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What Else Did The Cited Decisions Say & Do They Still Apply? By Joseph P. Whalen (January 30, 2012)

Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988) held:

(1) A petitioner must be afforded a reasonable opportunity to rebut the derogatory

evidence cited in a notice of intention to deny his visa petition and to present evidence in

his behalf before the district director's decision is rendered.

(2) Reasonable and timely requests for an extension of time to submit a rebuttal to the

notice of intention to deny a visa petition should be dealt with by the district director in a

reasonable and fair manner, particularly when a petition has been pending for a prolonged

period or where the notice of intention to deny contains extensive investigative findings

or factual allegations.

(3) To be considered "reasonable," a request for an extension of time to submit a rebuttal

must state with specificity the reasons for the request and be limited to a finite period,

and it must not be for the purpose of obtaining documents which should have initially

been submitted with the petition by regulation.

(4) Where a petitioner fails to timely and substantively respond to the notice of intention

to deny or to make a reasonable request for an extension, the Board of Immigration

Appeals will not consider any evidence first proffered on appeal as its review is limited to

the record of proceeding before the district director; for further consideration, a new visa

petition must be filed.

Given that the cited Precedent Decision pertains to specific issues that were once

upon a time left to the discretion of the INS officer but were subsequently codified

in 8 CFR § 103.2 with firm time limits, the holding lost usefulness for many years.

The most recent regulatory changes at the end of 2011, almost tried to loosen those

firm time limits but not quite. The regulatory action followed on the heels of earlier

alterations through Policy Memoranda and AFM updates. While the older

regulations always afforded a standard set amount of time to respond to an RFE or

NOID, the altered regulations now indicate them as maximums.

8 CFR § 103.2 Submission and adjudication of benefit requests. *****

(b) Evidence and processing. ......

*****

(8) Request for Evidence; Notice of Intent to Deny-- .....

*****

(iv) Process. A request for evidence or notice of intent to deny will be

communicated by regular or electronic mail and will specify the type of

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evidence required, and whether initial evidence or additional evidence is

required, or the bases for the proposed denial sufficient to give the

applicant or petitioner adequate notice and sufficient information to

respond. The request for evidence or notice of intent to deny will indicate

the deadline for response, but in no case shall the maximum response

period provided in a request for evidence exceed twelve weeks, nor shall

the maximum response time provided in a notice of intent to deny exceed

thirty days. Additional time to respond to a request for evidence or notice

of intent to deny may not be granted. [Emphases added.]

Many of those same issues discussed in the older decisions cited herein are

currently in a state of flux. USCIS is seriously reviewing a variety of processes and

procedures. The two most prominent among them and that are most familiar to this

writer are the EB-5 Immigrant Investor Program and the the promised AAO

Reforms. The AAO Reforms which according to the recently posted Agenda1 is

due out as a Notice of Proposed Rulemaking (NPRM) in March 2012. While a

variety of substantive issues are under review, I imagine that the AAO Rule will

touch upon a great many of them, so I won’t single all of them out. That said, issue

relating to N-600s, N-565s, N-400s, as well as National Interest Waivers (NIWs)

and the proper application of the Kazarian Analysis may likely be included or

addressed alongside the AAO Reform Rulemaking process. I look forward to it.

As for the relevance of Obaigbena, the one constant has been the utility of footnote

number two (2). That footnote, however was merely a cross-reference to an earlier

decision.

FN 2 We note statements or assertions by counsel are not evidence. Matter of Ramirez-

Sanchez, 17 I&N Dec. 503, 506 (BIA 1980).

That footnote pertained to prong number four (4) of the cited decision:

(4) Counsel’s comments in support of a motion to suppress are not evidence.

The BIA expounded in substantial detail upon this point and that is where the

useful quotes and characterizations emanate from. The following excerpt is just a

sample from the BIA’s earlier discussion.

“The respondent's motion to suppress the evidence offered by the Service was

insufficient and properly denied. There is no evidence that the prior statements of Mario

1 See: http://www.regulations.gov/#!documentDetail;D=DHS-2012-0005-0001 and

http://www.regulations.gov/#!documentDetail;D=DHS-2012-0005-0002 and

http://www.regulations.gov/#!documentDetail;D=DHS-2011-0015-0066 for Agenda & Plans.

