10.7 Preparing Denial Orders.

(a) General .

This paragraph provides basic guidelines to use when preparing a decision to deny an application or petition for a benefit under the Immigration and Nationality Act, or to certify a decision to either the AAO or the BIA.

For many applications and petitions, standardized forms exist, or “canned” paragraphs have been prepared, for assistance in preparing a formal decision. For many other applications and petitions, a individual formal order must be prepared. When using standard forms and "canned" paragraphs, make sure that the language of the form or paragraph is appropriate for the situation involved. It is all too easy to get into the habit of trying to make the situation fit the language of the canned decision. The foll owing standard forms pertain to the applications listed:

Application/Petition Type	Form Number
Any application adjudicated by a service center or by a district or local office using the CLAIMS system	I-797
Any application or petition where the decision is being certified to the Office of Administrative Appeals or to the Board of Immigration Appeals	I-290C
Application to Extend Nonimmigrant Status (Form I-129 or Form I-539 )	I-541
Application to Register Permanent Residence or Adjust Status (Form I-485)	I-291
Application to Change Nonimmigrant Status (Form I-539 )	I-543
Petition for Alien Fiance(e) (Form I-129F), Petition for Alien Relative (Form I-130), Immigrant Petition for Alien Worker (Form I-140), Petition for Nonimmigrant Worker (Form I-129 ).	I-292

Office letterhead may be used for denial notices for application types not specified above.

(b) Elements of a Formal Decision .

Use simple language which can be understood by the applicant. Although immigration law can involve complicated legal principals, the decision should be written in clear, simple English so the applicant or petitioner can understand it. Avoid Latin terms and other “legalese” language.

A formal decision should contain five elements, each of which may be one or more paragraphs in length:

(1) An introduction which describes the benefit being sought

(2) A description of the criteria which the applicant or petitioner must meet in order to obtain the benefit being sought. This criteria should explain both the statutory requirements and (where appropriate) the discretionary standards and precedents.

(3) A description of the evidence in the case in question. This includes both the documentation submitted by the applicant or petitioner, and the other evidence which is contained in the case file. If the applicant or petition cannot reasonably be presumed to be already aware of the evidence, he or she must be given an opportunity to rebut the evidence before a decision is made. [ 8 CFR103.2(b)(16)(i) ]

(4) A discussion of how the evidence in the case fails to meet the criteria for obtaining the benefit. In many cases, there may be more than one reason for the denial, in which case normally all should be discussed. In some cases, however, when the statutory basis for the denial is clear and incontrovertible, a discussion of discretionary issues may be unnecessary.

(5) A conclusion that informs the applicant or petitioner of the decision to deny and of the reason(s) for it. The decision must inform the petitioner or applicant:

Of the opportunity to file a motion to reopen or reconsider, as specified in 8 CFR 103.5(a) (including separately the deadlines for motions to reopen and motions to reconsider); and,
If the petitioner or applicant is entitled to appeal the decision to the BIA or AAO, of the opportunity to do so (including the deadline established by regulation for filing an appeal).

A Form I 290B must be included with any denial. If the BIA has jurisdiction to adjudicate an appeal, EOIR Form EOIR 29 must also be included with the decision.

The decision should state whether it is with or without prejudice to any other benefits that the individual is seeking or likely to seek.

(Revised AD11-09)

NOTE 1a

Subject to any specialized guidance from headquarters, denial notices for petitions appealable to the BIA should include the following language:

This decision will become final unless you appeal it by filing a completed Form EOIR-29, Notice of Appeal to the Board of Immigration Appeals from a Decision of a USCIS Officer. Although the appeal will be decided by the Board of Immigration Appeals (BIA), you must send the Form EOIR-29 and all required documents, including the appropriate filing fee, to the [INSERT NAME OF DENYING OFFICE HERE] at the following address: [INSERT ADDRESS OF DENYING OFFICE HERE]. The Form EOIR-29 must be received within 30 days from the date of this decision notice. The decision is final if your appeal is not received within the time allowed.

If you, the petitioner, intend to be represented on appeal, your attorney or accredited representative must submit Form EOIR-27 with Form EOIR-29.

If you or your attorney wishes to file a brief in support of your appeal, the brief must be received by the USCIS office where you file your appeal either with your appeal or no later than 30 days from the date of filing your appeal. Your appeal will be sent for further processing 30 days after the date USCIS receives it; after that time, no brief regarding your appeal can be accepted by the USCIS office.

For more information about filing requirements for appeals to the BIA, please see 8 CFR 1003.3 and the Board of Immigration Appeals Practice Manual available at www.usdoj.gov/eoir.

Revocation notices for petitions appealable to the BIA should include the exact same language. Although 8 CFR 205.2 provides only 15 days for revocation appeals, the BIA applies the standard 30-day appeal timeframe for both denials and revocations, pursuant to 8 CFR 1003.3(a)(2).

Decisions in New York Stokes cases that require an interview transcript should omit the third paragraph of the above denial language. Once an interview transcript is provided, petitioner should be afforded 30 days in which to file a brief.

NOTE 2

The final denial and final reocation notice must reflect the correct number of days in which the petitioner or self-petitioner has to appeal the decision when it is appealable to the AAO. For standard denials, a petitioner or self-petitioner has 30 days to appeal the decision. For revocations of petitions pursuant to 8 CFR 205.2 (i.e., revocations on notice) a petitioner or self-petitioner has only 15 days to appeal the decision..

NOTE 3

8 CFR 103.2(b)(15) provides that when USCIS denies a petition or application for lack of prosecution 8 CFR due to abandonment, the denial cannot be appealed (although the alien can file a motion).

Each decision should include a copy of Form M-188, Appeals and Motions, which discusses procedures for filing appeals and motions. (Since fees for appeals and motions tend to change faster than the M-188 is revised, make sure that the version of the form being sent lists the correct amounts.)

Where the applicant or petitioner has appeal rights, include copies of the appropriate forms:

· Appeals to the Board of Immigration Appeals (Form EOIR-29)

· Appeals to the Office of Administrative Appeals (Form I-292B)

(c) Signatory Authority .

Formal orders of denial or certification (approval or denial) are prepared for the signature of the district director, service center director or officer-in-charge delegated pursuant to 8 CFR 103.1(f) and (g) . If authority has been re-delegated, the decision must be made in the name of the director or officer-in-charge. The original signed copy is delivered to the petitioner, applicant or attorney of record. An initialed and facsimile-stamped copy is retained in the file and becomes part of the record of proceeding. In the lower left-hand corner of the file copy add the phrase “recommended by” and the name of the officer who prepared the order. Public copies of orders should not include this information.