[Federal Register Volume 84, Number 235 (Friday, December 6, 2019)]
[Notices]
[Pages 66924-66927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26331]


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DEPARTMENT OF HOMELAND SECURITY

U.S. Citizenship and Immigration Services

[OMB Control Number 1615-0095]


Agency Information Collection Activities; Revision of a Currently 
Approved Collection: Notice of Appeal or Motion

AGENCY: U.S. Citizenship and Immigration Services, Department of 
Homeland Security.

ACTION: 60-Day notice.

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SUMMARY: The Department of Homeland Security (DHS), U.S. Citizenship 
and Immigration (USCIS) invites the general public and other Federal 
agencies to comment upon this proposed revision of a currently approved 
collection of information or new collection of information. In 
accordance with the Paperwork Reduction Act (PRA) of 1995, the 
information collection notice is published in the Federal Register to 
obtain comments regarding the nature of the information collection, the 
categories of respondents, the estimated burden (i.e., the time, 
effort, and resources used by the respondents to respond), the 
estimated cost to the respondent, and the actual information collection 
instruments.

DATES: Comments are encouraged and will be accepted for 60 days until 
February 4, 2020.

ADDRESSES: All submissions received must include the OMB Control Number 
1615-0095 in the body of the letter, the agency name and Docket ID 
USCIS-2008-0027. To avoid duplicate submissions, please use only one of 
the following methods to submit comments:
    (1) Online. Submit comments via the Federal eRulemaking Portal 
website at http://www.regulations.gov under e-Docket ID number USCIS-
2008-0027;
    (2) Mail. Submit written comments to DHS, USCIS, Office of Policy 
and Strategy, Chief, Regulatory Coordination Division, 20 Massachusetts 
Avenue NW, Washington, DC 20529-2140.

FOR FURTHER INFORMATION CONTACT: USCIS, Office of Policy and Strategy, 
Regulatory Coordination Division, Samantha Deshommes, Chief, 20 
Massachusetts Avenue NW, Washington, DC 20529-2140, telephone number 
202-272-8377 (This is not a toll-free number. Comments are not accepted 
via telephone message). Please note contact information provided here 
is solely for questions regarding this notice. It is not for individual 
case status inquiries. Applicants seeking information about the status 
of their individual cases can check Case Status Online, available at 
the USCIS website at http://www.uscis.gov, or call the USCIS Contact 
Center at 800-375-5283 (TTY 800-767-1833).

SUPPLEMENTARY INFORMATION:

I. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-12, DHS 
is required to provide 60-day notice in the Federal Register to solicit 
comments from the public on proposed collections of information. USCIS 
published this Notice at 84 FR 39359 on August 9, 2019. USCIS received 
comments and in reviewing has made a determination that additional 
edits to the collection of information are necessary. Due to the nature 
of the changes, USCIS is publishing a second 60-day notice in the 
Federal Register to present these changes and to obtain public comment.

II. Proposed Changes to the Form Instructions for Form I-290B

    USCIS is proposing several changes to the Form I-290B Instructions. 
USCIS proposes to clarify the AAO's procedures pertaining to the 
consideration of evidence submitted for the first time on appeal and 
the requirement that affected parties address each ground of 
ineligibility raised in the unfavorable decision. USCIS proposes to 
permit affected parties to waive the ``initial field review'' of their 
appeal for faster processing. USCIS proposes to explain its standard of 
review for appeals of discretionary decisions. USCIS also proposes to 
clarify that it does not have appellate jurisdiction over Adam Walsh 
Act ``no-risk'' determinations. USCIS is proposing these changes to 
better inform affected parties of administrative appellate procedures 
and facilitate the AAO's review of the substantive merits of appeals. 
The specific changes proposed are discussed as follows:

(1) Appeals Must Address All Grounds of Ineligibility Identified in the 
Unfavorable Decision

    The proposed Form I-290B and instructions state that appeals must 
address each ground of ineligibility identified in the unfavorable 
decision. If an affected party does not address one or more ground(s) 
of ineligibility in the unfavorable decision, the issue(s) may be 
deemed waived for the appeal. Further, the proposed form and 
instructions explain that a waived ground of ineligibility may form the 
sole basis for a dismissed appeal. See, e.g., Matter of M-A-S-, 24 I&N 
Dec. 762, 767 n.2 (BIA 2009). This proposed language underscores to 
affected parties the importance of addressing each stated ground of the 
unfavorable decision on appeal. USCIS believes that this clarification 
of current practice will improve the quality of appeals and facilitate 
the AAO's review of the substantive merits of appeals.

