Contact: joseph.whal en774@ gmail.com or (716) 604-4233 or (716 768-6506) Page 1

JUDGMENT, DISCRETION,

ENTITLEMENTS & RELIEF a la POLIDORO and KAZARIAN

By Joseph P. Whalen (September 4, 2014)

I. Introduction 1

Immigration in general, and particularly as to visas; naturalization; citizenship 2

claims; (in)admissibility; deportation; removal; asylum; withholding, deferral, or 3

cancellation of removal; waivers; and/or change, extension, or adjustment of status; 4

all have certain things in common while other things are in complete contrast. All of 5

these subjects can be straightforward, or can be highly complex and complicated. 6

Determining how a particular situation or “case”, is best characterized, is not always 7

obvious as it will depend on the specific facts of the individual qualities, facts, factors, 8

reasonable inferences, evidence, and/or circumstances involved in each. In other 9

words, it’s just not that simple. The purpose of this article is to explore just a 10

smattering of the myriad possibilities one might encounter in the big, wide, scary, 11

and amazing world of “immigration laws” of the United States. Did you know that 12

the basic subject matter of this article is actually defined in the Immigration and 13

Nationality Act (INA) [Title 8 U.S.C. (United States Code)]? Well, yes it is, and it is 14

defined at: 15

INA § 101 [8 U.S.C. § 1101] Definitions. 16

(a) As used in this chapter— 17

* * * * * 18

(17) The term “immigration laws” includes this chapter and all laws, conventions, 19

and treaties of the United States relating to the immigration, exclusion, deportation, 20

expulsion, or removal of aliens. 21

It is a tad disconcerting that four of the five descriptors in the above definition 22

relate to “negative” aspects, or what one might call “punishments” or “negative 23

Contact: joseph.whal en774@ gmail.com or (716) 604-4233 or (716 768-6506) Page 2

consequences” found in the “immigration laws” but only one rather “neutral” term 1

that would have to encompass any possible “positive” aspects, in other words, 2

“benefits” or “relief”. The word “benefit” is found either in the singular or plural, 3

twenty-one (21) times in the definitions section of the INA (including notes and 4

various headings) but is not actually defined itself. The word “relief” appears 5

eighteen (18) times, again, not as a defined term but merely in sentences and the 6

majority of occurrences are in headings or various names of acts amending the INA 7

(such as Nursing Relief Act). 8

II. Prima Facie Eligibility 9

A. “Prima Facie”-- My Working Definition: Latin for “first look” or “at first 10

sight”, often synonymous with “at first blush” or “upon first glance”. When 11

dealing with a civil case, such as an immigration case, it is a case presented that 12

raises a “presumption” which appears to meet the basic minimum evidentiary 13

showing that, without any questions asked or any affirmative rebuttal evidence 14

to disprove nor any effort to authenticate, “seems to be true”. The INA is the 15

statute that defines most immigration benefits available under the law as 16

prescribed by Congress which is empowered to make such laws on this subject 17

matter due to specific articles within the Constitution of the United States of 18

America. As an example, consider the various immigrant visa classifications 19

available to those who qualify. The INA contains many “definitions” for 20

many different “classifications”. Some statutory definitions are more precise 21

than others. Those that need further explanation get the needed additional 22

clarity through various means. The first added information is in the federal 23

regulations promulgated to implement the statutory provision. After that, 24

there may be administrative interpretations starting with the explanatory 25

Contact: joseph.whal en774@ gmail.com or (716) 604-4233 or (716 768-6506) Page 3

supplemental information and materials accompanying the promulgation of 1

the rule and any future changes that are published in the Federal Register. 2

When it comes to applying for any of the many, many immigrant visa 3

classifications, there are specific steps to be followed. The first is to file the 4

appropriate petition. The petition is a USCIS form with accompanying 5

instructions which, themselves, are subsumed into the specific controlling 6

regulation that speaks directly to that specific visa classification. The petition 7

must be filed by someone who is eligible and qualified to file it. Some 8

petitions may be filed by the person seeking the visa while others require that 9

someone else file on their behalf. The person for whom the visa is sought 10

must actually be eligible and qualified for that classification. These numerous 11

considerations are quite variable for many different reasons across the various 12

