JUAN GUTIERREZ LOZANO

77 28 141^ST ST APT B

FLUSHING NY 11367

IN THE UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

BOARD OF IMMIGRATION APPEALS

TABLE OF CONTENTS

STATEMENT OF RELEVANT FACTS. 4

STATEMENT OF ISSUES. 5

STANDARD OF REVIEW… 5

SUMMARY OF ARGUMENTS. 5

ARGUMENTS. 5

1.    THE DHS OFFICER ERRED BY DENYING APPELLANT’S VISA APPLICATION.. 5

2.    A DENIAL OF APPELLANT’S VISA APPLICATION AMOUNTS TO A VIOLATION OF APPELLANT’S DUE PROCESS RIGHTS. 6

3.    A DENIAL OF APPELLANT’S VISA APPLICATION IN SUCH CIRCUMSTANCES AMOUNTS TO AN ABUSE OF DISCRETION.. 6

CONCLUSION.. 7

TABLE OF AUTHORITIES

Cases

Matter of A-S-B-, 24 I & N Dec. 493, 496 (BIA 2008); 8 C.F.R. § 1003.1(d)(3)……………………… 5

Matter of A-S-B-, 24 I & N Dec. 493, 496 (BIA 2008); 8 C.F.R. § 1003.1(d)(3)……………………… 5

Matter of Roberto Mendoza Cuello, No. A021 334 966, 2011 WL 899606 (BIA Feb. 28, 2011). 5

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Ins. Co., 463 U.S. 29. 43 (1983)……………………… 7

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Ins. Co., 463 U.S. 29. 43 (1983)……………………… 7

Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10^th Circ. 1994)………………………… 6

Oshodi v. Holder, 729 F.3d 883, 889 (9^th Cir. 2013)……………………………………………………………. 6

Rosales v. Bureau of Immigration and Customs Enforcement, 426 F.3 733, 736 (5^th Cir. 2005).. 6

Sorenson Commc’ns, Inc. v. F.C.C., 567 f.3D 1215, 1221 (10^th Cir. 2009)…………………………….. 6

Zadvydas v. Davis, 533 U.S. 678, 693 (2001)……………………………………………………………………… 6

Statutes

5 U.S.C. § 706(2)(A)……………………………………………………………………………………………………….. 6

8 C.F.R. § 1003.3(c)(1)……………………………………………………………………………………………………. 4

8 C.F.R. § 1003.3(c)(2)……………………………………………………………………………………………………. 4

Other Authorities

https://www.uscis.gov/about-us/find-a-uscis-office/if-you-feel-sick-do-not-come-to-your-uscis-appointment-please-cancel-and-reschedule-it,……………………………………………………………………………………. 5

            COMES NOW Appellant, JUAN GUTIERREZ LOZANO, pro se, and pursuant to 8 C.F.R. § 1003.3(c)(2), submits the following for her brief on appeal.

STATEMENT OF RELEVANT FACTS

            Appellant filed Form I-485, Application to Register Residence or Adjust Status, to U.S. Citizenship and Immigration Services (USCIS) pursuant to Section 245 of the Immigration and Nationality Act (INA). Appellant filed the said Form based on being the beneficiary of an approved immigrant petition.

            The USCIS set the interview date at [ENTER DATE], which was on a Monday. However, that weekend, Appellant and her husband started experiencing symptoms of Covid-19. Appellant had to quarantine from March 26, 2021. Accordingly, Appellant attempted to make a reschedule of the appointment date online via the department’s website. According to the website, immigrants who felt sick were allowed to cancel the appointment date and seek a reschedule thereof at no penalty whatsoever.

It follows; on or about March 29, 2021, Appellant made a call to the USCIS requesting for an interview reschedule. (See request No. T1S0882100263QNS). The USCIS informed Appellant that it had forwarded Appellant’s request to the relevant unit for review and reconsideration. Further, the department notified Appellant that USCIS was experiencing delays in reviews and interviews due to the Covid-19 pandemic. However, Appellant was advised that her request would be handled expeditiously when the situation get back to normal. 

            On or about July 12, 2021, Appellant’s visa application was denied on the grounds that Appellant did not provide any evidence to indicate that Appellant is immediately entitled to an immigrant visa.

