Go Back  British Expats > Living & Moving Abroad > USA > The Trailer Park
Reload this Page >

My essay on the 30/60 day rule

My essay on the 30/60 day rule

Old Sep 27th 2002, 8:54 pm
  #1  
Paulgani
Guest
 
Posts: n/a
Default My essay on the 30/60 day rule

I have written a little essay on the 30/60 day rule. I am not an
attorney, nor do I have any legal training whatsoever. I believe the
below contents are accurate. If you know of any inaccuracies, I welcome
your corrections. Do not construe anything I've written as advice. I
could be incorrect in my statements or conclusions, so please verify my
writings with other sources. This is only a first draft, so please excuse
the roughness.

I claim no copyright on any of it - use it for any purpose you wish.

Paulgani



***** What is the 30/60 day rule?

It is a rule found in the Department of State (DoS) Foreign Affairs Manual
(FAM).

***** Where can it be found?

http://foia.state.gov/mas-
terdocs/09fam/0940063N.pdf


on pages 5,6,7.

***** Is this rule law?

No. The directives in the FAM could be described as something to the
effect of "official procedures". Consular Officials are directed to
follow these procedures, and they can get in trouble if they don't.
However, these procedures are subject to revision at any time by the DoS
HQ in Washington, DC. Presumably, the higher up Consular Officials could
also modify procedures at their discretion, as long as the modifications
are not inconsistent with the law or regulations.

***** Who must follow the 30/60 day rule?

Officially, only Consular Officials, while they are determining a visa
applicant's eligibility for a visa. INS officials in America are
presumably not required to follow this rule, although there have been
documented instances where they do.

***** When is the 30/60 day rule applied by Consular Officials?

    >From the FAM:

The consular officer should apply the 30/60-day rule if an alien states on
his or her application for a B-2 visa, or informs an immigration officer
at the port of entry, that the purpose of his or her visit is tourism, or
to visit relatives, etc., and then violates such status by: ... Marrying
and takes up permanent residence ...

***** What is the criteria for finding a violation?

    >From the FAM:

If an alien violates his or her nonimmigrant status by adjusting status or
by seeking unauthorized employment within 30 days of entry, the consular
officer may presume that the applicant misrepresented his or her intention
in seeking a visa or entry.

If an alien initiates such violation of status more than 30 days but less
than 60 days after entry into the United States, no presumption of
misrepresentation arises. However, if the facts in the case give the
consular officer reasonable belief that the alien misrepresented his or
her intent, then the consular officer must give the alien the opportunity
to present countervailing evidence. If the officer does not find such
evidence to be persuasive, then the consular officer must submit a
comprehensive report to the Department (CA/VO/L/A) for the rendering of an
advisory opinion.

When violative conduct occurs more than 60 days after entry into the
United States, the Department does not consider such conduct to constitute
a basis for an INA 212(a)(6)(C)(i) ineligibility.

***** What is the consequence if a violation is found?

You will be considered to have made a material misrepresentation on your
visa application, thus making you ineligible for a visa. You will be
permanently barred from the United States, unless you apply for and
successfully obtain a hardship waiver.

***** I don't get it - if I'm *already* in the U.S., and I came to the
U.S. on a B-2 visa and married within 30 days, how does this 30/60 day
rule affect me?

It shouldn't, as this rule only applies to Consular Officials, not INS
agents in the U.S.

However, there have been documented cases where INS officials HAVE applied
the 30/60 day rule when adjudicating Adjustment of Status (AOS)
applications. Here is one case, an Administrative Appeals Office (AAO)
decision:

http://www.gani.com/immigration/3-
060day.pdf


***** What's the basis for INS officials applying the 30/60 day rule?

INS officials are authorized and required to look for any
misrepresentations you might have made in order to procure a visa and
enter the U.S. This includes having the Consulate send to them your
original visa application in order to search for misrepresentations.

Now, if you said on your B-2 visa application that you intended to go on
vacation, but instead you came to the U.S. and married with 30 days, the
INS *could* use that as a basis to determine that you made a material
misrepresentation!

***** What if I lied about having a job, or having a fiance in the U.S.?
If I wait 60 days before marrying, will I be safe?

No! If you lied about material facts, then the 30/60 day rule doesn't
even need to be applied. You will be found guilty of material
misrepresentation *regardless* of how long you wait to get married.