classifications. A mere “prima facie” showing is usually only the beginning. 13

B. Matter of Polidoro, 12 I&N Dec. 353 (BIA 1967), contains an often quoted 14

clear statement of interpretation which everyone interested in this subject 15

matter needs to memorize and internalize. Here is that essential passage: 16

“In the instant case the adoption took place on May 20, 1960. The 17

adopted person, the petitioner, was at that time 35 years old. It is 18

concluded that the adoption is invalid for immigration purposes and 19

that the petitioner is not eligible to seek immediate relative status on 20

behalf of the beneficiary as her adoptive parent. 21

The argument of counsel has been noted. The issue in visa petition 22

proceedings is not one of discretion but of eligibility. The appeal will 23

be dismissed. 24

ORDER: It is ordered that the appeal be and the same is hereby 25

dismissed.” 26

Id. at 354. [Emphasis Added.] 27

It is that second emphasized sentence that says the most. It refers back 28

to the “argument of counsel” in that case which was more or less a plea for the 29

Contact: joseph.whal en774@ gmail.com or (716) 604-4233 or (716 768-6506) Page 4

use of “discretion” to grant the desired visa classification petition. The 1

problem with that was that the determination as to eligibility for a statutorily 2

defined visa does not involve any discretionary authority. No discretionary 3

authority may be exercised in that decision-making process. There is some 4

confusion on the part of many petitioners, beneficiaries, legal practitioners, 5

and adjudicators in these matters. 6

C. “More Likely Than Not True” “Greater than 50% true”: 7

The standard of proof in immigration proceedings is the 8

“preponderance of the evidence” standard of proof, unless specified 9

otherwise by statute, regulation, or a controlling precedent (whether 10

administrative or judicial). Determining whether the proffered evidence meets 11

that somewhat speculative standard involves the exercise of sound “judgment”. 12

Some folks have a hard time figuring out the difference between 13

“discretion” and judgment. That will be discussed in a section further below. 14

The main point to keep in mind is that all the legally prescribed eligibility 15

qualifications must be met. If not met, then the visa classification cannot be 16

bestowed, period! 17

While some “changed circumstances” may lead to prima facie eligibility 18

in some other visa classification, which usually requires filing a new petition, 19

USCIS and Immigration Judges (IJ) usually can only consider the subject 20

matter that is actually before them. An IJ may be able to allow a motion to 21

modify a case or allow a continuance for the filing of an appropriate petition 22

or application, USCIS generally cannot do so, unless there is some special 23

circumstance. However, “oddball” situations are beyond the intended reach 24

of this article, especially since they can usually support a whole article 25

Contact: joseph.whal en774@ gmail.com or (716) 604-4233 or (716 768-6506) Page 5

individually. If not fully eligible and qualified for the visa classification at time 1

of filing, then don’t file for it and quit your whining about it. 2

D. A Matter of Law: An “Entitlement” is a Legally Enforceable Right! 3

A legal entitlement is, as a matter of law, a benefit or form of relief 4

which is legally defined and proscribed. IF one is eligible for it, is not legally 5

barred from receiving it, and it involves zero discretionary authority, THEN it 6

must be bestowed upon an appropriate showing of eligibility. I have written 7

about this subject matter previously, here, here, and here. See also this case. 8

III. What Comes After Meeting Basic Eligibility? Once we get beyond 9

entitlements, judgment and discretion become much more important factors. Since 10

judgment is something that comes into play more frequently, that is where this 11

discussion will start. 12

A. How do you arrive at a “JUDGMENT”? The general standard of proof in 13

immigration proceedings is the “preponderance of the evidence” standard 14

unless specifically stated otherwise in the statute, controlling implementing 15

regulation, and/or precedent. In order to determine whether or not the 16

applicant or petitioner has demonstrated eligibility through production of 17

sufficient evidence there is a specific thought process involved in reaching that 18

point. I’ll have to back-up a little bit in order to walk the reader through the 19

process. I’ll be as brief as possible. Lastly, keep in mind that the 20

preponderance standard as with any other standard requires authentication of 21

evidence but also requires “weighing” that evidence in the aggregate or 22

“totality of the circumstances” and within the proper context. In other words, 23