(2) Affected Parties May Waive the ``Initial Field Review'' Process

    The proposed Form I-290B and instructions permit affected parties 
to waive the ``initial field review'' (IFR) process. The regulations at 
8 CFR 103.3(a)(2)(ii)-(v) provide that an appeal to the AAO be reviewed 
by the officer that made the unfavorable decision (or by the officer 
with jurisdiction over the matter in cases where the affected party has 
moved) before the appeal is sent to the AAO. The officer reviews the 
appeal to determine whether to take favorable action (e.g., by granting 
a motion to reopen or a motion to reconsider and

[[Page 66925]]

approving the benefit request). If the officer decides not to take 
favorable action, the appeal is then forwarded to the AAO for appellate 
review.
    Unless favorable action is taken, the IFR process delays the 
adjudication of appeals, because of the additional step prior to AAO 
review. Many stakeholders are not aware of the IFR process, and they 
contact the AAO for case status inquiries when the AAO has yet to 
receive the appeal. This delay often causes frustration. Further, 
affected parties sometimes send supplemental materials to the AAO when 
the appeal itself is at a USCIS service center or field office pending 
IFR. Other times, affected parties incorrectly send materials to a 
service center or field office when the appeal has already been 
transferred to the AAO.
    USCIS proposes to provide affected parties with the option to waive 
the IFR process in order to have their case reviewed sooner by the AAO. 
However, USCIS acknowledges that taking advantage of this option means 
that the affected party will give up the opportunity to have favorable 
action taken more quickly on their case during IFR. In addition, by 
waiving IFR and having the appeal sent directly to the AAO, the 
affected party waives review by the officer who made the unfavorable 
decision of whether an untimely appeal meets the requirements of a 
motion to reopen or a motion to reconsider under 8 CFR 
103.3(a)(2)(v)(B)(2).

(3) Clarification of the ``Initial Field Review'' Process When Evidence 
Is Not Submitted Concurrently With the Appeal; and Treatment of Newly 
Submitted Evidence on Appeal

    DHS regulations do not provide for the submission of evidence in 
support of a standard appeal. The regulations allow for the submission 
of a brief only. See 8 CFR 103.3(a)(2)(vi) (``The affected party may 
submit a brief with Form I-290B.''); see also 8 CFR 103.3 (1958), 7.11 
(1952). Only the Special Agricultural Worker and Legalization 
regulations specifically allow for the submission of new evidence on 
appeal, since these applicants may not file a motion to reopen or 
reconsider. 8 CFR 103.3(a)(3)(i) (noting that the Form I-694 appeal may 
be ``accompanied by any additional new evidence'').
    In 1991, the Immigration and Naturalization Service amended the 
instructions to Form I-290B to include the option of submitting new 
evidence with the appeal brief. The reason for this change was the 
implementation of the IFR process. The submission of evidence on appeal 
permitted the immigration officer who issued the unfavorable decision 
to decide during IFR whether to treat the appeal as a motion to reopen 
or forward the appeal to the AAO for review. 54 FR 29344 (Proposed 
Rule); 55 FR 20767-01 (Final Rule).
    In Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988), the Board of 
Immigration Appeals (BIA) determined that where a petitioner fails to 
timely and substantively respond to a Notice of Intent to Deny (NOID) 
or make a reasonable request for an extension, the BIA will not 
consider any evidence first offered on appeal as its review is limited 
to the record of proceeding before the district director. In Matter of 
Soriano, 19 I&N Dec. 764 (BIA 1988), the BIA held that if a petitioner 
was put on notice of an evidentiary requirement (by statute, 
regulation, form instructions, request for evidence (RFE), NOID, etc.) 
and was given a reasonable opportunity to provide the evidence, then 
any new evidence submitted on appeal pertaining to that requirement 
would not be considered, and the appeal would be adjudicated based on 
the evidentiary record before the director. Conversely, if the 
petitioner had not been put on notice of the deficiency or given a 
reasonable opportunity to address it before the denial, and on appeal 
the petitioner submits additional evidence addressing the deficiency, 
the record would generally be remanded to allow the director to 
initially consider and address the newly submitted evidence.
    For these reasons, except in exigent circumstances and at USCIS 
discretion, the AAO will not consider evidence submitted for the first 
time on appeal if:
     The affected party was put on notice of an evidentiary 
requirement (by statute, regulation, form instructions, RFE, NOID, 
notice of intent to revoke, etc.);
     The affected party was given a reasonable opportunity to 
provide the evidence; and
     The evidence was reasonably available to the affected 
party at the time it was supposed to have been submitted.
    USCIS also proposes to clarify on Form I-290B that if the affected 
party elects to submit evidence on appeal, the evidence must be 
submitted concurrently with the appeal in order for the officer who 
issued the unfavorable decision (or the officer with jurisdiction over 
the matter in cases where the affected party has moved) to review the 
new evidence for favorable action as a motion to reopen. If the 
affected party elects to submit a brief or evidence after the filing of 
the appeal, the affected party must submit it directly to the AAO. See 
8 CFR 103.3 (a)(2)(viii); Instructions for Notice of Appeal or Motion 
at https://www.uscis.gov/i-290b. This means that the officer conducting 
IFR will not have an opportunity to review the new evidence and 
therefore cannot treat the appeal as a motion to reopen prior to 
forwarding the appeal to the AAO. This clarification in the form and 
instructions is meant to make it absolutely clear to filers what 
happens if the evidence is not concurrently submitted with the Form I-
290B but is instead submitted later with the brief to the AAO. Further, 
as the appellate process was not meant to provide for the submission of 
evidence in support of an appeal, this clarification also elucidates 
that, except in exigent circumstances, the submission of evidence 
directly to the AAO may only result at most in a remand, provided the 
evidence is material and does not fall into one of the three categories 
described above.

