Exercise of Discretion in USCIS Adjudications

 

Introduction

On July 15, 2020, the United States Citizenship and Immigration Services (USCIS) published Policy Alert-2020-10, “Applying Discretion in USCIS Adjudications” [link]. The Policy Alert announced two changes to the United States Citizenship and Immigration Services Policy Manual (USCIS-PM) at 1 USCIS-PM E.8 [link] and 10 USCIS-PM A.5 [link]. The former chapter deals with the exercise of discretion in immigration adjudications generally while the latter chapter focuses on discretion in the context of employment authorization. In this article, we will examine the new USCIS Policy Manual guidance on the exercise of agency discretion in various immigration adjudications. We discuss discretion for certain employment authorization applications in a separate article [see article].

Discretion Generally

Many immigration benefits require the requestor to demonstrate that his or her request merits the favorable exercise of discretion to receive the benefit. That is, merely demonstrating eligibility for the benefit sought is necessary, but not sufficient. Provided that the applicant demonstrates that he or she is eligible to receive the benefit, the applicant must also demonstrate that USCIS should, in its discretion, choose to grant the request. For this reason, the USCIS explains in 1 USCIS-PM E.8 that “[w]hether to favorably exercise discretion is typically assessed after an officer has determined that the requestor meets all applicable threshold eligibility requirements.”

For benefits for which discretion is a consideration, adjudicators consider all of the relevant and specific facts in a particular case. For certain benefits, regulations and case law specify certain discretionary factors that must be considered. 1 USCIS-PM E.8 cautions, however, that there is no single exhaustive list of discretionary factors. Generally, exercising discretion means weighing all the positive factors in a particular case against any negative factors, with reference to the totality of the record. USCIS officers can never exercise discretion arbitrarily, inconsistently, or rely on biases or unsupported assumptions. Instead, they must analyze the relative factors in a comprehensive, case-specific way.

Benefits for Which the Exercise of Discretion is Involved

Regarding certain benefits, Congress has provided in statute whether discretionary considerations are involved. In other cases, the USCIS has crafted policies guiding discretion where Congress did not expressly require or preclude discretionary considerations.

In most cases where the USCIS must favorably exercise discretion to grant a benefit, the requestor has the burden of establishing that he or she merits the favorable exercise of discretion.

The difference between benefits that require the favorable exercise of discretion and non-discretionary benefits is significant. Where a benefit requires the favorable exercise of discretion, the requestor must establish , first, that he or she meets the threshold eligibility requirements for the benefit sought and, second, that he or she merits the favorable exercise of discretion. For non-discretionary benefits, the requestor only needs to establish that he or she meets the threshold requirements for eligibility for the benefit in order to have it granted.

Below, courtesy of 1 USCIS-PM E.8(A), is a chart listing which benefits involve discretion and which benefits do not:

Benefit Type

Discretion Involved

(Yes or No)
Petition to classify an alien as a nonimmigrant worker No (with some exceptions)
Petition to classify an alien as a fiancé(e) of a U.S. citizen Yes
Application to extend or change nonimmigrant status Yes
Advance permission to enter as a nonimmigrant Yes
Humanitarian parole Yes
Temporary protected status Yes
Refugee status Yes (with some exceptions)
Asylum Yes
Petition to classify an alien as a family-based immigrant No (with some exceptions)
Petition to classify an alien as an employment-based immigrant Yes
Petition to classify an alien as an immigrant investor Yes
Adjustment of status Yes (with some exceptions)
Registration No
Recognition as an American Indian born in Canada No
Waivers of inadmissibility Yes
Consent to reapply for admission after deportation or removal Yes
Employment authorization Yes (with some exceptions)
Removal of conditions on permanent residence No (with some exceptions)
Naturalization No
Application for a Certificate of Citizenship No

Defining Discretion

At 1 USCIS-PM E.8(B)(1), the USCIS goes over how the Board of Immigration Appeals (BIA) has described the exercise of discretion in several of its important precedent decisions:

A balancing of the negative factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented on his or her behalf to determine whether relief appears in the best interests of this country.
A matter of administrative grace where the applicant has the burden of showing that discretion should be exercised in his or her favor.
A consideration of negative factors and the need for the applicant to offset such factors by showing unusual or even outstanding equities.

Discretion is “the ability or power to exercise sound-judgment in decision making.” The USCIS noted “that the exercise of discretion cannot be arbitrary, inconsistent, or dependent on intangible or imagined circumstances.” The power to exercise discretion “may only be exercised within the confines of certain legal restrictions.”

Overview of Adjudicative Discretion

At 1 USCIS-PM E.8(B)(2), the USCIS explains that there are two types of discretion in immigration law. First is prosecutorial discretion. Prosecutorial discretion concerns the decision of whether to enforce an immigration law in a particular case. Second is adjudicative discretion. Adjudicative discretion concerns whether to grant a request where the applicant meets the threshold eligibility requirements. Both the PM chapter and this article are only concerned with adjudicative discretion.

