10.8 Preparing the Appellate Case Record.

(a) Administrative Appeals Office (AAO) Cases .

(1) General .

8 CFR 103.1(f)(3)(iii) lists the types of cases which may be appealed or certified to the AAO. In addition, a director may choose to certify an application over which neither the AAO nor the BIA has appellate jurisdiction, if the director believes that the case presents novel or unique issues warranting higher level review and/or possible designation as a precedent decision.

Upon receipt of an appeal in a case over which the AAO, the district or center must review the complete case to determine whether the arguments presented on appeal clearly overcome the basis for denial. If so, the district or center may treat the appeal as a motion to reopen or motion to reconsider (MTR) and approve the case on the MTR. If the arguments fail to clearly overcome the basis of the denial, the appeal must be forwarded to the AAO.

A district or center may forward either the complete A-file or a complete Record of Proceeding to the AAO. Each district or service center director shall determine whether to send to the AAO either the original A-file or a separate record of proceeding (ROP) for the adjudication of the appeal. If an ROP is to be sent, prepare it according to the instructions in Chapter 3, Section E, of the Records Operation Handbook .

Arrange all documents in either the A-file or the ROP chronologically, with the earliest submitted documentation on the bottom and the most recently submitted documentation on the top. The only exception to this chronological order concerns a brief filed in support of a Notice of Appeal (Form I-290B) or a Notice of Certification (Form I-290C). In all cases, the brief should be placed below the Form I-290B or Form I-290C, even if it is filed subsequent to the Notice. [Note: Unlike an appeal to the BIA, an appeal to the AAO does not require a brief by a USCIS counsel or other official. If the district or center chooses to prepare a brief (most likely in rebuttal to the appellant’s brief), it should be clearly identified as such and placed below the appellant’s brief.]

(2) Sample Record of Proceeding in a Non-bond Case .

The following is a sample of a ROP (or of the case portion of an A-file) in chronological order (listed from top to bottom) for all cases being sent to the AAO (other than bond breaches):

· Notice of Appeal (Form I-290B) or Notice of Certification (I-290C)

· Brief in support of appeal or certification (regardless of its filing date)

· District or service center director’s final decision (e.g., denial notice, revocation notice or notice of certification)

· Evidence submitted in response to a request for additional evidence (RFE), notice of intent to deny, or notice of intent to revoke

· District or service center director’s RFE, notice of intent to deny, or notice of intent to revoke

· Notice of Appearance (Form G-28)

· Visa Petition or Application

· Documents in support of the visa petition

(3) Record of Proceeding for Bond Breach Cases .

Bond breaches require special attention. The A-file or ROP of a bond breach should contain copies (listed from top of A- file or ROP to bottom) of:

· The G-28 notice of appearance if applicable

· The I-290B appeal form with attachments

· The Form I-323 breach notice

· The Form I-166

· The Form I-340 demand notice

· The postal service Form 3811 showing delivery of the Form I-340

· The questionnaire and worksheet for a surety bond

· The power of attorney for the surety, or the Form I-305 as applicable

· The Form I-352, Immigration Bond

· The appellate decision of the BIA if applicable

· The final order of the immigration judge

· The Form I-862, Notice to Appear

If the applicant or petitioner has filed a motion to reopen or a motion to reconsider (MTR) an earlier decision of the AAO (the “appellate decision”), the A-file or ROP should be returned to the AAO with the addition of the appellate decision, and finally, the MTR and attachments on top.

(b) Board of Immigration Appeals (BIA) Cases .

(1) General .

8 CFR 3.1(b) lists the types of cases which may be appealed or certified to the BIA. When an appeal is filed from a decision in one of these cases, an SDAO (or higher official) must review the case, a USCIS counsel must prepare a written brief on the matter, and a Record of Proceeding must be prepared for transmittal of the case to the BIA (the complete A-File is never sent to the BIA). Unlike appeals to the AAO, the district or service center cannot treat the appeal as a motion, even when it finds the arguments presented in the appeal to be convincing.

(2) Preparation of a Record of Proceeding for Transmittal to the BIA .

Follow these steps in setting up an ROP for transmittal to the BIA:

· If the alien has not already been assigned an A number, create an A-file. A record going to the BIA must have an “A” file number, even if the denial was originally housed in a CLAIMS receipt file.

· Write the three letter FCO code on the folder’s tab followed by the A-file number (odd numbers on the left, even on the right)

· Place a “Record of Proceeding” stamp on the outside of a standard manila file folder

· In every case involving an alien detained by or for USCIS, ICE or DHS , or when an alien's detention is imminent, firmly stapled a conspicuously marked flag showing his or her detention status to the outside of the folder

· Place all record documents on the right side of the file using an Acco-type fastener. Set up the file in an orderly fashion using a logical chronological sequence with the appeal (Form EOIR-29) and brief on top, followed by the decision itself, the petition, supporting documentation and all other relevant record material. However, if any of the material is classified, it must be handled separately (see paragraph 3)

· Staple one copy of the decision of the district or center director (with the stamped or typed notation "BIA copy" on the bottom of the face page of the order) to the left inside of the record of proceeding folder. In addition, staple two additional copies stamped “Public Copy”, but with no identifying data deleted, to the left inside corner. [See also “Public Copies” discussion in AFM chapter10.13.]

· Do NOT place any non-record material or duplicate material in the ROP. Such material should remain in the actual A-file jacket.

· In the original A-file, attach a copy of the EOIR-29 on top of the record side indicating the action taken.

· Insure that the case is referred to a supervisor for his/her review and to the appropriate Service counsel for preparation of a brief, following normal local procedures.

· Date the form and note that it has been forwarded to the BIA, but do not date the form or note that it has been forwarded until it has been reviewed and briefed by counsel.

· Follow local procedures for housing the A-file pending receipt of the decision by the BIA.

(3) Special Procedures for Classified Information .

When a record is sent to the BIA and the decision was based on classified information, that information must be removed from the file and mailed to the DHS representative at the BIA, with an appropriate cover memorandum, following standard procedures for transmittal of classified information. This material should be forwarded simultaneously with the record of proceedings.