ILW.COM - the immigration portal Immigration Daily

Home Page


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

移民日报

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily


Chinese Immig. Daily




The leading
immigration law
publisher - over
50000 pages of
free information!
Copyright
1995-
ILW.COM,
American
Immigration LLC.

View RSS Feed

Rami Fakhoury on IT Immigration

The Fight Book: Chapter 2: Litigation Issues, Part A

Rating: 22 votes, 5.00 average.

  Rami Fakhoury and Mark Levey


Compyright @2010Fakhoury Law Group/Rami Fakhoury


 


A. Appeals to the AAO and Federal Courts 


 1.       APA Presumption of Reviewability


 


There is a strong presumption by the courts that final administrative action is reviewable.  That presumption extends to immigration matters, as well, except that Congress has explicitly precluded judicial review over many discretionary determinations of USCIS, including non-immigrant visa petitions, and restricted judicial review to "questions of law and constitutional issues."


The Administrative Procedures Act 701 (a) allows courts to review administrative action "except to the extent that (1) statutes preclude judicial review."


The U.S. Supreme Court held in Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967) that the APA embodies a "basic presumption of judicial review; The Abbott Labs decision required a showing of "clear and convincing evidence" for restrictions on judicial review. Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984) (discussing how the judicial presumption favoring judicial review can be overcome); See also Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995), restating the presumption and emphasizing its importance when an agency has a strong interest in the outcome of the case; Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986) (noting "the strong presumption that Congress intends judicial review of administrative action").


 


While the REAL-ID Act clarified that discretionary judgments of Service Center Directors and the AAO are normally not reviewable by federal courts, like the removal decisions of EOIR Immigration Judges and the BIA, constitutional claims and questions of law may still be heard.    It bears repeating, by statute, the U.S. Courts of Appeal retain original subject matter jurisdiction over "colorable constitutional claims and questions of law" arising from decisions made by decision-makers at USCIS, AAO, EOIR and the BIA.[1]


 In INS v. St. Cyr, 355 U.S. 289 (2001) upheld the presumption that immigration-related administrative proceedings, when such issues are raised, remain under the review of federal courts, regardless of the jurisdiction-stripping provisions of AEDPA, IIRIRA, and, now, by extension, the REAL-ID Act.


 As a normal matter, if contesting a decision made by USCIS -- in addition to raising a constitutional issue and/or error of law -- the plaintiff must still show either an abuse of discretion or a failure to exercise discretion. 


In order to prevail in an APA action in an H-1B matter, the plaintiff must at minimum show that a party was "adversely affected or aggrieved" as the result of improperly adjudication of benefits by USCIS.   The standard of review in these substantive issues remains, in effect, abuse of discretion.  [APA 706_] A complaint would have to demonstrate that AAO abused its discretion by impermissibly deviating from established norms and binding authorities.  The court would likely apply the "rational basis" standard to determine whether the agency action bore a reasonable relationship to the public policy purposes of the statute.  The optimal outcome would be for the reviewing court to find that the Service's H-1B adjudications were tainted by invidious discrimination, in which case the standard would be somewhat more relaxed for the plaintiff, and a judgment against the government would go along with a showing of a "pattern and practice" of unlawful agency action against a cognizable class of litigants, e.g., Indian IT consulting companies. 


 



  1. 2.       APA Actions:  Prerequisites and Due Process Issues


The Administrative Procedures Act (APA), 5 U.S.C. 701-706, provides plaintiffs a separate cause for action to seek review, with certain reservations, of any decision rendered by a federal administrative agency that causes injury or complaint for which the agency does not provide a remedy.  Jurisdiction for an APA action rests under the Federal Issue statute at 28 USC Sec. 1331.  The APA standard of review is: "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law."  The statutory prerequisites for an APA review are generally held to be as follows:



  1. 3.       Final Agency Action or de facto Rule or Binding Norm


 


The APA does not subject to judicial review every act of an agency, but rather limits its waiver of sovereign immunity to review of "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court." 5 U.S.C. 704. "When, as here, review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the 'agency action' in question must be 'final agency action.'" Lujan v. National Wildlife Federation, 497 U.S. 871, 882 (1990).