***** Does this 30/60 day rule apply if I entered on a Visa Waiver, or
Canadian waiver, or a student visa, etc...?

If you strictly read the rule, it only appears to address B-2 visas.
However, the same criteria *could* be used with other visas that have
similar criteria to a B-2 visa. It's best *not* to depend that the 30/60
day rule will not be applied to you!

***** So, what if I came to the U.S. as a tourist, and married within 30
days. Am I in trouble?

Not necessarily. The 30/60 day rule is applied when your STATEMENTS are
inconsistent with your ACTIONS. If you never, at any time, made a
statement to a Consular Official or INS agent that was inconsistent with
your actions, you're safe.

***** OK, so I came in from Canada - the INS Inspector didn't even ask me
a single question - he just waved me through. Can I marry within 30 days?
Is there any risk?

The Board of Immigrations Appeals (BIA) has ruled that having a
preconceived intent to immigrate is not a bar to AOS. See:

http://k1.exit.com/cavazos.pdf
http://k1.exit.com/ibrahim.pdf

And also see the more recently dated document:

http://k1.exit.com/touristletter.-
html


So, you are probably safe.

Now, this doesn't mean that an INS agent could not *incorrectly* apply the
30/60 day rule towards you. You should win in the end, after appealing,
but it could certainly delay your AOS and be very costly.

***** So does that mean everyone who enters as a tourist should wait 60
days to marry?

You would probably *lower* your risk of having problems at AOS time if you
waited 60 days. Note, however, your risk otherwise is already pretty low,
assuming of course you didn't make any misrepresentations.

***** What's this I read about having to prove that the marriage must be
"spur of the moment"?

It's mostly nonsense. The BIA decisions pretty much negate any issues you
may have regarding your pre-conceived intent to immigrate (marry & stay).

The only time it would be an issue is if you told a CO or INS official
that you were not planning to marry, but then you did marry and file AOS
within 30 days after arriving in the U.S. Then, you would have to
demonstrate that your decision to marry was "spur of the moment" in order
to avoid a 30/60 day violation.

***** OK, I married within 30 days, after stating that I would not. Will
I be given a chance to prove that my actions were not premeditated?

    >From the 30/60 day rule:

The burden of proof falls on the alien to establish that his or her true
intent was to visit, tour, etc. In the absence of any further offering of
proof by the alien to rebut the presumption, a finding of ineligibility
will result. The consular officer must give the alien the opportunity to
rebut the presumption by presentation of evidence to overcome it.

***** What evidence must a CO have to find me guilty of violating the
31/60 day rule?

    >From the 30/60 day rule:

To find an alien ineligible under INA 212(a)(6)(C)(i) there must be
evidence that, at the time of the visa application or entry into the
United States, the alien stated orally or in writing to a consular or
immigration officer that the purpose of the visit to the United States was
other than to work or remain indefinitely. Ordinarily, such evidence would
be in the form of an admission, from information taken from the alien's
NIV application, or a report by an immigration officer that the alien made
such a statement, e.g., as would be found on the INS Form I-275,
Withdrawal of Application/Consular Notification.

***** OK, I lied about my intentions to the CO or INS at the POE. But, I
don't think they ever wrote any of my statements down. Am I safe?

Probably. Without written evidence (or a confession), no finding of
misrepresentation can be made.

***** What if the INS official asks me exactly what I said at the POE (or
the Consulate). I said I wasn't planning on marrying, even though I was.
Should I lie?

You should never lie to an INS official. Remember, lying to a CO or INS
official will get you permanently banned from the United States. That
said, you should also avoid at all costs *admitting* that you previously
lied.

***** The INS official told me that if I just admitted that I lied,
everything would be OK. Should I believe him?

NO! Just as policemen are permitted to make untrue statements during an
interrogation, so are INS officials. *Never* admit to lying to an INS or
Consular Official.

***** I told the CO that I was planning to make a short trip to the U.S.,
but instead I planned to marry and stay. If I wait 60 days before
marrying, will I be safe?

Remember, the 30/60 day rule only applies to Consular Officials, NOT INS
officials. In theory, you could marry 1 year after entry, and if your B-2
visa application states that you were planning to make a short trip, an
overzealous INS official *could* determine that you made a
misrepresentation on your B-2 visa application.

Of course, the AAO decision posted above says that the INS can't do that,
and should apply the 30/60 day rule. But, an AAO decision isn't necessary
binding to all INS agents, in the same way a BIA decision is.

