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  1. Respecting the Rights of Children at the US Border: Pt. 2, by Roger Algase


    The following will continue and update my comments posted on June 22 concerning treatment of unaccompanied children arriving at the US border (referred to officially as "UAC's"). As mentioned in my previous post, the number of these children has markedly increased, to the point where an estimated 50,000 to 60,000 have been apprehended by the Border Patrol since October, 2013. As mentioned in my previous post, the average age of these children is only 14, and hundreds of those apprehended have been only 2 years old or younger. It is hard to argue with the administration's description of this as a "humanitarian crisis".

    Most of the children involved are from three poverty-stricken Central American counties, Guatemala, Honduras and El Salvador, which are also among the most violent in the world in terms of their homicide rates. Unlike children from Mexico, those from Central America cannot be immediately repatriated under US law because they are not from contiguous countries. Therefore they must remain in the US pending a determination of their legal rights, if any, to asylum or other relief from deportation.

    According to a June 13, 2014 Congressional Research Service (CRR) Report: Unaccompanied Alien Children: An Overview, 73 percent of the UAC's arriving at the US border in the first 8 months of FY 2014 (i.e. since October 2013), were from the above three central American countries; only 25 per cent were from Mexico.

    How do the law and current administration policies provide for the treatment of these children? On paper, their treatment would appear to be a significant improvement over the conditions under the "Legacy INS" regimen described in the 2010 Harvard Civil Rights-Civil Liberties Law Review article discussed in my previous post.

    As mentioned on that article, the 2002 Homeland Security Act made the Office of Refugee Resettlement (ORR) a division of Health and Human Services (HHS), responsible for the care of UAC's in custody pending determination of their rights. if any, to remain in the US.

    In addition, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) directs the DHS, in conjunction with other federal agencies, to develop policies and procedures to make sure that UAC's are adequately screened to see if the may have a right to remain in the the US or are safely repatriated if sent home.

    ICE also has to turn UAC's who are not from a contiguous country over to HHS-ORR within 72 hours after apprehension at the border, according to the TVPRA.

    Again, on paper, the responsibilities of the ORR appear to be child-friendly. The above CRR report states:

    "[The TVPRA], which made significant reforms to policies on UAC, directed that HHS ensure that the UAC 'be promptly placed in the least restrictive setting that is in the best interest of the child'. The HSA requires that ORR develop a plan to ensure the timely appointment of legal counsel for each UAC, ensure that the interests of the child are considered in decisions and actions related to the care and custody of a UAC and oversee the infrastructure and personnel of UAC residential facilities, among other responsibilities."

    However, how well does this work out in practice?

    The CRR report states:

    "To deal with the current influx of UAC, HSS/ORR has made use of a network of group homes operated by nonprofit organizations in Texas and other parts of the country. These nonprofit organizations have experience providing the types of services that UAC need (e.g., medical, nutritional, educational. In addition, HHS has reached out to the Department of Defense for additional assistance in housing UAC."

    However, when one looks at the numbers that the various DOD facilities which the CRR article mentions, the total numbers of UAC that all of them put together were expected to be able to accommodate as of June 6, 2014, were only 2,800 children, only about 5 per cent of the total who have arrived at the border during the current fiscal year!

    This would go a long way to explain the disturbing photos of young children being piled up like sardines in makeshift "warehousing" facilities which are now appearing in the news on daily basis.

    However, even this limited use of military facilities to provide temporary shelter to UAC's is attracting criticism from right wing politicians such as Senator James Inhofe (R-Oklahoma) in a recent statement concerning plans to house 600 children at Ft. Sill.

    Obviously more Congressional funding is need to deal with this crisis, but the CRR report concludes by showing that attempts to increase necessary funding have fallen far short up to now.

    Essentially, the UAC crisis is just one more part of the larger issue of where America's immigration policy priorities lie. Is policing our borders our highest priority, no matter how much suffering and hardship this may cause to thens of thousands of young children, the most vulnerable and least culpable immigrants of all, or are we a nation that honors basic civil rights and humanitarian considerations?

    More than 50,000 UAC's are now putting America to this test.
    ______________________________
    Roger Algase is a New York lawyer and a graduate of Harvard College Harvard and Harvard Law School. He has been practicing business and family immigration law for more than 30 years.