 


In Center for Auto Safety v. NHTSA, 452 F.3d 798, 806 (D.C. Cir. 2006), the court held that a challenged action must "either (1) reflect 'final agency action,' 5 U.S.C. 704, or (2) 'constitute a de facto rule or binding norm that could not properly be promulgated absent the notice-and-comment rulemaking required by 553 of the APA."


 



  1. 4.       Final Agency Action Must Have Legal Force or Practical Effect


 


In addition, for an administrative decision to have finality, it must have some impact on the operations of an aggrieved person or company.  Administrative inspections without any attached penalty or practical effect (beyond mere inconvenience) are not ripe for APA actions: ("[T]he finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual concrete injury . . . ."); F.T.C. v. Standard Oil Co. of California, 449 U.S. 232, 243 (1980) (finding no final agency action in issuing FTC complaint because complaint had no legal force or practical effect on the company's daily operations); Abbs v. Sullivan, 963 F.2d 918, 925-26(7th Cir. 1992) (Final agency action . . . '[o]rdinarily means a final order imposing some sort of sanction.')" Sentient Flavors v. National Institute for Occupational Safety and Health (NIOSH),  No. 1:08-cv-00949-RLY-DML (USDC S.D. Ind., 05/28/2009).  The hardship an immigrant visa applicant experiences as a result of failure to comply with a de facto rule promulgated by the BIA is great, which may include removal from the United States. "Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness." Patel v. Immigration & Naturalization Service, 638 F.2d 1199, 1980 U.S. App. LEXIS 12970 (9th Cir. 1980); cites, Bridges v. Wixon, 326 U.S. 135, 154, 65 S.Ct. 1443, 1452, 89 L.Ed. 2103 (1945).


 


 



  1. 5.       Right of APA Review of Persons Adversely Affected or Aggrieved in the Immigration Context Long Established


Administrative Procedure Act, 5 U.S.C. 1001 et seq., 5 U.S.C.A. 1001 et seq. 


1009. Judicial review of agency action.


'Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion.


'(a) Right of review.


'Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof.


'(b) Form and venue of proceedings.


'The form of proceeding for judicial review shall be any special statutory review proceeding relevant to the subject matter in any court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action * * * in any court of competent jurisdiction. * * *'


Shaughnessy v. Pedriero, 99 L.Ed. 868; 349 U.S. 48; 75 S.Ct. 591 (1955)[2]:


 


"The legislative history of both the Administrative Procedure Act and the 1952 Immigration Act supports respondent's rights to full judicial review of this deportation order."


 


 



  1. 6.       Continued Judicial Review of Constitutional Claims or Questions of Law After REAL-ID


 


In the REAL ID Act (2005), Congress expressly stated its intention that discretionary decisions pertaining to certain categories of aliens be held as unreviewable.  However, REAL ID stipulated that Courts of Appeal may continue to extend review in the immigration context for basic constitutional issues, even for criminal alien removals, a function which the courts in fact continue to often perform.  The amendment expressly permits continued "review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section." See, 8 USC 1252(a)(2)(D); 8 U.S.C. 1252(a)(1) and (b)(9); also, see, related, American Bar Association Commission on Immigration Report, pp. 7-8. http://www.abanet.org/publicserv/immigration/107c_due_processjud_rev.pdf



  1. 7.       The APA found to extend to H-1B matters  


An APA judgment was granted in a 2006 decision against DHS where USCIS and AAO neglected to consider critical evidence on the record.  In Fred 26 Importers v. U.S. DHS, the court found that the proper standard for an abuse of discretion finding supporting a summary judgment determination of an APA claim is the "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law" standard.  The District Court found "a clear error of judgment" on the part of the agency, citing N.W. Motorcycle ***'n v. U.S. Dep't. Of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994):[3]










 



[Headnote 4] Judicial review of the denial of an H-1B visa petition is governed by the Administrative Procedure Act, 5 U.S.C.S. 702, 706. A reviewing court must set aside agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C.S. 706(2)(A) . The court must base its determination on the administrative record. In reviewing an agency's decision under the arbitrary and capricious standard, the court must determine whether the agency based its decision on a consideration of the relevant factors, and whether the agency made a clear error of judgment. In order to uphold an agency decision under the arbitrary and capricious standard, the court must find that the evidence before the agency provided a rational and ample basis for its decision.