***** But wait a minute - what about the BIA decisions? Don't they apply?

Yes, they do. But the BIA decisions only cover "preconceived intent",
which is a completely separate subject from "misrepresentation".

The BIA decisions basically say that it's ok if you USED a tourist visa to
enter and marry. The BIA decisions don't protect you if you made any
misrepresentations to *procure* a visa or entry into the U.S.!
 
Old Sep 28th 2002, 12:52 am
  #2  
Account Closed
 
Joined: Sep 2002
Posts: 16,266
Folinskyinla is an unknown quantity at this point
Default Re: My essay on the 30/60 day rule

Originally posted by Paulgani:
I have written a little essay on the 30/60 day rule. I am not an
attorney, nor do I have any legal training whatsoever. I believe the
below contents are accurate. If you know of any inaccuracies, I welcome
your corrections. Do not construe anything I've written as advice. I
could be incorrect in my statements or conclusions, so please verify my
writings with other sources. This is only a first draft, so please excuse
the roughness.

I claim no copyright on any of it - use it for any purpose you wish.

Paulgani
Hi:

Not bad. If I was a law professor grading this, it would be a C+ or B- grade.

This is a particullarly complicated area of the law -- often misunderstood by INS & consular officers. Unfortunately, it is often misunderstood by too many attorneys. If you think you have this issue involved, it pays to consult with experienced immigration counsel BEFORE making your applications.

Some points:

An application for adjustment of status is not necessarily inconsistent with non-immigrant status. See Matter of Hosseinpour, BIA 1974. [BTW, a senior consular officer was quite surprised that that case even existed!]

Although burden of proof is on the applicant, in the case of allegations of fraud or misrepresentation, such allegations are subject to "close scrutiny". See Matter of Healy & Goodchild, BIA.

The AAU case you note is quite interesting. However, it is NOT a binding precedent decision. It should be noted that the AAU decision is kind of weird -- it "rejected" the appeal while in effect sustaining it -- it ruled that the waiver of the fraud was not even needed! Although no final decision was made, the notation of unlawful presence was inapposite because the bar does not kick in until the person leaves.

Although mentioned -- it needs to be emphasized that there has to be some type of represenation in the first place for it to be a MISrepresentation. This point is often missed.

Last edited by Folinskyinla; Jan 27th 2004 at 12:44 am.
Folinskyinla is offline  
Old Sep 28th 2002, 3:30 pm
  #3  
Paulgani
Guest
 
Posts: n/a
Default Re: My essay on the 30/60 day rule

"Folinskyinla" wrote in message
news:[email protected]
.com
...
    > An application for adjustment of status is not necessarily
    > inconsistent with non-immigrant status. See Matter of Hosseinpour,
    > BIA 1974. [BTW, a senior consular officer was quite surprised that
    > that case even existed!]
    > Although burden of proof is on the applicant, in the case of allegations
    > of fraud or misrepresentation, such allegations are subject to "close
    > scrutiny". See Matter of Healy & Goodchild, BIA.

I must admit, I'm impressed by your ability to recall and recite relevant
case law on just about any issue regarding immigration. Please continue to
post in this newsgroup.

    > The AAU case you note is quite interesting. However, it is NOT a
    > binding precedent decision.

I figured as much. However, it occurs to me that some legal case, BIA
precedent decision or above, must have addressed the issue of the INS
applying the provisions of the FAM (not just the 30/60 day rule) while
adjudicating INS applications. Are you aware of any such cases?

Paulgani
 
Old Sep 29th 2002, 3:27 pm
  #4  
Account Closed
 
Joined: Sep 2002
Posts: 16,266
Folinskyinla is an unknown quantity at this point
Default Re: My essay on the 30/60 day rule

Originally posted by Paulgani:


I must admit, I'm impressed by your ability to recall and recite relevant
case law on just about any issue regarding immigration. Please continue to
post in this newsgroup.

    > The AAU case you note is quite interesting. However, it is NOT a
    > binding precedent decision.

I figured as much. However, it occurs to me that some legal case, BIA
precedent decision or above, must have addressed the issue of the INS
applying the provisions of the FAM (not just the 30/60 day rule) while
adjudicating INS applications. Are you aware of any such cases?

