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Ombudsman Teleconference Recap: The USCIS Administrative Appeals Office

Overview

The Citizenship and Immigration Services Ombudsman (Ombudsman’s Office) held a public teleconference on the USCIS Administrative Appeals Office (AAO) on December 19, 2012, soliciting feedback on areas of concern and suggestions for improvement. 

Ombudsman Maria Odom initially described the importance of this organization within USCIS and its impact across form types and immigrant groups.  The Ombudsman recognized that the AAO has significantly reduced processing times in many categories during the past year.  USCIS staff joined the teleconference in listening mode only.

As an integral part of USCIS, the AAO applies a de novo standard of review to cases under its jurisdiction and handles more than 50 case types divided into several branches or subject matter areas.  To reduce persistent backlogs, the AAO has hired additional staff and otherwise sought to increase efficiencies and remains dedicated to producing fair, legally sound decisions.  The AAO has indicated to the public that it does not consult with other USCIS directorates, program offices or divisions in advance of rendering a specific decision.

Stakeholder Feedback

AAO Filing Procedures and Processing Times

  • One caller stated that published processing times are inaccurate, at least for L-1 Intracompany Transferees, and underestimate how long it takes for the AAO to render decisions.
  • Applicants attorneys expressed a desire for more clear information regarding Motions to Reopen (MTRs), including processing times, which are not currently posted.
  • One caller stated that USCIS service centers should work more effectively with the AAO to identify and forward properly filed appeals in a timely manner.  Similarly, the caller stated that where the AAO remands a case to a USCIS district office or service center, files should be returned quickly and in a manner that avoids applications bouncing back.
  • Timely appeals are to be identified and evaluated as MTRs within the 45-day period post-filing.  However, USCIS Service Centers often appear to disregard this process, according to a caller.  When they finally forward cases to the AAO, appellants encounter difficulty in securing information about the status of their appeal, including when and whether it was received by the AAO.
  • Callers believe USCIS could better track appeals to ensure timely processing and avoid delays when cases are returned by the AAO to district offices or service centers.
  • Several callers mentioned that long processing delays interfere with due process because so much can change substantively when a case is delayed a year or two (or more) on appeal to the AAO.

Access to Information

  • A caller stated that decisions should be searchable and include a summary.  The only way to access AAO opinions is via the USCIS website through category and date.  There does not appear to be any way to obtain a synopsis of opinions. The caller noted that she would have to read each one to determine its relevance, and hundreds are posted without description. 
  • The AAO should consider in-person or same-day carrier filing, if they do not already allow it.
  • One caller stated that the AAO “system” does not promote justice.  According to this individual, it is costly and time consuming, with inconsistent results that do not follow the rule of law.

Pro Se Access

  • A caller stated that not long ago the AAO held a teleconference in which they discussed hiring new people and affording individuals a meaningful opportunity for case review.  Yet current processing times remain very long, and it is unfair to expect people to wait three years for a decision.  The caller stated that some of the questions asked by the AAO because it has de novo review are actually about circumstances that have arisen during the long pendency of the appeal.
  • Another caller stated that while the AAO should apply a “preponderance of the evidence” standard, it often erroneously seeks proof “beyond a reasonable doubt.”

Quality, Consistency, and Predictability of Decisions

  • One caller stated that when relief is delayed for years due to back-and-forth processes at the AAO, people should not be expected to the meet same standard as required years ago.  Delay materially affects the eligibility standards and qualifications in long-pending cases.
  • A caller said that the quality of AAO decisions varies widely.  For example, cases involving “ability to pay” appear to apply inconsistent standards and adhere to different legal authorities.  Similar fact patterns do not yield the same results, according to the caller.
  • A caller said the current system discourages filing for appeal because the process is protracted, expensive and very uncertain in terms of outcome.  
  • Another caller stated that USCIS Service Centers do not afford appeals and supporting documentation the attention required by regulation before forwarding them to the AAO.  In other words, the individual contends that USCIS is not appropriately considering the cases as Motions to Reopen. 
  • A caller stated that the AAO should issue more precedent decisions or the new category of “adopted decisions” that indicates the weight the case should be afforded.  The vast majority of AAO decisions are now non-precedent.  Also, according to the caller, the public finds it confusing that AAO staff often follows prior, non-precedent decisions.  If more adopted or precedent decisions were issued, individuals and employers believe they would see greater consistency in USCIS decisions, including those issued by service center and district offices because they would understand which AAO decisions to follow.

General Comments

  • A caller stated that many people go to federal court instead of the AAO, but would prefer to seek review before the AAO if it did not appear to be merely an extension of USCIS.  The individual stated that the public would find helpful a more independent review by the AAO. 
  • A caller asked why the AAO is taking so long with rulemaking.  A draft rule was initially discussed in 2003; most recently USCIS stated that it intends to promulgate a rule in March 2012.
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