NOIR/NOID case law precedents to remember

[ellis-island]

Hi. This applies to petitioners and beneficiaries whose petitions have
been returned to USCIS. It doesn't apply to those petitions still
at the consulate.

I don't recommend you handle your own revocation.
I don't recommend you start slinging cites from these cases at
experienced USCIS adjudicators. But these are important cases.
I post them NOT as legal advice - but to educate petitioners on their rights.
--
I haven't have a lot of time these days. Sorry I haven't posted
lately.

But as a public service though. I'm going to post some cases on revocation & quotes from those cases.

Most NOIR letters will cite both Estime & Ho.

Estime stands for the legal standard of "good and sufficient cause", which must be met before a petition's approval can be revoked.

However, a lot of people don't know that the Estime case also mentions what fails to meet that legal standard.

A. “Good and Sufficient Cause”, Matter of Estime. 19 I&N Dec. 450 (BIA 1987) I've added emphasis.

i. “…with respect to a decision to revoke, we ask whether the evidence of record at the time the decision was issued (including any explanation, rebuttal, or evidence submitted by the petitioner pursuant to 8 C.F.R. §§ 103.2(B)(2) or 205.2(B) (1987)) warranted such a denial. Where a notice of intention to revoke is based on an unsupported statement or an unstated presumption, or where the petitioner is unaware and has not been advised of derogatory evidence, revocation of the visa petition cannot be sustained even if the petitioner did not respond to the notice of intention to revoke.”

ii. “Pursuant to section 205 of the Immigration and Nationality Act, 8 U.S.C. § 1155 (1982), a notice of intention to revoke approval of a visa petition not properly issued unless there is "good and sufficient cause" and the notice includes a specific statement not only of the facts underlying the proposed action, but also of the supporting evidence.” (Estime)

Matter of Arias is a fantastic case. It's the best case of all for Petitioners fighting revocation proceedings.

B. Matter of ARIAS 19 I & N Dec. 568

(1) A decision to revoke approval of a visa petition can only be grounded upon, and the petitioner is only obliged to respond to, the factual allegations specified in the notice of intention to revoke.

(2). “Specific, concrete facts are meaningful, not unsupported speculation and conjecture.”

(3) Observations of the consular officer that are conclusory, speculative, equivocal, or irrelevant to the bona fides of the claimed relationship between the petitioner and the beneficiary do not provide "good and sufficient cause" for the issuance of a notice of intention to revoke approval of a visa petition and cannot serve as the basis for revocation,notwithstanding the petitioner's failure to timely respond to the notice of ntention to revoke

Matter of Tawfik really in its facts, was applied to subsequent petitions for the same beneficiary filed within the US. But the legal standard here very much resembles Arias. A District Director (not a consulate) denied an I-130). But the language and holding of Tawfik are important.

Tawfik stands for the proposition that reasonable inferences from the record do not constitute "good and sufficient cause" for petition revocation.

C. Matter of Tawfik 20 I&N Dec. 166 (BIA 1990) (Reasonable inferences do not constitute “good and sufficient cause)

“where the district director concluded that there was evidence in the record from which it could "reasonably be inferred" that a marriage had been entered into for the primary purpose of obtaining immigration benefits, the substantial and probative evidence, requisite to the revocation of a subsequently approved visa petition was not presented.”

Matter of Ho is cited in all NOIR letters. It stands for the proposition that the burden of proof in revocation proceedings is NOT
on the consulate or USCIS -- it is on petitioner.

That means not only must you rebut or give reasonable explanations to the allegations in the consular memorandum (quoted in the NOIR),
you must also prove your relationship all over again.

D. Matter of HO, Vol. 19: Int. Dec. 2951-3100/#3051 (p. 582) (Ho)

The petitioner bears the burden in visa petition revocation proceedings of establishing that the beneficiary qualifies for the benefit sought under the immigration laws.Matter of Cheung, 12 I&N Dec. 715 (BIA 1968), reaffirmed.

----

This next cite is in the FAM. Almost all NOIR letters arise out of #3. So the question is: (1) Is the evidence developed by the consular officer "factual"? Or did the officer get the facts wrong? (2). Is the evidence developed by the consular officer "extensive"? Or is it outweighed by evidence proving the relationship? (3). And even assuming the evidence is factual & extensive, is a sham marriage the most reasonable conclusion one can reach from that factual and extensive evidence developed by the consulate?

That is generally the battlefield.

