ABUSE OF DISCRETION

ABUSE OF DISCRETION

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2016-05-06 10:59:31, 조회 : 18, 추천 : 0In Mnayer, a) a national interest waiver petition, the AAU was found a) to have abused its discretion i) by failing to consider the facts A) in the record, B) which adequately established that I) waiver (a) of the labor certification requirement would be in the national interest.32 Although there is no exact measure a) of what constitutes abuse of discretion, 1) case law indicates that a) the INS has been found to have abused its discretion b) when it fails to consider all i) of the relevant evidence submitted.33 It is also an abuse of discretion 1) when the INS fails a) to explain i) adequately ii) why the facts A) it did consider were insufficient A) to establish a required element I) for an immigration benefit.34 An abuse of discretion may also be found 1) where the INS decision (a) was made i) without rational explanation, (b) inexplicably departed from established policies, or (c) rested on an impermissible basis i) such as race discrimination.35 In addition, a court may find that a) the INS abused its discretion b) when a decision was based on an improper understanding of the law.36 29 TAG, supra. See also Matter of A. Dow Steam Specialties, Ltd., Int. Dec. 3013, 19 I&N Dec. 389 (BIA 1986). 30 Administrative Procedure Act, 5 USC @ 706 et seq. 31 Laila Mnayer v. INS, U.S. Dist., S. Dist. Fl., LEXIS 21932 (1995). 32 Id. The beneficiary a) in Mnayer, b) a clinical laboratory technologist i) in cytogenetics, 1) proffered evidence a) including i) letters and ii) articles A) in support of her national interest waiver petition. The Court grouped the letters a) into three general categories (a) letters of recommendation i) acknowledging general qualities; (b) recommendations i) recognizing academic achievements; (c) recommendations i) establishing the beneficiary played a “key role” in the field. The AAU’s failure a) to address the third group of letters 1) required reversal of its determination. cy·to·ge·net·ics (sī′tō-jə-nĕt′ĭks) n. (used with a sing. verb) The branch of genetics that deals with the cellular components, particularly chromosomes, that are associated with heredity. cy′to·ge·net′ic, cy′to·ge·net′i·cal adj. cy′to·ge·net′i·cal·ly adv. cy′to·ge·net′i·cist (-sĭst) n. American Heritage® Dictionary of the English Language, Fifth Edition. Copyright © 2011 by Houghton Mifflin Harcourt Publishing Company. Published by Houghton Mifflin Harcourt Publishing Company. All rights reserved. cytogenetics (ˌsaɪtəʊdʒɪˈnɛtɪks) n (Genetics) (functioning as singular) the branch of genetics that correlates the structure, number, and behaviour of chromosomes with heredity and variation ˌcytogeˈnetic, ˌcytogeˈnetical adj ˌcytogeˈnetically adv ˌcytogeˈneticist n Collins English Dictionary – Complete and Unabridged, 12th Edition 2014 © HarperCollins Publishers 1991, 1994, 1998, 2000, 2003, 2006, 2007, 2009, 2011, 2014 cy•to•ge•net•ics (ˌsaɪ toʊ dʒəˈnɛt ɪks) n. (used with a sing. v.) the branch of biology linking the study of genetic inheritance with the study of cell structure. [1930–35] cy·tol·o·gy (sī-tŏl′ə-jē) n. The branch of biology that deals with the formation, structure, and function of cells. cy′to·log′ic (-tə-lŏj′ĭk), cy′to·log′i·cal adj. cy·tol′o·gist n. American Heritage® Dictionary of the English Language, Fifth Edition. Copyright © 2011 by Houghton Mifflin Harcourt Publishing Company. Published by Houghton Mifflin Harcourt Publishing Company. All rights reserved. cytology (saɪˈtɒlədʒɪ) n 1. (Microbiology) the study of plant and animal cells, including their structure, function, and formation 2. (Microbiology) the detailed structure of a tissue, as revealed by microscopic examination cytological, cytologic adj ˌcytoˈlogically adv CYTO- Also found in: Dictionary, Medical, Encyclopedia. Acronym Definition CYTO- Cell (Biology) The third group a) of letters 1) described the beneficiary a) as i) “one of the leading researchers” A) in the field; ii) a “leading technologist A) with extensive knowledge and experience I) in the use of highly sophisticated techniques”; iii) a scientist A) who I) “possesses unique skills in the field and II) will be engaged in a critical role (a) in vital investigation”; iv) a