POST BY RONALD PAYNE – Today we continue with our series on the topic of COM Appeals and today we will begin our discussion on the subject of the ARGUMENT ON THE MERITS using the POINTS and AUTHORITIES Format… The first thing we need to do in preparing our Argument on the Merits is to ascertain the reason(s) why the COM Denied the SIVA the Status of an Iraq/Afghanistan Special Immigrant. This is done by reviewing the Denial Notice. Since about late March and early April the COM has been sending the Denial Notice in a format that states (1) the reason(s) for the Denial, and (2) the “Specific Information about your case”… The first check block [X] provides a general statement as to why the SIVA is unqualified and/or disqualified from admission into the Special Immigrant Visa Program, and usually this general statement recites one or more of the SIV Program Eligibility Requirements. Now remember that the SIV Program Law(s) require that the COM conduct a RISK ASSESSMENT (Background Investigation) of the SIVA to determine if the SIVA presents a risk to the United States National Security and to conduct an Independent Review of the Records maintained by the United States Government and the SIVA Employer to confirm employment and faithful and valuable service to the United States Government. Likewise, the SIVA is required to submit sufficient evidence of (1) Afghanistan/Iraq Citizenship or Nationality (as evidenced by an AFG/IRQ Passport and/or Iraq Jensia or Afghanistan Taskersa with an English Translation)… (2) Employment by or on behalf of the United States Government for not less than one year (365+ days) in Iraq or Afghanistan (as evidenced by a Verification of Employment Letter or Contract for Services with the United States Government, and optionally Local National Employee Badge)… (3) Faithful and Valuable Service to the United States Government in Iraq or Afghanistan (as evidenced by a Positive Recommendation or Evaluation from a United States Citizen Supervisor)… and (4) Experience of a Serious Threat as a consequence of such employment/service to the United States Government in Afghanistan or Iraq (as evidenced by a SIVA Threat Statement and a Threat Validation Statement in the SLOR). The second check block [X] provides a “specific statement” as to the reason(s) why the COM Approval was Denied. Often times (actually almost all the time) the second check block merely recites the same information in the first check block section. So for example, I will recite the information that was stated in an actual COM Denial Notice: [X] Derogatory information has been associated with you that is incompatible with the regulations of the SIV program. (You did not provide faithful and valuable service to the U.S. Government). [X] Specific information about your case: [COMPANY] terminated your employment because of security ineligibility. Now let’s stop here for just a moment and discuss two things that are related to this subject. First, the National Defense Authorization Act of 2014 (Public Law 113-66) in Section 1218 (as applicable to Iraq) and Section 1219 (as applicable to Afghanistan) requires that the COM Denial Notice shall be in writing and provide to the maximum extent feasible, information describing the basis for the denial, including the facts and inferences underlying the individual determination. Second, both the Refugee Crisis in Iraq Act of 2008 and the Afghan Allies Protection Act of 2009 require in pertinent part, that the COM shall conduct a review of the records maintained by the United States Government and the SIVA Employer to confirm the SIVA Employment and Faithful and Valuable Service to the United States Government in Iraq or Afghanistan. In this regard, I would argue the POINT based upon the AUTHORITIES that the failure of the COM to comply with the Denial Notice Requirements of providing “to the maximum extent feasible, information describing the basis for the denial, including the facts and inferences underlying the individual determination” establishes an inference that the COM failed to comply with the requirements to conduct an Independent Review of the records maintained by the United States Government and the SIVA Employer to conform the SIVA Employment and Faithful and Valuable Service to the United States Government in Iraq or Afghanistan. The POINT is a short statement presenting the claim of error, the law and facts as it is applicable to the claim of error, and a suggestion for its conclusion. For example, using the above mentioned scenario the POINT could be written like this (in capital letters): THE UNITED STATES CHIEF OF MISSION HAS FAILED TO CONDUCT AN INDEPENDENT REVIEW OF THE RECORDS MAINTAINED BY THE UNTED STATES GOVERNMENT AND THE APPELLANT AND PETITIONER EMPLOYER AS REQUIRED BY THE AFGHAN ALLIES PROTECTION ACT OF 2009 (PUBLIC LAW 111-8) SECTION 602(b)(2)(D) AS EVIDENCED BY THE UNITED STATES CHIEF OF MISSION FAILURE TO PROVIDE A WRITTEN DECISION FOR SUCH DENIAL OF CHIEF OF MISSION APPROVAL THAT COMPLIES WITH THE REQUIREMENTS OF THE NATIONAL DEFENSE AUTHORIZATION ACT OF 2014 (PUBLIC LAW 113-66) SECTION 1219(1)(A)(I)(aa). AS SUCH, THE DECISION OF THE UNITED STATES CHIEF OF MISSION THAT IS AT ISSUE IN THIS MATTER IS NULL AND VOID FOR A LACK OF PROCEDUAL REGULARITY AND REQUIRES THE REVERSAL OF SUCH DECISION THEREOF AND REMAND FOR DE NOVO RECONSIDERATION OF THE ENTIRE CASE ON THE MERITS The AUTHORITIES is the legal and factual basis of the POINT. So in this case our two AUTHORITIES is (1) the Afghan Allies Protection Act of 2009 (Public Law 111-8) Section 602(b)(2)(D) and... (2) the National Defense Authorization Act of 2014 (Public Law 113-66) Section 1219(a)(A)(I)(aa). So in the AUTHORITIES the SIVA should recite the law (ie. the “Authority”) and then the facts. So in the above-mentioned scenario our SIVA received a Denial Notice that stated: [X] Derogatory information has been associated with you that is incompatible with the regulations of the SIV program. (You did not provide faithful and valuable service to the U.S. Government). [X] Specific