Supreme Court rejects family unification in CSPA

Mayorkas v. DeOsorio, No. 12-930 (cert. granted June 24, 2013) The Supreme Court struck down this case ) case Mayorkas v. DeOsorio. The Court will consider whom Congress intended to benefit by INA § 203(h)(3), a provision which allows beneficiaries of certain visa petitions to retain earlier priority dates after “aging-out” (turning 21) and losing child status. The government sought Supreme Court review of an en banc decision of the Ninth Circuit holding that § 203(h)(3) applied to derivative beneficiaries of the Family 3d and 4th preference categories, as well as those in the Family 2A category. DeOsorio v. Mayorkas, 695 F.3d 1003 (9th Cir. 2012). In so holding, the Ninth Circuit rejected the Board of Immigration Appeals’ interpretation of § 203(h)(3) as applying only to derivative beneficiaries of the Family 2A preference category. Matter of Wang, 25 I&N Dec. 28 (BIA 2009). Here is the opinoin written by Justice Kagan http://www.supremecourt.gov/opinions/13pdf/12-930_3d46.pdf

When your job is to find immigration or marriage fraud...

Believing there is Fraud around every corner is biasing our immigration system. Here is how we can fight it. --- “The human understanding when it has once adopted an opinion draws all things else to support and agree with it. And though there be a greater number and weight of instances to be found on the other side, yet these it either neglects and despises, or else by some distinction sets aside and rejects, in order that by this great and pernicious predetermination the authority of its former conclusion may remain inviolate.”[1] -Sir Francis Bacon, Father of the Scientific Method (1620) --- Ask an immigration attorney about the most frustrating aspect of their practice today, and most will tell you that they spend an inordinate amount of time explaining basic reasoning and logic skills to US immigration officers set to deny approvable cases – cases where the only dispute is what the record logically reflects, not an actual insufficiency of the record itself. Why is this? Are the adjudicating immigration officers at DHS and DOS deliberately harassing petitioners and applicants? Is there some anti-immigrant conspiracy or cabal? Unlikely, but what then explains this phenomena? Social science has the answer and you should use it to your advantage when appealing an illogical denial or notice of intent to revoke. Let’s take a closer look at the problem… Whether it’s a family case suspected of a fraud in Ghana, or an H-1B petition for a growing IT startup, petitioners are being suspected of fraud at alarming rates. Most denials are based upon a failure to provide “sufficient evidence” to establish eligibility for the benefit sought. However in many, if not all of these cases, the officer likely believes there to be an element of potential fraud that they are valiantly battling back against. This is because every officer is trained to suspect fraud around every corner and success is measured not in cases approved or growth of the economy, but in levels of potential fraud detected and prevented. Walk through a service center and what do you see? Take a look at embassy cubicles and what do you find? I will tell you what we find; we find “fraud” literally wallpapering the environment. Service Centers and Embassies are covered with newspaper clippings, training materials, and bulletins detailing high levels of immigration fraud, warning staff to be hyper-vigilant for fraud. The US Embassy is Accra, Ghana is an excellent case in point. The Inspector General (OIG) Latest Report[2] found: “The staff capably and courteously handles a heavy workload in a challenging, high-fraud environment.” The report then notes, “Fraud in immigrant and NIV applications is widespread. Consular officers are attentive to the potential for fraud and malfeasance. The recent investigation and subsequent dismissal of a long-time LE staff employee and some local guards has heightened this awareness.” Yes, you read that correctly; even the staff at the US Embassy is suspected of committing fraud in Accra, Ghana. According Governmental Accountability Office (GAO)[3] over 90% of family connections are requested to provide DNA evidence of their family connections. The Embassy even has a special webpage discussing “Romance Scams.” The page warns US citizens about “attempts at fraud by persons claiming to live in Ghana who profess friendship or romantic interest over the Internet.”[4] Fraud, fraud, fraud, fraud, fraud… Did I mention fraud? It’s around every corner, don’t you know? And perhaps there is some fraud, but that’s not the point here. The point is this, creating an environment that conditions immigration officers to suspect fraud around every corner significantly impacts the performance of these officers. This is not my pet theory. This is social scientific fact. It’s called Confirmation Bias, and as Sir Francis Bacon noted above, its impact has been widely noted and accepted within social science since at least the 17th Century. Confirmation Bias is summed up in the Quarterly Journal of Economics, published by the Oxford University Press. This article has been cited more than 450 times in peer reviewed scientific journals since its publication in 1999.