professional A) whose “levels of skill and knowledge I) (that] she brings to her work are well beyond those I) of the average researcher (a) in her field”; v) a researcher A) with “specific abilities and accomplishments I) (that] are significantly higher (a) than that (i) encountered in the average researcher”; and vi) a person A) whose “contributions are uniquely valuable I) as they signify (a) a knowledge base and (b) mastery of sophisticated analytical methods (i) which are in exceedingly short supply (A) in the United States.” With regard to the beneficiary’s work, 1) the letters state a) “the work performed is of utmost importance”; b) there is a “serious shortage i) of individuals A) with I) specific academic training and II) unique experience and skills (a) in this highly specialized area.” With regard to the beneficiary’s position, 1) the letters state a) “holds a key position”; b) holds a “key role i) in the international effort”; and c) “specific continuing contributions i) to this project represent a key element i) in our future success and achievement.” The Court held that a) the letters adequately established that i) waiver A) of the job offer requirement, and B) thus of labor certification, would be in the national interest. The Court a) in Mnayer 1) held that a) the AAU abused its discretion i) by ignoring the evidence A) submitted in support of the petition and b) that the evidence i) more than adequately ii) established that A) waiver I) of the labor certification requirement would be in the national interest – c) charges i) that likewise might be fairly leveled A) at the INS in NYSDOT, I) which contains only a cursory and summary analysis (a) of the evidence. 33 Dragon v. INS, 748 F.2d 1304, 1306 (9th Cir. 1984); Grimson v. INS, 934 F. Supp. 965 (D. Illinois 1996); Mnayer, supra. 34 Muni v. INS, 891 F. Supp. 440 (D. Illinois 1995). 35 Bal V. Moyer, 883 F.2d 45, 46 (7th Cir. 1989); Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir. 1985). 36 Occidental Engineering Co. v. INS, 753 F.2d. 766, 767 (9th Cir. 1985). B. MNAYER AND NYSDOT In Mnayer, the AAU applied the following interpretation a) to the national interest requirement

http://taxnlaw.co.kr/ In Mnayer, a) a national interest waiver petition, the AAU was found a) to have abused its discretion i) by failing to consider the facts A) in the record, B) which adequately established that I) waiver (a) of the labor certification requirement would be in the national interest.32 Although there is no exact measure a) of what constitutes abuse of discretion, 1) case law indicates that a) the INS has been found to have abused its discretion b) when it fails to consider all i) of the relevant evidence submitted.33 It is also an abuse of discretion 1) when the INS fails a) to explain i) adequately ii) why the facts A) it did consider were insufficient A) to establish a required element I) for an immigration benefit.34 An abuse of discretion may also be found 1) where the INS decision (a) was made i) without rational explanation, (b) inexplicably departed from established policies, or (c) rested on an impermissible basis i) such as race discrimination.35 In addition, a court may find that a) the INS abused its discretion b) when a decision was based on an improper understanding of the law.36 29 TAG, supra. See also Matter of A. Dow Steam Specialties, Ltd., Int. Dec. 3013, 19 I&N Dec. 389 (BIA 1986). 30 Administrative Procedure Act, 5 USC @ 706 et seq. 31 Laila Mnayer v. INS, U.S. Dist., S. Dist. Fl., LEXIS 21932 (1995). 32 Id. The beneficiary a) in Mnayer, b) a clinical laboratory technologist i) in cytogenetics, 1) proffered evidence a) including i) letters and ii) articles A) in support of her national interest waiver petition. The Court grouped the letters a) into three general categories (a) letters of recommendation i) acknowledging general qualities; (b) recommendations i) recognizing academic achievements; (c) recommendations i) establishing the beneficiary played a “key role” in the field. The AAU’s failure a) to address the third group of letters 1) required reversal of its determination. cy·to·ge·net·ics (sī′tō-jə-nĕt′ĭks) n. (used with a sing. verb) The branch of genetics that deals with the cellular components, particularly chromosomes, that are associated with