The opinion
Cite as 27 I&N Dec. 837 (DIR 2020) Interim Decision #3984
Matter of BAY AREA LEGAL SERVICES, INC., Applicant
Request for Accreditation
Decided May 22, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Office of the Director
(1) The Assistant Director for Policy has the discretion to extend the deadline for a request
for reconsideration made pursuant to 8 C.F.R. § 1292.13(e), but not for a request for
reconsideration made pursuant to 8 C.F.R. § 1292.16(f) or § 1292.17(d). The 30-day
deadline for a request for reconsideration in 8 C.F.R. § 1292.13(e), § 1292.16(f), and
§ 1292.17(d) is otherwise mandatory and not subject to equitable tolling.
(2) A request for reconsideration made pursuant to 8 C.F.R. § 1292.13(e), § 1292.16(f), or
§ 1292.17(d) must demonstrate an error of fact or law in the previous decision.
(3) The standard of review for administrative reviews conducted under 8 C.F.R. § 1292.18
is de novo.
(4) Unless overruled by subsequent precedent or superseded by statute, regulation, or
binding federal court decision, prior precedent decisions of the Board of Immigration
Appeals remain binding in recognition and accreditation proceedings after January 18,
2017, including consideration of requests for reconsideration pursuant to 8 C.F.R.
§§ 1292.13(e), 1292.16(f), or 1292.17(d) and administrative reviews conducted under
8 C.F.R. § 1292.18.
(5) In addition to establishing the requirements for partial accreditation, an organization
seeking full accreditation for an individual pursuant to 8 C.F.R. § 1292.12(a)(6) must
establish that the individual possesses “skills essential for effective litigation.” Such
skills include, at a minimum, “the ability to advocate a client's position at a hearing
before an Immigration Judge by presenting documentary evidence and questioning
witnesses, to present oral arguments before the Board, and to prepare motions and briefs
for consideration by an Immigration Judge and/or [the] Board.” Matter of EAC, Inc.,
24 I&N Dec. 556 (BIA 2008), followed.
McHENRY, Director:
The Office of Policy, through the Office of Legal Access Programs
(OLAP), currently administers the Executive Office for Immigration
Review’s (EOIR’s) recognition and accreditation program (R&A Program).
On October 16, 2019, OLAP approved the application of Bay Area Legal
Services, Inc. (Applicant) for recognition under 8 C.F.R. § 1292.11. It also
approved a request to extend recognition of the Applicant’s principal office
to various extension offices under 8 C.F.R. § 1292.15.
837
Cite as 27 I&N Dec. 837 (DIR 2020) Interim Decision #3984
Applicant also submitted a request for full accreditation for Carlos
Betancourt under 8 C.F.R. § 1292.12. On October 16, 2019, OLAP
disapproved the request for full accreditation for Mr. Betancourt but
approved the application for partial accreditation for him. On December 16,
2019, OLAP received a request for reconsideration of the disapproval of
the application for full accreditation for Mr. Betancourt pursuant to
8 C.F.R. § 1292.13(e). On February 19, 2020, OLAP denied the request for
reconsideration.
On February 21, 2020, I provided notification to Applicant that I would
review the denial of the reconsideration request on my own initiative
pursuant to 8 C.F.R. § 1292.18(a)(2). In that notification, I further specified
the following issues to be reviewed:
(1) Is the 30-day deadline for a request for reconsideration in 8 C.F.R.
§ 1292.13(e) (and in § 1292.16(f) and § 1292.17(d)) subject to equitable tolling? If
so, what circumstances may warrant such tolling?
(2) What is the appropriate legal standard for evaluating a request for
reconsideration pursuant to 8 C.F.R. § 1292.13(e) (or § 1292.16(f) or § 1292.17(d))?
(3) What is the appropriate standard of review for an administrative review
conducted under 8 C.F.R. § 1292.18?
(4) Are prior precedent decisions of the Board of Immigration Appeals (the Board)
in recognition and accreditation (R&A) cases binding on consideration of requests
for reconsideration pursuant to 8 C.F.R. §§ 1292.13(e), 1292.16(f), or 1292.17(d)
and on administrative reviews conducted under 8 C.F.R. § 1292.18?
Pursuant to 8 C.F.R. § 1292.18(b), I also notified Applicant that it could
submit additional filings, including a brief, on these issues and that it could
submit any additional evidence related to the denial of the request for
reconsideration. Any additional filings by Applicant were due by March 13,
2020. I further invited interested members of the public to file amicus curiae
briefs on the aforementioned issues. 1
1
As further discussed herein, the regulatory transfer of responsibility for the R&A
Program from the Board to OLAP in 2017 left open a number of questions related to R&A
proceedings, including whether appearances by amicus curiae are permissible in such
proceedings. When the Board oversaw responsibility for the R&A Program, its regulation
allowing for appearances by amicus curiae on a case-by-case basis allowed for such
appearances in R&A cases. 8 C.F.R. § 1292.1(d). After the transfer, however, the
regulations governing the R&A Program do not expressly allow for appearances by
amicus curiae in proceedings adjudicating applications under that program. See id.
