No Box Scores for the DHS Immigration Appeals Board

By David North on March 15, 2010

The in-house immigration appeals agency in the Department of Homeland Security, the Administrative Appeals Office, does not provide statistics on what it does. This is in complete contrast to the abundant set of statistics produced by the somewhat similar entity in the Justice Department, the Executive Office of Immigration Review, whose most recent annual report was described in a recent blog of mine.

Were AAO to report on a baseball game it would produce a short essay on each at-bat and put that essay in a separate file; at the end of the game, assuming four at-bats for each half of an inning, there would be a set of 72 such essays, and one would need to go through all of them, individually, to find out what happened at the game.

In order to get an idea what this agency does when it decides immigration appeals, I looked at 50 randomly drawn decisions in each of five of the 68 different areas where AAO hears appeals. The five areas chosen were: Temporary Protected Status (the program that is now giving short-term legal status to Haitian illegal aliens); nonimmigrant visas for fiancés of U.S. citizens; and three types of immigrant visas, for investors, multi-national corporate executives, and religious workers. The categories included one low-income program (TPS), one broad-spectrum program in terms of income (fiancés), two apparently high-income ones, and, finally, the religious workers program that has attracted both controversy and adverse governmental reports in the past, as I mentioned in another earlier blog. The five areas included one for illegal aliens, one for nonimmigrants, and three for immigrants.

In each of the five instances, I looked at the first 50 decisions rendered in 2009; 50 was, in each instance, a substantial portion of the year's caseload. I can't say that I examined a cross-section of all of AAO's work, but I certainly did in the five areas noted. In every instance I was looking at a decision that had initially gone against the alien, and in every instance someone felt strongly enough about it to appeal to the next level.

Except for the cases on the religious workers I had no idea what to expect. AAO officials handle paper appeals only; there are no trials of the facts or oral arguments. They decide either to dismiss the appeal (sometimes calling it a rejection or a confirmation of an earlier USCIS denial), or to remand the case back to the staff for renewed consideration, or they accept (sustain) the appeal. You might think about these replies as: no, maybe, and yes.

Fiancés (K-1). The score was 38 dismissals, 7 remands, 2 withdrawals, and 3 sustained appeals. In two of three in the last category there were stories of (apparently) older and clearly ailing American males marrying (apparently) younger Asian women, in the hopes (apparently) that they would take care of them, with the women getting a green card as a result. Given the men's physical condition, they were granted a pass from the usual requirement that the couple had to have met, physically, in the two years before the petition was filed. It was an interesting – and grim – use of the immigration law that was new to me.

TPS. The score was 37 dismissals, 10 remands, and, again, only three sustained appeals. All the applicants were from Central America, mostly from El Salvador; few had lawyers.

Multinational executives. AAO issued 47 dismissals, noted two had been withdrawn by their sponsors, and one had become moot – the alien involved had found another way to get a green card. Many of the dismissed cases were brought by pizza parlors, gas stations, or corner pharmacies pretending to be multi-national corporations. Most of these applicants had lawyers.

Immigrant Investors. There were 42 dismissals, four withdrawals by the petitioners, three remands, and one moot case. No appeals were sustained. In about three-quarters of the cases lawyers were involved, but not very successfully. There were only 49 decisions in this category in 2009, so the last one in 2008 was added to bring the total to 50.

Religious Workers. Here there were 27 dismissals and 23 remands, but no sustained appeals. During the period new regulations were in effect for this program, and most of the remands related to AAO's decision that these cases should be re-examined in the light of the new regulations.

These are the numbers summarized, using the short-hand terms noted above:

Multi-national executives47021
Religious Workers272300

Restrictionists have grounds to worry that many units of government seem to be too casual about expanding immigration flows, but AAO, if these figures are any indication, need not be on the worry list.