NOTE: In granting jurisdiction, the Fred 26 Importers decision of August 23, 2006 did not discuss the possible effect of the REAL-ID Act which apparently was not raised at issue by the government, but presumably that court could have reached the same conclusion that plaintiff's constitutional right to due process was violated and an error of law attended the USCIS and AAO failure to consider critical evidence on the record.


 



  1. 8.       APA Actions Distinct From Due Process and Equal Protection Complaints Under the Fifth and Fourteenth Amendments


In addition to actions brought under the APA, plaintiffs may also seek constitutional review of agency actions and decisions under the Equal Protection Clause of the 5th and 14th Amendments.   To raise this additional issue, plaintiff must present a cognizable underlying constitutional claim to denial of due process along with prima facie showing of a loss or grievance.  Thus, plaintiffs must have a protected liberty or property interest to sustain a due process claim. 


Due process claims are held to involve separate issue from APA actions.  The Sentient Flavors v NIOSH decision, for instance, reminds us that inspections are not adjudicative functions, and thus APA review may not attach.   When Sentient's APA claim against NIOSH failed, it's due process argument could not stand independently, and was also dismissed.   Constitutional protections may not attach to agency fact-finding with that "does not partake of adjudication." Furthermore, as the court states, the APA and traditional constitutional jurisprudence do not share the same legal groundwork:


[The inspection in question] is not an adjudicatory proceeding, but is a non-adjudicatory public health inspection; thus, the traditional notions of Fifth Amendment Due Process do not attach. See Hannah v. Larche, 363 U.S. 420, 442 (1960) (the Due Process Clause applies "when governmental agencies adjudicate or make binding determinations which directly affect the legal rights of individuals" but not "when governmental action does not partake of an adjudication, as for example, when a general fact-finding investigation is being conducted."); see also Fraternal Order of Police, D.C. v. Rubin, 26 F.Supp.2d 133, 144-45 (D.D.C. 1998) (no due process rights exist where the agency is exercising a fact-finding function instead of an adjudicatory function). Sensient contends it may independently pursue its claim under the Due Process Clause because it is seeking non-monetary relief. Sensient's argument conflates the APA with traditional constitutional jurisprudence.


 


Note here that while the FDNS-DS has a fact-finding function, it operates as an extension of the USCIS adjudications process.  Insofar as it impacts benefits eligibility issues, either at the time of initial petition examination, or upon review of the record attendant to applications for extension of stay, or as part of an investigation that may lead to petition revocation, there is no doubt that FDNS-DS is part of the adjudications process, and traditional protections of the Fifth Amendment Due Process do attach.


However, other courts have stressed a requirement for mandatory process behind the benefit sought under the APA, and even imposed a requirement for a showing of protected property or liberty interests.  This line of cases is most developed in the prisoner and parole contexts, where the rights of the plaintiff are extremely limited by law, prisoners being expressly deprived of their liberty interests as a consequence of conviction.   There is thus some confusion between APA and constitutional claims, and at times the requirement for a showing of property or liberty interests has bled over into other sorts of APA actions where the rights of the moving party may to some degree be called into question.


 The Fifth Amendment's Due Process Clause prohibits the deprivation of "life, liberty, or property, without due process of law." U.S. Const. amend. V.   The APA does not mention such interests as a statutory requirement, merely that plaintiff be "adversely affected or aggrieved" by an agency action.  


In arguing constitutional claims, there must be reference to deprivation of a right or interest inherent in the Constitution or an entitlement created by statute.  A statute or regulation only creates the liberty interest necessary for a due process violation if it meets two requirements. Valdez v. Rosenbaum, 302 F.3d 1039, 1044 (9th Cir. 2002). "First, the law must set forth 'substantive predicates' to govern official decision-making and, second, it must contain 'explicitly mandatory language' i.e., a specific directive to the decision-maker that mandates a particular outcome if the substantive predicates have been met." Id. (emphasis added). 


