If applicants for asylum have not suffered enough legal setbacks within the past year, we have recently heard of work permits for asylum applicants who have had brushes with the law. The instructions for the I-765 Application For Work Authorization indicate that for category (c )8-which applies to asylum applicants–USCIS “may, in its discretion, deny your application if you have been arrested and/or convicted of any crime.” In one case, we recently heard of an adverse decision regarding an individual who had a DWI and very minor traffic infraction on his record. Apparently, USCIS is applying a very elastic understanding of “crime” to include not only felonies and misdemeanors but essentially any type of violation or infraction. Moreover, one does not necessarily need to be convicted or found guilty by a judge in order to trigger a denial. A mere arrest can potentially invoke denial under USCIS’s boundless discretionary powers, which does not bode well for immigration applicants in general given that asylum work applications are not the only types of applications where some measure of discretion is accorded to adjudicators.
In fact, adjustment of status applications for permanent residence are also discretionary applications. In other words, an applicant can satisfy all legal eligibility requirements yet still be denied adjustment in the exercise of discretion. And now, if the applicant happens to be out of status when the application is denied, he or she will be referred for removal proceedings. Some of the most common adjustment of status applications that involve discretion include the following types of cases:
· INA 245a adjustment-which includes family and employment-based applications
· Human Trafficking Victim Adjustment
· Crime Victim Adjustment
· Asylum adjustment
· Cuban Adjustment Act
· Former Soviet Union, Indochinese, or Iranian Parolees
· Diplomats or High-Ranking Officials Unable to Return Home
Adjustment applications are not the only area in which we may start seeing cases being denied under discretion. DACA applications, U visas, as well as I-601 waivers (such as I-601A provisional waiver) all involve discretion.
Moreover, at least with respect to adjustment and waiver applications, one does not necessarily need to have a criminal record to be denied under discretion. In practical terms, if there is any aspect of a case that makes an officer feel uncomfortable, such as a person’s conduct or lack of veracity-whether past or present–the case is potentially in danger of being denied unless those concerns can be overcome and the applicant can demonstrate that a favorable exercise of discretion is warranted.
This is why it is not enough to review a checklist off USCIS and conclude one qualifies for a benefit with USCIS. As written about earlier, USCIS’s role has transformed in the past two years, and expanded beyond benefits to enforcement. In this climate, an ill-advised application can easily backfire and lead to enforcement action against an individual.