§§ 1292.11-1292.20. Although EOIR policy is clear that amicus curiae may not engage in
legal advocacy on behalf of an individual in open court, Policy Memorandum 20-05, Legal
838
Cite as 27 I&N Dec. 837 (DIR 2020) Interim Decision #3984
Applicant did not file any additional materials or a brief. One
organization filed an amicus curiae brief.
For the reasons set forth below, I affirm OLAP’s denial of the request for
reconsideration. 2
I. BACKGROUND
“The purpose of the [R&A Program] is to provide competent and
affordable immigration legal services to persons of limited means through
reputable nonprofit organizations.” Matter of St. Francis Cabrini
Immigration Law Center, 26 I&N Dec. 445, 446 (BIA 2014). Through the
R&A Program, EOIR permits qualified non-attorneys to represent aliens
before the Department of Homeland Security (DHS), the immigration courts,
and the Board of Immigration Appeals (the Board). Organizations
recognized by EOIR may “provide representation through accredited
representatives who appear on behalf of clients before the Immigration
Courts, the Board, and DHS, or DHS alone.” 8 C.F.R. § 1292.11(a). EOIR
“may approve accreditation of an eligible individual as a representative
of a recognized organization for either full or partial accreditation.” Id.
§ 1292.12(a). “An individual who receives full accreditation may represent
clients before the Immigration Courts, the Board, and DHS. An individual
who receives partial accreditation may represent clients only before DHS.”
Id. An organization applying for accreditation for an individual must specify
whether it seeks partial or full accreditation for that individual. Id. In addition
to the requirements for partial accreditation, id. §§ 1292.12(a)(1)-(6), an
organization seeking full accreditation “must establish that the individual
also possesses skills essential for effective litigation.” Id. § 1292.12(a)(6).
Advocacy by Non-Representatives in Immigration Court (Nov. 21, 2019) (PM 20-05), an
administrative review under 8 C.F.R. § 1292.18 presents a different situation. Cf. Yip
v. Pagano, 606 F. Supp. 1566, 1568 (D.N.J. 1985), aff’d, 782 F.2d 1033 (3d Cir.), cert.
denied, 476 U.S. 1141 (1986) (“At the trial level, where issues of fact as well as law
predominate, the aid of amicus curiae may be less appropriate than at the appellate level
where such participation has become standard procedure.”); Sierra Club v. FEMA, 2007
WL 3472851, *1 (S.D. Tex. Nov. 14, 2007) (“An amicus may be useful at the appellate
level but not in the district court.”). As there is no indication that the transfer of oversight
of the R&A Program through the 2016 rulemaking was intended to prohibit amicus curiae
briefing at the review stage of R&A proceedings—as analogous to the Board’s appellate
authority—I find that the Director has the authority in an administrative review conducted
under 8 C.F.R. § 1292.18 to invite briefing from amicus curiae on a case-by-case basis if
the public interest will be served.
2
Pursuant to 8 C.F.R. § 1292.18(d), I also direct that this decision be published as
precedent.
839
Cite as 27 I&N Dec. 837 (DIR 2020) Interim Decision #3984
The Department of Justice has maintained a formal R&A Program
since at least the mid-1970s. See Representation and Appearance Before
Immigration and Naturalization Appeals, 40 Fed. Reg. 23,271 (May 29,
1975). Until 2017, oversight of the Service and Board of Immigration R&A
Program within EOIR lay with the Board, and the Board occasionally
published decisions in R&A proceedings to provide guidance for those
seeking recognition or accreditation. See, e.g., Matter of American Paralegal
Academy, Inc., 19 I&N Dec. 386 (BIA 1986) (interpreting the phrase
“nominal charges” for purposes of recognition under then-8 C.F.R.
§ 292.2(a)).
In 2015, EOIR proposed several changes to the R&A Program, including
the transfer of responsibility for it from the Board to OLAP. See Recognition
of Organizations and Accreditation of Non-Attorney Representatives,
80 Fed. Reg. 59,514 (Oct. 1, 2015). The rule effectuating those changes was
finalized on December 19, 2016, and became effective on January 18, 2017.