Therefore, defective process alone, without a reasonable expectation of entitlement or benefit, or an interest therein, cannot form the basis for a due process claim.  This is somewhat similar to the requirement attached to the APA that the agency action must have some legal force or practical effect, such as (but not limited to) a penalty.  Second, there must be some "substantive predicates" and "explicit mandatory language" determining the outcome of the administrative process in a justiciable constitutional claim.   In other words, the process must be conducted by some rules - or the outcome or the rules, themselves, may be at issue.    To recap, in a constitutional claim the plaintiff must have some protected interest in the benefit sought; deprivation of so-called "acts of grace", such as a grant of voluntary departure or work authorization in removal proceedings, normally will not receive constitutional protection, but may be reviewed separately under different APA standards, which will involve a determination of the range of discretion that is allowed the decision-maker.  The outcome may be the same, but not necessarily so.


The process that a court must go through in determining whether to grant APA jurisdiction is well illustrated in the following extract:[4]


Section 702 of the APA generally allows a person who "suffers legal wrong" or who is "adversely affected or aggrieved" by a federal agency's action to obtain judicial review of that action. 5 U.S.C. Sec. 702 (1982). We also must apply the generally applicable presumption in favor of judicial review, which requires "clear and convincing evidence" of preclusion to deprive the federal courts of jurisdiction. See, e.g., Block v. Community Nutrition Institute, 467 U.S. 340, 104 S.Ct. 2450, 2456-57, 81 L.Ed.2d 270 (1984); Abbott Laboratories v. Gardner, 387 U.S. 136, 140-41, 87 S.Ct. 1507, 1510-11, 18 L.Ed.2d 681 (1967); Cardoza v. Commodity Futures Trading Commission, 768 F.2d 1542, 1551 (7th Cir.1985). But see Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 1655-56, 84 L.Ed.2d 714 (1985) (presumption of nonreviewability applies to agencies' decisions not to take enforcement action).4 The APA denies judicial review in two specific situations. 5 U.S.C. Sec. 701 (1982). Section 701(a)(1) denies review if Congress expresses its intent in a statute (here the Parole Act) to preclude judicial review. See Block v. Community Nutrition Institute, 467 U.S. 340, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984). If the search for statutory intent regarding judicial review is unavailing, judicial review will still be presumed unless the statutory scheme provides no meaningful guideline by which to define the limits of the agency's discretion, leaving the Bureau's decision "committed to agency discretion by law" under section 701(a)(2). See Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (presumption for reviewability applies unless agency action challenged is a decision not to enforce).


There are cases where the two standards appear to have been conflated.  In another corrections-context case, the First Circuit cites the Supreme Court's Thompson case for prerequisites to finding a state-created due process right.  This situation comes up where the plaintiff has no rights other than those conveyed by the state in creating a process to grant some benefit, but where that determination is bound by some sort of rules that limit discretion.  These rules are termed "substantive predicates" which limit the discretion of state officials with "mandatory language":[5]


The Court has held that "a State creates a protected liberty interest by placing substantive limitations on official discretion." Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983). In the correctional context, laws and regulations have been found to limit discretion when the State thereby establishes "substantive predicates" governing official decisionmaking while simultaneously employing " 'explicitly mandatory language,' i.e., specific directives to the decisionmaker that if the regulations' substantive predicates are present, a particular outcome must follow." [Kentucky Board Corrections v.] Thompson, 109 S.Ct. at 1909-10 [-10, 104 L.Ed.2d 506 (1989); Helms, 459 U.S. at 466, 103 S.Ct. at 868; Wright v. Smith, 21 F.3d 496, 498 (2d Cir.1994); Purnell v. Lord, 952 F.2d 679, 684 (2d Cir.1992); Gittens, 891 F.2d at 40.]


Many companies sponsoring H-1B and other non-immigrant benefits seekers have clearly met some or all of the prerequisites for an APA action, and there are also separate constitutional issues of due process denial.  These distinct due process issues, however, need to be carefully sifted out and presented as separate grounds for relief.   Petitioners and beneficiaries are both impacted, but have separate rights and grounds for claims.  All parties involved in the defective USCIS benefits process and FDNS inspections have suffered demonstrable economic damages resulting from USCIS de facto rules, such as the improper burden of proof and documentary demands attendant to Defensor and Neufeld dicta.  As well as the unfair loss of business revenue and incomes, there is also the loss of reputation involved.  The USCIS policy is not reasonably related to the statute, and it has proven virtually impossible for many petitioners in the IT consulting industry to provide a detailed client site itinerary for all workers going forward for the entire period of the petition, as long as three years.  That unfairly disadvantages some companies, and an entire industrial sector of consulting firms, where the duration of employee assignments at client sites may be less than long-term and predictable. 


