Religious Asylum Application Found Incredible

A Chinese citizen's asylum application based on religious persecution was denied by a federal appeals court recently because he was found not to be credible.  The court questioned the fact that there are striking similarities between his application and two other asylum applications in wordings, format, and substance.

The 6th Circuit Court of Appeal upheld the denied of an asylum application filed by a Mr. Wang from China in Wang vs. Lynch.  Mr. Wang's asylum application was actually granted initially by an immigration judge.  However, the decision was appealed by DHS and the BIA remanded the case to the immigration court for further inquiries.  The case was assigned to another immigration judge who then denied his asylum application due to lack of credibility.  Mr. Wang appealed the denial to the federal appeal court.

The crux of the case is Mr. Wang's credibility.  Specifically, Mr. Wang was found not to be credible on account of the fact that his statement filed in support of his political asylum application contains a lot of similarities to two other unrelated applications.  These applications narrate very similar stories. For examples, two applicants were introduced to the Christian faith by a nurse who was caring for a friend or family member in a government run hospital.   In all three accounts, the applicants were participating in church services at a church member's home at either 10 am or 10:30 am when three public security officers arrived; two applicants were ordered to stand in the kitchen.  At the police station, the stories were also similar. The applicants were interrogated regarding their "anti-government purposes" and the locations of other family churches; beaten up by the police officers; detained in small, dirty cells with about half a dozen other inmates; and were either fed very little or had their food stolen.  All three interrogations also lasted forty minutes.  In all applications, the worshippers were referred to as a "devil cult".  Upon their release they were all asked to report to the police station every week, terminated from their job, and ordered to write repenting letters.  

Further, all three statements were formatted similarly; they use the same font type, font size, typeface, margins, spacing, headings, etc.  Based on these similarities the second immigration judge and the BIA were not convinced that Mr. Wang's story was credible.  On appeal, Mr. Wang tried to explain the similarities by arguing that these asylum claims are all based on religious persecution in China, The court explained that while similar stories are expected, identical narration of their experiences suggests something else.  Mr. Wang also explained that the statements were similar because they were prepared by the same office. However, Mr. Wang's testimony was that he used a church friend as a translator and that he did not tell his story to other third parties.  The court also pointed out that the statements used the same wordings such as "devil cult" and "reactionary purpose", which suggest that they were drafted by the same person or persons.  

Because Mr. Wang failed to provide any plausible explanation for the similarities between his applications and two other applications, the court upheld the negative credibility finding of the immigration court.  Since credibility is the basis for any asylum claim, Mr. Wang's asylum application was properly denied.  Here, we cannot speculate whether or not Mr. Wang was indeed persecuted or not.  But even if he did have a valid claim, the court would not have known since he used questionable personnel to prepare his application.  This is just another example of how an immigration case is denied because an applicant failed to seek proper legal advice.  

To Appeal or Not Appeal: That's the Question

When faced with an unfavorable decision on their immigration petitions, many applicants ask the same question - Should I appeal or not? 

This is a complex question that must be analyzed based on many factors including the type of application, the applicant's personal situation (e.g., immigration status, finances), the reasons for the denial, availability of alternative solutions, etc.  

The primary concern of most clients is the chance of success.  It is a fair question.  After all, what is the point of appealing if it does not change the outcome of the case. The table below (courtesy of AAO and AILA) provides some insights to the "chance" question.  For example, take H-1B (I-129) petitions as an example, for the past four years, the dismissal rate has been 94% or above.  The best year was FY14, in which 509 cases were dismissed and 28 cases (or about 5%) were either sustained or remanded (both are positive results).   So if one only considers the mathematical probability of success, it does not make sense to appeal an H-1B denial.  

However, what clients do not understand is that even if 90% of the appeals are sustained, it wouldn't help their cases if they belong to the other 10%, and visa versa.  Each case is indeed different.  The most important factor in deciding whether to appeal or not is the merits of the case.  Generally speaking, legal issues are better candidates for appeal than factual issues.  For example, if the denial is based on a finding that separate LCAs are required for each client location of a traveling engineering, this presents a legal issue involving an interpretation of the regulation.   Filing an appeal may make sense if you are certain you are correct on the law.  On the other hand, if the denial is premised on a lack of proof of a valid employer-employee relationship based on the documents submitted, the dispute is factual in nature and it would be difficult to win on appeal.