See Recognition of Organizations and Accreditation of Non-Attorney
Representatives, 81 Fed. Reg. 92,346 (Dec. 19, 2016). The final rule
contained multiple changes from the proposed rule, including the addition of
a reconsideration process and a process for further administrative review
by the Director. Id. at 92,357. Pursuant to the final rule, disapprovals of
recognition or accreditation requests, disapprovals of requests for renewal of
recognition or accreditation, and terminations of recognition or accreditation
on particular bases are each subject to one request for reconsideration filed by
an applicant within 30 days of the relevant decision. 8 C.F.R. §§ 1292.13(e),
1292.16(f), and 1292.17(d). 3 The Director has discretionary authority to
review a denial of a request for reconsideration in these three circumstances.
Id. § 1292.18(a). 4
As discussed further below, the changes brought about by that rule raised
several procedural questions that were unanswered by the rule itself. Some
of those questions have been addressed through subsequent rulemakings.
3
The regulations do not provide for an organization’s ability to request reconsideration
when its request to extend recognition to any office or location where the organization
offers services is denied. See 8 C.F.R. § 1292.15.
4
As discussed, infra, the Assistant Director for Policy may, as a matter of discretion,
extend the 30-day deadline for a reconsideration request of the disapproval of a recognition
or accreditation request, but not the deadline for reconsideration requests of disapprovals
of requests for renewal of recognition or accreditation or of terminations of recognition or
accreditation on particular bases. Otherwise, the three 30-day deadlines contain nearly
identical regulatory language, serve identical functions, and are subject to the same form
of administrative review. Accordingly, I find no reason to interpret the three provisions
differently—i.e., 8 C.F.R. §§ 1292.13(e), 1292.16(f), and 1292.17(d)—or to distinguish the
standards applicable to all of them, except as noted herein.
840
Cite as 27 I&N Dec. 837 (DIR 2020) Interim Decision #3984
See, e.g., Board of Immigration Appeals: Affirmance Without Opinion,
Referral for Panel Review, and Publication of Decisions as Precedents,
84 Fed. Reg. 31,463, 31,469 (July 2, 2019) (adding language to 8 C.F.R.
§ 1292.18 to make clear that decisions in R&A proceedings may still be
designated as precedential and that R&A cases may still be referred to the
Attorney General for review even after the transfer of responsibility for the
R&A Program from the Board to OLAP). 5 Other questions remain open,
particularly involving the reconsideration and administrative review
processes added in the final rule. As Applicant’s case presents several of
these questions, the instant adjudication provides an appropriate opportunity
to fill in some of the gaps left by the 2016 rulemaking and to provide
guidance for future adjudications in R&A proceedings.
II. ISSUES
Applicant’s request for reconsideration was subject to a 30-day deadline
and appears to have been untimely filed. Therefore, the first question raised
is whether there is any basis to extend that deadline and to consider
Applicant’s request notwithstanding its untimeliness. Additionally, although
OLAP denied the request as untimely, it denied the request on the merits in
the alternative. Consequently, Applicant’s case also raises the question of
what such a request must demonstrate in order to warrant consideration on
its merits. As OLAP’s decision was subject to administrative review, the
case further presents the question of what standard should govern such
reviews. Finally, the merits of Applicant’s request appear to be controlled
by a prior Board precedent. Thus, the question of the continued applicability
of that precedent is also at issue in Applicant’s case. Each of these issues is
addressed in turn below.
A. Untimely Requests for Reconsideration under
8 C.F.R. § 1292.13(e), § 1292.16(f), or § 1292.17(d)
A request for reconsideration pursuant to 8 C.F.R. §§ 1292.13(e),
1292.16(f), or 1292.17(d) must be filed within 30 days of the relevant
decision. The Assistant Director for Policy or the Director of OLAP as her
delegate may, as a matter of discretion, extend the deadline for a request for
reconsideration of the disapproval of a recognition or accreditation request.
5
In 2019, OLAP and responsibility for the R&A Program were transferred within EOIR
from the Office of the Director to the Office of Policy through the promulgation of an
interim final rule. See Organization of the Executive Office for Immigration Review, 84
Fed. Reg. 44,537 (Aug. 26, 2019). As a change in internal agency organization, the 2019
interim final rule did not address any standards for these procedures in the R&A Program.
841
Cite as 27 I&N Dec. 837 (DIR 2020) Interim Decision #3984
See 8 C.F.R. § 1292.13(a) (“The Assistant Director for Policy (or the
Assistant Director for Policy’s delegate) may, in the exercise of discretion,
extend the deadlines provided in this section [i.e., 8 C.F.R. § 1292.13].”). No
similar regulatory authority exists, however, for reconsideration requests for
disapprovals of requests for renewal of recognition or accreditation or for
terminations of recognition or accreditation on particular bases. 6 See id.
§§ 1292.16, 1292.17.
The 30-day filing deadline for a request for reconsideration appears to be
a traditional claim-processing rule, one that “promote[s] the orderly progress
of litigation by requiring that the parties take certain procedural steps at
certain specified times.” Henderson v. Shinseki, 562 U.S. 428, 435 (2011).