This discriminatory and unfair outcome was recognized by the Service in 1998 Proposed Regulations [6]and a series of policy directives that followed from legacy INS, binding guidance that still stands and have never been formally superceded by published regulation.  The agency has imposed "de facto policy and binding norms" without allowing opportunity for public comment - and without letting the public know what the actual requirements are -- as the APA requires.  


Finally, where regulations specify procedures, such as hearings or adjudicative process, the agency binds itself to provide a statement of reasons for denying benefits, and failure to do so constitutes an abuse of discretion.  Furnari v. Warden, 218 F.3d 250 (3d Cir. 2000) Id. at 255.  See also Schroeder v. West, 212 F.3d 1265, 1270 (Fed. Cir. 2000); Moret v. Karn, 746 F.2d 989, 992 (3d Cir. 1984) (An agency abuses its discretion when it fails to follow its own regulations and procedures).


 



  1. B.     STANDARDS OF REVIEW


There is the distinction drawn in APA case law in standards of review that courts apply.  Since the 2001 Mead decision, informal agency rulemaking is subject to closer review under the four-part test found in Skidmore (1944).  Some decisions have applied what has been termed a "near indifference" standard, see, e.g., Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 212--213 (1988)   Other courts, nonetheless, still apply a highly deferential alternative test that informal agency rules will be upheld unless they are "plainly erroneous or inconsistent with the regulation." [Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)]  


In addition to those standards applied to informal rulemaking, there are parallel standards that apply to an APA 706(2)(A) "abuse of discretion" determinations.


1.  The Rational Basis Standard Applied to Abuse of Discretion


There are essentially two lines of cases relevant to decisions made in adjudications of non-immigrant visa petitions bearing on agency abuse of discretion.


The first, and more limited basis for a finding of abuse of discretion cited in immigration cases is the rational basis standard.  That is defined in Delno v. Market St. Ry. Co., 124 F.2d 965, 967 (9 Cir. 1942) as a decision that "is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view" under discussion.


 


2.  The Invidious Discrimination Standard


The second line of cases dealing with abuse of discretion in the immigration context is the Bal v. Moyer decision, 883 F.2d 45, (7 Cir. 1989).  That decision incorporates the invidious discrimination standard, traced back through Williams v INS (1st Cir. 1985) to Wong Wing Hang (7th Cir., 1966).  This articulates a more expansive basis for obtaining declaratory judgment to enjoin any administrative action that:


"was made without rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group."


That reasoning in Williams is in turn based on the 6th Circuit Balani decision:


In LeBlanc v. I.N.S., 715 F.2d 685 (1st Cir. 1983), we applied the following standard to the Board's refusal to reopen: " The denial will be upheld unless it 'was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.'" Id. at 693 (quoting Balani v. I.N.S., 669 F.2d 1157, 1161 (6th Cir. 1982)).


That decision allows for a test of invidious discrimination behind agency actions, along with examination of the essential rationality behind a decision in review for abuse of discretion.   It has been taken in later cases to require that the BIA and AAO provide a rational explanation for failure to consider substantial evidence on the record.  This more expansive view springs from an old and hallowed line of reasoning.  Judicial review of the exercise of discretion by an administrative agency admits for a Due Process test, in the view of Justice Learned Hand, along with examination of Congressional intent and rationality of decision-making.


 


3.  Congressional Intent


As the 7th Circuit found in its 1966 Wong Wing Hang ruling, abuse of discretion by the BIA in a Motion to Reopen to apply for INA Sec. 243 Suspension of Deportation [section deleted] involves Due Process, Invidious Discrimination and/or Congressional Intent considerations: 


Under a more limited notion discretion is held to be abused only when the action "is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view" under discussion. See Delno v. Market St. Ry. Co., 124 F.2d 965, 967 (9 Cir. 1942). A narrower meaning seems more appropriate when a court is reviewing the exercise of discretion by an administrative agency or an executive officer as distinguished from hearing an appeal from a decision of a judge -- particularly so when the relevant statute expressly confides "discretion" to the agency or officer; this assists in reconciling what conflict there is in 10 of the APA. Without essaying comprehensive definition, we think the denial of suspension to an eligible alien would be an abuse of discretion if it were made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as an invidious discrimination against a particular race or group, or, in Judge Learned Hand's words, on other "considerations that Congress could not have intended to make relevant." United States ex rel. Kaloudis v. Shaughnessy, supra, 180 F.2d at 491[emphasis added]


 


4.  Combined Standard


This approach suggested by Justice Hand seems to be most consistent with the basic schema of the Administrative Procedures Act (APA), in which questions of Due Process and Congressional Intent, along with rationality of decisions, are all critical to judicial review of agency actions for abuse of discretion.   In litigation, the court should be urged to adopt this combined standard instead of the more basic and limited rationality test.