(4) Abuse of Discretion Standard of Review for Discretionary Decisions

    For USCIS discretionary decisions, the officer generally identifies 
and weighs the applicable positive and negative factors, which may 
include the alien's conduct, character, relationships, ties to the 
United States, medical condition, and other humanitarian factors. See, 
e.g., USCIS Policy Manual, Vol. 7, Ch. 10, ``Legal Analysis and Use of 
Discretion'' (2019). To determine whether a denial is based on 
discretion, the AAO reviews the written decision for an analysis that 
weighs both positive and adverse factors, followed by unambiguous 
language to indicate that the matter is denied ``as a matter of 
discretion,'' and a specific citation to a statute that confers 
discretionary authority.
    A majority of discretionary immigration benefits are not subject to 
review on appeal. See, e.g., 8 CFR 207.3 (refugee waivers), 209.2(f) 
(application for adjustment of status of alien granted asylum), 
212.3(c) (application for advance permission to return to an 
unrelinquished domicile under section 212(c) of the Act), 214.1(c)(5) 
(applications for extension of nonimmigrant stay), 216.5(f) (hardship 
waiver for joint petition to remove conditions for alien spouse), 
240.25(e) (application for voluntary departure), 245.2(a)(5)(ii) 
(adjustment of status under section 245(a) of the Act), 
245.2(a)(5)(iii) (adjustment of status under the Act of 1966), 245.2(c) 
(adjustment of status under section 214(d) of the Act), 249.2(b) 
(record of admission under section 249 of the Act), and 274a.13(c) 
(applications for

[[Page 66926]]