Indeed, filing deadlines are “quintessential claim-processing rules.” Id.
Some claim-processing rules may be subject to equitable tolling, which
tolls, or pauses, a relevant deadline for a person (or entity) who has diligently
pursued his rights but nevertheless failed to file something timely due to an
extraordinary circumstance; however, not all claim-processing rules are
subject to equitable tolling. Compare Nutraceutical Corp. v. Lambert, 139
S. Ct. 710, 714 (2019) (Fed. R. Civ. P. 23(f) is a claim-processing rule but is
not amenable to equitable tolling), and Eberhart v. United States, 546 U.S.
12, 19 (2005) (Fed. R. Crim. P. 33 is a claim-processing rule, but inflexible),
with Attipoe v. Barr, 945 F.3d 76, 77 (2d Cir. 2019) (the Board’s 30-day
deadline for filing an appeal is a claim-processing rule that is subject to
equitable tolling); see also Huerta v. Gonzales, 443 F.3d 753, 756 (10th Cir.
2006) (the Board’s 30-day deadline for filing an appeal is a claim-processing
rule but is nevertheless mandatory); Liadov v. Mukasey, 518 F.3d 1003, 1008
n.4 (8th Cir. 2008) (agreeing with Huerta that the Board’s filing deadline is
nonjurisdictional but nevertheless mandatory). The understanding of filing
deadlines as nonjurisdictional claim-processing rules is also not dispositive
as to whether those deadlines are subject to extension for any reason, such as
equitable tolling, because filing-deadline claim-processing rules may be
enforced as mandatory. See Gonzalez v. Thaler, 565 U.S. 134, 146 (2012)
(“But calling a rule nonjurisdictional does not mean that it is not mandatory
. . . .”); cf. Kontrick v. Ryan, 540 U.S. 443, 456 (2004) (noting that a filing
deadline categorized as a nonjurisdictional claim processing rule may
nevertheless be “inflexible” or “unalterable”).
The 30-day filing deadline is purely a creature of regulation, as there is
no statutory requirement for reconsideration in R&A proceedings. Thus,
there is no evidence of any statutory intent to provide authority to extend that
6
The Assistant Director for Policy or her delegate does have the authority to extend the
deadline for filing a renewal request or to accept an untimely-filed renewal request, 8 C.F.R.
§ 1292.16(b)(3), but that authority does not extend to requests for reconsideration of the
disapproval of renewal requests.
842
Cite as 27 I&N Dec. 837 (DIR 2020) Interim Decision #3984
deadline. See Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014) (“Because
the doctrine effectively extends an otherwise discrete limitations period
set by Congress, whether equitable tolling is available is fundamentally a
question of statutory intent.”). The regulation itself also provides no
authority for an equitable deadline extension and no authority for an
extension at all, except as provided in 8 C.F.R. § 1292.13(a) for a request
for reconsideration of the disapproval of a recognition or accreditation
request. There is also no presumption that equitable tolling should apply
to reconsideration requests in R&A proceedings. See Sebelius v. Auburn
Regional Medical Center, 568 U.S. 145, 158 (2013) (“We have never applied
[a rebuttable presumption that equitable tolling applies to suits against
the United States] to an agency’s internal appeal deadline . . . .”). Finally,
equitable tolling is a remedy founded in equity, and EOIR does not possess
inherent, non-statutory, free-floating equitable authority. See, e.g., Matter of
Hernandez-Puente, 20 I&N Dec. 335 (1991) (the Board and immigration
judges are without authority to apply equitable estoppel against now-DHS to
preclude it from taking a lawful course of action it is authorized to take by
statute or regulation).
Consequently, in the absence of any statutory, regulatory, or equitable
authority, there is no basis to apply equitable tolling to filing deadlines in
R&A proceedings. Accordingly, although the Assistant Director for Policy
may, as a matter of discretion, extend the deadline for a request for
reconsideration of the disapproval of a recognition or accreditation
request pursuant to 8 C.F.R. § 1292.13(a), the deadline for a request for
reconsideration is otherwise mandatory. No other regulation authorizes an
extension of the 30-day deadline in 8 C.F.R. §§ 1292.13(e), 1292.16(f), or
1292.17(d), and equitable tolling cannot be invoked to extend the deadline.
B. Requests for Reconsideration Pursuant to
8 C.F.R. § 1292.13(e), § 1292.16(f), or § 1292.17(d)
The regulations are silent on what, if anything, an applicant
must demonstrate on a request for reconsideration under either 8 C.F.R.
