Ahmed v. Mukasey (3/20/08)

GRIFFIN Moore Graham (DCt)

The 6th Cir held that the Board acted irrationally in refusing to consider FOIA evidence obtained while case was on appeal, strongly suggesting that the I-130 was received by USCIS before the Petitioner turned 21 (thus bringing him within the CSPA and making him eligible for Adjustment of Status).  It also stated that the Board could have simply ordered DHS to produce the original envelope, just as it (the CtApp) did. 

Read Opinion Here:

Facts: Petitioner was under 21 when his USC adoptive father filed an I-130 on his behalf - which would have made him a child under the CSPA.  It was initially returned for some filing mistake, but sent back to USCIS Detroit office on 12/31, where he would turn 21 on 1/5.  I-130 was forwarded to NSC, where it was received on 1/12.  IJ refused continuance to obtain FOIA of the USCIS files, mtn to remand filed with BIA after FOIA results were sent.  DHS thinks the stamp on the envelope was 1/10 (after 1/5); Board said nothing about it. 

Note: the 6th Cir ordered the Govt to produce the original envelope, to see if it could read the stamp date.

1.  Standard for review of continuance denial is very deferential.

   In the context of the BIA’s denial of a motion to remand, or its affirmance of the IJ’s denial of a motion for continuance, an abuse of discretion occurs if “the denial . . . was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination,” Abu-Khaliel v. Gonzales, 436 F.3d 627, 634 (6th Cir. 2006) (quoting Balani v. INS, 669 F.2d 1157, 1161 (6th Cir. 1982)).6 

2.  Finds jurisdiction to review the continuance decision because it relates to relief eligibility, not discretionary matters.

   FN6 In the present circumstances, we have jurisdiction to review the BIA’s discretionary denial of petitioner’s motion to remand, as the motion pertains to Ahmed’s eligibility for relief, not the merits of whether to grant an adjustment in the exercise of discretion. Abu-Khaliel, 436 F.3d at 634; Pilica v. Ashcroft, 388 F.3d 941, 945-48 (6th Cir. 2004)

3.  Found it irrational for the Board not to even address the FOIA evidence.

   [T]he BIA failed to expressly address the newly acquired evidence appended to Ahmed’s brief and motion to remand, which indicated that the December 31, 2003, resubmission of the I-130 petition was physically received by CIS in Detroit prior to being forwarded to the regional Nebraska Service Center, where it was stamped as received on January 12, 2004. Just as we ordered the production of the original envelope sent by Ahmed’s attorney on December 31, 2003, in order to examine and verify the postal cancellation stamp and date stamp, the BIA could have done the same. The BIA, however, neither acknowledged this evidence nor addressed its implications in terms of Ahmed’s contentions that the resubmitted I-130 petition was properly filed before his 21st birthday, that physical receipt of the resubmitted I-130 petition by the Detroit CIS office should govern for purposes of the CSPA, and that CIS’s alleged noncompliance with the regulatory requirement that a petition be “stamped to show the time and date of actual receipt” so as to be “regarded as properly filed when so stamped,” 8 C.F.R. § 103.2(a)(7)(i), unfairly deprived him of eligibility for immediate relative visa classification under the CSPA and 8 U.S.C. § 1255.

   Under these circumstances, we hold that the BIA acted without rational explanation and therefore abused its discretion in denying Ahmed’s motion to remand to the IJ for further consideration of his application and qualification for immediate adjustment of status, where Ahmed established a prima facie case for the relief sought. Alizoti, 477 F.3d at 452.

4.  Dates strongly suggested that it was filed on time.

   By all reasonable calculations, the envelope should have been received by the Detroit CIS office on or before petitioner’s birthday on Monday, January 5, 2004, even considering closure for the New Year’s holiday. Moreover, because the initial I-130 petition sent by Ahmed in November 2003 was rejected as incomplete and returned by the Detroit CIS office, that same office presumably reviewed – at least cursorily for facial compliance – Ahmed’s resubmitted petition before forwarding it to Nebraska. The record reflects that Ahmed engaged in diligent, if not urgent, efforts to timely file the second petition after the initial one was rejected.

[Note: The most mysterious thing about this case is that it was mailed by the Attorney - why didn't the Petitioner's attorney use certified mail when he or she resent the application to USCIS??] 

Atty: Bridgette Sparkman

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