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IF There Is No Need To Go There THEN Do Not Go There

By Joseph P. Whalen (June 7, 2014)

Introduction While perusing through the most recently posted AAO non-precedent administrative decisions on the USCIS website, I rather enjoyed reading a portion of one particular EB-1 extraordinary ability case decision. Here, AAO has explained that where there is no need to proceed to the second step of the Kazarian analysis, then they will not do it. Here is an excerpt:

III. CONCLUSION The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate that the alien has achieved sustained national or international acclaim and is one of the small percentage who has risen to the very top of the field of endeavor. The petitioner asserts that the director erred in not conducting a two-step analysis in his decision. The petitioner asserts that the director needed to conduct a merits determination as part of his analysis. In this instance, the director concluded that the petitioner submitted sufficient evidence to satisfy the regulatory requirements of two types of evidence and the record supports the director's conclusions. In accordance with Kazarian, a merits determination is not required in this instance. Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in accordance with the Kazarian opinion, the next step would be a final merits determination that considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a "level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the[ir] field of endeavor" and (2) "that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. §§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the AAO concludes that the evidence is not indicative of a level of expertise consistent with the small percentage at the very top of the field or sustained national or international acclaim, the AAO need not explain that conclusion in a final merits determination.FN3 Rather, the proper conclusion is that the petitioner has failed to satisfy the regulatory requirement of three types of evidence. Id. at 1122. The petitioner has not established eligibility pursuant to section 203(b )(1)(A) of the Act and the petition may not be approved.

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Footnote in Original:

FN3 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 103(a)(1) of the Act; section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions).

Discussion and Conclusion

I agree 100% with this conclusion because it is the approach I recommended in my Amicus Brief to AAO, (see p.8) back in August 2011. I felt that AAO had made a mistake initially in proceeding prematurely and unnecessarily to the “Final Merits Determination” (FMD) or, as I prefer to call it, a qualitative analysis and evaluation of the evidence. I also saw it as leaving them open to criticism as simply being “mean spirited” since the early decisions were rather excessive in shredding the evidence in the first step of the Kazarian analysis or as I call it, the less thorough qualitative analysis in support of the quantitative portion of the analysis which was and remains, needed to determine whether or not a piece of evidence met (meets) the plain language of the regulatory criterion for which it had been offered. I felt that proceeding to further shred that evidence was a rather nasty slap in the face that merely made the agency and its appellate body look bad and as if they could not let go of the “Culture of NO!” Lastly, after

further consideration, I observed1 that by performing that unnecessary

FMD, AAO left itself wide open to being declared “arbitrary and capricious” in an APA2 review [5 U.S.C. § 702 (2)(A),(E)&(F)] should the case go to U.S. District Court. Apparently, AAO ultimately agreed with that as evidenced by the footnote shown in the excerpt above. As I’ve said before and I’ll likely say again (and again and again), if there is no need to say something in an appellate decision then don’t say it as it may be a big mistake and unwise sua sponte issue exhaustion. By speaking to anything that is not absolutely required, an administrative decision-maker makes an issue reviewable under the APA in a Federal Court. It may be best to remain mum.

That’s my two-cents, for now. 1 See http://www.slideshare.net/BigJoe5/aao-was-struggling-to-correctly-apply-kazarian-all-the-way-through-time-of-amicus-brief-request (posted June 15, 2012). 2 Administrative Procedures Act.