employment authorization). A smaller number of discretionary case types 
fall under the appellate jurisdiction of the AAO. See 8 CFR 212.2(h) 
(requests for consent to reapply for admission), 212.7(a)(3) 
(applications for waiver of certain grounds of inadmissibility), 
223.2(g) (applications for reentry permits and refugee travel 
documents), 244.10(d) (application for Temporary Protected Status), 
245.23(i) (applications for T adjustment of status), and 245.24(f)(2) 
(applications for U adjustment of status).
    The AAO may review questions of law, policy, fact, and discretion 
de novo. See section 557(b) of the Administrative Procedure Act (APA); 
Powers and Duties of Service Officers, 49 FR 7355 (Feb. 29, 1984). See 
also Soltane v. USDOJ, 381 F.3d 143, 145-46 (3rd Cir. 2004); 
Sadeghzadeh v. USCIS, 322 F.Supp.3d 12, 19 (DDC 2018). The AAO's de 
novo review authority is also acknowledged in its precedent decisions. 
See, e.g., Matter of Simeio Solutions, LLC, 26 I&N Dec. 542, 542 n.1 
(AAO 2015).
    While de novo review may be suitable for questions of law and fact, 
DHS has questioned whether this de novo review approach is appropriate 
for discretionary decisions given the initial adjudicator's role in 
developing the record, identifying the discretionary factors, and 
ultimately weighing the alien's conduct, character, relationships, and 
other humanitarian factors. Appellate bodies traditionally use three 
different standards of review (de novo, clear error, and abuse of 
discretion) depending on whether the issue being reviewed is a question 
of law, fact, or discretion, respectively. De novo review is the lowest 
or least deferential standard of review. With de novo review, the 
appellate adjudicator does not give any deference to the decision 
below. It considers the issue anew, as if no decision had been 
previously rendered. De novo review traditionally applies to questions 
of law, such as statutory and regulatory interpretation. Conversely, 
``abuse of discretion'' is the highest or most deferential standard of 
review. Abuse of discretion requires a firm conviction that a 
discretionary decision is grossly unsound, unreasonable, contrary to 
law, or unsupported by the evidence. See Black's Law Dictionary (11th 
ed. 2019). This level of deference is traditionally given to an 
exercise of discretionary authority.
    To that end, DHS proposes to revise the instructions for Form I-
290B to inform affected parties that the AAO will review discretionary 
USCIS decisions using the abuse of discretion standard of review. This 
means that the AAO will not overrule the an exercise of discretion 
unless there is a firm conviction the decision is grossly unsound, 
unreasonable, contrary to law, or unsupported by the evidence. This 
level of review is appropriate because the AAO should not overturn a 
reasonable exercise of discretion simply because the appeals officer in 
his or her discretion would have reached a different result.

(5) AAO Does Not Have Appellate Jurisdiction Over ``No Risk'' 
Determinations Under the Adam Walsh Act

    The proposed Form I-290B Instructions clarify that the AAO does not 
have jurisdiction over appeals of ``no risk'' determinations under the 
Adam Walsh Child Protection and Safety Act of 2006, Public Law 109-248, 
120 Stat. 587 (AWA). Section 402(a)(2) of the AWA bars approval of 
family-based visa petitions filed by U.S. citizens who have been 
convicted of a ``specified offense against a minor'' unless the DHS 
Secretary, in his or her ``sole and unreviewable discretion,'' 
determines that the U.S. citizen poses ``no risk'' to the beneficiary 
of the petition.
    The AAO's appellate jurisdiction is based on a delegation of 
authority from the Secretary of Homeland Security. See Delegation 
Number 0150.1(U) (effective March 1, 2003). The Secretary may delegate 
any authority or function to administer and enforce the immigration 
laws to any official, officer, or DHS employee. 6 U.S.C. 112(b)(1) 
(2012); 8 U.S.C. 1103(a)(4); 8 CFR 2.1.
    Regarding AWA ``no risk'' determinations, in Matter of Aceijas-
Quiroz, 26 I&N Dec. 294 (BIA 2014), the BIA held that Congress 
entrusted AWA ``no risk'' determinations to DHS, not the BIA. USCIS 
subsequently issued a policy memorandum agreeing that DHS maintains 
sole jurisdiction over AWA ``no risk'' determinations. See PM-602-0124, 
Initial Field Review of Appeals to the Administrative Appeals Office 
(Nov. 4, 2015). However, the Secretary has not delegated appellate 
authority to the AAO by revising Delegation 0150.1(U) or through other 
means provided by 8 CFR 2.1. Although USCIS officers may certify cases 
involving AWA ``no risk'' determinations to the AAO, the Secretary has 
not yet delegated appellate authority over AWA ``no risk'' 
determinations to the AAO. Accordingly, in order for USCIS to review an 
adverse AWA ``no risk'' determination decision, the correct course of 
action is to file a motion to reopen or reconsider on Form I-290B.
    This clarification has been added to the Form I-290B Instructions 
because in the past, the AAO is aware that it incorrectly reviewed at 
least one appeal of an AWA ``no risk'' determination, in addition to 
multiple cases that were properly certified for review. Additionally, 
the AAO had posted inconsistent information on the USCIS website 
regarding AWA jurisdiction. Consequently, to reduce stakeholder 
confusion regarding this issue, this proposed language has been 
included in the update to the Form I-290B Instructions.

