November 4, 2010 | In: 刘宗坤律师
上诉办公室发布两个移民局必须遵守的案例
上诉办公室发布两个移民局必须遵守的案例
刘宗坤律师按：2010年10月20日，行政上诉办公室（AAO）把此前做出的两个判决升格为案例，成为移民局必须遵守的案例法。案例之一涉及移民申请的举证标准问题。在美国法律中，民事和行政法程序中的举证标准一般是“占优势的证据”（preponderance of the evidence），而刑法程序的举证标准则是“确凿无疑的证据”（beyond reasonable doubt）。界于二者之间的是“明确可信的证据”（clear and convincing evidence）。移民法属于行政法。此案例重申，移民申请的举证标准是“占优势的证据”，而不是“确凿无疑的证据”或“明确可信的证据”。按照民事诉讼和刑事诉讼对举证标准的区分，如果“确凿无疑的证据”必须达到99%的可靠性，那么，“占优势的证据”达到51%的可靠性即可满足举证要求。前者必须排除合理的怀疑，而后者则容许合理的怀疑。案例之二涉及I-140批准之前利用AC21中的规定转换工作的问题。
Christina T. Le律师在下文中结合我们的经验对这两个重要案例做出解析，以飨读者。***********************************************************
The AAO Designates New Precedent Decisions
Christina T. Le, Associate Attorney at Liu & Associates, PLLC
I. Background
On October 20, 2010, the Administrative Appeals Office (AAO) designated two decisions as precedent. This marked the first time in more than a decade that the AAO has issued a precedent decision. Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Acting Assoc. Comm., Aug. 7, 1998) delineating the three-prong criteria for National Interest Waiver was the last precedent decision issued. These new precedent decisions follow U.S. Citizenship and Immigration Services Director Alejandro Mayorkas’s goal expressed earlier this year to have the agency issue more precedent decisions as part of “USCIS’s commitment to the clear and consistent application of immigration law.”
Because the majority of the United States follow the common law, precedent decisions are extremely valuable in the legal community because they clarify statutory and regulatory laws and provide guidance to both the government and legal practitioners, allowing for greater predictability in the outcome of cases. Unless the decisions are reversed by a higher court, precedent decisions have the same force of law as codified statutes and regulations, and their holdings and legal reasoning are binding. This means that precedent decisions establish a rule that must be followed when deciding future cases, and legal practitioners can rely on and cite to the decision in the same manner that they would rely on and cite to a statute or regulation.
In immigration law, precedent decisions issued by the AAO are binding on the Department of Homeland Security. The AAO does not have a codified process for designating precedent decisions, but it generally looks for cases with a “novel issue of law or fact and when it is necessary to provide clear and uniform guidance concerning the proper implementation and administration of the statute and regulations where applicable regulations are unclear or silent.”
The following is a brief description of the two new precedent decisions and how it may affect petitioners/beneficiaries/applicants applying for immigration benefits:
II. Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010):
This case establishes the standard of proof in administrative immigration proceedings: “Preponderance of the evidence” (unless a different standard of proof is specified by law). Please keep in mind that there is a distinction between “standard of proof” and “burden of proof.” The burden of proof relates to which party must submit evidence to prove the case. In administrative immigration proceedings, the burden of submitting evidence to prove eligibility for immigration benefits is placed on the petitioner or applicant. The standard of proof relates to how much evidence is required to prove the case.
“Preponderance of the evidence” means for most I-140 and I-485 cases, the petitioner or applicant must submit evidence that demonstrates his/her claim is “probably true.” The petitioner or applicant will satisfy the standard of proof if the evidence leads the adjudicator to believe that the claim is “more likely than not” or “probably” (i.e. greater than 50%) true (even though there might be some minor doubts). The adjudicator reviews the quality of the evidence not the quantity to “examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true.” If the adjudicator can raise a material doubt, then the adjudicator can issue a request for evidence or deny the petition or application with an explanation of why the adjudicator believes the claim is probably not true. (Matter of Chawathe also contains holdings related to the requirement for establishing continuous residence in naturalization proceedings under INA § 316(b) and the nationality of a qualifying American firm or corporation.)
As we have always advised petitioners and applicants, the content or quality of each document submitted in support of their petitions or applications is more important than the quantity or number of documents submitted. Perhaps due to a misunderstanding that “more is better,” many petitioners and applicants try to submit hundreds of pages of documents to support their petitions and applications. Many of these documents often have no effect on the case or can actually have adverse effects. Our firm has mentioned before that the USCIS has warned many times against excessive documentation and has cautioned that petitions submitted with an excessive number of supporting documents can lead to delay in adjudication, more requests for evidence, and denial.