E. USCIS Minimum Standards for Instituting Revocation Proceedings
on an Approved Petition

(1) A written statement from one or both of the parties to the marriage that the marriage was entered into primarily for immigration purposes;

(2) Documentary evidence that money changed hands under circumstances such that a reasonable person would conclude the marriage was a paid arrangement for immigration purposes; or

(3) Extensive factual evidence developed by the consular officer that would convince a reasonable person that the marriage was a sham marriage entered into to evade immigration laws.
(Restated at 9 FAM 42.43 N 2.2)

F. 8 C.F.R. §§ 103.2(B) et seq.,
(A Petitioner’s Right to Inspect the Record)

There are two types of revocation: Automatic revocation
and:

G. 8 CFR 205.2 (Revocation on Notice).
Notice of Intent to Revoke letters obviously follow the
revocation on notice procedures.

[Randy W]

9 FAM 42.43 N4.1 states

It should be remembered that USCIS bears a high burden of proof (good and sufficient cause) in revocation proceedings. Although you may believe that the evidence leads a reasonable person to believe that the alien is not entitled to status, the evidence of record may not be sufficient to meet the higher standard of proof required in these proceedings.

where "you" refers to consular officials.

 

Do you have any idea of what percentage of returned petitions are actually acted upon (i.e., revocation hearing), vs. how many are re-affirmed with the revocation hearing, and how many simply fall into this crack (that "the evidence of record may not be sufficient to meet the higher standard of proof required in these proceedings") with no hearing?

 

Also, what percentage of revocation hearings which the petitioner attended actually end in a revoked petition?

[ellis-island]

 

 

9 FAM 42.43 N4.1 states

It should be remembered that USCIS bears a high burden of proof (good and sufficient cause) in revocation proceedings. Although you may believe that the evidence leads a reasonable person to believe that the alien is not entitled to status, the evidence of record may not be sufficient to meet the higher standard of proof required in these proceedings.

where "you" refers to consular officials.

Do you have any idea of what percentage of returned petitions are actually acted upon (i.e., revocation hearing), vs. how many are re-affirmed with the revocation hearing, and how many simply fall into this crack (that "the evidence of record may not be sufficient to meet the higher standard of proof required in these proceedings") with no hearing?

Also, what percentage of revocation hearings which the petitioner attended actually end in a revoked petition?


Keep in mind, the part of the FAM you quoted refers to post-
reaffirmance cases. That is, cases that have been returned to USCIS
had their approval reaffirmed & sent back to consulates,
but the consulate still does not want to approve the visa petition.

To answer your question,

I've only been told a number by a consular officer. I'm skeptical
of what I hear. I've been told 70% are ultimately revoked.
I don't know where that number comes from. But the officer may have been right,
or may have been pulling the number out of a hat. I don't know.There
may be a table posted somewhere. I've never seen it.

But you've hit the nail upon the head about the conflict between the
"reasonable person" standard, and the standard for revocation.
Tawfik says reasonable inferences are not enough, the evidence must
be substantial and probative. Yet consulates say reasonable inferences
are enough - that's the "Reasonable Person" standard.

Estime & Arias specify the kind of evidence necessary to even issue
an NOIR letter..

But sorry. I don't have any hard numbers about how many are
reaffirmed and how many I-130's are ultimately revoked or how many
expired K-1 petitions are denied post hoc.

It doesn't much matter. USCIS seems to be simply taking the
consular allegations a face value and allowing the petitioner
to respond that's the approach I see.

And that's where arguing the case law becomes important.
And those aren't the only cases out there. But they're important cases.

I think the better approach would be to measure the conclusions in
the consulate's memorandum against Arias, Estime and the other
cases I mention. If it doesn't measure up - reaffirm without an NOIR.
I've seen Vermont do that -- but not lately. I've never seen CSC
do it.

I honestly don't recommend that a petitioner start arguing case law
by himself or herself. Every case is different and ever set of facts is
different.

But this list gives a brief summary of some important cases petitioners
need to know about. If I get time, I'll post some more. I've been
researching the issue lately.

Interestingly one case that popped up was the BIA case where John
Lennon lost. It's not on-point, so I didn't save it or post it here. But it
was a fascinating bit of history.

[concert500]

Hi. This applies to petitioners and beneficiaries whose petitions have

been returned to USCIS. It doesn't apply to those petitions still

at the consulate.

 

I don't recommend you handle your own revocation.

I don't recommend you start slinging cites from these cases at

experienced USCIS adjudicators. But these are important cases.

I post them NOT as legal advice - but to educate petitioners on their rights.

--

I haven't have a lot of time these days. Sorry I haven't posted

lately.

 

But as a public service though. I'm going to post some cases on revocation & quotes from those cases.

 

Most NOIR letters will cite both Estime & Ho.

 

Estime stands for the legal standard of "good and sufficient cause", which must be met before a petition's approval can be revoked.

 

However, a lot of people don't know that the Estime case also mentions what fails to meet that legal standard.

