Homeland Security Deems CIS Decisions Precedent
Citizen and Immigration Services (CIS) announced that two administrative decisions it conducted in an administrative court will become binding precedent on the agency. The first decision held that if an immigrant wishes to adjust his or her status to permanent residence from an employment-based position due to a new job, the first employee-based petition must have been valid. The second decision clarified the definition of employment by “an American firm or corporation.” The administrative court said an American firm or corporation is a publicly held corporation that “is both incorporated in the United States and trades its stock exclusively on U.S. stock exchange markets.” The decision by the Department of Homeland Security (HLS) to make these holdings precedent illustrates how administrative decision become precedent that binds agencies in HLS.
For the most part, all judicial decisions become precedent in their jurisdiction. However, HLS administrative decisions only become binding if Homeland Security in conjunction with the Department of Justice (DOJ) choose to publish the administrative decision as binding on the entire agency or only the particular case. DOJ publishes the binding decisions in the bound volumes of the Administrative Decisions Under Immigration and Nationality Laws of the United States. While most judicial decisions become precedent, CIS administrative court decisions are rarely deemed binding by Homeland Security and the Department of Justice. The last time a CIS decision became binding precedent was in 1998. The process under which decisions by the USCIS Administrative Appeals Office (AAO) are deemed precedent is not codified in statute or promulgated in regulation or published on the AAO website.
CIS stated that making the decision binding precedent will “promote predictability in immigration-benefits cases.” However, due to the unclear nature of how a decision will be deemed binding or not binding negates this effort to be clear and predictable. The process is still mysterious and politically motivated. But on a positive note, the choice to create more binding CIS decisions by the Departments of Justice and Homeland Security, will allow lawyers to better argue cases in front of CIS administrative courts. While the HLS and DOJ have not officially stated how it picks and chooses what administrative court decisions will become precedent, the AAO has stated that decision are deemed precedent when novels issues of law and fact arise and it is necessary to provide clear guidance to future hearings.
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