information about your case: [COMPANY] terminated your employment because of security ineligibility. The SIVA receiving of the above-mentioned Denial Notice is a FACT... What the Denial Notice state’s in it is also a FACT, at least insofar that is says what it says, or more importantly, WHAT IT DOES NOT SAY... But in this case, the Denial Notice while stating the basis of the denial (ie. derogatory information – employment terminated because of security ineligibility), it FAILS to state the FACTS and INFERENCES Underlying the Individual Determination. The FACTS and INFERENCES that must be stated to be in compliance with the SIV Program Law (Denial Notice Requirements) must disclose the UNDERLYING Facts and Inferences of the “security ineligibility”. All too often (almost all of the time) it would appear that the COM is merely reciting the language employed in the Verification of Employment Letter. In contrast the COM has a duty to conduct an Independent Review of the RECORDS maintained by the United States Government AND the SIVA Employer to confirm the SIVA Employment and Faithful and Valuable Service to the United States Government. Provided the COM has complied with this requirement then the COM in such Denial Notice should/could have stated the reason(s) for such determination of “security ineligibility”. The conclusion of which is that the evidence of the COM failure to comply with the disclosure of information and inferences requirement in the Denial Notice is evidence that the COM failed to comply with the Independent Review of the Records provision in the Afghan Allies Protection Act of 2009 or the Refugee Crisis in Iraq Act of 2008, the end state being that the COM failed to comply with the procedural requirements imposed upon the COM by Congress in the adjudication of an Application for the Status of an Iraq or Afghanistan Special Immigrant, and such failure to comply with those procedural requirements are known to be “Prejudicial Reversible Error Per Se”, which means that such a decision must automatically be reversed for that reason alone. The concept of procedural error is that the process must itself be fair, and fairness requires a meaningful consideration of the case on the merits. An example of this concept can be explained this way... In the United States an accused criminal at trial has the right of having their innocence or guilt decided by a JURY (which is members of the community called in to hear the evidence and make a decision as to innocence or guilt) and the Defendant demanded a Trial by Jury. But let’s say the Judge said “screw you, you will have a Trial by Judge”, and let’s say the evidence was overwhelming as to guilt and the Defendant was found guilty of the crime. Now the Defendant Appealed the “Conviction” (finding of guilt by the Court) but in this case the Defendant on Appeal did not challenge the evidence, instead making a procedural challenge by claiming that he/she was deprived of a Trial by Jury (Procedural Error) and as such, the Trial by Judge was invalid as a result thereof. The Appeal Court in such a case upon finding that the Defendant requested a Trial by Jury and was denied such a request and was thus deprived of his Procedural Right to a Trial by Jury would stop their inquiry into the case and order a REVERSAL on that basis alone... For this reason, I am raising this issue first because 98% of all the Denial Notice I have reviewed have utterly failed to comply with the written decision requirements of the National Defense Authorization Act of 2014, and such failure thereof is evidence that the COM [UTTERLY FAILED] to comply with the Independent Review requirement of the Refugee Crisis in Iraq Act of 2008 and the Afghan Allies Protection Act of 2009. If the Special Immigrant Visa Coordinator, who is the Official responsible for presiding over COM Denial Appeals and Reconsideration Requests makes such a finding of Procedural Error, then on this basis the COM Denial should be REVERSED and remanded for Reconsideration De Novo. Now the term “Do Novo” is a legal term that means “to be considered again as if NEW”. So let’s now return to the assessment of the Denial Notice for compliance with the requirement of a written decision that provides to the maximum extent feasible, information describing the basis for the denial, including the facts and inferences underlying the individual determination. If the SIVA is unable to determine with reasonable certainty the reason(s) for the COM Denial, then it would be reasonable to make a finding that the Denial Notice failed to comply with the written decision requirements of the National Defense Authorization Act of 2014. Here are some examples of what would NOT be in compliance with such requirements thereof AND why such examples would NOT be in compliance with the written decision requirements of the National Defense Authorization Act of 2014: Derogatory information has been associated with you that is incompatible with the regulations of the SIV program. (You did not provide faithful and valuable service to the U.S. Government). Specific information about your case: (1) Security checks revealed derogatory information... (What is the “derogatory information”?) (2) COMPANY terminated your employment because of security ineligibility... (What is the basis of the “security ineligibility”?) (3) Employment Terminated - The U.S. Embassy Regional Security Office recommended that your security certification be revoked because you failed your polygraph... (What is the basis for the failed polygraph?) (4) Terminated from your position at COMPANY due to security related derogatory information... (What is the “security related derogatory information”?) (5) It was discovered that your employment was terminated for cause... (What is the “CAUSE” for the Employment Termination”?) (6) COMPANY terminated you from employment for poor performance... (What is the alleged “poor performance”?) (7) COMPANY terminated your employment because of Unprofessional Conduct / Violation of Policy... (What is the