most adjudications are “mixed questions of fact and law”, or exercises of 24

judgments. Please strive to make those judgments sound ones. 25

Contact: joseph.whal en774@ gmail.com or (716) 604-4233 or (716 768-6506) Page 6

1. Identify the legally mandated eligibility requirements. 1

2. Isolate the facts that must be proven to support approval. 2

3. Determine if “specific evidence” is mandated. 3

4. Evaluate the proffered evidence. 4

5. Draw “reasonable inferences” from the proffered evidence in 5

order to make “findings-of-fact”. 6

6. Evaluate the credibility of the discernible reasonable facts. 7

7. Reach case-specific conclusions as to whether the facts meet the 8

eligibility criteria. 9

8. Reach a supportable decision whether to grant or deny the 10

request for a benefit or relief and be ready to articulate the 11

reasoning behind that decision. Be prepared to state blandly and 12

bluntly exactly what evidence is found acceptable and which 13

finding(s)-of-fact it supports, rebuts, or refutes. 14

i. Approvals rarely require articulation of the reasoning 15

behind the decision except in overturned denials or in 16

citizenship claims which do require a written stipulation on 17

the Form N-600 (or similarly treated/documented cases). 18

ii. Denials demand that specific, cogent, relevant, legally 19

defensible, and valid reasons be clearly articulated. This is 20

required in order to put the applicant or petitioner on 21

notice of the deficiencies in the case’s evidence and/or 22

supportable facts that show ineligibility. All this detail is 23

necessary so as to afford the petitioner or applicant the 24

ability to submit a meaningful appeal, if an appeal is 25

allowed. That being said, even if no appeal is allowed, 26

Motions may be filed, as well as lawsuits in District Court. 27

Contact: joseph.whal en774@ gmail.com or (716) 604-4233 or (716 768-6506) Page 7

iii. RFEs, NOIDs, NOIR, or similar interim Notices demand 1

as much thought as Denials, sometimes even more. I say 2

even more because the adjudicator must discern what is 3

missing and ask for relevant evidence that would address 4

the identified issues. No fishing expeditions are allowed! 5

B. How do you properly exercise “DISCRETION”? If Congress has not 6

expressly bestowed “Discretionary Authority” upon an Official or Agency, 7

then there is none available. In practical terms the only other type of similar 8

authority is Prosecutorial Discretion, which will be briefly discussed below. 9

When “discretion” has been bestowed by the Legislative Branch on the 10

Executive Branch, it has usually been further refined by the Executive and 11

perhaps the Judicial Branches. In short, there are many “lists” of “factors” to 12

be “weighed” in order to “measure the good vs. bad”. That statement has 13

been expressed in a variety of ways but they all boil down to that simple basic 14

statement. Consider the question of good vs. bad via the following example. 15

“Is family reunification more heavily weighted to be in the best interest 16

of the citizen or LPR family members who would be separated from a 17

potentially removable person or is the expulsion of that person more 18

heavily weighted to be in the best interest of the United States of 19

America’s society-at-large or even just a local community?” 20

It is not easy to do, is it? Maybe not but at least there are “lists” to work from, 21

unlike rendering “sound judgments” where you are on your own. 22

C. PROSECUTORIAL DISCRETION is the basic mechanism by which the 23

Official or Agency charged with enforcing a statute carries out the duties 24

assigned. In short, it is a matter of prioritizing what gets accomplished with 25

the available resources in light of the actual challenges faced at the moment. 26

Prosecutorial Discretion has been much discussed in the media and Congress 27

Contact: joseph.whal en774@ gmail.com or (716) 604-4233 or (716 768-6506) Page 8

or should I say in “stump speeches” during elections! IF Congress actually 1

wanted to divest the Executive Branch and its various Departments and 2

Agencies of Prosecutorial Discretion in specific immigration-related matters, it 3

could do so through amending the Immigration and Nationality Act (INA). 4

Not bloody likely to happen anytime soon so don’t hold your breath! 5

IV. METHODOLOGIES AND PROCESSES: Inquisitorial Benefits 6

Adjudications and the I.R.A.C. Approach to Decision-Making. 7

A. The Inquisitorial Approach refers to the necessary style of adjudication 8

proceedings undertaken and performed in the immigration Benefits 9

Determination arena. It involves critically examining evidence offered, asking 10

probing questions pertinent to eligibility requirements, and then comparing 11

discernible credible facts to the law. In doing the above, one may then drawn 12

reasonable inferences to fill in gaps and then reach conclusions. The next and 13

last step will be rendering a decision, either to grant or deny a benefits request. 14

