22IE Mar192009 08A2caa
User Manual: 22IE
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U.S.
Department of £lomeland Security
U.
S.
Citizenship
and
Immigration Services
Office of Administrative Appeals
Washington, DC 20529-2090
U.
S.
Citizenship
and Immigration
PUBLIC
COPY
Services
MAR
1
92009
IN
RE: Applicant:
Application: Application for Permanent Residence Pursuant to Section
1
of the Cuban Adjustment Act of'
November 2, 1966 (P.L. 89-732)
ON BEHALF OF APPLICANT:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
hn
F.
Grissom, Acting Chief
dministrative Appeals Office
Page 2
DISCUSSION:
The application was denied by the District Director, Miami, Florida and is now before the
Administrative Appeals Office (AAO) on appeal. The appeal will be rejected.
The applicant is a native and citizen of Cuba who filed this application for adjustment of status to that of a
lawful permanent resident under section 1 of the Cuban Adjustment Act (CAA) of November 2, 1966. The
director denied the application on June 14,2006, and the applicant filed an appeal from that denial. The AAO
does not have appellate jurisdiction over an appeal from the denial of an application for adjustment of status.
The authority to adjudicate appeals is delegated to the AAO by the Secretary of the Department of Homeland
Security (DHS) pursuant to the authority vested in him through the Homeland Security Act of 2002, Pub.
L.
107-296.
See
DHS Delegation Number 0150.1 (effective March 1, 2003); see also 8 C.F.R.
$
2.1 (2003).
The AAO exercises appellate jurisdiction over the matters described at 8 C.F.R.
$
103.l(f)(3)(iii) (as in effect
on February 28, 2003), with one exception
-
petitions for approval of schools and the appeals of denials of
such petitions are now the responsibility of Immigration and Customs Enforcement.
The AAO cannot exercise appellate jurisdiction over additional matters on its own volition, or at the request
of an applicant or petitioner. As a "statement of general
. . .
applicability and future effect designed to
implement, interpret, or prescribe law or policy," the creation of appeal rights for adjustment applicatior~
denials meets the definition of an agency "n~le" under section 55 1 of the Administrative Procedure Act. The
granting of appeal rights has a "substantive legal effect" because it is creating a new administrative "right,"
and it involves an economic interest (the fee). "If a rule creates rights, assigns duties, or imposes obligations,
the basic tenor of which is not already outlined in the law itself, then it is substantive."
La Casa Del
Convaleciente v. Sullivan,
965 F.2d 1 175, 1 178 (lS' Cir. 1992) All substantive or legislative rule making
requires notice and comment in the Federal Register.
The AAO takes note that, in the denial decision, the director did not advise the applicant that the denial could
be appealed. Counsel filed a Form I-290B, Notice of Appeal or Motion, indicating that he was filing an
appeal. The AAO does not have jurisdiction over an appeal from the denial of a Form 1-485 adjustment
application filed under section 1 of the Cuban Adjustment Act (CAA) of November 2, 1966. Accordingly,
the appeal must be rejected.'
ORDER:
The appeal is rejected.
'
The AAO notes that, even if it had appellate jurisdiction over this appeal, it would have rejected it because it
was not timely filed. The director issued the denial decision on June 14,2006 and the appeal was received by
U.S. Citizenship and Immigration Services (USCIS) more than one year and two months later, on
September 2, 2007.
An
affected party must file the complete appeal within 30 days of service
of
the
unfavorable decision.
8
C.F.R.
5
103.3(a)(2)(i). If the decision was mailed, the appeal must be filed within
33 days.
See
8 C.F.R.
$
103.5a(b).