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Ramirez-Sanchez were made involuntarily. The respondent's offer of proof in support of

his motion is a mixed legal and factual declaration by counsel, not based on counsel's

personal knowledge and never corroborated personally by the respondent. The

respondent stood mute at the hearing, refusing to testify on the issue of deportability on

the ground that his answers might incriminate him. In a brief to the immigration judge,

his counsel argued that if the respondent were allowed to testify without his testimony

being considered against him, the respondent would testify that at the times the

statements in question were taken, he was detained in the custody of Service agents, he

was nervous and fearful, and that the agents misrepresented if not suppressed his rights to

counsel and to a hearing.

Counsel's arguments are not evidence and even if they were, they would not constitute

a prima facie showing that the statements were involuntarily given. The statement lacks

factual details from which we could conclude that there may have been coercion or

duress. There is no allegation of physical abuse, hours of interrogation, denial of food or

drink, threats or promises, or interference with any attempt by the respondent to exercise

his rights. Compare Matter of Garcia, supra.” At pp. 505-506

Matter of Garcia, 17 IN Dec. 319 (BIA 1980) held:

(1) Respondent who testified that he made admission of alienage only after being led to

believe by Service officers that his deportation was inevitable, that he had no rights

whatsoever, that he could not communicate with his counsel, and that he could be

detained without explanation of why he was in custody, came forward with a prima facie

showing that this admissions were involuntarily given.

(2) Where Service presents no contrary evidence after a respondent makes a prima facie

showing that his admissions were involuntarily made and where only those admissions

support finding of deportability, the proceedings will be terminated.

Although there appear to be typos in the dates in that old decision, IF I am

guessing correctly on which ones to believe, the respondent was in front of an

Immigration Judge in less than one month from being picked up while working on

a farm in California. The arrest was on August 17th

and the IJ’s order was issued on

September 14th

. It is also quite a telling historical note that this case include an

old Form I-274 entitled: "Request for Return to Mexico".

While that form no longer exists, it can still come to light in more recent cases

when found inside an A-file such as in the following case.

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Reyes-Vasquez v. Ashcroft, 395 F.3d 903 (8th Cir. 2005)2 noted the following bit

of background on that old form and the current significance of its presence or its

absence from the record of proceeding.

“In 1990, the U.S. Border Patrol had the authority to grant voluntary departure to an alien

“[w]ho is a native of a foreign contiguous territory” such as Mexico. See 8 C.F.R. §

242.5 (1990). Voluntary departures, which are formal and legally binding grants, were

commonly documented in an alien's file, see Deportation Officer's Handbook,

Immigration and Naturalization Service (Handbook), Ch. 1, ¶ 1-4 (1986), even though

extensive docket control was not necessary for cases involving immediate departure. Id.

at ¶ 1-2 (noting that I-274/274A and “satisfactory departure” cases do not require docket

control). The Handbook stated:

When an alien has been granted voluntary departure and removed at Government

expense, care should be taken to leave written evidence in the alien's file

indicating the date of removal and the cost of the removal. Form I-274/274A

has a portion devoted to this at the bottom of the form. Cases, other than I-

274/274A cases, should have a memo to the file indicating the above information.

Id. at ¶ 1-4.5 If no government expense was involved, however, a “satisfactory

departure” was often just “noted on the reverse of the alien's Form I-94” and not

otherwise recorded. See Detention and Deportation Officers' Field Manual, Department

of Homeland Security, Ch. 11.8 (2002) (noting that the practice was common prior to

1997).

Footnote From Original:

FN5

Notably, the current versions of these documents make the requirements of

documentation and communication more clear, noting the need to establish that the alien

"was fully aware of the terms and conditions attached to the grant." Detention and

Deportation Officers' Field Manual Ch. 11.8 (2002) (Field Manual). The Department of

Homeland Security regulation states that "[e]very decision regarding voluntary departure

shall be communicated in writing on Form I-210, Notice of Action — Voluntary

Departure. Voluntary departure may not be granted unless the alien requests such

voluntary departure and agrees to its terms and conditions." 8 C.F.R. § 240.25 (2004). In

addition, the Field Manual clarifies that:

[i]t is most important that arresting officers understand and communicate to aliens

being granted voluntary departure that failure to depart under the terms given will

not only result in the alien being placed in removal proceedings, but will also

preclude him or her from receiving any grant of voluntary departure for a period

of 10 years, ....

2 http://openjurist.org/395/f3d/903/reyes-vasquez-v-ashcroft

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It is essential that no voluntary departure period be granted without issuance of

Form I-210 (Rev 4/1/97) and that the affected alien be made aware of and agree

to the terms of such a grant.

Field Manual Ch. 11.8 (emphasis in original).