[5] “A person suffers from confirmatory bias if he tends to misinterpret ambiguous evidence as confirming his current hypotheses about the world… “Teachers misread performance of pupils as supporting their initial impressions of those pupils; many people misread their observations of individual behavior as supporting their prior stereotypes about groups to which these individuals belong; scientists biasedly interpret data as supporting their hypotheses… This study’s results found that when influenced by Confirmation Bias “the hypothesis that the agent believes in may be more likely to be wrong than right.” Furthermore, they showed that “the agent may come to believe with near certainty in a false hypotheses despite receiving an infinite amount of information.” With this in mind, it’s amazing our immigration system works at all. “A great deal of empirical evidence supports the idea that confirmation bias is extensive and strong and…supports the view that once one has taken a position on an issue, one’s primary purpose becomes that of defending or justifying that position. This is to say that regardless of whether one’s treatment of evidence was evenhanded before the stand was taken, it can become highly biased afterward.” [6] In other words, once your case exhibits any of the wide-ranging potential fraud factors, there is a very good chance that the officer reviewing your case just flipped a switch in their head and are now looking for any and all ways to deny your case whether they are conscious of it or not. A sobering thought, no? So what can you do when the officer deciding your case is conditioned to find fraud where it does not exist? Not much in the petition process itself unfortunately. With fraud factors being as loose as they are, it is often unavoidable to submit a petition that will not raise some potential red flag – and we know where it goes from there. What we can do however is fight every appeal as vigorously and thoroughly as possible and highlight to anyone that will listen that the “Culture of Fraud” within our immigration system is leading to erroneous denials, separating families, and hurting American businesses. We can cite the social science and include them in our appeals to the BIA, the AAO, and in federal court. Often all it takes is getting your case in front of someone who is not as conditioned to the Culture of Fraud and you find that your case is back on track, but I say we need to do more and make sure every member of the BIA, AAO, and federal court realizes that this bias exists strongly within the Department of Homeland Security and the Department of State. Give them not just the facts of your case, but the hard social science as well about why this case is in front of them at all and not approved in the first instance. If we are lucky, our successful appeals may push a cultural change in the training and atmosphere within the walls of USCIS Service Centers, USCIS local offices, Embassies, and Consulates. No one wants to be wrong or overturned on appeal, and there is no conspiracy to deny our approvable cases that raise fraud factors that are too liberally drawn up. Beyond our steady, well argued appeals AILA must push this agenda. AILA must, · push for a tightening of potential fraud factors; · push for stronger tracking of how many cases are reversed on appeal AND holding immigration officers accountable for their reversed decisions; · push for faster appeals processing times, which often drag on too long to be reasonably pursued by our clients. --- As with many things these days, Wikipedia is a great place to get started. Its article on Confirmation Bias is will written and includes an extensive bibliography that you can cite in your future appeals of biased decisions. [1] From The New Organon and Related Writings {1960; 1620}, quoted in Nisbett and Ross {1980, p. 167}. [2] http://oig.state.gov/documents/organization/126064.pdf [3] http://www.gao.gov/assets/270/267129.html [4] http://ghana.usembassy.gov/romance_scam.html [5] First impressions matter: A model of confirmatory bias (Matthew Rabin, Joel L. Schrag), In Quarterly Journal of Economics, volume 114(1), 1999. [6] Confirmation bias: A ubiquitous phenomenon in many guises. RS Nickerson - Review of general psychology, 1998 - psycnet.apa.org. Cited 1,401 times to date according to Google Scholar. Reprinted with permission. About The Author Christopher M. Pogue, Esq. Christopher M. Pogue, Esq. is Of Counsel with the Fleischer Law Firm, LLC. His law practice specializes in representing individuals, families, and businesses around the United States and around the world in US immigration matters. Contact: cpogue@immigrate2usa.com and Websites: www.PogueImmigrationLaw.com / www.immigrate2usa.com