Prospects Are Dim for More Data on USCIS' Immigration Appeals Cases

By David North on October 23, 2010

USCIS has announced a tiny bit of additional visibility regarding decisions on immigration cases decided by its Administrative Appeals Office, but any wholesale reduction of the existing secrecy does not appear to be likely.

What the government did on October 20, in a press release, and at one of the USCIS stakeholders' meetings, was to publish two AAO precedent decisions, the first in a dozen years, but AAO's boss, Perry Rhew, more or less indicated at the meeting that any substantial changes in its disclosures policy were unlikely.

Most administrative appeals agencies publish some of their decisions as precedent decisions, to let all and sundry know that the agency has established a legal ruling on some point. For over a decade AAO has not done so, publishing scrubbed versions of its decisions without indicating that any of them must be followed by USCIS adjudicators.

The two decisions announced as precedent decisions yesterday were originally decided in 2005 and 2006, and now have been awarded precedential status. Both were useful, but neither was earthshaking. As you might imagine, one could be defined as a mildly pro-Open Borders decision and the other as a mildly restrictionist one.

The first case involved a green card holder named Chawathe (the case is named Matter of Chawathe), an employee of ChevronTexaco, and presumably a scientist. He got an overseas assignment from his employer and filed to preserve his residence for naturalization purposes. One can do this, and appropriately, if one is a permanent resident alien working overseas for an American firm. USCIS ruled that Chevron was not such a firm; Chawatthe appealed, handling his own case, and AAO sustained his appeal. The definition of an American firm in that decision was regarded as precedent-making.

The second case involved a would-be immigrant, from Kuwait, whose last name was Al Wazan; he wanted to adjust his status to that of an immigrant multi-national manager; the name of the would-be employer was Al Wazan (USA), Inc. doing business as "Prime Casting." The numerous complications of the case need not be spelled out here, as they are in the decision, but the California Service Center ruled that there never was an underlying approvable petition and that subsequent events did not change that key matter. AAO affirmed.

The tiny bits of additional visibility consist of the names of the two employers, the name of the one lawyer, and the last names of the two applicants. Literally tens of thousands of AAO decisions, the non-precedential ones, lack those identities.

At the stakeholders' meeting I had an opportunity to suggest that as an extension of the publication of the precedent case as a sign of openness, the agency should also print statistical summaries of how AAO decided its cases in the 43 subsets it uses, and to eliminate the censorship regarding the sponsors and lawyers in the cases that were not regarded as precedents.

Rhew's response was the he would love to make everything public but his agency did not "own" the data; he said that the non-precedential decisions were all sent to the USCIS Freedom of Information Act unit, where the key names were redacted. He did not comment on the irony of that action being taken by the agency.

I picked a case at random from the AAO files, and this is what the first page of a redacted decision looks like:

Rhew also said that statistical data "belonged" not to AAO but to the Department of Homeland Security and its Office of Immigration Statistics. When I reminded him that not a single AAO statistic was included in the annual report of OIS he said, "…well, yes."

In short, don't hold your breath for any significant change in the agency's secrecy policies.