    His interest in the legal rights of minors began more than half a century ago when his article The Right to a Fair Trial in Juvenile Court was published in 3 Journal of Family Law 292 (1963).






    Updated 06-23-2014 at 12:15 PM by ImmigrationLawBlogs

  2. Is the DHS Respecting the Legal Rights of Central American Children? By Roger Algase


    The news reports have been full of stories about the estimated up to 60,000 unaccompanied children from Central America who have arrived at the US border and cannot be returned immediately because they are not Mexican.

    These reports have focused on the fact that these children are now America's latest immigration political football, but little, if anything, has been written about the issue of whether they have any legal rights, and it so, whether the Department of Homeland Security is showing any awareness of or respect for these legal rights.

    See, for example, Immigrant children tread treacherous political landscape, CNN, June 18, (listed as a news item in the June 19 Immigration Daily), and US border patrol struggles to shelter thousands of unaccompanied children, The Guardian, June 18).

    The following comments will deal only with the neglected legal issues involved in this children's mass migration, not the political ones, and will suggest ways in which further discussion and action might help to resolve these legal issues.

    My comments are based on an excellent article in the Harvard Civil Rights-Civil Liberties Law Review by Wendy Young and MeganMcKenna of Kids in Need of Defense ("KIND") entitled: The Measure of a Society: The Treatment of Unaccompanied Refugee and Immigrant Children in the United States, 45 H.C.R.C.L. Law Review 247 (2010). This article should be the starting point for anyone interested in the legal rights of these children.

    The article begins with the description of a 15-year old girl from China who was put in a boat to the US by her own parents in the 1990's in order to flee that country's rigid family planning laws, under which she had no rights to citizenship, education or medical care.

    The article describes how upon arrival in the US, she was held in a juvenile jail for eight months and detained for an additional four months after being granted political asylum. At her asylum hearing, she could not wipe away her tears because her hands were chained to her waist.

    Young and McKenna state:

    "Although progress has been made since this young girl's case, the United States has a long way to go before its handling of these children truly takes into account their unique obstacles as children processed in a system that was designed for adults."

    One might think that the most basic concept of American law regarding the treatment of children, namely that their best interests should always be considered by officials charged with enforcing the law, would also apply to immigrant or would-be immigrant children who are in the United States.

    But this doctrine has been expressly ruled out, at least as far as immigration judges are concerned. Young and McKenna cite a May 22, 2007 DOJ memorandum entitled Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children which states:

    "The concept of 'best interest of the child' does not negate the statute or the regulatory delegation of the Attorney General's authority and cannot provide a basis for providing relief not sanctioned by law."

    In other words, elementary humanity toward the least powerful and most defenseless members of America's immigrant population is not part of our legal system.

    Granted, the above is a DOJ memorandum, not a DHS one, and it is meant by its terms to apply only in immigration court. The above two authors also point out that there has been a significant improvement in the current DHS system of treating unaccompanied immigrant children compared to the previous "Legacy INS" approach.

    The INS, according to the authors,

    "applied the same model of punitive detention to children as it did to adults, Children were often detained in criminal facilities, commingled with the juvenile delinquent population. Even if held in one of the INS's special children's centers, children faced detention-like conditions and had to contend with facility administrators more attuned to the priorities of the INS than the needs of the children."

    This harsh approach toward children in immigration detention was challenged in Flores v. Meese 681 F. Supp 665 (C. D. Cal. 1988), which ultimately led to a 1996 settlement agreement providing that all children in INS custody should be "treated with dignity, respect and special concern for their particular vulnerability as minors".

    The Flores settlement also provided that the INS would place each child in the "least restrictive setting appropriate" and, when appropriate, release the child to a person or organization able to ensure his or her well being and appearance in court.

    Unfortunately, as the above article also points out, the Flores settlement has never been enacted into law or codified by formal regulations, and its spirit has still not been put fully into effect, despite improvements made by the Homeland Security Act of 2002 when the Office of Refugee Resettlement (ORR), was given responsibility for developing placement options for unaccompanied children as an agency within the Department of Health and Human Services (HHS).