§ 1292.13(e), § 1292.16(f), or § 1292.17(d). The rule establishing the
availability of reconsideration requests, however, noted that the procedures
were designed to allow affected organizations an opportunity to “point to an
error in the determination.” 81 Fed. Reg. at 92,357. 7
7
Somewhat confusingly, the final rule implies that deficiencies leading to an adverse
determination by OLAP could also be corrected through a request for reconsideration,
81 Fed. Reg. at 92,357 (“Nevertheless, the Department realizes that adverse determinations
are likely to occur and that organizations may have the ability to correct any deficiencies
843
Cite as 27 I&N Dec. 837 (DIR 2020) Interim Decision #3984
Although the specific label “request [or motion] for reconsideration” is not
used in all types of adjudications, many adjudicatory systems have some
mechanism for the reassessment of a prior decision by the same decision-
maker, though there may be limits on the types of decisions subject to
reconsideration and the amount of time in which such a request must be filed.
Many, if not most, of these mechanisms employ some variation of a basic
standard—identification of an error of fact or law in the prior decision. For
example, a motion to reconsider a Board or an immigration judge decision
requires the specification of an error of fact or law. 8 C.F.R. §§ 1003.2(b)(1),
1003.23(b)(2); Matter of O-S-G-, 24 I&N Dec. 56, 56-57 (BIA 2006).
Other administrative agencies utilize a similar standard. See, e.g., 38 C.F.R.
§ 20.1001(a) (reconsideration of a decision by the Board of Veterans Appeals
may be accorded upon allegation of obvious error of fact or law). Various
types of reconsideration procedures in federal court proceedings also utilize
a similar standard, though the procedural names and specific formulations
vary. Cf. Fed. R. App. P. 40(a)(2) (“[A petition for panel rehearing] must
state with particularity each point of law or fact that the petitioner believes
the court has overlooked or misapprehended . . . .”); Above the Belt, Inc.
v. Mel Bohannon Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983) (“The
motion to reconsider would be appropriate where, for example, the Court has
patently misunderstood a party, or has made a decision outside the
adversarial issues presented to the Court by the parties, or has made an error
not of reasoning but of apprehension.”).
Consistent with the language and apparent intent of the 2016 rulemaking,
there is no indication that the reconsideration procedure established in
8 C.F.R. § 1292.13(e), § 1292.16(f), or § 1292.17(d) was intended to deviate
from the well-established standard that such requests must point to an error
in the underlying determination, such as an error of fact or law, nor is there
any basis to conclude that the reconsideration procedure was intended to be
subject to some other novel, unstated adjudicatory parameter. Accordingly,
I hold that a request for reconsideration under 8 C.F.R. § 1292.13(e),
that led to the adverse determination or otherwise point to an error in the determination.”),
even though the rule already contained other procedures designed to address any such
deficiencies, id. (“The final rule adopts the provisions of the proposed rule that afford an
applicant an opportunity to be heard before the issuance of a determination on an initial or
renewal application for recognition and accreditation or a determination on administrative
termination based on deficiencies regarding the requirements for recognition or
accreditation or reporting, recordkeeping, and posting.”). Moreover, most, if not all,
purported deficiencies to be corrected would be identified by “point[ing] to an error in the
determination.” Id. Accordingly, the language in the rulemaking does not set out an
additional standard for a request for reconsideration beyond pointing out an error in the
prior determination, which includes an error of either fact or law (or both).
844
Cite as 27 I&N Dec. 837 (DIR 2020) Interim Decision #3984
§ 1292.16(f), or § 1292.17(d) must point to an error of fact or law (or both)
in the underlying determination in order to be grantable.
C. The Standard of Review for an Administrative Review
Conducted Under 8 C.F.R. § 1292.18
The possibility of administrative review by the Director was added to the
final rule in response to “concerns that OLAP would be the sole
decision-maker regarding recognition and accreditation and that another
entity should be able to review OLAP’s decisions.” 81 Fed. Reg. at 92,357.
The rulemaking did not offer a standard for such review, however. 8
A request for administrative review may allege “factual or legal errors,”
indicating that administrative review encompasses both factual and legal
determinations. 8 C.F.R. § 1292.18(a)(1). Consequently, the standard of
review should be appropriate for both types of determinations.
There is no universal standard for administrative reviews in agency
proceedings, and assessing similar administrative immigration-related
adjudications shows a mix of approaches to reviewing factual and legal
determinations. For example, the Board reviews factual findings by
immigration judges for clear error and reviews questions of law, discretion,
and judgment de novo. 8 C.F.R. §§ 1003.1(d)(3)(i), (ii). For appeals from
DHS proceedings, however, the Board reviews all issues de novo. Id.