The remainder of this section will discuss that process more deeply. 15

B. I.R.A.C. is not a war ravaged country in the Middle East; instead it is an 16

acronym that lays out a simple methodology for writing-up a logical argument 17

in a legal brief. It also helps to focus one’s thought process in the course of 18

case preparation, presentation, and adjudication. 19

1. ISSUE: This is the subject matter of the inquiry. It is easiest to 20

approach when it is framed as a question. 21

2. RULE: This is the legal framework against which the question must be 22

analyzed. It can derive from statute, regulation, or precedent. 23

3. ANALYSIS: This is the discussion wherein the discernible, credible 24

facts are compared and contrasted with the legally defined eligibility 25

Contact: joseph.whal en774@ gmail.com or (716) 604-4233 or (716 768-6506) Page 9

criteria. This is usually the longest and most complex portion of any 1

written brief or decision. 2

4. CONCLUSION: This is where it all comes together and the judgment 3

is rendered. This is where the key portions of the above discussion is 4

summarized and clarified more succinctly. Sometimes a bit more clarity 5

is needed when the analysis was long and highly complex. As the 6

analysis may have put forth numerous arguments and points of view 7

only some of which will be adopted while others are discarded as 8

discredited. This conclusion is the final analysis, the clear yes or no. 9

While the various headings may differ, the underlying components should 10

not. The I.R.A.C. Method is widely accepted simply because it tracks a 11

natural thought process. When you consider the ease of use, it is no wonder 12

that it is the standard approach for most folks for writing briefs and decisions. 13

V. Multi-Step Adjudication Processing Procedures Have Always Been There, 14

Even Before Kazarian. 15

Ordinary adjudication involves the same basic steps pretty much 16

“across the board”. These steps would be what generally happen during the 17

“Analysis” portion of the IRAC method described above. First, there are 18

usually regulations spelling out the evidence that needs to be submitted with 19

any benefits request. That evidence is “poked and prodded” and “picked 20

over” in an effort to glean the necessary facts to reach a decision one way or 21

the other. Once the fact-finding is complete, the adjudicator may compare 22

and contrast those facts against the legal requirements to reach the conclusion. 23

Long before the USCIS-wide adoption of the Ninth Circuit Precedent 24

in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), there have always 25

been at least two-steps to most adjudications. In order to even figure out 26

Contact: joseph.whal en774@ gmail.com or (716) 604-4233 or (716 768-6506) Page 10

what evidence to submit, the applicant or petitioner needs to understand the 1

benefit (or relief) that is sought. That benefit is defined in law (usually a 2

statute). Certain facts will need to be proven and the evidence requirements 3

that help to do that are spelled out somewhere (usually the regulations but 4

also form instruction and/or precedents). So, long before any adjudicator 5

weighs evidence, many things happen without which no inferences could be 6

drawn nor conclusion reached. It seems that there is always an antecedent 7

procedural question of: “Has sufficient evidence been submitted?” This 8

question must be dissected, analyzed, and answered before any conclusion 9

can be reached. The big deal about Kazarian is that it reminded folks of the 10

slow and steady, somewhat clinical and detached, approach that is best 11

suited to the adjudication process involved in the most highly desired 12

employment-based immigrant visa category. Kazarian put a damper on 13

some overzealous practitioners’ notions of success in “wearing down” the 14

“big-bad” USCIS and halting, perhaps reversing, the gradual “lowering of 15

the bar” (which had been creeping along for years) for their less-than 16

extraordinary clients seeking an EB-1 visa. Quit your whining, I’m not 17

buying it and neither is anyone else. Remember that the Ninth Circuit has 18

been the most liberal Circuit for years (decades? forever?), if you can’t win 19

this argument there, then you most likely simply can’t win this argument. 20

VI. BENEFITS: Rights vs. Privileges 21

A. Acquisition of Citizenship at Birth Abroad. Citizenship is a true legal 22

entitlement that involves proving eligibility and does not involve discretion but 23

rather judgment in evaluating the evidence. I chose it as the best example of a 24

true legally enforceable right found in immigration law. No matter how much 25

bungling or due process violations take place; you will still win in Court, if you 26