Paulgani
Hi:

It is important to note that the "30/60" is NOT a substantive rule. It is a procedural rule as to when and how a consular determination of inadmissability under 212(a)(6)(C) is to be reviewed by the advisory opinion people in DC.

Back in 1992, the authors of the rule spoke at the AILA Annual Conference. They noted that previously all 212(a)(6)(C) determinations had to be sent to AO ofice. [BTW, before 1991, 212(a)(6)(C) was found at 212(a)(19)] They also had a rule that post-entry conduct could not be used as evidence of misrepreseantion at time of visa application or entry.

Well, they had a case where an alien in a Carribean country applied on Monday for a visa to go to Miami for 5 days for a visit. Visa granted. On Tuesday, he enters at New York rather than Miami. On Wednesday, he starts employment in New York. The following week, the employer files the labor certificate application. Two years later, alien returns home to file for his immigrant visa [BTW, this was way before the 1996 amendments to the law]. ConOff denies for fraud, AO says, post-entry conduct is not evidence of misrepresentation. ConOff is a pushy sort who can't accept this and begs for another review.

As a result, the prior practice of not examining post-entry conduct fell by the wayside. But with this change, AO started getting inundated with fraud findings, particullarly from Asia. Many of these cases involved post-entry conduct months if not years later.

This resulted in the 30/60 rule. It is a rule to regulate the work-load of the AO office. Nothing more, nothing less.

So, in answer to your question, there are some early BIA decisions which refer to FAM provisions in regards to SUBSTANTIVE provisions of the law. In particular, they had to do with qualifications for immigrant classification. I'm aware of none which refer to procedural FAM provisions.

[BTW, the 30-day presumption would appear to be contrary to Healy & Goodchild. IMHO, Mr. Healy committed misrepresentation. Matter of Brantigan, so often cited by INS that I actually remember the citation, 11 I&N 493, disapproves of use of presumptions to establish a fact].

It should be emphasized that the 30/60 rule should NOT be used for planning future activities.
Folinskyinla is offline  
Old Sep 29th 2002, 8:26 pm
  #5  
Account Closed
 
Joined: Sep 2002
Posts: 16,266
Folinskyinla is an unknown quantity at this point
Default Re: My essay on the 30/60 day rule

Originally posted by Paulgani:
"Folinskyinla" wrote in message
news:[email protected]
.com
...
    > An application for adjustment of status is not necessarily
    > inconsistent with non-immigrant status. See Matter of Hosseinpour,
    > BIA 1974. [BTW, a senior consular officer was quite surprised that
    > that case even existed!]
    > Although burden of proof is on the applicant, in the case of allegations
    > of fraud or misrepresentation, such allegations are subject to "close
    > scrutiny". See Matter of Healy & Goodchild, BIA.

I must admit, I'm impressed by your ability to recall and recite relevant
case law on just about any issue regarding immigration. Please continue to
post in this newsgroup.

    > The AAU case you note is quite interesting. However, it is NOT a
    > binding precedent decision.

I figured as much. However, it occurs to me that some legal case, BIA
precedent decision or above, must have addressed the issue of the INS
applying the provisions of the FAM (not just the 30/60 day rule) while
adjudicating INS applications. Are you aware of any such cases?

Paulgani
Hi:

Again, I want to repeat that the 30/60 rule is NOT a planning tool to find loopholes in the law.

I'm in the office this fine afternoon and decided to access our office Westlaw account [I don't like doing this on the home dial-up connection].

There is ONE situation where the FAM is applied -- the appendecies on documentation regarding birth, marriage, legitimation, etc is valid reference [those items can be found in "reciprocity tables" at http://travel.state.gov ]

My recollection about BIA reference to immigrant classifciation was partially in error -- the case I had in mind [from 1978] referred to DOS REGULATIONS. Rhee, 16 I&N Dec. 607 (BIA 1978). Now regulations, unlike the FAM do have the force of law.

The 1988 case of Walsh & Pollard 20 I&N Dec. 60, is interesting. That case involved British workers coming iin to work as "E-2" employees of a British company. The question was whether or not the UK company had made a "substantial" investment in a US company. The UK company had invested the grand total of $15,000 in the US business. The business was to be operated to honor a $307 million contract with General Motors to provide British automobile engineering so as to enable GM to compete with the Japanese car makers. [As a former Sunbeam Tiger owner, any good Lucas Electric jokes are appreciated -- but only NEW ones]. In that case, the INS disagreed with the DOS regulations and FAM interpretations. The BIA followed those interpretations -- it should be noted that they were not followed because they were binding, but because they were correct.