Thus, in the presentation of cases and the organization of evidentiary exhibits, our attorneys closely review each document a client provides and decide whether it should be submitted in the initial filing, reserved in the event of requests for evidence, or not submitted. Supporting evidence should focus on the materials that satisfy the basic evidentiary requirements set in the statute and regulations. Submitting numerous documents that do not have a logical nexus to the case or are at best marginal evidence can have negative consequences. Accordingly, it is important that evidence submitted in the initial filing be straightforward, so the adjudicators can quickly review the documents and have a clear picture of the case.
Clarification of the standard of proof is critical for all legal matters, especially immigration cases. If the adjudicator uses an incorrect standard of proof, for example, a higher standard such as “clear and convincing evidence,” this may result in denial of a petition or application that otherwise should have been approved under the proper standard of “preponderance of the evidence.” This is often an issue that arises in Requests for Evidence and appeals. In cases where our attorneys see the USCIS apply an improper standard and request “clear” evidence, we always raise the issue and make proper arguments in our RFE responses and appeals because it can make a difference between the approval and denial of a case.
III. Matter of Al Wazzan, 25 I&N Dec. 359 (AAO 2010):
This case clarifies issues related to the portability provisions for I-140 Immigrant Petitions in the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). This is commonly remembered as the law that allows foreign nationals with I-485 applications that have been pending for 180 days or more to “port” to a new employer. At the time AC21 was enacted, concurrent filing (submitting both Forms I-140 and I-485 together) was not allowed for employment-based immigrant petitions. Thus, Form I-140 Immigrant Petition had to be approved before the applicant could file Form I-485. Introduction of the concurrently filing process in 2002 led to unanticipated issues where many foreign nationals had I-485 applications that were pending for more than 180 days and unadjudicated I-140 petitions, resulting in uncertainty regarding how an unadjudicated I-140 petition would remain “valid” for a new position.
The AAO ruled that an I-140 petition is not “valid” just because it was filed and pending more than 180 days. To be “valid” the I-140 petition must be filed for a foreign national who is “entitled” to the requested classification (i.e. a non-frivolous filing) AND the petition must have been “approved” by USCIS.
This decision is in line with a December 2005 memorandum issued by USCIS clarifying the processing and adjudication of I-140/I-485 where the foreign national beneficiary has ported off of an unapproved I-140 after the I-485 had been pending for 180 days. Thus, Matter of Al Wazzan is a good reminder to foreign nationals who seek to port while the I-140 is still pending. They must ensure that the I-140 is a non-frivolous filing and would be approvable on its merits if it had been adjudicated within 180 days.
Given the inconsistency of USCIS adjudications, AAO precedent decisions have been long awaited and sorely needed. We anticipate additional decisions will be forthcoming in the next year and will continue to provide updates on new rulings as they arise.
********************************************************************刘宗坤律师（Z. Zac Liu, Esq.），法学博士（J.D., Valparaiso University School of Law）、哲学博士(Ph.D., Peking University)，伊利诺伊州最高法院及联邦法院执照，曾担任Valparaiso University Law Review的编辑和审稿人， 著有中英文书籍多种，散见于中美各大学图书馆。执业以来，他已代理无数名来自世界各地的科研人员和专业人士成功获得绿卡及各类非移民签证，尤其在国家利益豁免（NIW）、特殊人才（Eb-1A）、杰出教授和研究员（EB-1B）、PERM 劳工证、H-1B工作签证等方面积累了丰富的经验。有兴趣提出申请的读者，可将简历发往[email protected]。刘律师会在两个工作日内对符合条件的申请做出免费评估。
白凯玲律师 (Kellie Pai, Esq.)，法学博士(J.D.，University of Houston Law Center)、文学学士(B.A., University of Texas at Austin)，德克萨斯州最高法院执照，联邦法院执照，刘宗坤联合律师事务所专业移民律师。
Christina T. Le 律师，法学博士(J.D.，University of Houston Law Center)、文学学士(B.A., Northwestern University)，德克萨斯州最高法院执照，联邦法院执照，曾任Department of Justice驻Houston移民法庭Attorney Advisor，现任刘宗坤联合律师事务所专业移民律师。
Sabrina Ong律师，法学博士 (J.D., Michigan State University College of Law)、文学学士 (B.A., Oklahoma State University)，密西根州最高法院执照，曾任Michigan State University Law Review编辑，密西根上诉法院Prehearing Research Attorney，现任刘宗坤律师事务所专业移民律师。
Karen Egonis 律师，法学博士(J.D.，University of Houston Law Center)、文学硕士 (M.A., University of South Carolina)、文学学士(B.A., Texas A&M University)，新罕布什尔州最高法院执照，现任刘宗坤联合律师事务所专业移民律师。 Liu & Associates, PLLCWells Fargo Tower, 8th Floor6161 Savoy Drive, Suite 830 Houston, Texas 77036Tel： (800) 878-1807(713) 974-3893 Fax: (866) 608-2766Email: [email protected]: www.niwus.com