USCIS Gets First “Adopted Decisions” Designated as AG Precedents


USCIS Gets First “Adopted Decisions” Designated as AG Precedents

October 20, 2010 2:00 PM | Posted by Divine, Robert | Print this page
The Department of Justice (DOJ) has designated and published as "Precedent" two decisions that USCIS previously had issued as "Adopted" decisions. This adds strength and consistency to interpretations of U.S. immigration law within the Executive Branch of U.S. Government and reflects better coordination between the Department of Homeland Security and DOJ.

While I served as "Acting Deputy Director" of U.S. Citizenship & Immigration Services (USCIS) during the second half of 2005, I consulted with Bob Wiemann, then the Director of the USCIS Administrative Appeals Office (AAO), about how to make better use of the good work that the AAO was doing in analyzing immigration decisions.

We asked colleagues in DOJ about designating some decisions as "precedent decisions" that become part of the Immigration & Nationality Decisions published through the Board of Immigration Appeals (BIA) in DOJ. So published, a decision is binding interpretation on all executive departments, including DHS, DOJ, and the Department of State (who issues visas). The process to get precedent publication seemed daunting, first to get the wheels of DHS to agree to ask DOJ officially, but then to work through the layers of DOJ. This had never happened since DHS was created in 2003.

Admittedly impatient with all that, Wiemann and I concocted the "Adopted Decision. This would be an AAO decision that USCIS would identify and publish on its web site along with a memorandum from the USCIS Director (well, me, at the time) instructing all USCIS adjudicators to follow it and letting the public know and understand. In addition, the relevant USCIS Operations Directorate (Domestic or International) issued memos to the field telling them to follow the decisions' essential holdings.

The first Adopted decision was Matter of Chawathe. That case held that when someone needs to establish that a publicly traded company is an American company (whose employees sent abroad for longer stints can keep their green cards and naturalization eligibility more easily than others), that will be presumed if it is incorporated in the U.S. and traded only on one or more stock exchanges in the U.S. Chawathe also reiterated a more fundamental point: that the standard of proof in immigration cases is usually the "preponderance of the evidence" -- more likely than not. Sometimes adjudicators forget this and need reminding.

The second adopted decision was Matter of Wazzan. Wazzan had filed several successive tenuous permanent residence petitions as a manager/executive transferring to the U.S. within a multinational business. He combined those filings with a concurrent application for adjustment of status to permanent residence, the final step. When USCIS sat on one of the sets of filings for more than 180 days before denying the petition, he claimed the benefits of a special rule allowing a petition to "remain valid" for other employment in the "same or similar occupation." The AAO held that to "remain valid," the petition had to be valid in the first place, so Mr. Wazzan could not use that rule.

Adopting Matter of Wazzan was strategic for the government. Only a precedent decision adopted by DOJ, or a regulation promulgated by DHS through the notice and comment process, could receive the highest level of "deference" from federal courts (a/k/a Chevron deference). But an "adopted" decision, especially one that contained the kind of scenario that justified the government's position most clearly, still could be presented in a court as a reflection of the government's reasoning, which can at least be persuasive to a court (a/k/a Skidmore deference), especially in a different case with more sympathetic facts. In fact, Mr. Wazzan appealed his case to federal court and lost.

Now it looks like DHS and DOJ have gotten together and DOJ agreed to publish the first two adopted decisions as precedent decisions in the same place where DOJ publishes decisions of the BIA (mainly appeals from decisions of immigration judges in immigration court). They can be viewed through the excellent collection of legal materials in the "Virtual Law Library" of the Executive Office of Immigration Review, at http://www.justice.gov/eoir/vll/intdec/lib_indecitnet.html (see volume 25). Note that EOIR just overhauled its larger website at www.justice.gov/eoir.

Now that DHS and DOJ have worked out a path for publishing decisions as "precedents," it looks like USCIS has gotten rid of its Adopted Decisions altogether. The USCIS website page for Administrative Decisions (link from www.uscis.gov/laws) no longer links to Adopted Decisions as before, and the "Laws" page has a link to "Precedent Decisions" instead. (Ironically, Chawathe and Wazzan have not made their way to the USCIS site yet, as of 10/20/2010.) Perhaps some of the other former adopted decisions will show up as published precedents on EOIR's site soon. The operational memos issued about them do not appear to have been withdrawn, so they may still have some effect. One adopted decision was overruled by a later adopted decision (about Cuban birth documents), and another was essentially made irrelevant by a subsequent statutory change (about special immigrant juveniles), so clearly not all will become precedents.

Meanwhile, anyone reading Matter of Wazzan should take note that all is not lost if someone is the beneficiary of a pending immigrant petition and adjustment of status application and needs to change jobs, for instance if his first employer goes broke or runs him off. USCIS published a memo on December 27, 2005 confirming that an adjudicator faced with this situation should adjudicate the underlying petition based on the facts existing when the adjustment application was filed, even though the job offer is off. If approvable, then the special rule about "long delayed adjudications" kicks in, and the petition can "remain valid" for the new work in a "same or similar occupation." That memo is technically binding only on USCIS adjudicators, but with hope an immigration judge in DOJ would follow it until DHS finally puts the memo's guidance in a regulation.

Immigration law is extraordinarily complicated. But they are trying.