In Matter of Esposito, 21 I&N Dec. 1 (1995), the BIA was confronted with a citizenship question. Because of its role in passport issuance and certificates of expatriation, the Department of State does have a role in citizenship. The BIA expressly declined to follow a FAM interpretation. However, it was noted that the DOS had withdrawn from that interpretation and was changing the FAM at the time.

In Fuentes-Martinez 21 I&N 893 (1997), the BIA noted that it was not bound by DOS regulations because it was the Attorney General who has the last word under the Immigration & Nationlality Act and they were the agents of the Attorney General.
Folinskyinla is offline  
Old Sep 30th 2002, 9:10 pm
  #6  
Paulgani
Guest
 
Posts: n/a
Default Re: My essay on the 30/60 day rule

"Folinskyinla" wrote in message
news:[email protected]
.com
...
    > Although burden of proof is on the applicant, in the case of allegations
    > of fraud or misrepresentation, such allegations are subject to "close
    > scrutiny". See Matter of Healy & Goodchild, BIA.

http://www.usdoj.gov/e-
oir/vll/intdec/lib_vol17idx.html

 
Old Sep 30th 2002, 9:20 pm
  #7  
Paulgani
Guest
 
Posts: n/a
Default Re: My essay on the 30/60 day rule

"Folinskyinla" wrote in message
news:[email protected]
.com
...
    > My recollection about BIA reference to immigrant classifciation was
    > partially in error -- the case I had in mind [from 1978] referred to DOS
    > REGULATIONS. Rhee, 16 I&N Dec. 607 (BIA 1978). Now regulations, unlike
    > the FAM do have the force of law.

http://www.usdoj.gov/eo-
ir/vll/intdec/id3_pdf/2673.pdf


    > The 1988 case of Walsh & Pollard 20 I&N Dec. 60, is interesting. That
    > case involved British workers coming iin to work as "E-2" employees of a
    > British company. The question was whether or not the UK company had
    > made a "substantial" investment in a US company. The UK company had
    > invested the grand total of $15,000 in the US business. The business
    > was to be operated to honor a $307 million contract with General Motors
    > to provide British automobile engineering so as to enable GM to compete
    > with the Japanese car makers. [As a former Sunbeam Tiger owner, any
    > good Lucas Electric jokes are appreciated -- but only NEW ones]. In
    > that case, the INS disagreed with the DOS regulations and FAM
    > interpretations. The BIA followed those interpretations -- it should be
    > noted that they were not followed because they were binding, but because
    > they were correct.

http://www.usdoj.gov/eoir-
/vll/intdec/vol20/3111.pdf


    > In Matter of Esposito, 21 I&N Dec. 1 (1995), the BIA was confronted with
    > a citizenship question. Because of its role in passport issuance and
    > certificates of expatriation, the Department of State does have a role
    > in citizenship. The BIA expressly declined to follow a FAM
    > interpretation. However, it was noted that the DOS had withdrawn from
    > that interpretation and was changing the FAM at the time.

http://www.usdoj.gov/eoi-
r/vll/intdec/id_pdf/3243.pdf


    > In Fuentes-Martinez 21 I&N 893 (1997), the BIA noted that it was not
    > bound by DOS regulations because it was the Attorney General who has the
    > last word under the Immigration & Nationlality Act and they were the
    > agents of the Attorney General.

http://www.usdoj.gov/eoi-
r/vll/intdec/id_pdf/3316.pdf

 
Old Sep 30th 2002, 10:17 pm
  #8  
Paulgani
Guest
 
Posts: n/a
Default Re: My essay on the 30/60 day rule

    > > The 1988 case of Walsh & Pollard 20 I&N Dec. 60, is interesting. That
    > > case involved British workers coming iin to work as "E-2" employees of a
    > > British company. The question was whether or not the UK company had
    > > made a "substantial" investment in a US company. The UK company had
    > > invested the grand total of $15,000 in the US business. The business
    > > was to be operated to honor a $307 million contract with General Motors
    > > to provide British automobile engineering so as to enable GM to compete
    > > with the Japanese car makers. [As a former Sunbeam Tiger owner, any
    > > good Lucas Electric jokes are appreciated -- but only NEW ones]. In
    > > that case, the INS disagreed with the DOS regulations and FAM
    > > interpretations. The BIA followed those interpretations -- it should be
    > > noted that they were not followed because they were binding, but because
    > > they were correct.
    > http://www.usdoj.gov/eo-
    > ir/vll/intdec/vol20/3111.pdf


I disagree with your conclusion. At the very end, the declaration of the
BIA was:

As the applicants meet the requirements of the applicable regulations
promulgated and interpreted by the DOS, they should be admitted.

