Alien Loses a USCIS Decision, Appeals Twice in One Way, then 15 More Times in Another

A problem for the AAO?

By David North on September 17, 2022

I had trouble believing what I was seeing.

I was rambling through the decisions of USCIS’s Administrative Appeals Office (AAO), which deals with cases where aliens have been denied a migration benefit of one kind or the other. If an alien loses the benefit sought (they are not ordered deported, but that can take place through another agency), they can appeal to the AAO.

In the first case skimmed (dealing with the desire of an alien to be admitted as a preacher), I found that the alien was making the eighth appeal of his denial.

I shook my head a bit and looked at a couple more cases. Then I found a professor at some university (AAO heavily redacts its decisions out of an exaggerated concern for privacy) seeking to be an immigrant of extraordinary ability who had, as the headline notes, burdened the system with 17 appeals of one kind or another, losing every single time.

My curiosity was piqued: How much AAO energy was being wasted dealing with the same set of facts, over and over again? Was there a class bias in all of this, with the highly educated (clergymen and professors) chewing up a lot of staff time, while aliens with fewer credentials were less likely to file a second (or 17th) appeal?

As background, there are many appellate systems in the immigration field. The best known is the set of immigration judges, Department of Justice employees who are robes-wearing lawyers sitting behind raised benches making, among other things, deportation decisions. (My colleague Andrew Arthur served as one of them.)

These are among the people who make asylum decisions, and their workload has reached absurd proportions because of the Biden administration’s decision to let in more than a million illegal aliens claiming to seek asylum. The judges hear cases, one at a time, always with a Homeland Security lawyer present, and often the alien’s lawyer as well. This is a reasonably non-secret operation; many of the hearings are open to the public.

The AAO system is different. It is a quiet, mail-order arrangement. The decision-makers are not necessarily lawyers, they are civil servants, usually former USCIS staffers. They rarely hold hearings, they simply review the documents in front of them. They are also nameless, in that their identities are hidden, as those of immigration judges are not. This is a closed system with a substantial use of redactions, hiding the names of the applicants, the AAO staff, and any lawyers involved plus the deletion of some geographic details. Each decision, however, is printed for all to see.

The vast majority of AAO’s cases end in non-precedent decisions, meaning that they apply only to the individual in question, and the rationale for making them cannot be applied to other cases. A few of them are sorted out by another agency as precedent decisions, which is another subject.

As to the volume, there were 15,937 non-precedential AAO cases decided in FYs 2018-2021. Of these, 67.9 percent were dismissals, 17.9 percent sustained the alien’s appeal, and the remaining 14.2 percent were remands. The remands contain instructions from the AAO to the immigration judges to rethink and/or re-write their original decisions.

The caseload is broken out into 40 specialties, with some very numerous and others rarely visited. Each specialty in the just-cited data source relates to a single USCIS application form. There were four categories in one recent year in which no applications were filed.

So, given the setting, how many of the cases involved multiple appeals? We looked at the 20 most recent decisions in four selected categories:

  1. Immigrant petition for alien worker (extraordinary ability);
  2. Special immigrant religious worker;
  3. Petition for non-immigrant status (U visa) as a crime victim; and
  4. Petitions for alien fiancées and their children.

The first two categories demand special backgrounds, while the second two do not.

What we noted is that our initial findings of eight appeals in one case and 17 in another are completely out of the mainstream; in our search of 20 cases in each of four categories (for a total of 80), we found that no one had appealed more than three times, except for the two cases cited earlier.

Yes, there were more total appeals in the first two categories, extraordinary workers (40) and religious workers (42), than in the second two, crime victims (32) and alien fiancées (20), but the differences were largely related to the two individual cases cited earlier.

Dismissals were dominant among the 80 cases, numbering 74; the other six were remands. No case was sustained. The high percentage of dismissals at the AAO level is to be expected. After all, only a small minority of petitions are denied, so those denials must be largely correct.

Among the more interesting reasons for dismissals were, in the fiancée cases, that one couple had not submitted convincing proof that they had met in person in the last two years; in the religious worker cases, we often found that the AAO adjudicator was not convinced that the religious institution was able to pay the proposed employees enough to keep them off the welfare rolls. Mainline Protestant, Catholic, and Jewish congregations rarely use this part of the immigration law; it is primarily used by more marginal entities.

I still think AAO ought to put an upper limit on the number of appeals it allows in an individual case, say five, but those making multiple appeals are not a major problem as far as this limited study shows.

The author is grateful to CIS intern Joseph Chalfant for his research assistance.