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9th Circuit - USCIS Must Follow the Law |
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Blogs -
Immigration Blog
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Friday, 05 March 2010 12:54 |
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In an important victory for the rule of law the US 9th Circuit court of appeals held that: [Neither] USCIS nor an AAO may unilaterally impose novel substantive or evidentiary requirements. Kazarian v USCIS
Unfortunately Dr. Kazarian still lost his case, but I thank him for putting up the good fight. More unfortunately the Court viewed this as a procedural evidentiary matter. The court did not address the issue of arbitrary and capricious adjudications, only arbitrary and capricious standards for admission of evidence. A court must address the substantive issues by asking if the regulations and adjudicatory precedents used by the AAO are not in fact arbitrary and capricious. For example, nowhere in the statute or regulations is there support for the AAO's conclusion that peer review of scholarly publications is routine and therefore not sufficiently meritorious to meet the evidentiary standard. Whether or not this is true is a matter of fact not of law and thus must be supported by evidence. My review of AAO opinions (admittedly not 100% of them) does not show any citation to a recognized authority or expert witness supporting the AAO conclusion. The AAO appears is making decisions based on facts invented from whole cloth.
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