 


5.   Arbitary and Capricious Decision-making


The abuse of discretion standard the court is most likely to apply in an immigration-related action brought under the APA is the standard cited in  Fred 26 Imps., Inc. v. United States Dep't of Homeland Sec., 445 F. Supp. 2d 1174, 2006 U.S. Dist. LEXIS 61986 (C.D. Cal. 2006):


Judicial review of the denial of an H-1B visa petition is governed by the Administrative Procedure Act ("APA"), 5 U.S.C. 702, 706. A reviewing court must set aside agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. 706(2)(A)  . The court must base its determination on the administrative record. Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th Cir. 1984)


Fred 26 Imps. is a rare H-1B case where plaintiff petitioner was awarded summary judgment under the APA.   That case turned on the failure of the AAO to address evidence submitted on the record in the form of advisory opinion letters from professors attesting to the specialty nature of the position offered.   While the record supported that the position did not require a degree in a specific specialty, the AAO abused its discretion by not considering the professors' letters, which were the only evidence offered regarding the complexity of the job. The AAO did not discuss specific job duties, why they were not specific or complex, or why the size of the company impacted their nature.  The failure to exercise discretion may be considered even in the context of REAL-ID's jurisdictional restriction.  It may be held as a ground for a finding of abuse of discretion whereas a decision that is based in the record, even if the decision-making can be shown to be imperfect, probably will not be reviewed.  A clear showing of deprivation of rights or error in law by the agency, such as a decision that is not based in the record will result in a judgment against the agency.







[1] See, REAL-ID Act, See, 8 USC 1252(a)(2)(D); 8 U.S.C. 1252(a)(1) and (b)(9); also, see, related, American Bar Association Commission on Immigration Report, pp. 7-8. http://www.abanet.org/publicserv/immigration/107c_due_processjud_rev.pdf





[3] See, Fred 26 Imps., Inc. v. United States Dep't of Homeland Sec., 445 F. Supp. 2d 1174, 2006 U.S. Dist. LEXIS 61986 (C.D. Cal. 2006)  NOTE: The AAO has taken judicial notice of Fred 26 Importers in upholding a California Service Center EB-5 Alien Entrepreneur decision, Matter of WAC 07 150 50321, http://www.uscis.gov/err/B7%20-%20Alien%20Entrepreneurs/Decisions_Issued_in_2009/Apr162009_01B7203.pdf .   




[4] See, Turner v. U.S. Parole Commission, 810 F2d 612, (7th Cir., 1987) , http://ftp.resource.org/courts.gov/c/F2/810/810.F2d.612.84-2240.html




[5] See,  Rodi v. Ventetuolo, 941 F.2d 22 (1st Cir., 1991), http://federal.court.com/f.2d/941/941.F2d.22.90-1092.html




[6] See,  Federal Register/Vol. 63, No. 107/Thursday, June 4, 1998/Proposed Rules/pp. 30419-23, http://ftp.resource.org/gpo.gov/register/1998/1998_30421.pdf.



Submit "The Fight Book: Chapter 2: Litigation Issues, Part A" to Facebook Submit "The Fight Book: Chapter 2: Litigation Issues, Part A" to Twitter Submit "The Fight Book: Chapter 2: Litigation Issues, Part A" to Google Submit "The Fight Book: Chapter 2: Litigation Issues, Part A" to StumbleUpon Submit "The Fight Book: Chapter 2: Litigation Issues, Part A" to Reddit Submit "The Fight Book: Chapter 2: Litigation Issues, Part A" to Digg Submit "The Fight Book: Chapter 2: Litigation Issues, Part A" to del.icio.us

Tags: None Add / Edit Tags

Comments

Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: