DENIALS OVERTURNED BECAUSE NOTICES NOT SENT TO ALIENS’ ATTORNEY OF RECORD

By Michael J. Gurfinkel

In two unpublished decisions issued this year, the Administrative Appeals Office (AAO) in Washington D.C. ruled that aliens’ cases were improperly denied because notices were not sent to the aliens’ current attorney of record.

In one case, the USCIS sent notices to the alien’s prior attorney, even though the new attorney filed a form G-28 (Notice of Entry of Appearance as Attorney or Representative). In the other case, the notice was sent only to the alien and not to the alien’s attorney, even though a G-28 was on file. Accordingly, the AAO remanded (sent back) the cases to the USCIS, because the denials were not properly issued.

I know that there are some situations where an alien may be handling the case himself and later retains an attorney, or the alien changes attorneys. The new attorney would usually file a G-28 with the USCIS, advising that he is now the “attorney of record”. However, in some cases, USCIS may send requests for evidence (RFE), notices of intent to deny (NOID), denials, etc. to the original attorney. While the original attorney may immediately forward the notices to the new attorney, there are situations where the original attorney may have moved, gone out of business, been disbarred, etc., such that the alien and the new attorney may never receive the notice, until after the denial.

If your case was denied because a notice was sent to your previous attorney or only to you, (and thus your present attorney of record did not have an opportunity to timely respond), these AAO decisions may help in having your case reopened or remanded, so that you get a fair chance to timely respond to a notice that should have been properly mailed to your attorney of record. Even if your case was denied long ago because it was sent to the wrong person or address, you should seek the advice of a reputable attorney who can analyze your situation to determine if these AAO cases could benefit you. (While these cases are considered “unpublished,” and therefore are not “binding authority,” they still demonstrate how the AAO would treat any appeal with similar fact patterns, such that a legitimate argument could be made that your case warrants reopening, reconsideration or remand, if it was denied due to an improperly mailed notice or denial.)