The "interpreted by" clearly refers to the FAM.

Earlier in the decision, the BIA states "As a general matter great deference
should be accorded to an agency's (DOS) construction of a statute which it
administers and the agency's (DOS) interpretations of the regulations it has
drafted". Then, it follows with "interpretation of own regulations accorded
deference". The implication seems that if the INS does not have its own
regulations and interpretations of a given subject/topic, then it needs to
follow those of the DOS.

Then, in deciding to use the DOS regulations and their interpretations (i.e.
the FAM), the BIA states:

"The Service's (INS) requirement of a minimal investment, likewise, is not
published or reflected in any written material. We cannot give weight to
these alleged policies of the Service in face of DOS regulations and the
Service's history of acquiescence with them".

It then lists a couple references to the INS Operations Instructions which
specify to refer to the FAM, one even using the word "must".

On a related note, the OI also states: "214.1 General requirements for
admission, extension, and maintenance of status. The Notes to 22 CFR 41, in
Volume 9--Visas, Foreign Affairs Manual, contain valuable information
pertaining to nonimmigrant classification and related matters. These notes
should be consulted when considering issues of law or fact
in connection with nonimmigrants."

Since the INS regulations and OI do not have specific procedures on how to
define/identify/conclude "material misrepresentation", wouldn't it make
sense that by default, the INS would be required to follow the regulations
(and interpretations) of the DOS? Or is there fault in my chain of logic?

Paulgani
 
Old Oct 1st 2002, 12:33 am
  #9  
Account Closed
 
Joined: Sep 2002
Posts: 16,266
Folinskyinla is an unknown quantity at this point
Default Re: My essay on the 30/60 day rule

Originally posted by Paulgani:
[q2]
I disagree with your conclusion. At the very end, the declaration of the
BIA was:

As the applicants meet the requirements of the applicable regulations
promulgated and interpreted by the DOS, they should be admitted.

The "interpreted by" clearly refers to the FAM.

Earlier in the decision, the BIA states "As a general matter great deference
should be accorded to an agency's (DOS) construction of a statute which it
administers and the agency's (DOS) interpretations of the regulations it has
drafted". Then, it follows with "interpretation of own regulations accorded
deference". The implication seems that if the INS does not have its own
regulations and interpretations of a given subject/topic, then it needs to
follow those of the DOS.

Then, in deciding to use the DOS regulations and their interpretations (i.e.
the FAM), the BIA states:

"The Service's (INS) requirement of a minimal investment, likewise, is not
published or reflected in any written material. We cannot give weight to
these alleged policies of the Service in face of DOS regulations and the
Service's history of acquiescence with them".

It then lists a couple references to the INS Operations Instructions which
specify to refer to the FAM, one even using the word "must".

On a related note, the OI also states: "214.1 General requirements for
admission, extension, and maintenance of status. The Notes to 22 CFR 41, in
Volume 9--Visas, Foreign Affairs Manual, contain valuable information
pertaining to nonimmigrant classification and related matters. These notes
should be consulted when considering issues of law or fact
in connection with nonimmigrants."

Since the INS regulations and OI do not have specific procedures on how to
define/identify/conclude "material misrepresentation", wouldn't it make
sense that by default, the INS would be required to follow the regulations
(and interpretations) of the DOS? Or is there fault in my chain of logic?

Paulgani
Hi:

Disagree all you want. You are limiting yourself just to the contents of Walsh & Pollard. I also gave you the cite of Esposito & Fuentes-Martinez.. The BIA has stated that it is not bound by DOS regulations it disagrees with. In Walsh-Pollard, the BIA chose to give defference, they didn't have to.


I suggest you read the ENTIRETY of the Notes of vol 9 FAM 40.63. Those notes themselves make specific reference to published precedent decision. Also, the 30/60 rule, by its own terms is a procedural device and not substantive. Note the presumption is not binding, but can be rebutted. And it won't take much to rebut if Healy/Goodchild is any guide.

