This post was current as of June 11, 2009. To see how the AAO has worked under new leadership to specifically address the concerns expressed below, see this update.

The  Administrative Appeals Office (”AAO”) of the United States Citizenship and Immigration Services (”CIS”) may be the most mysterious appellate body in the American legal system. The AAO is tasked¹ with the review of a wide range of immigration-related decisions that have the potential to seriously affect people’s lives, including the denials and/or revocations of visas, waivers, and other basic immigration issues arising from CIS decisions. It is, in short, the unloved little step-brother of the Board of Immigration Appeals, the better-known body which generally handles appeals from decisions of American immigration courts.

Despite this significant authority, the AAO’s opinions are not formally published, rarely binding on anything beyond the case at hand, and are, in certain cases, unreviewable by a higher court. Its decisions are never credited to any particular judge or adjudicator and, to the extent that they are made available to the public, they are clumsily organized by subject matter in groups of annoying PDF files which are not indexed or otherwise easily searchable.

It is also well worth noting that appellants must remit a non-refundable $585 fee² simply for the privilege of having their appeals filed before the AAO. There’s no telling where all of that money is going, though, especially considering that—unlike any other appellate body in the United States of which I’m aware—the AAO doesn’t even have a website.

But you don’t have believe me. Just take it from the CIS ombudsman, who offers the following dismal summary [PDF]:

The lack of published information on AAO standards and procedures leads customers and stakeholders to question the integrity of the AAO decision-making process.

As of today, however, I have reason to question not only the AAO’s “decision-making process,” but its entire existence.

After careful consideration, I have come to the following rather startling conclusion:

The Administrative Appeals Office has no jurisdiction over anything.

The proof is fairly easy to come by, but you’re going to have to bear with me here: I’m about to get all regulatory on you.

This sordid fiasco begins with 8 C.F.R. §103.3, which outlines the contours of the immigration appellate process. 103.3(a)(iv) helpfully defines the “AAU” (a.k.a. “AAO”) as “the appellate body which considers cases under the appellate jurisdiction of the Associate Commisioner, Examinations.” Okay—so far, so well-regulated. But what kinds of cases?

That’s also pretty straightforward. 103.3(a)(ii) states that “[d]ecisions under the appellate jurisdiction of the Associate Commissioner, Examinations, are listed in Sec. 103.1(f)(2) of this part.”

Awesome! I love it when federal regulations are this elegantly organized. So there’s a whole section that defines exactly which cases the AAO has authority over. Good to know. Let’s take a look at §103.1(f)(2), shall we?

No, seriously. Take a look. It won’t take long, and you’re never going to believe this next part if you don’t.

There is no Section 103.1(f)(2). It seems someone idly plucked the AAO’s entire reason to live from the regulatory shelf, played with it for a few minutes, and forgot to put it back where it belonged.

Seriously, I’m pretty sure that’s what happened. You can find the pre-2004 version, which lovingly details some 55 different types of cases over which the AAO has appellate authority, here. As far as I can tell, however, this section was never restored or otherwise added to any other regulatory provision once it was removed.³

What does all of this mean? Simply put, the AAO has gone rogue. As of this month’s anniversary of the last amendment, it hasn’t had proper legal authority to review any given case for at least five years.

I know this may all seem unnecessarily fiddly and semantic, a sort of nerdly “gotcha” game. But I submit that this is a hugely significant problem. Subject-matter jurisdiction is one of the most essential foundations of a functioning appellate system, especially on the federal level. A court that doesn’t even know what kinds of cases it’s permitted to consider is really no court at all.

I’ve been poking around to see if anyone more important than myself has actually noticed this astonishing loophole, and the evidence is inconclusive. The 2009 version of the official CIS Adjudicator’s Field Manual still cites the missing regulation (see Sec. 10.8) in its brief discussion of which cases may be appealed to the AAO. The CIS website still enumerates a long list of issues over which the AAO has jurisdiction which appears to be drawn from the missing provision. And the instructions which accompany the I-290B form used to file appeals before the AAO unhelpfully state only that the AAO may review decisions arising from any immigration proceeding “in which the Board of Immigration Appeals does not have appellate jurisdiction.”

If this broad assertion of jurisdiction by exclusion suggests a sort of implicit recognition of the simple fact that the AAO has no enumerated authority whatsoever, the recent ombudsman’s statement quoted above manages to wiggle around the whole issue entirely:

“The AAO exercises appellate jurisdiction over the matters described in 8 C.F.R. § 103.1(f)(3)(iii) (as in effect on February 28, 2003)….”

Oh, c’mon. Maybe that was the best they could do under the circumstances, but it’s still undeniably sneaky. If you believe that one, try this:

It is clearly apparent that the Framers of the U.S. Constitution did not intend for women to enjoy the right to vote, and did not provide for any possibility that they would be permitted to do so. There is, therefore, absolutely no Constitutional support for the proposition that women have been granted the franchise. (See Constitution of the United States of America, as in effect August 17, 1920).

See how that works?

I wish I were missing something here, but I am left with three inescapable conclusions:

(1) The AAO has been legally invalid since 2004, but

(2) We’re stuck with it anyway, and don’t really have any choice but to continue to bring our cases before it, because

(3) No one cares.

1. Well, maybe not exactly, but more on that in a minute… [↩]
2. This has to be the most expensive appellate filing fee in the Western world. By way of comparison, this is exactly $475 more than the filing fee for an appeal to the Board of Immigration Appeals [PDF], $135 more than the filing fee for a typical immigration appeal before the First Circuit Court of Appeals [PDF] and a full $285 more than the fee for initial docketing of a petition for writ of certiorari to the U. S. Supreme Court [PDF]. [↩]
3. To be fair, it appears that there is a possibility that the AAO’s appellate authority was taken out of the regulations and “delegated” to the AAO by DHS pursuant to the powers granted it by 103.1(a) in something referenced in several sources as “Delegation Memo 0150.” However, this memo is not available to the general public (I’ve looked), and my position remains that appellants should be properly placed on notice of the AAO’s appellate jurisdiction through regulatory means, especially for as long as 103.3(a)(ii) continues to state that this information is actually available in the regulations and CIS’s official secondary sources continue to reference this defunct provision. Federal regulations are subject to public review and criticism—the so-called “notice and comment” rulemaking process so beloved of administrative lawyers. “We have jurisdiction over your case, and we have this secret internal memo to prove it” is the kind of thing one might reasonably expect to hear before being exiled to a Siberian gulag. If DHS has actually redefined the AAO through such a memo (and, again, there’s really no way for me to know if they have actually done so) apart from the regulatory process, I would submit that this represents an attitude to administrative lawmaking that has no place in a functioning constitutional democracy. [↩]

Matt Cameron