 

A. “Good and Sufficient Cause”, Matter of Estime. 19 I&N Dec. 450 (BIA 1987) I've added emphasis.

 

i. “…with respect to a decision to revoke, we ask whether the evidence of record at the time the decision was issued (including any explanation, rebuttal, or evidence submitted by the petitioner pursuant to 8 C.F.R. §§ 103.2( b )(2) or 205.2( b ) (1987)) warranted such a denial. Where a notice of intention to revoke is based on an unsupported statement or an unstated presumption, or where the petitioner is unaware and has not been advised of derogatory evidence, revocation of the visa petition cannot be sustained even if the petitioner did not respond to the notice of intention to revoke.”

 

ii. “Pursuant to section 205 of the Immigration and Nationality Act, 8 U.S.C. § 1155 (1982), a notice of intention to revoke approval of a visa petition not properly issued unless there is "good and sufficient cause" and the notice includes a specific statement not only of the facts underlying the proposed action, but also of the supporting evidence.” (Estime)

 

Matter of Arias is a fantastic case. It's the best case of all for Petitioners fighting revocation proceedings.

 

B. Matter of ARIAS 19 I & N Dec. 568

 

(1) A decision to revoke approval of a visa petition can only be grounded upon, and the petitioner is only obliged to respond to, the factual allegations specified in the notice of intention to revoke.

(2). “Specific, concrete facts are meaningful, not unsupported speculation and conjecture.”

 

(3) Observations of the consular officer that are conclusory, speculative, equivocal, or irrelevant to the bona fides of the claimed relationship between the petitioner and the beneficiary do not provide "good and sufficient cause" for the issuance of a notice of intention to revoke approval of a visa petition and cannot serve as the basis for revocation,notwithstanding the petitioner's failure to timely respond to the notice of ntention to revoke

 

Matter of Tawfik really in its facts, was applied to subsequent petitions for the same beneficiary filed within the US. But the legal standard here very much resembles Arias. A District Director (not a consulate) denied an I-130). But the language and holding of Tawfik are important.

 

Tawfik stands for the proposition that reasonable inferences from the record do not constitute "good and sufficient cause" for petition revocation.

 

C. Matter of Tawfik 20 I&N Dec. 166 (BIA 1990) (Reasonable inferences do not constitute “good and sufficient cause)

 

“where the district director concluded that there was evidence in the record from which it could "reasonably be inferred" that a marriage had been entered into for the primary purpose of obtaining immigration benefits, the substantial and probative evidence, requisite to the revocation of a subsequently approved visa petition was not presented.”

 

Matter of Ho is cited in all NOIR letters. It stands for the proposition that the burden of proof in revocation proceedings is NOT

on the consulate or USCIS -- it is on petitioner.

 

That means not only must you rebut or give reasonable explanations to the allegations in the consular memorandum (quoted in the NOIR),

you must also prove your relationship all over again.

 

D. Matter of HO, Vol. 19: Int. Dec. 2951-3100/#3051 (p. 582) (Ho)

 

The petitioner bears the burden in visa petition revocation proceedings of establishing that the beneficiary qualifies for the benefit sought under the immigration laws.Matter of Cheung, 12 I&N Dec. 715 (BIA 1968), reaffirmed.

 

----

 

This next cite is in the FAM. Almost all NOIR letters arise out of #3. So the question is: (1) Is the evidence developed by the consular officer "factual"? Or did the officer get the facts wrong? (2). Is the evidence developed by the consular officer "extensive"? Or is it outweighed by evidence proving the relationship? (3). And even assuming the evidence is factual & extensive, is a sham marriage the most reasonable conclusion one can reach from that factual and extensive evidence developed by the consulate?

 

That is generally the battlefield.

 

E. USCIS Minimum Standards for Instituting Revocation Proceedings

on an Approved Petition

 

(1) A written statement from one or both of the parties to the marriage that the marriage was entered into primarily for immigration purposes;

 

(2) Documentary evidence that money changed hands under circumstances such that a reasonable person would conclude the marriage was a paid arrangement for immigration purposes; or

 

(3) Extensive factual evidence developed by the consular officer that would convince a reasonable person that the marriage was a sham marriage entered into to evade immigration laws.

(Restated at 9 FAM 42.43 N 2.2)

F. 8 C.F.R. §§ 103.2( b ) et seq.,

(A Petitioner’s Right to Inspect the Record)

 

There are two types of revocation: Automatic revocation

and:

 

G. 8 CFR 205.2 (Revocation on Notice).

Notice of Intent to Revoke letters obviously follow the

revocation on notice procedures.

 

 

 

 

This is such great stuff, give me my wife!!! Thank you Sir.

Edited August 21, 2010 by dnoblett
Remove B) smiley (see edit history)

[Guest ExChinaExpat]

The information written here by attorney Marc Ellis is some of the best available in the world today. Everyone who is either in the middle of, or considering filing a petition for visa should read it carefully.

[Guest ExChinaExpat]

This one is even better:

 

http://candleforlove.com/forums/topic/36630-what-would-a-reasonable-person-do/?p=490660