From closely monitoring the trend in Requests for Further Evidence (“RFE”) and the recent changes to USCIS policies and protocols, I have noticed that Citizenship and Immigration Services adjudicators disregard, to a measurable degree of frequency, expert/testimonial letters and its contents, regardless of whom they are from, or how specific in nature regarding achievements and recognitions. This is an arbitrary abuse of the O-1 regulatory standards.
To counter this in RFE responses and/or try to pre-empt related issues in the initial petitioning papers, you may want to include a careful explanation of the significance of expert/testimonial letters, and stress their importance towards adding credence and credibility to the overall evidentiary materials with any of the authoritative points summarized below –
- While expert letters by themselves are not conclusive evidence of extraordinary ability, such letters often summarize and explain the documentary evidence submitted. Unchallenged testimony cannot be rejected outright. Banks v. Gonzales, 453 F.3d 449, 453-54 (7th Cir. 2006). The determination of the credibility of documentary evidence should be the same as the determination of the credibility of testimony and therefore, an adverse decision must be based on “specific, cogent reasons that bear legitimate nexus to the finding” Zahedi v. INS, 222 F.3d 1157, 1165 (9th Cir. 2000). In other words, an expert letter may not be dismissed without a specific, cogent reason for finding that it is not credible evidence in support of the petition.
- USCIS has a long history of accepting expert letter as evidence. A number of non-precedent AAO decisions confirm this trend. See, e.g., Matter of [name not provided], 1997 WL 33171069 (AAO 1997); Matter of [name not provided], AAU LIN 95 08951447, 1997 WL 33171273 (AAO 1997).
- In addition, the Court in Buletini v. I.N.S., 860 F. Supp. 1222 (E.D. Mich. 1994) held that expert statements respecting the petitioner’s contributions must be fully considered, even if the expert opinions came from people who knew or had worked with the beneficiary.
- Similarly, the Court in Muni v. I.N.S. found that dismissal of expert letters without full consideration was “clear evidence that [the INS] did not adequately evaluate the facts before it. See also Racine v. INS, 1995 U.S. Dist. LEXIS 4336, 1995 WL 153319 (N.D. III Feb. 16, 1995).
- Failure to consider expert testimony and/or affidavits is a violation of Due Process. Tun v. Gonzales, 485 F.3d 1014 (8th Cir. 2007); Rodriguez Galicia v. Gonzales, 422 F.3d 529, 538-40 (7th Cir. 2005); Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1056-58 (9th Cir. 2005); McDonalds v. Gonzales, 400 F.3d 684, 687-88 (9th Cir. 2005).
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