As mentioned above, there are other considerations too when deciding whether or not to file an appeal.  For instance, if the applicant needs a decision as soon as possible because her current immigration status is expiring soon, filing a new petition using premium processing would be a better option than an appeal. Although the AAO's processing time has improved tremendously over the years, it is still taking about six months to process an appeal.  On the other hand, if the denied H-1B petition is a CAP case, filing a motion or an appeal will be the only option to save the visa number.  

Conclusion:  In the face of an adverse decision, deciding whether or not to file an appeal can be a complex decision depending on many factors.   Such a decision should be carefully made with the assistance of an experienced immigration lawyer.  

AAO grants national interest waiver to commodity supplier

The Administrative Appeal Office (AAO) of the U.S. Citizenship and Immigration Services grants a national interest waiver to a commodity trader/supplier, in a non-precedent decision, after concluding that the applicant's immigration will benefit the U.S. to an extent that outweighs the requirement of labor certification.

At issue was an EB-2 petition filed by a commodity trade and supply business on behalf of its manager, who was also the company's founder and sole employee.  The petition requested that the requirement of labor certification be waived in the national interest of the United States.  The case was filed with the Texas Service Center, which denied the petition after issuing a Request for Evidence (RFE) and also a Notice of Intent to Deny (NOID) to the petitioner.  The petitioner filed an appeal with the AAO.

RFE for proof of national scope
The petitioner is a supplier and distributor of swimming pool plastering materials in the U.S.  The RFE issued by the TSC asked for evidence to show that the benefits of beneficiary's services were national in scope, and also for evidence that he was influential in his field.  In response, the petitioner established that it had 100 customers located in nine different States, nine America suppliers located in four different States and more than four international sources of imported materials.  The beneficiary also maintained that he had a customer base of approximately 80 family businesses and about 23 private companies, all of them relying on him for steady supply of goods, competitive prices and custom credit lines. The petitioner also provided numerous letters from business owners who confirmed that the beneficiary had helped them stay in business.

NOID:  Beneficiary stands out in the field?
Subsequently, the TSC director issued a Notice of Intent to Deny (NOID) to petitioner, finding insufficient evidence to show that the beneficiary's accomplishments distinguish him from others in the field.  The director found the letters submitted not sufficient as they were written by beneficiary's business partners or customers. The director wanted to see more independent opinion about the beneficiary's achievements in order to waive the requirement for labor certification.

The beneficiary responded to the NOID by first observing that labor certification was not realistic, given the fact that he was both the owner of the company and the only employee.  The Labor Department would not likely grant certification to self-employed individuals.  The beneficiary also noted that that USCIS has been proactively reaching out to entrepreneurs, citing the Service Entrepreneurs in Residence initiative as an example.  The beneficiary also submitted a new letter from a senior research analyst which explained that (1) The petitioner's success stems from the beneficiary's ability to identify market fluctuations in markets; (2) In commoditized product business, it is the trust and credibility of the supplier organization that differentiates it from its competitors; (3) A business entity's trust and credibility comes from its representatives; (4) Since the beneficiary is the sole representative of the petitioner, and it would be almost impossible to find any other more qualified personnel to do the beneficiary's job of projecting trust and credibility to customers.

The TSC director ultimately denied the NIW application, after having concluded that beneficiary failed to present sufficient evidence to prove that he stands out among his peers.

AAO grants NIW
The AAO reversed the denial and granted NIW to the beneficiary, noting that the beneficiary's contribution to the filed is through his "transaction of business" rather than product development.  The AAO noted that the beneficiary had helped many small businesses, individually and cumulatively, stay in business. These achievements go above and beyond customer satisfaction and leave a legacy far beyond the beneficiary's own business ventures.  Consequently, the AAO concluded that beneficiary's services outweigh the national interests of labor certification.

There are several points that are worth noting here. First, the beneficiary in this case was a business professional.  It demonstrates that NIW is not just reserved for scientists, researchers or medical professionals.  Secondly, independent experts letters are usually given more evidentiary weight than letters written by colleagues or employers.  Thirdly, small companies (such as the petitioner here) with one or two employees may also file an employment-based petition, although it would be difficult to prove the case.