Your mistake or your money back

Sunday, March 6th, 2011
By: Jonathan MontagJ.D.

Appealing a case denied by U.S. Citizenship and Immigration Services can be quite expensive. If a visa is denied, reopening, reconsidering, or appealing costs $630 – often as much or more than the fee for the underlying benefit denied. The denial of a naturalization application is appealable with a fee of $650.  The total fee for an application to naturalize is $680. When I think of appealing, my first instinct is to think that there is an ambiguity in the law or the application in the law and one has to appeal to either have the higher body clarify the meaning of the law or its application. In the courts of appeal are many appeals in immigration cases where the issue is whether a certain crime is an aggravated felony or a crime of moral turpitude, the conviction for which can have immigration consequences. There is true uncertainty and valid differences of opinion. What I do not initially consider as a reason to appeal is that the government is flat-out making a mistake. To get the government to fix its mistake one must shell out an astronomical amount of money. For clients, who tend to believe what the government says, there is doubt that their attorney gave the correct advise – “Why did you say I was eligible for this relief when the government says right here (pointing to the denial notice) that I am not?” Then, there can be consternation that a fee of more than $600 (not including attorney’s fee) is necessary to correct the mistake.

In the federal court context there is the concept of EAJA fees. In suing the government, if the government was not substantially justified in its position, some fees can often be recovered.

In recent time, I have confronted denials or near-denials based on flat out errors. Two adjustment of status applications (applications for permanent residence in the United States) were denied for asylees when USCIS wrongly applied rules pertaining to those adjusting status based on family or work, covered in the statutes at INA § 245, to asylum adjustments, which are controlled by INA § 209. Practitioners should make no assumptions that the rules for these two types of adjustment applications are the same – they are quite different even though the same forms are used. It seems wrong to me that USCIS flat out made a mistake but the client had to pay for it. In a pair of naturalization cases, USCIS denied them because, in one case, the officer simply misread some requested documents and thought they contradicted the applicant’s story when the documents completely confirmed it. In another case, USCIS misunderstood the legal implications of past conduct, thinking that it barred naturalization when the law was clear that it did not. Again, hundreds and hundreds of dollars unfairly spent to correct USCIS error.

The regulations for reopening a case before USCIS where USCIS denies a case for abandonment state at 8 CFR 103.5 that a case can be reopened if the applicant can show:

1. The requested evidence was not material to the issue of eligibility;
2. The required initial evidence was submitted with the application or petition, or the request for initial evidence or additional information or appearance was complied with during the allotted period; or
3. The request for additional information or appearance was sent to an address other than that on the application, petition, or notice of representation, or that the applicant or petitioner advised the Service, in writing, of a change of address or change of representation subsequent to filing and before the Service’s request was sent, and the request did not go to the new address.



All of these reasons are because of USCIS error. It does not seem fair that the applicant has to pay to fix such a mistake. The regulations for a motion to reconsider, also at 8 CFR 103.5, state that reconsideration must be based on an incorrect application of law or Service policy. Again, it seems unfair that the applicant must bear such a high price to show that USCIS was flat wrong.

USCIS should initiate a policy, in the spirit of EAJA fees, where filing fees for appeals and reconsideration motions are held in trust. When the case is decided, if USCIS concludes that it was wrong, along with a notice reversing the decision comes a check for the filing fee. An apology would be nice too, but I am not that much of a dreamer. Posted March 6, 2011.



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