Last week, USCIS amended its Policy Manual to incorporate some very importance guidance on the exercise of discretion. While discretion has always implicitly factored into an officer’s adjudication, the new amendments, announced by way of a Policy Alert, formalize and flesh out what officers should be looking for specifically and herald a more pronounced emphasis on a discretionary approach. In practical terms, officers will be afforded and equipped with more tools to deny cases, even if eligibility for a benefit has been demonstrated. While there are a few categories of cases in which discretion is not involved, the vast majority of cases do allow and expect adjudicators to go through this analysis. Some examples include K-1 Fiancé petitions; Asylum; Adjustment of Status; and of course, Waivers of Inadmissibility. Discretion is defined as “the ability or power to exercise sound judgment in decision-making.” Realistically speaking, discretion is essentially an officer’s subjective evaluation-does he/she feel comfortable with the case/applicant? Does the applicant warrant an approval?
Technically, under the Policy Manual, officers must first determine whether the applicant has first satisfied all the threshold eligibility requirements. Only after eligibility is established, should an officer proceed to assess whether the case should be approved. While determining eligibility, officers should be engaging in “fact finding,” gathering and considering information relating to
- Immigration history
- Family ties in the US
- Any serious medical conditions
- Any criminal history
- Other connections to the community; or
- Information indicating a public safety or national security concern.
The presence or absence of these factors, which are not inclusive of everything an officer may consider, may affect whether one is even eligible for a benefit in the first place–before the discretion stage is even arrived at.
Examples of Factors
Only after the threshold has been met should an officer proceed to a discretionary analysis, which can take into consideration a multitude of factors including but not limited to
- Whether the requestor is eligible for the benefit sought
- The applicant or beneficiary’s ties to family members in the United States and the closeness of the underlying relationships
- Hardship due to an adverse decision
- The applicant or beneficiary’s value and service to the community
- Length of the applicant or beneficiary’s lawful residence in the United States and status held during that residence, including the age at which the alien began residing in the US
- Service in the US armed forces
- History of employment
- Property or business ties in the US
- History of taxes paid
- Nature and underlying circumstances of any inadmissibility grounds at issue, the seriousness of the violations, and whether the applicant or beneficiary is eligible for a waiver of inadmissibility or other form of relief
- Likelihood that lawful permanent resident status will ensue soon
- Evidence regarding respect for law and order, good character, and intent to hold family responsibilities
- Criminal history and whether the applicant has rehabilitated and reformed
- Community service beyond any imposed by the courts
- Whether the alien is under an unexecuted administratively final removal or deportation order
- Public safety or national security concerns
- Moral depravity or criminal tendencies reflected by a single serious crime or an ongoing or continuing criminal record, with attention to the nature, scope, seriousness, and recent occurrence of criminal activity
- Findings of juvenile delinquency
- Compliance with immigration laws
- Previous instances of fraud or false testimony
- Immigration fraud marriages
As if this laundry list was not exhaustive enough, there is a catchall: “other indicators of an applicant or beneficiary’s character.” In short, officers are not confined to the above list and may consider any relevant factor.
The potential problem is that anything can be arguably relevant if an officer subjectively wants to make it so. While the guidelines call for a totality of the circumstances approach, there is nevertheless no specific formula or calculus to ensure a baseline level. As a result, unchecked discretion can easily transmogrify into arbitrary and wildly disparate decisions, depending on which officer you draw.
In this climate, a denial can be fatal, leading to the initiation of removal proceedings, especially if an applicant is out of status. Therefore, it is critical that cases be prepared assiduously, not only taking into account the required documents but also taking into account any problematic issues and how one will explain or address them to an officer’s satisfaction.
The above is general information only. It is not specific legal advice nor intended to create an attorney client relationship. If you need advice, please consult with an attorney.