.gov/rules-policies/current-rules-practice-procedure/appellate-rules-forms
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COMMENTS ON NPRM: REQUIREMENTS FOR FILING MOTIONS AND ADMINISTRATIVE APPEALS PAGE 15
Title II Appeal from a Judgment or Order of a District Court
Title III Appeals from the United States Tax Court
Title IV Review or Enforcement of an Order of an Administrative Agency, Board,
Commission, or Officer
Title V Extraordinary Writs
Title VI Habeas Corpus; Proceedings In Forma Pauperis
Title VII General Provisions This contains many useful possibilities.
2) Federal Rules of Civil Procedure:
Table of Contents
Title I Scope of Rules; Form of Action
Title II Commencing an Action; Service of Process; Pleadings, Motions, and Orders
Title III Pleadings and Motions
Title IV Parties
Title V Disclosures and Discovery
Title VI Trials
Title VII Judgment
Title VIII Provisional and Final Remedies
Title IX Special Proceedings
Title X District Courts and Clerks: Conducting Business; Issuing Orders
Title XI General Provisions
Title XII Appendix of Forms [Abrogated] To be online16 moving forward.
16 http://www.uscourts.gov/forms/pro-se-forms
https://www.federalrulesofappellateprocedure.org/title-ii/https://www.federalrulesofappellateprocedure.org/title-iii/https://www.federalrulesofappellateprocedure.org/title-iv/https://www.federalrulesofappellateprocedure.org/title-iv/https://www.federalrulesofappellateprocedure.org/title-v/https://www.federalrulesofappellateprocedure.org/title-vi/https://www.federalrulesofappellateprocedure.org/title-vii/https://www.federalrulesofcivilprocedure.org/https://www.federalrulesofcivilprocedure.org/frcp/https://www.federalrulesofcivilprocedure.org/frcp/title-i/https://www.federalrulesofcivilprocedure.org/frcp/title-ii/https://www.federalrulesofcivilprocedure.org/frcp/title-iii-pleadings-and-motions/https://www.federalrulesofcivilprocedure.org/frcp/title-iv-parties/https://www.federalrulesofcivilprocedure.org/frcp/title-v-disclosures-and-discovery/https://www.federalrulesofcivilprocedure.org/frcp/title-vi-trials/https://www.federalrulesofcivilprocedure.org/frcp/title-vii-judgment/https://www.federalrulesofcivilprocedure.org/frcp/title-viii-provisional-and-final-remedies/https://www.federalrulesofcivilprocedure.org/frcp/title-ix-special-proceedings/https://www.federalrulesofcivilprocedure.org/frcp/title-x-district-courts-and-clerks-conducting-busines-issuing-orders/https://www.federalrulesofcivilprocedure.org/frcp/title-xi-general-provisions/https://www.federalrulesofcivilprocedure.org/frcp/title-xii-appendix-of-forms/http://www.uscourts.gov/forms/pro-se-formshttp://www.uscourts.gov/forms/pro-se-forms
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COMMENTS ON NPRM: REQUIREMENTS FOR FILING MOTIONS AND ADMINISTRATIVE APPEALS PAGE 16
Title XIII Supplemental Rules for Admiralty or Maritime Claims and Asset
Forfeiture Actions
3) Federal Rules of Evidence:
Table of Contents
Article I General Provisions
Article II Judicial Notice
Article III Presumptions in Civil Cases
Article IV Relevance and its Limits
Article V Privileges
Article VI Witnesses
Article VII Opinions and Expert Testimony
Article VIII Hearsay
Article IX Authentication and Identification
Article X Contents of Writings, Recordings, and Photographs
Article XI Miscellaneous Rules
4) Federal Rules of Criminal Procedure: Of little use here.
5) Federal Rules of Bankruptcy Procedure: Of even less use here.
J. Special Classes, Cases, and Treatment
If one can manage to work their way through the myriad of possibilities presented
in the foregoing rules, there will likely be a few choice morsels and useful tidbits. One
thing that I want everyone to recognize is that courts have powers that are different
from administrative tribunals. While AAO has stated that its relationship to the
adjudicators below is similar to that Circuit Courts of Appeals to District Courts, that
relationship has critical difference which guide my comments. Courts of Equity have at
their disposal associated equitable powers. Some situations faced by USCIS customers
https://www.federalrulesofcivilprocedure.org/frcp/title-xiii/https://www.federalrulesofcivilprocedure.org/frcp/title-xiii/https://www.rulesofevidence.org/https://www.rulesofevidence.org/table-of-contents/https://www.rulesofevidence.org/article-i/https://www.rulesofevidence.org/article-ii/https://www.rulesofevidence.org/article-iii/https://www.rulesofevidence.org/article-iv/https://www.rulesofevidence.org/article-v/https://www.rulesofevidence.org/article-vi/https://www.rulesofevidence.org/article-vii/https://www.rulesofevidence.org/article-viii/https://www.rulesofevidence.org/article-ix/https://www.rulesofevidence.org/article-x/https://www.rulesofevidence.org/article-xi/https://www.federalrulesofcriminalprocedure.org/https://www.federalrulesofbankruptcyprocedure.org/
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COMMENTS ON NPRM: REQUIREMENTS FOR FILING MOTIONS AND ADMINISTRATIVE APPEALS PAGE 17
seem to cry out for equitable solutions which out of fairness, the agency would
probably like to pursue and offer, but is not legally allowed to do so.
i. Court Approved Settlements
Over the years, USCIS, and Legacy INS before it, have been sued many
times. Numerous lawsuits either have been filed as class actions from the start,
or evolved into one. Whether the Judge directed it or the agency saw the
inevitable loss coming, many Settlements have been entered. USCIS has a
webpage17 devoted to them, three are posted for 2015, alone. Not all settlements
involve a class and thus are usually kept private; that is, the terms within them
are not made public. Only vague references to private settlements are found in
some of AAOs posted decisions. The terms remain a mystery to me because,
they tend to be blocked from general access in the court online system, PACER.
ii. Court Approved Stipulations
I checked a multitude of sources online for the definition of the word
stipulation.18 They all shared some basic elements. A stipulation is an
agreement between the attorneys from both sides of a dispute. They also
invariably state this in the context of a judicial proceeding, i.e., in a court battle.
The various sources I consulted indicated that courts usually like it when the
parties can reach an agreement outside of the courtroom which the court merely
needs to bless but can, and usually does, retain control over for monitoring
and enforcement purposes. Stipulations save limited resources which judges
really appreciate. Like a settlement, stipulations need a courts approval.
17 http://www.uscis.gov/laws/legal-settlement-notices/uscis-settlement-notices-and-agreements 18 http://legal-dictionary.thefreedictionary.com/stipulation and http://www.merriam-
webster.com/dictionary/stipulation and http://dictionary.reference.com/browse/stipulation and
http://www.vocabulary.com/dictionary/stipulation
http://www.uscis.gov/laws/legal-settlement-notices/uscis-settlement-notices-and-agreementshttp://www.uscis.gov/laws/legal-settlement-notices/uscis-settlement-notices-and-agreementshttp://legal-dictionary.thefreedictionary.com/stipulationhttp://www.merriam-webster.com/dictionary/stipulationhttp://www.merriam-webster.com/dictionary/stipulationhttp://dictionary.reference.com/browse/stipulation
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COMMENTS ON NPRM: REQUIREMENTS FOR FILING MOTIONS AND ADMINISTRATIVE APPEALS PAGE 18
iii. Equitable Estoppel
As mentioned above, settlements and stipulations require a courts approval.
The reason for the need for a courts approval is that they tend to draw authority
from the common law principle of equitable estoppel. Our Article III courts
were a formal codification of, in part, of common law courts of equity. Powers
within those common law courts of equity, unless specified otherwise in
statutory law, remain available in U.S. courts. Equitable estoppel is a protective
legal principle which either bars or commands some action. For example, if
USCIS previously accepted some form of evidence or testimony as a
longstanding practice but decided to abruptly stop, it would undoubtedly lead to
lawsuits, maybe a class action. Initially, an injunction would throw up a blanket
protection against negative consequences. After reaching a certain point in the
dispute, a court is likely to order mediation or perhaps the parties would have
voluntarily entered into negotiations. To avoid unfair and unjust results, while
disallowing anyone from gaining a benefit through fraud and misrepresentation,
certain processes and procedures would be hammered out. Certain facts would
be agreed upon in a series of stipulations as part of a settlement, which a court
could accept as is, or could modify or reject, especially, if the parties agreed to
something not amenable with a statute or the Constitution. Administrative
agencies lack common law powers our courts inherited from courts of equity.
iv. Prosecutorial Discretion
While administrative agencies lack common law powers our courts inherited
from courts of equity, they have other tools available to them. Executive branch
agencies are in charge of enforcing the law. They have the power to proscribe
regulations which will guide the implementation of those laws; how agencies
will discharge their duties, and how the affected public is expected to comply.
As primarily a benefits determination agency much of USCIS regulation
concern application and adjudication processes and procedures. With that said,
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COMMENTS ON NPRM: REQUIREMENTS FOR FILING MOTIONS AND ADMINISTRATIVE APPEALS PAGE 19
USCIS, as part of DHS, does have the ability to issue a notice to appear (NTA)
for removal proceedings. In addition, if USCIS denies certain benefits, that
circumstance can leave an individual amenable to exclusion or deportation,
collectively, removal from the United States. USCIS can exercise prosecutorial
discretion by declining to issue an NTA. Also, while not prosecutorial
discretion, per se, USCIS can grant certain forms of relief such as temporary
protected status (TPS) or, either significant public benefit or humanitarian
parole.19
v. Discretionary Abeyance
Similar to prosecutorial discretion or equitable tolling, the act of not
rushing into action is an option. Holding an action in abeyance is simply the
withholding of adjudication. See 8 C.F.R. 103.1(b)(18).20 The regulation
specifies authority to withhold adjudication when an investigation has been
undertaken, this could easily be expanded. When adjudication is withheld it
can be very frustrating for the requestor of that benefit but it might also be done
in their best interest. One may ask how that can be. If the immediate decision
would be a big fat denial, and possibly stripping the alien of interim benefits
19 Advance parole is not the same because it is an interim benefit, not prosecutorial discretion.
20 Withholding adjudication. USCIS may authorize withholding adjudication of a visa petition or
other application if USCIS determines that an investigation has been undertaken involving a
matter relating to eligibility or the exercise of discretion, where applicable, in connection with the
benefit request, and that the disclosure of information to the applicant or petitioner in connection
with the adjudication of the benefit request would prejudice the ongoing investigation. If an
investigation has been undertaken and has not been completed within one year of its inception,
USCIS will review the matter and determine whether adjudication of the benefit request should be
held in abeyance for six months or until the investigation is completed, whichever comes sooner.
If, after six months of USCIS's determination, the investigation has not been completed, the matter
will be reviewed again by USCIS and, if it concludes that more time is needed to complete the
investigation, adjudication may be held in abeyance for up to another six months. If the
investigation is not completed at the end of that time, USCIS may authorize that adjudication be
held in abeyance for another six months. Thereafter, if USCIS determines it is necessary to
continue to withhold adjudication pending completion of the investigation, it will review that
determination every six months.
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such as advance parole and employment authorization, then a delay can be a
good thing. As for applicability to AAO, holding a decision in abeyance can be
in everyones best interest when an underlying critical legal question is wending
its way through the courts, or at the BIA, BALCA, or AAO itself, etc... This is
especially appropriate when the answer to the question will affect many
associated cases, or perhaps a whole class of USCIS customers.
vi. Discretionary Authority
Some benefits are dispensed through an exercise of discretion. Among such
cases, adjudicators will likely encounter both the easiest and most difficult cases
of their careers. I say that because the exercise of discretion involves the
subjective evaluation of evidence in order to find facts. Then one must weigh
those facts against laundry lists of factors which come from various sources.
The factors come from policy decisions from management and from numerous
administrative decisions. Courts can only have an influence by declaring that a
particular case decision was arbitrary, capricious, and an abuse of discretion. As
for the factors on those lists, a court can quash a prejudicial or invidious factor.
vii. Benefit Specific Procedures
As alluded above, there are some very specific procedures that do not apply
universally. Unfortunately, generalized regulations can be, and have been
inappropriately applied to a particular case or class of cases. There are different
standards of proof depending on the benefit (or relief) sought. This is so
because certain statutes contain specific standards but most do not. It has been
accepted via Precedent Decisions that, unless stated otherwise, the applicable
standard of proof is by a preponderance of the evidence. The general
regulations need to include disclaimers or warnings of the fact that there
might be benefit specific regulations which take precedence over them. Benefit
specific regulations derive from statutory language or precedent decisions.
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VI. Conclusion.
AAO has its work cut out for it but the task is doable. There are other administrative
agencies that have adjudicatory functions including appellate review. There are samples
of regulatory schemes that work and some that are lacking. Actually, if you look long
and hard enough, fault can be found with anything. The point is to copy the best and
forget the rest.
One last thing I want to point out is how much AAO has changed. If you look back
to FN 10, which repeats Dors FN 9, it is evident that this administrative body is much
bigger than what existed in 1989, and so is the BIA. In 1989, AAU consisted of five
appellate examiners and a Chief. More recently, AAO has a Chief and Deputy, and
according to a summary from a stakeholder engagement21dated February 2, 2011, .
is divided into nine branches seven subject matter branches, one fraud branch,
and one management support branch. Currently, the AAO has 88 employees, 59 of
whom are adjudications officers. The AAO staff includes adjudicators with extensive
experience at USCIS and/or the Immigration and Naturalization Service (INS) and 66
attorneys. Generally, AAO adjudications officers specialize in a particular type of
case, but the AAO moves officers between branches and retrains, as necessary. The
AAO will be adding a number of new positions in Fiscal Year 2011
Dated this 3rd day of January, 2016.
/s/Joseph P. Whalen
21http://www.uscis.gov/sites/default/files/USCIS/Outreach/Public%20Engagement/National%20Engagement%20Pag
es/2010%20Events/October%202010/AAO%20Stakeholder%20Engagement_Executive%20Summary.pdf
http://www.uscis.gov/sites/default/files/USCIS/Outreach/Public%20Engagement/National%20Engagement%20Pages/2010%20Events/October%202010/AAO%20Stakeholder%20Engagement_Executive%20Summary.pdfhttp://www.uscis.gov/sites/default/files/USCIS/Outreach/Public%20Engagement/National%20Engagement%20Pages/2010%20Events/October%202010/AAO%20Stakeholder%20Engagement_Executive%20Summary.pdfhttp://www.uscis.gov/sites/default/files/USCIS/Outreach/Public%20Engagement/National%20Engagement%20Pages/2010%20Events/October%202010/AAO%20Stakeholder%20Engagement_Executive%20Summary.pdf
2016-01-03T17:27:32-0500Joseph P. Whalen