Contact: joseph.whal en774@ gmail.com or (716) 604-4233 or (716 768-6506) Page 11

have a solid claim! With that being said, the preponderance of the evidence 1

standard only partially applies in this context. Certain critical key issues have 2

a higher standard and must be proven to that higher standard. Also, if a 3

critical action must have taken place by a certain point in time but it didn’t 4

happen, then there is no legal fiction allowed in order to fix it. Numerous 5

activist judges try to issue bizarre nunc pro tunc orders or “recognize” changes 6

in historical facts and rational reality but usually get overturned unless the 7

government simply gives up. Giving up is sometimes due to a politically 8

motivated reason while other times it is a calculated maneuver such as not 9

allowing an issue to rise up into a place, and at a time when a lousy 10

interpretation and accompanying ruling of a District Court could wind up 11

becoming Circuit or Supreme Court precedent. There is quite a bit of 12

judgment involved in such decisions. 13

B. Adjustment of Status. While prima facie eligibility is a prerequisite, the final 14

decision is an exercise of 100% purely discretionary authority. As a favorite 15

Precedent Decision says, it is an act of “Administrative Grace”. See Matter of 16

Patel, 17 I&N Dec. 597 (BIA 1980). (“The grant of an application for 17

adjustment of status under section 245 is a matter of administrative grace. An 18

applicant has the burden of showing that discretion should be exercised in his 19

favor.” Id. at 601.) One must be worthy of having this privilege, it is not a 20

right but rather it is a “gift” from the United States to an alien applicant. 21

District Court Judges usually throw almost all challenges to a denied 22

Form I-485 out of court in short order. The general exception to that is a 23

Writ of Mandamus for the agency to take action on the case. Mandamus is 24

merely a request to ask the Court to Order the government actor to act. I am 25

reminded of that episode of “I Love Lucy” where Lucy and Ethel get jobs in a 26

Contact: joseph.whal en774@ gmail.com or (716) 604-4233 or (716 768-6506) Page 12

candy factory wrapping chocolates on an assembly and their supervisor on 1

that assembly line shout “Speed it up a little!” In order for any judge in any 2

Court to do more than that, the denial of adjustment of status would have to 3

be such a huge criminal miscarriage of justice that we would all know about it 4

from the network evening news! I think that it would involve a scandalous act 5

of some sort. Such as someone refused to pay a bribe (like a demand for 6

money or sex) or refused to give in to extortion whether based on a real or 7

phony, trumped-up reason by a crooked government employee or contractor 8

to the government who wanted something else like a terrorist act or other 9

criminal act to be carried out. I haven’t time to ponder all the possibilities. 10

VII. FORMS OF RELIEF 11

A. Legally Defined Forms of Relief: Most forms of relief are discretionary but 12

others are entitlements, unless legally barred. In general, if a person can prove 13

their case and are found credible and actually meet the criteria, asylum would 14

only denied if the applicant is specifically barred due to a horrible past act 15

like: Terrorism, Extrajudicial Killings, being a Persecutor. There is a mixed 16

bag of forms of relief. I include them in this article because once a person 17

reaches this point before an Immigration Judge, the nature of the proceeding 18

shifts. It stops being adversarial and becomes inquisitorial. Those practitioners 19

in Immigration Court who fail to realize this just make things more difficult 20

for themselves and worse for their clients! 21

1. Some examples of Forms of Relief before an IJ that should be handled 22

like Benefits Requests include: Withholding of Removal (WOR) whether 23

under the INA or CAT, Special Rule Cancellation, Asylum, Deferral of 24

Removal under CAT, or various waivers. 25

Contact: joseph.whal en774@ gmail.com or (716) 604-4233 or (716 768-6506) Page 13