            It appears, the Department’s system failed to update before the Field Officer Director checked the Applicant’s status and proceeded to deny Appellant’s visa application.

            Appellant hereby appeals the Director’s decision.    

STATEMENT OF ISSUES

1. Whether the Department of Homeland Security officer erred in denying Appellant’s visa application.
2.  

STANDARD OF REVIEW

            The Board reviews “questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges de novo.” Matter of A-S-B-, 24 I & N Dec. 493, 496 (BIA 2008); 8 C.F.R. § 1003.1(d)(3). Issues as to whether a party has met his or her burden of proof are similarly reviewed de novo. Matter of Roberto Mendoza Cuello, No. A021 334 966, 2011 WL 899606 (BIA Feb. 28, 2011).

SUMMARY OF ARGUMENTS

            The DHS Officer erred in denying Appellant’s visa application because the Appellant had duly submitted a reschedule of the interview according to the guidelines. Therefore, the delay  in communication was out of Appellant’s control. 

ARGUMENTS

1.      THE DHS OFFICER ERRED BY DENYING APPELLANT’S VISA APPLICATION

The USCIS has a policy that requires people seeking asylum not to come for their appointment. The said policy, available at https://www.uscis.gov/about-us/find-a-uscis-office/if-you-feel-sick-do-not-come-to-your-uscis-appointment-please-cancel-and-reschedule-it, the USCIS wants to ensure the safety of those whom it serves and its employees. Accordingly, the USCIS expressly state that it shall help asylum seekers reschedule their appointment, without penalty, when they get better. Further, the website provided instructions for rescheduling an appointment in the event an asylum seeker felt sick.

            Appellant therefore duly followed the USCIS’s instruction not to appear for the appointment when sick. In that regard, Appellant first attempted to make an online cancelling and rescheduling via the website to no avail. Appellant proceeded to place a call directly to the relevant office in charge, which registered Appellant’s request and assured Appellant that they would direct Appellant’s request to the relevant unit. It follows; therefore, Appellant adhered to all requirements pertaining to her circumstances.   

2.      A DENIAL OF APPELLANT’S VISA APPLICATION AMOUNTS TO A VIOLATION OF APPELLANT’S DUE PROCESS RIGHTS

“[T]he Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). “[D]ue process requires that removal hearings [and any other decision] be fundamentally fair.” Rosales v. Bureau of Immigration and Customs Enforcement, 426 F.3 733, 736 (5^th Cir. 2005); Oshodi v. Holder, 729 F.3d 883, 889 (9^th Cir. 2013) (en banc) (“It’s well established that the Fifth Amendment guarantees non-citizens due process in removal proceedings.”).

Appellant contends that the DHS officer’s decision to deny Appellant’s visa application is unfair because the officer failed to probe why Appellant did not appear for the appointment. Notably, Appellant had duly followed all the required procedure for cancelling and rescheduling Appellant’s appointment after Appellant and her husband developed Covid-19 symptoms and therefore they had to subject themselves to quarantine.

3.      A DENIAL OF APPELLANT’S VISA APPLICATION IN SUCH CIRCUMSTANCES AMOUNTS TO AN ABUSE OF DISCRETION

Under the Administrative Procedures Act (APA), a reviewing court will “hold unlawful an set aside agency action, findings, and conclusions” that it finds “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). 

“An agency’s action is entitles to a presumption of validity, and the burden is upon the petitioner to establish the action is arbitrary or capricious.” Sorenson Commc’ns, Inc. v. F.C.C., 567 f.3D 1215, 1221 (10^th Cir. 2009). Once agency action is challenge as arbitrary or capricious, a court reviews that action as if it were an Appellate Court. See Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10^th Circ. 1994). As part of the appeal, the court “ascertain[s] whether the agency examined the relevant data and articulated a rational connection between the facts found and the decision mae.” Id., at 1574 (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Ins. Co., 463 U.S. 29. 43 (1983). 

Appellant contends that the Officer’s decision was arbitrary and capricious. Notably, the Officer failed to check why Appellant did not appear for the scheduled appointment date. In that regard, the Officer abused his discretion by denying Appellant’s visa application in that regard. 

CONCLUSION

            For the above reasons, Appellant requests that the Officer’s decision be reversed and she be provided an opportunity to attend the interview for her application for visa.

Respectfully submitted,

DATED:    ____________

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