Bottom line: the 30/60 day rule is NOT, repeat NOT, a planning tool.
Folinskyinla is offline  
Old Oct 4th 2002, 4:44 am
  #10  
Account Closed
 
Joined: Sep 2002
Posts: 16,266
Folinskyinla is an unknown quantity at this point
Default Re: My essay on the 30/60 day rule

Originally posted by Folinskyinla:


Hi:

Disagree all you want. You are limiting yourself just to the contents of Walsh & Pollard. I also gave you the cite of Esposito & Fuentes-Martinez.. The BIA has stated that it is not bound by DOS regulations it disagrees with. In Walsh-Pollard, the BIA chose to give defference, they didn't have to.


I suggest you read the ENTIRETY of the Notes of vol 9 FAM 40.63. Those notes themselves make specific reference to published precedent decision. Also, the 30/60 rule, by its own terms is a procedural device and not substantive. Note the presumption is not binding, but can be rebutted. And it won't take much to rebut if Healy/Goodchild is any guide.

Bottom line: the 30/60 day rule is NOT, repeat NOT, a planning tool.
Hi:

I've given this more thought. I'm being repitive and redundant, but I'm going to say more than once: THE 30/60 RULE IS NOT A PLANNING TOOL.

The law of misrepresentation and fraud can be quite technical in nature. The arguments you make above are the type you make AFTER certain unsavory material has hit the fan and you are then trying to clean up the resulting mess. It is MUCH better to plan you affairs so the question doesn't come up at all.

In my experience, most people tend to be fairly honest when answering inquiries from authority. In other words, people usually are pretty poor liars. Also, it doesn't take much in the way of imagination for an unrepresented person to tell an INS or consular officer "I did not commit fraud -- we waited until day 61 because of the 30/60 rule." They would not realize that they made an admission until it was too late.

Do NOT plan future conduct based upon the so-called 30/60 rule.
Folinskyinla is offline  
Old Oct 4th 2002, 3:12 pm
  #11  
Paulgani
Guest
 
Posts: n/a
Default Re: My essay on the 30/60 day rule

"Folinskyinla" wrote in message
news:[email protected]
.com
...
    > I've given this more thought. I'm being repitive and redundant, but I'm
    > going to say more than once: THE 30/60 RULE IS NOT A PLANNING TOOL.

Agreed, for the moment, at least as it pertains to the INS. What about as
it pertains to the DOS? If one made a statement of intent on their visa
application, and then broke it 61 days after entry, would it be prudent to
NOT choose to file AOS, and instead choose to Consular Process?

In this respect, you have 2 things going for you. First, you departed the
U.S., thus you could argue that you always intended to depart, and thus
didn't violate your statement of intent in the first place. Second,
presumably the 30/60 day rule is applicable to the COs. The key
disadvantage that I see is that if denied, there's no appeal, whereas you
would be able to appeal with the INS. What do you think?

    > The law of misrepresentation and fraud can be quite technical in nature.
    > The arguments you make above are the type you make AFTER certain
    > unsavory material has hit the fan and you are then trying to clean up
    > the resulting mess. It is MUCH better to plan you affairs so the
    > question doesn't come up at all.

Agreed.

    > poor liars. Also, it doesn't take much in the way of imagination for an
    > unrepresented person to tell an INS or consular officer "I did not
    > commit fraud -- we waited until day 61 because of the 30/60 rule." They
    > would not realize that they made an admission until it was too late.

I see this as a classic reason for having an attorney present at the
interview. It would be foolish for the applicant to mention this, but
entirely different if the attorney brought it up.

Paulgani
 
Old Oct 4th 2002, 3:23 pm
  #12  
Paulgani
Guest
 
Posts: n/a
Default Re: My essay on the 30/60 day rule

"Folinskyinla" wrote in message
news:[email protected]
.com
...
    > Disagree all you want. You are limiting yourself just to the contents
    > of Walsh & Pollard. I also gave you the cite of Esposito &
    > Fuentes-Martinez..

Yes, I read Esposito. It says:

"The Attorney General shall be charged with the administration and
enforcement of this Act
and all other laws relating to the immigration and naturalization of aliens,
except insofar as
this Act or such laws relate to the powers, functions, and duties conferred
upon the President,
the Secretary of State, the officers of the Department of State, or
diplomatic or consular
officers: Provided, however, That determination and ruling by the Attorney
General
with respect to all questions of law shall be controlling."

