This is the text of the cover letter that accompanies decisions of the Administrative Appeals Office of USCIS; it goes to aliens who have been denied immigration benefits, at least twice (once at the staff level and once or more in the AAO review):
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case.
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe that the AAO incorrectly applied current law or policy to your case of if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to re-open, respectively. (Emphasis added.)
It seems to be saying "Don't pay too much attention to this decision — if you still think you have a leg to stand on, try us again." And lots and lots of applicants do just that, adding to the workload of the agency, and — my rough guess — rarely changing the ultimate outcome. (I saw one case the other day that had been before AAO four times and was rejected each time, thus there had been five bites at the apple.)
What these cover letters do not say, which is the case, is if you want to appeal this beyond the AAO, you must file a formal brief with the U.S. Circuit Courts of Appeals, just one step below the U.S. Supreme Court, and, frankly an awesome prospect. That strikes me as something each rejected alien applicant should be told in such a letter, but it is not mentioned.
The nameless civil servants who hand down the AAO decisions have not written the highly negative set of comments on their own work quoted above — that has been done by the relatively new, Alejandro Mayorkas-appointed Chief of the Administrative Appeals Office, Ron Rosenberg.
Up until November 2012 these cover notes were signed by Rosenberg's predecessor, Perry Rhew, who is no longer in that job. Rhew's standard cover letter did not mention that the decision attached was of a non-precedential nature, which was hardly necessary as 99.9-plus percent of all AAO decisions are in this category, and all immigration lawyers are aware of that.
A few months after Rosenberg got the job, the multiple-negative cover letters started to appear.
What Is the Significance of This? Does this change in the boiler plate have any significance? Is it symbolic of something fundamental?
Unfortunately, I think it is, and it relates to the basic posture of the AAO staff and their frosty relations with the front office of USCIS, until recently run by Mayorkas, who has since been promoted to the deputy secretaryship of the Department of Homeland Security.
But first some background. Precedential decisions are regarded as setting policy, and should be borne in mind when other civil servants are making decisions in similar cases. Non-precedential ones simply deal with the case at hand; they relate to the specific applicant and the specific application or petition and nothing more.
Routinely, at least in administrative appeals such as these, someone other than the decider of the case in question decides what is precedential and what is not; that someone is usually higher in the pecking order, and often a political appointee.
The decisions themselves relate to a wide variety of immigration benefits, such as applications for the issuance of visas for relatives or would-be employees, for approval of immigrant investor (EB-5) petitions and other matters; they do not deal with deportations. The latter set of cases are heard by immigration judges and the Board of Immigration Appeals in the Justice Department.
The cases before AAO are not a cross section of those before USCIS. They are only cases that have been rejected by a system that says "yes" about 95 percent of the time. All AAO cases are thus appeals from staff decisions, have little merit on average, and, as my multiple unscientific samplings of AAO decisions suggest, are usually rejected by the reviewers. And many of those not rejected are remands for better decision-making below or voluntary withdrawals, not out-and-out decisions calling for the granting of benefits, though there are some of the latter.
The Tension. This pattern of decisions, which strikes me as reasonable and to be expected, given the nature of the set, apparently creates non-harmony between the AAO staff and the political leadership of USCIS.
For more on the "get to yes" mentality of the front office and staff resistance to this, see the conflict of two years ago between then Acting DHS Inspector General Charles Edwards and then USCIS Director Mayorkas as described in an earlier blog. This is a conflict that Mayorkas has won (he was promoted) and Edwards has lost (he was placed in a lesser position somewhere in the technology part of DHS).
Similarly, in a move involving AAO specifically, there is this excerpt from Senator Chuck Grassley's (R-Iowa) letter of August 9, 2013, to Mayorkas:
I continue to receive detailed allegations from whistleblowers within USCIS regarding your involvement in individual cases. For example, whistleblowers have said that in the summer of 2011, while USCIS's Administrative Appeals Office (AAO) was drafting its opinion regarding Gulf Coast's amendment application, you went beyond merely monitoring or influencing the process, seeking to personally take control of the opinion. In a meeting of USCIS employees, including AAO staff, you allegedly said: "Give it to me, I'll write the [expletive] thing myself.
Gulf Coast is the regional center that provides, or seeks to provide, immigrant investor (EB-5) funds to GreenTech, a manufacturer of electric cars that in 2011 was run by Terry McAuliffe, now the governor of Virginia.
This leadership-staff conflict, I sense, has also been manifested in the movement to make sure that everyone knows that the AAO staff decisions — usually negative — are labeled "non-precedential."
If you can't change the decision-making of the permanent party, at least you can cast aspersions on their work product.
Meanwhile, a Small Improvement. I do not know if this development relates to the new management of AAO or to something else, but the publication of AAO decisions is much more prompt than it used to be. Instead of waiting for nine months or so to read the latest set of decisions, the waiting time is now down to less than two months in many categories. That's good.
For example, as of January 16, the most recent decision in the AAO set on multi-national corporation executives (L-1 visas) was dated on November 25, 2013; for the full set of AAO decisions in that category of appeals, see here.
Though the timeliness is appreciated, AAO decisions continue to be needlessly redacted of bland information, such as the names of the parties in the cases and those of their lawyers.
Were Brown v. Board of Education to be in the AAO files we would never know about the gutsy postal employee who wanted a better education for his daughter (Brown), or that the Board was not located in the Deep South, but in Topeka, Kan., and that it was Thurgood Marshall who carried the day for the good guys.