heredity. cy′to·ge·net′ic, cy′to·ge·net′i·cal adj. cy′to·ge·net′i·cal·ly adv. cy′to·ge·net′i·cist (-sĭst) n. American Heritage® Dictionary of the English Language, Fifth Edition. Copyright © 2011 by Houghton Mifflin Harcourt Publishing Company. Published by Houghton Mifflin Harcourt Publishing Company. All rights reserved. cytogenetics (ˌsaɪtəʊdʒɪˈnɛtɪks) n (Genetics) (functioning as singular) the branch of genetics that correlates the structure, number, and behaviour of chromosomes with heredity and variation ˌcytogeˈnetic, ˌcytogeˈnetical adj ˌcytogeˈnetically adv ˌcytogeˈneticist n Collins English Dictionary – Complete and Unabridged, 12th Edition 2014 © HarperCollins Publishers 1991, 1994, 1998, 2000, 2003, 2006, 2007, 2009, 2011, 2014 cy•to•ge•net•ics (ˌsaɪ toʊ dʒəˈnɛt ɪks) n. (used with a sing. v.) the branch of biology linking the study of genetic inheritance with the study of cell structure. [1930–35] cy·tol·o·gy (sī-tŏl′ə-jē) n. The branch of biology that deals with the formation, structure, and function of cells. cy′to·log′ic (-tə-lŏj′ĭk), cy′to·log′i·cal adj. cy·tol′o·gist n. American Heritage® Dictionary of the English Language, Fifth Edition. Copyright © 2011 by Houghton Mifflin Harcourt Publishing Company. Published by Houghton Mifflin Harcourt Publishing Company. All rights reserved. cytology (saɪˈtɒlədʒɪ) n 1. (Microbiology) the study of plant and animal cells, including their structure, function, and formation 2. (Microbiology) the detailed structure of a tissue, as revealed by microscopic examination cytological, cytologic adj ˌcytoˈlogically adv CYTO- Also found in: Dictionary, Medical, Encyclopedia. Acronym Definition CYTO- Cell (Biology) The third group a) of letters 1) described the beneficiary a) as i) “one of the leading researchers” A) in the field; ii) a “leading technologist A) with extensive knowledge and experience I) in the use of highly sophisticated techniques”; iii) a scientist A) who I) “possesses unique skills in the field and II) will be engaged in a critical role (a) in vital investigation”; iv) a professional A) whose “levels of skill and knowledge I) (that] she brings to her work are well beyond those I) of the average researcher (a) in her field”; v) a researcher A) with “specific abilities and accomplishments I) (that] are significantly higher (a) than that (i) encountered in the average researcher”; and vi) a person A) whose “contributions are uniquely valuable I) as they signify (a) a knowledge base and (b) mastery of sophisticated analytical methods (i) which are in exceedingly short supply (A) in the United States.” With regard to the beneficiary’s work, 1) the letters state a) “the work performed is of utmost importance”; b) there is a “serious shortage i) of individuals A) with I) specific academic training and II) unique experience and skills (a) in this highly specialized area.” With regard to the beneficiary’s position, 1) the letters state a) “holds a key position”; b) holds a “key role i) in the international effort”; and c) “specific continuing contributions i) to this project represent a key element i) in our future success and achievement.” The Court held that a) the letters adequately established that i) waiver A) of the job offer requirement, and B) thus of labor certification, would be in the national interest. The Court a) in Mnayer 1) held that a) the AAU abused its discretion i) by ignoring the evidence A) submitted in support of the petition and b) that the evidence i) more than adequately ii) established that A) waiver I) of the labor certification requirement would be in the national interest – c) charges i) that likewise might be fairly leveled A) at the INS in NYSDOT, I) which contains only a cursory and summary analysis (a) of the evidence. 33 Dragon v. INS, 748 F.2d 1304, 1306 (9th Cir. 1984); Grimson v. INS, 934 F. Supp. 965 (D. Illinois 1996); Mnayer, supra. 34 Muni v. INS, 891 F. Supp. 440 (D. Illinois 1995). 35 Bal V. Moyer, 883 F.2d 45, 46 (7th Cir. 1989); Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir. 1985). 36 Occidental Engineering Co. v. INS, 753 F.2d. 766, 767 (9th Cir. 1985). B. MNAYER AND NYSDOT In Mnayer, the AAU applied the following interpretation a) to the national interest requirement

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