2. Some Forms of Relief are applied for directly as Benefits Requests before 1

USCIS and include: Deferred Enforced Departure (DED), Temporary 2

Protected Status (TPS), Deferred Action for Childhood Arrivals (DACA), 3

various waivers, etc. 4

B. Special Forms of Relief: 5

1. Equitable Tolling is allowed by Courts and Administrative Appellate 6

Bodies. It is a usually just a minor corrective action to allow a late filing. 7

2. Equitable Estoppel is for the Courts alone BUT even then there are limits 8

to its reach in immigration and nationality cases. 9

3. Collateral Estoppel will prevent re-evaluation of “subjective” findings and 10

hard-fought “settled facts”, barring fraud or misrepresentation but allows 11

consideration of newly uncovered facts previously withheld or overlooked. 12

4. Collateral Attacks by an alien who was ordered removed are possible when 13

there is new evidence, changes in the law, major case precedent with 14

retroactive ameliorative effects, or based on a claim to an “Entitlement”. 15

5. Collateral Attacks by the government based on the Merits (revocation, 16

rescission, or termination) or newly discovered Fraud/Misrepresentation 17

are still OK, but retroactive application of new legal interpretations that 18

strip previous rights or privileges usually won’t survive challenges to the a 19

Circuit Court or Supreme Court. Congress would have to be extremely 20

careful and explicit to make negative aspects be retroactive. 21

6. Settlement Agreements may provide special relief especially when a large-22

scale and systemic (or subconsciously systematic) Due Process violation 23

has occurred. These often end up being “due process” corrective actions. 24

C. Overlooked, Neglected or Withheld ENTITLEMENTS: Recapture of 25

seemingly lost entitlements can be based on due process violations relating to 26

statutes, regulations, precedents, or older settlements; in addition to any fresh 27

chance to apply or reopen a matter or proceeding which may be afforded via 28

a new settlement agreement. When there is something there, go for it! 29

Procedural Inefficiencies can be overcome! 30

1. An example is the ABC Settlement that allows class members to get a 31

de novo hearing with USCIS on their old asylum cases. 32

2. A recent case involved a situation where processing errors at INS were 33

so egregious that an ABC Class member, who had jumped through all 34

the required administrative hoops, had obviously gotten an incorrect 35

decision based on mishandling. That was the basis for his Petition For 36

Review of his Final Order of Removal to be granted and remanded. 37

That’s My Two-Cents, For Now!

Contact: joseph.whal en774@ gmail.com or (716) 604-4233 or (716 768-6506) Page 14

About the Author

Joseph P. Whalen, Independent EB-5 Consultant, Advocate, Trainer & Advisor 238 Ontario Street | No. 6 | Buffalo, NY 14207 Phone: (716) 604-4233 (cell) or (716) 768-6506 (home) E-mail: joseph.whalen774@gmail.com web http://www.slideshare.net/BigJoe5 or http://eb5info.com/eb5-advisors/34-silver-surfer

DISCLAIMER: Work is performed by a non-attorney independent business consultant and de facto paralegal. It is the client's responsibility to have any and all non-attorney work products checked by an attorney. I provide highly-individualized training based on consultation with my clients. I serve Regional Center Principals and their counsel, potential EB-5 investors, immigration attorneys, and project developers. I am not an attorney myself although I have trained numerous attorneys and INS/USCIS adjudicators in complex issues within immigration and nationality law when I was an adjudicator there for many years. I do not prepare forms, write business plans, or create economic analyses. I do review them for clients prior to submission and suggest corrections and/or modifications to run by your attorney and investment advisor.

NOTE: I have over a decade of experience as an adjudicator for INS and USCIS and direct EB-5 Regional Center Adjudications experience having

been instrumental in reviving, greatly enhancing, and expanding the EB-5 Regional Center Program for USCIS.

NAICS Code: 611430 Professional and Management Development Training

2012 NAICS DEFINITION

611430 PROFESSIONAL AND MANAGEMENT DEVELOPMENT TRAINING

THIS INDUSTRY COMPRISES ESTABLISHMENTS PR IMARILY ENGAGED IN OFFERING AN

ARRAY OF SHORT DURATION COURSES AND SEMINARS FOR MANAGEMENT AND

PROFESSIONAL DEVELOPMENT. TRAINING FOR CAREER DEVELOPMENT MAY BE

PROVIDED DIRECTLY TO INDIVIDUALS OR THROUGH EMPLOYERS' TRAINING PROGRAMS;

AND COURSES MAY BE CUSTOMIZED OR MODIFIED TO MEET THE SPECIAL NEEDS OF

CUSTOMERS. INSTRUCTION MAY BE PROVIDED IN DIVERSE SETTINGS, SUCH AS THE

ESTABLISHMENT'S OR CLIENT'S TRAINING FACILITIES, EDUCATIONAL INSTITUTIONS,

THE WORKPLACE, OR THE HOME, AND THROUGH DIVERSE MEANS, SUCH AS

CORRESPONDENCE, TELEVISION, THE INTERNET, OR OTHER ELECTRONIC AND

DISTANCE-LEARNING METHODS. THE TRAINING PROVIDED BY THESE ESTABLISHME NTS

MAY INCLUDE THE USE OF SIMULATORS AND SIMULATION METHODS.