\ afm \ Adjudicator's Field Manual - Redacted Public Version \ Chapter 10 An Overview of the Adjudication Process. \ 10.18 Certification of Decisions.
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10.18 Certification of Decisions.
In general, "certification" is an administrative procedure by which an officer asks an appellate authority or adjudicating official to review a question of law or fact arising in a pending case. The DHS regulations allow for the certification of immigration cases in two scenarios:
(1) Certification at Headquarters Direction.
DHS or USCIS headquarters may require or direct the certification of an individual case, class of cases, or cases with particular fact patterns. A case or class of cases may be certified at the direction of Headquarters with either an initial decision or pre-decision (i.e., before an initial decision is entered), as instructed by the specific directive. Headquarters-directed certifications are not required to involve unusually complex or novel issue of law or fact. Such certifications may be appropriate to ensure agency consistency on sensitive cases, or for other reasons unrelated to case complexity or novelty.
(2) Certification to the AAO.
A decision may be certified to either the Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA), depending on which appellate body has jurisdiction over the case. See AFM Chapter 10.8, Preparing the Appellate Case Record, for a discussion of appellate jurisdiction. In a case where the regulations do not provide for an appeal, certification may be made to the AAO, but not to the BIA.
Any case that an officer certifies to the AAO must involve an "unusually complex or novel issue of law or fact." 8 CFR 103.4(a). The AAO may remand a certified decision if the decision does not articulate an unusually complex or novel issue. Such complex or novel issues may include, but are not limited to: issues of first impression; conflicting legal authorities; issues of significant public interest; federal litigation; questions of foreign law; novel policy issues; or highly complicated factual situations.
Officers should discuss within the chain of command whether a decision involves sufficient complexity or novelty to warrant certification and, if so, whether to certify. If a case involves an issue that requires a legal interpretation or policy, the chain of command will determine whether to elevate through the certification mechanism or through direct referral to the USCIS Office of Chief Counsel (OCC) and/or the Office of Policy and Strategy. The AAO relies upon OCC for guidance in matters of legal interpretation and defers to the USCIS Senior Policy Council to prescribe agency policy.
Although the AAO carefully considers certifications as candidates for the precedent decision process, the resulting decision is most frequently issued as a non-precedent decision. A non-precedent decision resulting from a certification only resolves the novel or complex issues of law or fact contained in that individual case.
USCIS officers may not rely upon, nor cite to, non-precedent AAO decisions as legal authority in other decisions. A USCIS officer may, however, read a non-precedent decision for instructional value regarding the issue(s) in that same case. See AFM Chapter 14.4, Decisions of Administrative Appellate Bodies.
A case may be certified to the AAO for appellate review "only after an initial decision is made." 8 CFR 103.4(a)(4). By regulation, an officer must adjudicate the benefit request that is to be certified and then notify the affected party in writing of the initial decision. The written decision must be accompanied by a Notice of Certification (Form I-290C), which notifies the affected party of their right to submit a brief. To allow full opportunity for a comprehensive legal brief, the initial decision should carefully articulate the unusually complex or novel issue of law or fact that is to be reviewed. The decision may be in the form of an approval, a denial, or a revocation, if the revocation is based on a properly issued notice of intent to revoke.
On certification, the AAO will review the officer's initial decision and enter a final appellate order that either affirms or overturns the decision, or withdraws the decision and remands the case for further action. The AAO will remand or return any case that is certified without an initial decision.
A certified decision is not considered final until the AAO issues its disposition. Any related cases- such as derivative applications filed for dependent family members- may not be decided until the AAO has made a final decision on the certified case.
While a certification is pending, it is not uncommon for a petitioner or applicant to file a new petition or application seeking the same or similar benefit. To avoid inconsistent decisions, if an affected party files a new petition or application seeking the same benefit as a certified case pending before the AAO, the officer should hold the new petition or application in abeyance and consult with the AAO. If an officer discovers that a new petition or application has been adjudicated during the pendency of a certification, the officer should notify the AAO of this action.
(3) Certification after AAO Remand.
The AAO also relies on the certification process for procedural purposes related to remands.
On appeal, the AAO occasionally will withdraw an officer's decision and remand the case for further action, with an order that it be certified back to the AAO if the new decision is adverse to the affected party. This order is not meant to compel approval of the remanded case, but is designed to preserve the affected party's ability to seek appellate review without payment of a second appeal fee.
On certification, the AAO may remand a case if the officer failed to enter an initial decision or articulate an unusually novel or complex issue of law or fact. On remand, the adjudicating officer may cure the defect in a new decision and again certify the case for review. If the officer does not certify the new decision, the officer must re-issue any unfavorable decision to afford the applicant or petitioner the full opportunity to file an appeal (if permitted) or motion. Alternatively, if the officer does not certify the new decision but determines that the case is approvable, he or she may approve the case in accordance with standard procedures. See AFM Chapter 10.3, General Adjudication Procedures.
(b) Procedures for Forwarding.
To certify a case to the AAO, the office preparing the initial decision must assemble a complete record of proceeding in the same manner as a record prepared for an appeal or motion, including the "Board" and "Public" copies. The certifying official must prepare a formal written order and a completed Form I-290C. See National SOP, Certifications, for technical processing requirements.
To facilitate tracking of certified decisions and identification of the complexity or novelty that warrants certification, officers must complete and include a “Certification Transmittal Memorandum” (CTM) with the certified decision and Record of Proceeding. See National SOP, Certifications, Appendix. The completed CTM should be included on the non-record side of the administrative record and also e-mailed to
. Copies of the CTM may be requested directly from the AAO.
10.20 Adjudications Approval Stamps, Facsimile Stamps and Dry Seals
Reserved under major revision.