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上诉办公室发布两个移民局必须遵守的案例
作者:刘宗坤律师     发文时间: 2010年11月05日 02:09:04
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。
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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evaluation@niwus.com。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, PLLC
Wells Fargo Tower, 8th Floor
6161 Savoy Drive, Suite 830
Houston, Texas 77036
Tel: (800) 878-1807
(713) 974-3893
Fax: (866) 608-2766
Email: zliu@niwus.com
Website: www.niwus.com
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