§ 1003.1(d)(3)(iii). In conducting an administrative review of an ALJ’s
decision in certain proceedings under 8.U.S.C. § 1324a or 1324c, see
28 C.F.R. § 68.54, the CAHO reviews all issues de novo. Maka v. INS,
904 F.2d 1351, 1356 (9th Cir. 1990); United States v. Crescent City
Meat Company, Inc., 11 OCAHO no. 1217, 7 (CAHO 2014). The DHS
Administrative Appeals Office (AAO) reviews cases de novo, including
questions of law, policy, fact, and discretion. Matter of Simeio Solutions,
LLC, 26 I&N Dec. 542 n.1 (AAO 2015); see also Agency Information
Collection Activities; Revision of a Currently Approved Collection: Notice
8
The rule appears modeled, in part, on the rule for Chief Administrative Hearing Officer
(CAHO) review of an administrative law judge’s (ALJ’s) decision in certain immigration-
related proceedings under 8 U.S.C. §§ 1324a and 1324c. See 28 C.F.R. § 68.54. Both
rules provide for discretionary administrative review within 10 days of the relevant
decision, allow for the reviewer to conduct a review on his or her own initiative, and require
the reviewer to state the issues to be reviewed for a self-initiated review. Compare id.
§ 68.54(a) with 8 C.F.R. § 1292.18(a). As discussed, infra, the CAHO reviews an ALJ’s
decision in proceedings under 8 U.S.C. §§ 1324a and 1324c de novo, though there is a
statutory basis for applying that standard. See 5 U.S.C. § 557(b). Nevertheless, to the
extent that the provisions of CAHO review under 28 C.F.R. § 68.54 may inform Director
review under 8 C.F.R. § 1292.18, those provisions support a de novo standard of review.
845
Cite as 27 I&N Dec. 837 (DIR 2020) Interim Decision #3984
of Appeal or Motion, 84 Fed. Reg. 66,924, 66,926 (Dec. 6, 2019) (“The AAO
may review questions of law, policy, fact, and discretion de novo.”). 9
Adjudications in R&A proceedings are largely, if not entirely, based on
paper filings or other documentary evidence. See, e.g., 8 C.F.R. 1292.13(a).
Thus, both factual and legal determinations are based on the documents
presented. Notably, although the Board distinguishes standards of review for
questions of fact and questions of law in appeals from immigration judge
decisions, which usually follow a hearing, it retains one standard of review
for both questions of law and questions of fact in appeals from DHS
proceedings, which are largely based on papers and interviews. Compare
id. §§ 1003.1(d)(3)(i), (ii), with id. § 1003.1(d)(3)(iii); see also Board of
Immigration Appeals: Procedural Reforms to Improve Case Management,
67 Fed. Reg. 54,878, 54,891 (Aug. 26, 2002) (“The comments on de novo
review have raised an issue of the scope of review of factual determinations
by officers of the [DHS] in decisions under review by the Board. Review of
decisions by the district director and other [DHS] officers do not have the
benefit of a full record of proceedings or, except in rare cases, a transcript of
hearings before an independent adjudicating officer. Rather these decisions
are made on applications and interviews, and other information available
to the Service. In light of this difference, the Department has clarified the
language of the final rule to retain de novo review of Service officer decisions
. . . .”). Document-based adjudications by the AAO also use one standard of
review for both questions of law and questions of fact. Matter of Simeio
Solutions, 26 I&N Dec. 542, 542 n.1.
In R&A proceedings, the administrative review of a denial of
reconsideration is much closer to Board review of a DHS decision or an AAO
review due to the document-based nature of the underlying record than
it is to Board review of an immigration judge decision. 10 Moreover, the
regulations do not indicate any deference owed to the Assistant Director for
Policy or her delegate regarding her reconsideration decision during an
administrative review, and that lack of deference is consistent with a de novo
standard of review. Similarly, the ability of the Director to request additional
information on review, 8 C.F.R. § 1292.18(b), also suggests a de novo
standard is appropriate. Cf. Conetta v. Nat’l Hair Care Ctrs., Inc., 236 F.3d
67, 74 (1st Cir. 2001) (“Accordingly, when the district court reviewed the
magistrate judge's order setting aside entry of default and default judgment,
9
The AAO has recently proposed changing its standard of review for questions of
discretion to an abuse of discretion. Fed. Reg. at 66,926.
10
To be sure, CAHO review of an ALJ’s decision is, arguably, analogous to Board review
of an immigration judge’s decision. Nevertheless, administrative review by the CAHO
also points to the conclusion that review under 8 C.F.R. § 1292.18 is de novo. See supra,
note 8.
846
Cite as 27 I&N Dec. 837 (DIR 2020) Interim Decision #3984
it was clearly entitled to take evidence and make a de novo assessment as to
the latter.”). Overall, the balance of persuasive authority tips in favor of
applying a de novo standard to administrative reviews of denials of
reconsideration requests in R&A proceedings. Consequently, I hold that
administrative reviews of reconsideration denials conducted under 8 C.F.R.