Now, I'll admit - I don't understand the very last sentence. It seems
inconsistent with the previous text. Perhaps, you, as an attorney, could
explain it to me.

HOWEVER, my interpretation of the first part is that the INS must give
deference to areas of the law which are delegated to other branches of
government. Since DOS has been granted exclusive right to grant visas, it
would make sense to me, that in any determination in whether a visa was
properly granted, the INS must defer to DOS regulations and interpretations.

With respect to the 30/60 day rule, I would interpret that as statements
made on a visa application should be interpreted using DOS regs, whereas
statements made at the POE should be interpreted using INS regs.

    > The BIA has stated that it is not bound by DOS regulations it
    > disagrees with.

I'm sorry, I just didn't see that argument in Esposito:

"Furthermore, even assuming the State Department regulation evidenced a
clear conflict with the position we have taken, we note that this Board, as
the
Attorney General's delegate, is charged by law with interpreting questions
of
law within our jurisdiction under the Act and, in this instance, for the
reasons
stated, we would depart from the State Department regulation:"

(me again) My interpretation of this is that this issue was within the scope
of the INS, and so its own regulations apply. Nowhere did I read that the
INS believes its regulations are superior regarding the scope of law
delegated to the DOS.

Paulgani
 
Old Oct 4th 2002, 3:41 pm
  #13  
Paulgani
Guest
 
Posts: n/a
Default Re: My essay on the 30/60 day rule

It appears to me you mismatched your statements. Esposito refers to the "AG
last word", whereas Fuentes-Martinez refers to the "changed interpretation".

Paulgani

    > > In Matter of Esposito, 21 I&N Dec. 1 (1995), the BIA was confronted with
    > > a citizenship question. Because of its role in passport issuance and
    > > certificates of expatriation, the Department of State does have a role
    > > in citizenship. The BIA expressly declined to follow a FAM
    > > interpretation. However, it was noted that the DOS had withdrawn from
    > > that interpretation and was changing the FAM at the time.
    > http://www.usdoj.gov/e-
    > oir/vll/intdec/id_pdf/3243.pdf

    > > In Fuentes-Martinez 21 I&N 893 (1997), the BIA noted that it was not
    > > bound by DOS regulations because it was the Attorney General who has the
    > > last word under the Immigration & Nationlality Act and they were the
    > > agents of the Attorney General.
    > http://www.usdoj.gov/e-
    > oir/vll/intdec/id_pdf/3316.pdf

 
Old Oct 4th 2002, 4:48 pm
  #14  
Ronald Austin
Guest
 
Posts: n/a
Default Re: My essay on the 30/60 day rule

Nowhere did I read that the INS believes its regulations are superior
regarding the scope of law delegated to the DOS.

Paulgani


From the Peanut Gallery:

It looks to me that BIA doesn't say the INS is "superior" to Dos, just that
BIA could ignore DoS in formulating a ruling.

"we would depart from the State Department regulation:"
 
Old Oct 4th 2002, 5:12 pm
  #15  
Paulgani
Guest
 
Posts: n/a
Default Re: My essay on the 30/60 day rule

"Ronald Austin" wrote in message
news:yLin9.8327$O-
[email protected]
...
    > It looks to me that BIA doesn't say the INS is "superior" to Dos, just
that
    > BIA could ignore DoS in formulating a ruling.
    > "we would depart from the State Department regulation:"

Yes, but only because that particular topic was "within our (INS)
jurisdiction". I'm trying to point out that issues regarding visa issuance
are NOT within the INS's jurisdiction.

Thus, according to my interpretation, any (mis)representations made on a
visa application should be adjudicated using DOS regulations and their
interpretations (i.e. the FAM). Thus, the 30/60 day rule, insofar as it
pertains to (mis)representations made on a visa application, should apply.
However, (mis)representations made at the POE would be subject to INS
regulations and their interpretations (i.e. the Operations Instructions
and/or Adjudicator's or Inspector's Field Manuals).

Paulgani
 

Contact Us Archive Advertising Cookie Policy Privacy Statement Terms of Service

Copyright © 2018 MH Sub I, LLC dba Internet Brands. All rights reserved. Use of this site indicates your consent to the Terms of Use.