alleged “unprofessional conduct or violation of policy?) (8) You did not provide a valid employment verification letter, which is required for the SIV program... (Why is the Verification of Employment Letter not valid?) (9) You or your supervisor failed to adequately explain a serious ongoing threat you faced or are facing because of your employment with the U.S. Government... (Why does it fail to adequately explain a serious ongoing threat?) (10) Your current situation does not warrant admittance to the SIV program... (What is the SIVA “current situation” and Why does “it” NOT “warrant admittance to the SIV Program?) So now that we have provided some examples of what would NOT meet the written decision requirements of the National Defense Authorization Act, Let’s no present some examples of what clearly DOES meet the written decision requirements of the National Defense Authorization Act of 2014, and if true as stated in such Denial Notice, then the chances of a successful appeal are ZERO: (1) You previously applied under case number NVCSIV2012123456 and received COM approval on Month 01, 2012. Your COM approval was revoked on Month 15, 2013 based on derogatory information. During your interview with a Consular Officer on May 15, 2013, you stated that you were currently employed with COMPANY. The Consular Section verified employment records and discovered you were terminated from your position on Month 15, 2012 for being “security ineligible.” You reapplied under the current case number and submitted a forged employment verification letter stating that you are still employed with COMPANY as of Month 28, 2013. COMPANY reconfirmed your dismissal and said that the document you submitted was a fraud. You are being denied again on the basis of derogatory information, both for being “security ineligible” and for attempting to commit fraud to obtain an immigration benefit. (2) You have been a self-employed businessman operating under a license with the U.S. Government, which does not meet the requirements of the SIV Program. (You are a shop owner at FOB “Somewhere”). You are employed under a license, not a contract, with the U.S. Government. This is not employment on behalf of the U.S. Government for the SIV Program). Now this brings this post to a conclusion. In the next post we will discuss the other reasons for a COM Denial and the POINTS and AUTHORITIES for such response thereto, a list of which follows: EMPLOYMENT = You submitted one or more documents that do not meet the requirements of the SIV program. Specific information about your case: • You did not provide a valid employment verification letter, which is required for the SIV program. Further information on what is required in an employment verification letter is available on thetravel.state.gov website. • You do not yet have the required length of employment. You must have worked for or on behalf of the U.S. Government for at least one year, on or after (AFG - October 7, 2001) (IRQ - 20 March 2003), at the time of application. You have not established that you have been employed by or on behalf of the U.S. Government. We have no evidence that your employer had a contract or subcontract with the U.S. Government during the time of your employment. Specific information about your case: • We could not confirm a valid contract with the U.S. Government to meet the requirement that you are or were employed by or on behalf of the U.S. Government. • You submitted an employment contract number, but we were unable to verify that contract information from U.S. Government databases. • In your appeal, you submitted new documents. However, further review of the case revealed that your employment does not qualify for the Special Immigrant Visa program: The Special Immigrant Visa Unit has no records that (“WHATEVER COMPANY”) has held a contract with the U.S. Government. • Your employer was funded by a grant or cooperative agreement with the U.S. Government, that employment does not meet the requirements of the SIV Program. • You have been a self-employed businessman operating under a license with the U.S. Government, which does not meet the requirements of the SIV Program. (You are a shop owner at FOB “Somewhere”. You are employed under a license, not a contract, with the U.S. Government. This is not employment on behalf of the U.S. Government for the SIV Program). VALUABLE AND FAITHFUL: Derogatory information has been associated with you that is incompatible with the regulations of the SIV program. (You did not provide faithful and valuable service to the U.S. Government). Specific information about your case: • Security checks revealed derogatory information. • COMPANY terminated your employment because of security ineligibility. • Employment Terminated - The U.S. Embassy Regional Security Office recommended that your security certification be revoked because you failed your polygraph. • Terminated from your position at COMPANY due to security related derogatory information. • It was discovered that your employment was terminated for cause. • COMPANY terminated your employment because of job abandonment. • (Unspecified) Derogatory Information COMPANY terminated you from employment for poor performance. • COMPANY terminated your employment because of Unprofessional Conduct / Violation of Policy. SERIOUS THREAT: Specific information about your case: • You were denied because you (failed to demonstrate - had not demonstrated) that you had experienced or are experiencing an ongoing serious threat as a result of employment (as a consequence of your employment) by or on behalf of the U.S. Government. • You or your supervisor failed to adequately explain a serious ongoing threat you faced or are facing because of your employment with the U.S. Government. CATCH ALL: Your current situation does not warrant admittance to the SIV program... this statement appears to have been used when there was no other legitimate reason for the denial/revocation.
Posted on: Tue, 24 Jun 2014 14:29:44 +0000
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