§ 1292.18 should utilize a de novo standard of review.
D. Precedent Decisions of the Board in R&A Proceedings
The Board issued at least eleven precedential decisions in R&A
proceedings between 1986 and 2014. The transfer of responsibility for the
R&A Program from the Board to OLAP in 2017 left the applicability of those
Board precedents to future R&A proceedings unclear because existing
regulatory language on Board precedents points in two different directions.
On one hand, “decisions of the Board . . . are binding on all officers
and employees of DHS or immigration judges in the administration of
the immigration laws of the United States.” 8 C.F.R. § 1003.1(g)(1). As
adjudicators in R&A proceedings are neither officers or employees of DHS
nor immigration judges, this provision implies that Board precedents are not
binding on adjudicators in R&A proceedings. On the other hand, Board
precedents “serve as precedents in all proceedings involving the same issue
or issues” unless modified or overruled by the Board or the Attorney General.
Id. § 1003.1(g)(2). This provision is not limited to a specific type of
proceeding—e.g., removal proceedings—and suggests that Board precedents
do remain binding in R&A proceedings.
The question of the continued value or applicability of Board precedent
in R&A proceedings appears to have been overlooked in the crafting of the
2016 rulemaking, but there is no indication that the transfer of oversight of
the R&A Program was intended to abrogate all existing Board precedents.
To the contrary, many Board precedents were intended to be incorporated
into the revised R&A Program regulations. See, e.g., 80 Fed. Reg. at 59,520
(“The intent of the proposed rule is to follow the Board’s precedential
decisions in Matter of EAC, Inc., 24 I&N Dec. 563 (BIA 2008), and Matter
of Central California Legal Services, Inc., 26 I&N Dec. 105 (BIA 2013),
which specified the knowledge and experience sufficient to warrant
accreditation.” (footnotes omitted)). Although a rulemaking may certainly
supersede a prior adjudication to the contrary and the 2016 rulemaking does
incorporate some prior Board precedents into the regulations in part 1292,
that rulemaking does not contain any blanket disavowal of the continuing
viability of all prior Board precedents in R&A proceedings. In the absence
of a clear and unmistakable repudiation of prior Board precedents in R&A
proceedings in the 2016 rulemaking, particularly since such precedents have
847
Cite as 27 I&N Dec. 837 (DIR 2020) Interim Decision #3984
provided useful guidance to organizations and the R&A Program for nearly
35 years, I hold that relevant Board precedents, unless overruled or
superseded, continue to serve as precedents in R&A proceedings involving
similar issues, consistent with 8 C.F.R. § 1003.1(g)(2). In other words,
unless overruled by subsequent precedent or superseded by statute,
regulation, or binding federal court decision, prior precedent decisions of the
Board in R&A proceedings remain precedential and binding in R&A
proceedings conducted after January 18, 2017, including consideration of
requests for reconsideration pursuant to 8 C.F.R. §§ 1292.13(e), 1292.16(f),
or 1292.17(d) and administrative reviews conducted under 8 C.F.R.
§ 1292.18.
III. APPLICANT’S CASE
As discussed supra, Applicant’s request for reconsideration to OLAP
must point to an error of either fact or law, and I review OLAP’s
reconsideration denial de novo.
Applicant did not identify an error of fact in its reconsideration
request. Rather, it tacitly asserted an error of law, namely that the
evidence of Mr. Betancourt’s experience demonstrated “skills essential
for effective litigation,” which warranted his full accreditation under
8 C.F.R. § 1292.13(a)(6). Thus, Applicant’s request for reconsideration
did sufficiently allege an error of law. Nevertheless, it was appropriately
denied by OLAP as both untimely and meritless.
Applicant submitted a request for full accreditation for Mr. Betancourt
under 8 C.F.R. § 1292.12. On October 16, 2019, OLAP disapproved the
request for full accreditation for Mr. Betancourt but approved the application
for partial accreditation for him. On December 16, 2019, OLAP received
a request for reconsideration of that disapproval pursuant to 8 C.F.R.
§ 1292.13(e). On February 19, 2020, OLAP denied the request for
reconsideration.
OLAP first denied the request for reconsideration as untimely because it
was filed more than 30 days after the disapproval of the application for full
accreditation. OLAP did not extend the deadline for filing such a request
pursuant to 8 C.F.R. § 1292.13(a), and as discussed, supra, the deadline in
8 C.F.R. § 1292.13(e) is not subject to equitable tolling. Therefore, there is
no basis for an extension of that deadline. Moreover, Applicant has not
disputed that its request for reconsideration was untimely, nor has it
requested any extension or waiver of that deadline. Accordingly, I agree with
OLAP and affirm its decision that Applicant’s request for reconsideration
should be denied because it was untimely.
