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

Rating: 4 votes, 5.00 average.

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

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

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