    But Young and McKenna state that even after Flores, unaccompanied children were still detained for long periods of time, and children, including those with mental health or behavioral problems, were detained in secure facilities, where accusations of abuse were rampant. And the involvement of ORR under the 2002 law, while making some improvements, has not solved all of these problems.

    Young and McKenna write:

    "The overarching obstacle to proper treatment for unaccompanied immigrant children is a system that was never designed to take children into account. For the most part, these immigrant programs continue to treat children and adults identically under US law."

    However, while there has been some improvement in the area of ensuring adequate care, custody and placement of unaccompanied immigrant children, providing them with adequate legal representation has proved even more challenging, according to the above authors.

    They point out that the US government does not provide appointed counsel for unaccompanied children in immigration proceedings and that more than half of these children do not have lawyers, even though they are bound by the same legal standards and burden of proof as adult immigrants.

    Despite a pilot pro bono program set up by ORR in 2005 for unaccompanied immigrant children, much more remains to be done to ensure that they have adequate legal representation. Young and McKenna state:

    "While these steps are positive and will result in greater numbers of represented children, the system remains inherently unfair and inconsistent with American principles of justice and due process, because it propels children through a complex immigration system without the guaranteed guidance of legal counsel."

    They also point out the inadequacy of relying only on pro bono legal assistance:

    "Immigration detainees are often located in rural areas where pro bono services are not readily available, such as along the Texas border where legal resources are scarce. In addition, some children's cases are not accepted by pro bono counsel either because their cases require swift and immediate action or because their cases involve considerable complexities."

    In addition to providing guaranteed legal representation, Young and McKenna also recommend providing unaccompanied children with child welfare experts to protect the child's best interests and provide as much information about the child's situation as possible in order to assist in the determination of eligibility for relief.

    In terms of procedure, the authors also recommend:

    "EOIR should systematically implement, through regulations, juvenile dockets in every immigration court that include the use of child-friendly procedures, as is recommended by the Operating Policies and Procedures Memorandum [see DOJ's May 22, 2007 memorandum referred to above] and Legacy INS's Guidelines for Children's Asylum Claims."

    In their conclusion, Young and McKenna write:

    "Progress has been made in recent years toward acknowledging the unique challenges that arise when a child arrives in the United States without his or her traditional caregiver. However, the question remains whether the immigration system as a whole will ever truly move away from enforcing U.S. immigration laws as if its only subjects were adults with the capacity to make immigration decisions of their own volition."

    As mentioned above, this article was written four years ago, when even though detention conditions were an issue, the main focus was on providing justice for unaccompanied children in immigration court. At that time, evidently, no one could have anticipated that over 50,000 unaccompanied children would arrive at the US border in the space of only nine months, and that some of them would be barely old enough to walk.

    But this is exactly what has happened, according to a June 20 article in Fusion, Hundreds of Toddlers Said to Be Taken Into Custody at the Border. This article reports that about 52,000 unaccompanied minors have been apprehended at the border since October 2013. 378 of them were children two years old or younger and 95 were less than a year old.

    The Fusion article quotes a spokesperson for the Border Patrol as saying:

    "Apprehending infants and children can be difficult for Border Patrol agents; our facilities are not designed with people that young in mind...We often have minimal amounts of diapers, formula and other items for the care of infants and toddlers."

    But unaccompanied infants and toddlers arriving at the border are part of America's immigration picture today, and, according to the above Fusion article the average age of unaccompanied children arriving at the US border is now only 14.
    Many of these children are now being detained in deplorable, inhuman conditions. Lack of access to lawyers or proper legal procedures is only part of the problem.

    America's leaders need to stop using these children in order to score political points, and instead come up with an immigration system which will provide them not only with the necessities of law, but the necessities of life.
    ________________________________
    Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing business and family immigration law for more than 30 years.

    His practice includes, in addition to other types of immigration cases, H-1B and O-1 work visas, and green cards based on labor certification and extraordinary ability as well as opposite or same sex marriages. His email address is algaselex@gmail.com





    Updated 06-23-2014 at 06:30 AM by ImmigrationLawBlogs

  3. What Rights Must USCIS Provide Before Making a Fraud Finding? By Roger Algase


    Few if any determinations by USCIS officers have more serious consequences than a finding that a petitioner or applicant for an immigration benefit has committed fraud or willfully misrepresented a material fact. Fraud or willful misrepresentation can be the immigration equivalent of a death sentence, except in the very limited circumstances where a waiver may be available based on extreme hardship to a USC or LPR spouse or parent of the person against whom a fraud/willful misrepresentation finding has been made.

    In my June 6, 8, and 10 posts, I discussed in some detail how a Texas Service Center adjudicator recently made a fraud or willful misrepresentation determination against one of my clients without giving her any prior notice of intent to make such a finding or opportunity to reply to the fraud charge, and by dismissing or inaccurately denying the existence of evidence of her veracity and truthfulness with regard to the facts at issue which was in the record and which the TSC had accepted as valid in at least two previous notices to the petitioner, neither of which made the slightest mention of any alleged fraud or willful misrepresentation.

    The following AAO decision will illustrate the type of notice and opportunity to reply which USCIS is required to give a petitioner or applicant before making a fraud finding. (I have no connection or involvement whatsoever with the following case.)

    In LIN 07 145 52475 (January 28, 2010), a case which originated with the USCIS Nebraska Service Center, an employer filed an I-140 petition on behalf of the beneficiary as an accountant after first obtaining an employment third preference (EB-3) labor certification. The labor certification and I-140 petition required at least a bachelor degree in accounting.

    The AAO found that the beneficiary had misrepresented and had used false documents in claiming that he had the degree.

    The AAO's finding was based on a statement that the beneficiary had previously made to an ICE officer admitting that he had used his brother's degree, altered to show the beneficiary's name, and that the beneficiary had only attended the school in question for one or two weeks, without ever graduating.

    Despite this clear evidence of fraud, the AAO was scrupulously careful in give all parties full and adequate notice of the fraud charge and the opportunity to rebut it. According to the above decision, the Nebraska Service Center had not denied the petition on the basis of fraud, but only for failure to meet the educational requirements.

    Therefore the fraud issue was raised for the first time by the AAO itself. First, the AAO reopened the NSC's denial decision on the AAO's own motion and issued a Notice of Intent to Deny (NOID) alleging fraud.

    The AAO then issued a second notice, of derogatory information (NDI) to both the petitioner and the beneficiary separately. The NDI described the beneficiary's above ICE interview in detail. Therefore both were given a full opportunity to rebut the fraud charge.

    They did not do so, and obviously, based on the beneficiary's previous admission to ICE that he had used a fraudulently altered degree certificate, neither was in a position to do so. But the important point is that even in an egregious case such as this one, where the beneficiary had clearly committed fraud and had no defense to this charge, and the employer withdrew the petition for this reason, they were both given every possible opportunity to rebut or dispute the fraud charge before the AAO entered its determination.

    Because of the seriousness and severe immigration (not to mention possible criminal) consequences of a USCIS fraud finding, the above high standard should be held to in every DHS and USCIS proceeding where fraud or willful misrepresentation is alleged.

    Does a person against whom USCIS makes a fraud finding without giving prior notice of the fraud charge or an opportunity to reply have a remedy against USCIS or its officers for official misconduct or denial of basic civil rights?

    This question will be explored in an upcoming post.
    ____________________________________________
    Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing business and family immigration law for more than 30 years.

    His practice includes, in addition to other types of immigration cases, H-1B and O-1 work visas, and green cards based on labor certification and extraordinary ability as well as opposite or same sex marriages. His email address is algaselex@gmail.com




    Updated 06-23-2014 at 05:27 AM by ImmigrationLawBlogs

  4. Unfounded Fraud Determination Denies Due Process, Pt. 3. By Roger Algase


    The following is the third part of my discussion of a recent USCIS Texas Service Center decision in which a previously approved I-140 petition based on EB-1 extraordinary ability as a jewelry designer was revoked with a finding of "fraud or willful misrepresentation of a material fact", even though neither the Notice of Intent to Revoke (NOIR) nor any other USCIS notice in this case had raised any question about the truthfulness or sufficiency of any of the petitioner's statements or evidence. Therefore she had no opportunity to defend herself against this extremely serious charge, which has the potential to destroy her entire career in the US.

    In my last post, I also showed that one of the examples which the TSC used to support its finding of fraud or material misrepresentation was based on its totally inexplicable refusal to accept a letter from a well known US women's organization, signed by one of its managers on the organization's letterhead, confirming that the petitioner had won a certain Crafts award sponsored by that organization. The Notice of Revocation argued that the letter in question was merely a "recommendation" letter and that the petitioner had failed to submit "additional evidence" of having won the award.

    But in its NOIR, the TSC had accepted that same letter as proof that the Petitioner had won the award and had not asked for additional evidence. The NOIR had sought to downplay the award because the award in question was "only for women", but it had never disputed that the petitioner had actually won the award.

    To use the fact that the TSC suddenly changed its rationale for refusing to accept the award at the last moment, in a way that directly contradicted its earlier NOIR, as the basis for a finding of "fraud" or "misrepresentation" goes against any conceivable standard of due process or fundamental fairness.

    In this post, I will show another example of the TSC's unfairness and disregard for the basic standards of adjudication, which was equally egregious, if not even more so, in this same case.

    One of the other items of evidence that the petitioner had submitted to show that she met the EB-1 requirments was her membership in an association in her field (of jewelry design) which required outstanding achievement as a condition of membership.

    The petitioner had originally submitted evidence of her membership in two professional associations. In response to an RFE issued before her petition was initially approved, she in essence abandoned her claim that one of the organizations met the above standard, because that organization did not require outstanding achievement in order to join. But there was no question raised about the fact that she had truthfully stated she was a member.

    In the case of the other organization, however, she had submitted a letter from its president, on the organization's letterhead, showing that it was arguably the leading jewelry designers association in her country, that she was one if its most important members, and that at the time she was admitted to membership, the organization had required outstanding achievement as a condition of membership.

    Neither the RFE issued before petition approval nor the NOIR issued after approval but prior to revocation raised any question about her membership in this organization. The only issue raised was about its membership requirements.

    As mentioned in the first installment of my comments, I did not represent the petitioner at the time of her original submission three years ago or petition approval over two years ago. Therefore I had to rely on her own statement that she initially submitted proof of membership in the above two organizations. But I felt that I could do so because the Texas Service Center itself, in both the RFE and the NOIR, stated that she had submitted evidence of her membership in both organizations!

    However, to make sure that the above letter from the president of the organization describing the membership requirements at the time she joined was not overlooked, I attached an additional copy of that letter with my response to the NOIR on behalf of the petitioner.

    But this was not all. Three months after I submitted my response, I found out from a Congressional office which I had asked for assistance (the office of New York Senator Kirsten Gillibrand, to which I owe a great debt of gratitude), that the TSC was claiming not to be able to locate my response at all (even though I had a signed FedEx receipt for it). I then sent a duplicate of the response, including the above letter, to the TSC again.

    Therefore, it was clear that the TSC had received this important letter not just once, but at least three times! Based on this letter and the TSC's own statements in the RFE and NOIR that the petitioner had submitted evidence of membership in both organizations, it is inconceivable that a competent adjudicator, acting in good faith. could have accused the petitioner of falsely claiming to be a member of these two organizations. But that is exactly what the TSC adjudicator did in the final Notice of Revocation.

    The adjudicator wrote:

    "Although counsel submitted a printout of the history and mission of the [name of organization omitted], the printout did not reflect the membership requirements, nor did the petitioner submit any documentary evidence supporting her claim of membership in the organization. Without documentation [sic] evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof [citations omitted].

    No evidence of membership in the [name of other professional organization omitted] was
    submitted." (Italics added.)

    But it was not only the "assertions of counsel" that were involved. The TSC itself asserted that the petitioner had submitted evidence of membership in both organizations, first in the RFE issued before the petition approval, and then again in the NOIR which sought to revoke the approval.

    Not only did the adjudicator who wrote the final Notice of Revocation apparently have a problem locating an important letter by the president of one of the organizations which had been submitted to the TSC at least three times (and signed for by the TSC mailroom twice, to my personal knowledge based on FedEx receipts), but that adjudicator evidently had not even read the above two previous notices issued by the TSC itself which directly contradicted his own unsupported allegation of fraud or material misrepresentation by the petitioner in the TSC's final decision to revoke the petition.

    And it was on this kind of grossly negligent handling of its own file that the TSC based this final determination of fraud or willful misrepresentation against the petitioner!

    It is all too easy for USCIS to dismiss this kind of careless or incompetent decision-making by one of its adjudicators as a simple "training issue". But this overlooks the enormous, irreparable harm and prejudice to the petitioner in the meantime.

    It is one thing to have any petition revoked after waiting nearly two years while expecting a green card on the basis of approval of that petition. Whether the TSC had the legal authority to revoke this petition on any grounds at all is an entirely separate issue which I have written about previously.

    But a determination of fraud or willful misrepresentation is equivalent to an immigration death sentence. Except in a few limited circumstances, no waiver from this finding is available, and, absent a waiver, no other visa or immigration benefit is open to someone who has such a determination on his or her record.

    Moreover, if this matter, which is now on review at the TSC pursuant to my motion to reopen and reconsider the decision on behalf of the petitioner, is sent to the AAO, it could take up to six months or a year for the AAO to review the case and withdraw the fraud or willful misrepresentation finding, as one would certainly expect it to do. What would the petitioner do in the meantime?

    The adjudicator who made this unfounded fraud/misrepresentation finding, in direct conflict with previous TSC notices in the same case and without giving the petitioner a chance to respond to these grave charges, must have known that he would be doing severe and irreparable damage to the petitioner. This raises a question of possible bias, not merely lack of competence.

    But merely blaming an individual USCIS adjudicator for this gross miscarriage of justice is not a sufficient answer to the question of why something like this was allowed to happen.

    Ultimately, one has to look at the system which led to this total disregard of fundamental fairness and elementary due process on the part of the TSC.

    Was the adjudicator under pressure from his (and I have good reason to believe, based on information from the TSC itself, that he is a man) superiors to revoke a certain number of petitions in order to meet a predetermined revocation quota?

    Was meeting this presumed revocation quota so important to higher officials at the TSC that the adjudicator might have had reason to believe that he had to find some pretext, any excuse at all, to revoke the petition, no matter how little sense it made and how unfair the procedure?

    Was the totally unjustified fraud or material representation finding thrown in as an afterthought at the last moment to try to make the revocation decision seem "stronger" in order to carry out the above objectives?

    Of course, I have no evidence of this. But the way this case was handled does not exclude such a possibility, as an astute colleague whom I have discussed this case with has suggested.

    In view of the current administration's Culture of No toward legal immigration in this age of unprecedented numbers of RFE's, petition denials, site visits, employer fines, and similar actions aimed at "protecting" America against the most capable, educated and hardworking foreign professionals, anything is possible.

    As more details become available about what led to this travesty by the TSC (and appropriate action is being taken to make sure that further details will become available), I will be happy to share additional information about this case with ilw.com readers.
    _____________________________
    Roger Algase, a New York lawyer and graduate of Harvard College and Harvard Law School, has been practicing business and family immigration law in New York City for more than 30 years. His email address is algaselex@gmail.com





    Updated 06-10-2014 at 12:38 PM by ImmigrationLawBlogs

  5. Unfounded Fraud Decision Without Notice Denies Due Process, Pt. 2. By Roger Algase


    In my previous post, I showed that the Texas Service Center violated the basic due process rights of an I-140 extraordinary ability (EB-1) self-petitioner by making a determination of fraud in the course of revoking her I-140 approval, when the Notice of Intent to Revoke (NOIR) had not alleged that she had made any misrepresentation, or claimed that there was any reason whatsoever to doubt the veracity and accuracy of the various statements she had made or evidence she has submitted concerning her career and achievements as a jewelry designer.

    Nor did the NOIR allege that there were any new facts that had come to the attention of the TSC since the original approval which would cast doubt on the truthfulness or credibility of the petitioner or the more than 200 pages of evidence she had submitted in support of her claim to have met the rigorous statutory and regulatory requirements for showing EB-1 extraordinary ability.

    As mentioned in my last post, the NOIR was based entirely on the issue of whether the petitioner's various achievements met the legal requirements for the above classification. The truth of the facts of her career as she had stated them was never in question.

    Therefore, it was like a bolt out the blue when the final Notice of Revocation made the following statement:

    "In addition, 8 Code of Federal Regulations Section 205.2(a) (C.F.R. Section 205.2(a) states in pertinent part: I certify under penalty of perjury under the laws of the United States of America that this petition, and the evidence submitted within, is all true and correct. By signing its [sic] name under this declaration, the petitioner took legal responsibility for the truth and accuracy of any evidence submitted in support of Form I-140. Therefore, USCIS is also revoking this Form I-140 with a finding of fraud or willful misrepresentation of a material fact." (Emphasis and italics added.)

    The noteworthy aspect of the above statement is that it does not say what the alleged fraud consisted of or what materialfacts the petitioner had allegedly misrepresented! Does this statement mean that merely by signing her name to a petition containing the conclusion that the facts of her career made her eligible for EB-1 extraordinary ability classification, she committed fraud or misrepresentation because the TSC adjudicator who revoked her petition disagreed with that conclusion?

    If that were the case, then every petitioner or applicant whose case is ultimately denied by the USCIS for whatever reason would automatically be guilty of "fraud" or "misrepresentation". merely for having asserted that the facts of the case were sufficient to show eligibility under applicable law for the requested benefit!

    However, in the case at hand, without saying specifically that the reasons for the "fraud" or "material misrepresentation" determination were, the Notice of Revocation did mention three instances in which the petitioner had allegedly made factual claims about her career without submitting sufficient evidence to back the claims up.

    The only problem was that in all three instances, the NOIR, which was the stated basis for revoking the petition, specifically stated that the petitioner had indeed provided evidence to support her factual claims! Therefore, the NOIR and the final Revocation Decision were in diametric conflict with each other about this issue. They could not both have been accurate.

    The first conflict between the NOIR and the final Notice of Revocation involved a design (Crafts) award which the petitioner had won from a well known US women'a organization. The organization in question has been active in fighting discrimination against women for 120 years, and according to its letter mentioned below. it had previously granted awards (in unrelated fields) to some of the most famous women in America's entire history.

    The petitioner had submitted a letter signed by one of the managers of this organization on the organization's letterhead confirming that the petitioner had won its Crafts award. The letter also provided details about the history of the organization itself, the background of the award and the selection process.

    The NOIR did not question the validity of the letter or the fact that the petitioner had in fact won the award. Instead, it tried to dismiss the significance of the award on the grounds that the competition in question was "only for women and therefore not open to everybody. (Emphasis added. I also wrote about this apparent indication of gender bias by the TSC in my December 27, 2013 post regarding this same case.)

    (As mentioned in my previous post, the NOIR also made the same allegation about other competitions in which the petitioner had received recognition - though she was not a first prize winner in any of those. However, the record showed that at least two of these other competitions were open to men as well as women, indicating that it was the Texas Service Center, not the petitioner, that was having a problem making accurate statements about the evidence.)

    But in the final Notice of Revocation, the TSC changed its tune about the award from the above women's organization and, for the first time, tried to argue that the petitioner had failed to provide evidence of having won the award in the first place!

    The final decision stated:

    "In reference to the first prize at the 2003 [name of award omitted] competition, the petitioner failed to submit evidence that she was the actual winner of the award. The only evidence provided was a reference letter from [name, title and name of sponsoring organization omitted]. Additional proof was not provided." (Emphasis added.)

    The TSC adjudicator did not explain why a letter from the organization that actually granted the award was not acceptable evidence of having won the award! Nor had the NOIR questioned the sufficiency of the sponsoring organization's letter or asked for additional evidence.

    But the decision continued:

    "Based on the evidence for the first prize winner USCIS is unable to confirm that the petitioner is the winner of the award... In [citation omitted] it was determined that doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition." (Emphasis added.)

    In other words, because of the TSC adjudicator's irrational refusal to accept a letter from the organization which granted an award as evidence of having won that same award, though the TSC had never questioned the validity of the letter before and had no valid reason for doing so, this now meant that all of the petitioner's voluminous other evidence in support of her petition was also open to question!

    This violates every notion of fundamental fairness. However, this was not the only issue that raised serious questions about the TSC adjudicator's competence and objectivity.

    To be continued in Part 3
    ________________________
    Roger Algase, a New York lawyer and graduate of Harvard College and Harvard Law School, has been practicing business and family immigration law in New York City for more than 30 yea
    rs. His email address is algaselex@gmail.com

    Updated 06-10-2014 at 12:50 PM by ImmigrationLawBlogs

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