848
Cite as 27 I&N Dec. 837 (DIR 2020) Interim Decision #3984
OLAP also denied Applicant’s request for reconsideration on the merits.
In doing so, it noted the record contained no evidence that Mr. Betancourt
had assisted on any recent cases before EOIR or had any recent training,
education, or experience related to trial and appellate advocacy. OLAP Dec.
at 1 (“There is no indication in the record that Mr. Betancourt has assisted on
any recent cases pending before EOIR or that he has any recent training,
education, or experience related to trial and appellate advocacy.”). Full
accreditation requires evidence that an individual “possesses skills essential
for effective litigation.” 8 C.F.R. § 1292.12(a)(6). These skills include “the
ability to advocate a client’s position at a hearing before an Immigration
Judge by presenting documentary evidence and questioning witnesses, to
present oral arguments before the Board, and to prepare motions and briefs
for consideration by an Immigration Judge and/or [the] Board.” Matter of
EAC, Inc., 24 I&N Dec. 556, 560 n.1 (BIA 2008). “Consequently, evidence
of advocacy skills, as well as evidence of a broad knowledge of immigration
law, should be presented where full accreditation is sought.” Id.
Applicant submitted twelve documents in its initial application
specifically purporting to demonstrate that Mr. Betancourt possesses skills
essential for effective litigation, and it re-submitted them with its request for
reconsideration. These documents reflect briefs or motions prepared by Mr.
Betancourt between 2002 and 2016 when he served as an accredited
representative for different recognized organizations. 11
The Board’s decision in Matter of EAC identifies at least three skills to
be demonstrated in order to obtain full accreditation: “the ability to advocate
a client’s position at a hearing before an Immigration Judge by presenting
documentary evidence and questioning witnesses, to present oral arguments
before the Board, and to prepare motions and briefs for consideration by an
Immigration Judge and/or [the] Board.” 12 Id. Although the record contains
evidence that Mr. Betancourt has prepared motions and briefs for
consideration by an immigration judge, 13 it is largely devoid of evidence of
11
The Board had previously granted accreditation to Mr. Betancourt from 1981 to 1984,
2000 to 2003, 2005 to 2013, and 2014 to 2017 in connection with his work for four separate
recognized organizations.
12
The Board’s use of “including” to introduce this list of examples of these skills indicates
that the list is non-exhaustive. See Fed. Land Bank of St. Paul v. Bismarck Lumber Co.,
314 U.S. 95, 100 (1941) (“. . . the term ‘including’ is not one of all-embracing definition,
but connotes simply an illustrative application of the general principle.”).
13
Of the twelve documents submitted, two were prepared for U.S. Citizenship and
Immigration Services rather than an immigration judge, and many of the others are
unsigned or lack indicia showing that they were filed with the Board or an immigration
court. Nevertheless, the record as a whole contains sufficient evidence that Mr. Betancourt
has prepared motions and briefs for consideration by EOIR adjudicators.
849
Cite as 27 I&N Dec. 837 (DIR 2020) Interim Decision #3984
his oral advocacy or oral case presentation skills before adjudicators, which
are skills “essential for effective litigation,” and it is completely devoid of
evidence of any recent training or experience that would demonstrate such
skills. Cf. Matter of Central California Legal Services, Inc., 26 I&N Dec.
105 (BIA 2013) (stating that recent completion of a training course may be
evidence of broad knowledge of immigration law and candidates for renewal
of accreditation should have updated training reflecting that they have kept
current in the law). At most, the record reflects that Mr. Betancourt may
have argued an asylum case before an immigration judge in 2016 or early
2017, though the extent of his advocacy in that case based on the record is
ambiguous. 14 Nevertheless, it is clear that Mr. Betancourt has not “assisted
on any recent cases pending before EOIR or that he has any recent training,
education, or experience related to trial and appellate advocacy.” OLAP
Dec. at 1. Accordingly, upon a de novo review of the record, I agree with
OLAP that Applicant did not put forth sufficient evidence to demonstrate that
Mr. Betancourt possesses “skills effective for essential litigation” warranting
full accreditation. Thus, even if Applicant’s request for reconsideration were
timely, it would have been appropriately subject to denial on the merits.
ORDER: The denial of the request for reconsideration is affirmed.
14
The documentation submitted shows that Mr. Betancourt filed a memorandum of law
in support of a respondent’s asylum application in May 2016 and that the application
was apparently granted by an immigration judge approximately eight months later. The
record contains no assertion, however, that Mr. Betancourt presented evidence, questioned
witnesses, or otherwise represented the respondent at any hearing on that application.
850