III. Administrative Procedure Act (APA)

    This proposed Form revision is a procedural rule and as a rule ``of 
agency organization, procedure, or practice,'' is exempt from the APA 
and USCIS is not required to provide notice and an opportunity to 
comment prior to its issuance. See 5 U.S.C. 553(b)(3)(A). The proposed 
revisions to the form and instructions clearly outline the requirements 
and documentation necessary to support a request for an appeal or 
motion. The revised Form I-290B simply effectuates technical changes to 
appeals and motions squarely within the definition of a procedural 
rule. The substantive standards for appeals and motions remain 
unchanged and a revision that changes evidence or filing requirements 
but does not ``change the substantive standards by which [USCIS] 
evaluates [appeals] . . . fall[s] comfortably within the realm of the 
`procedural.' '' JEM Broad. Co., 22 F.3d at 327; see also Am. Hosp. 
Ass'n v. Bowen, 834 F.2d 1037, 1055 (D.C. Cir. 1987) (concluding that 
``the focus and timing of review are matters for agency discretion, 
falling well within Sec.  553's procedural exemption'' provided 
substantive standards remain unchanged).
    To the extent the proposed revisions are not procedural, they are 
still exempt from notice-and-comment rulemaking because they are, at 
most, ``interpretive.'' Interpretive rules, which ``merely explain, but 
do not add to, the substantive law that already exists in the form of a 
statute or legislative rule.'' Mora-Meraz v. Thomas, 601 F.3d 933, 940 
(9th Cir. 2010) (``[A]gencies issue interpretive rules to clarify or 
explain existing law or regulations so as to advise the public of the 
agency's construction of the rules it administers.'' Here, 8 CFR 103.3 
and 103.5 set forth the requirements for appeals including the evidence 
to support the reasons the USCIS decision is incorrect. The five 
changes outlined above simply clarify regulatory requirements and do 
not

[[Page 66927]]

change substantive standards for appeals and motions, just the 
procedural steps and evidence for filing.

Comments

    You may access the information collection instrument with 
instructions, or additional information by visiting the Federal 
eRulemaking Portal site at: http://www.regulations.gov and enter USCIS-
2008-0027 in the search box. Regardless of the method used for 
submitting comments or material, all submissions will be posted, 
without change, to the Federal eRulemaking Portal at http://www.regulations.gov, and will include any personal information you 
provide. Therefore, submitting this information makes it public. You 
may wish to consider limiting the amount of personal information that 
you provide in any voluntary submission you make to DHS. DHS may 
withhold information provided in comments from public viewing that it 
determines may impact the privacy of an individual or is offensive. For 
additional information, please read the Privacy Act notice that is 
available via the link in the footer of http://www.regulations.gov.
    Written comments and suggestions from the public and affected 
agencies should address one or more of the following four points:
    (1) Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the proposed collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses.

Overview of This Information Collection

    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: Notice of Appeal or Motion.
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: I-290B; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Individuals or households. Form I-
290B standardizes requests for appeals and motions and ensures that the 
basic information required to adjudicate appeals and motions is 
provided by applicants and petitioners, or their attorneys or 
representatives. USCIS uses the data collected on Form I-290B to 
determine whether an applicant or petitioner is eligible to file an 
appeal or motion, whether the requirements of an appeal or motion have 
been met, and whether the applicant or petitioner is eligible for the 
requested immigration benefit. Form I-290B can also be filed with ICE 
by schools appealing decisions on Form I-17 filings for certification 
to ICE's Student and Exchange Visitor Program (SEVP).
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of respondents for the information collection I-290B is 
28,000 and the estimated hour burden per response is 1.5 hours.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection is 42,000 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this collection of information is $8,652,000.

    Dated: November 29, 2019.
Kathy Nuebel Kovarik,
Acting Deputy Director, U.S. Citizenship and Immigration Services, 
Department of Homeland Security.
[FR Doc. 2019-26331 Filed 12-5-19; 8:45 am]
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