In INS v. Doherty, 502 U.S. 314 (1992) [PDF version], the Supreme Court described adjudicative discretion as being merit-deciding. That is, when a requestor establishes threshold eligibility for a particular benefit, the adjudicator must decide whether the requestor merits the benefit sought. The USCIS explains that “[t]his decision is guided by the applicable statutes, regulations, and policies…”

In cases where adjudicative discretion is required, a USCIS officer may generally exercise favorable discretion where the applicant meets the eligibility requirements for the benefit sought and there are no negative factors weighing against granting the benefit. A USCIS officer may also exercise adjudicative discretion favorably in cases where there are some negative factors, but the positive factors in favor of granting the benefit request outweigh the negative factors. It would be inappropriate, however, to exercise discretion favorably in a case where the negative factors outweigh the positive factors.

At 1 USCIS-PM E.8(B)(4), the USCIS makes clear that adjudicators never have discretion to grant a benefit to a requestor who has not established that he or she meets the threshold eligibility requirements.

The USCIS may deny a benefit request on discretionary grounds without determining whether the requestor met the baseline eligibility requirements. The PM seems to advise adjudicators against denying on discretionary grounds without making a determination about whether the requestor was eligible for the benefit sought absent discretion — stating that “the record is essentially incomplete if USCIS denies an application, petition, or request in its exercise of discretion without making a determination concerning eligibility.” For this reason, the USCIS advised that “officers should generally make a specific determination regarding eligibility before addressing the exercise of discretion.” Furthermore, “the officer should generally include in the denial letter his or her determination on all eligibility requirements, including but not limited to discretionary grounds, if applicable, so that the reasons for the ultimate denial are clearly reflected in the record.”

The USCIS-PM provides that a requestor's establishing threshold eligibility for a benefit sought is generally a positive factor weighing in favor of granting the request. If there are no negative factors to weigh against the requestor's having established threshold eligibility for the benefit, “denial of the benefit would be an inappropriate use of discretion.”

Process for Exercising Discretion

At 1 USCIS-PM E.8(C), the USCIS goes through the steps for exercising discretion. To illustrate the process, the USCIS posted the below chart at 1 USCIS-PM E.8(C)(1):

Basic Adjudication Steps Involving Discretion

Step One Fact finding
Step Two Determine whether requestor meets the threshold eligibility requirements
Step Three Conduct discretionary analysis

Adjudicators will first engage in fact-finding. In so doing, adjudicators will gather and assess credible evidence relating to the requestor's eligibility for the benefit in question. For benefits which require a discretionary determination, the adjudicator must gather credible evidence relating both to the requestor's threshold eligibility for the benefit and also to whether the requestor merits the benefit if it is determined that he or she is otherwise eligible.

In the case of a discretionary benefit, the requestor has the burden of convincing the adjudicator that he or she merits discretion. If the adjudicator finds negative factors in fact finding, the adjudicator may ask the requestor directly why he or she merits the favorable exercise of discretion.

Determining Threshold Eligibility

The USCIS advises adjudicators to first determine whether the requestor meets the threshold benefits for being granted the benefit before conducting discretionary analysis. This is because if the requestor cannot establish that he or she is eligible for the benefit, the request cannot be granted. In cases where the requestor does not meet the threshold eligibility requirements for the benefit, the USCIS officer may deny the request without engaging in any discretionary analysis. However, the officer, in his or her discretion, may include discretionary analysis in the denial if warranted. This would generally occur in a case where the officer finds negative factors in fact finding that would have justified a discretionary denial even if the requestor had met the basic statutory and regulatory requirements for the benefit.

Identifying Discretionary Factors

“Any facts related to the alien's conduct, character, family ties, other lawful ties to the United States, immigration status, or any other humanitarian concerns may be appropriate factors to consider in the exercise of discretion.” The USCIS may consider how an alien entered the United States and what the alien has done subsequent to arrival. Whether the alien has family in the United States may be a relevant factor. “Ties to the United States may include owning real estate or a business; the conduct of that business (including maintenance of such business in compliance with the law) may also be relevant to the discretionary analysis. The phrase “humanitarian concerns” may include, among other things, health concerns.

To illustrate things that may be considered in discretionary determinations, the USCIS provided a non-exhaustive list:

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 United States;
Service in the U.S. armed forces;
History of employment;
Property or business ties in the United States;
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 (LPR) status will ensue soon;
Evidence regarding respect for law and order, good character, and intent to hold family responsibilities (for example, affidavits from family, friends, and responsible community representatives);
Criminal history (in the United States and abroad) and whether the applicant or beneficiary has rehabilitated and reformed;
Community service beyond any imposed by the courts;
Whether the alien is under an unexecuted administratively final removal, deportation, or exclusion 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 in dealings with USCIS or any government agency;
Marriage to a U.S. citizen or LPR for the primary purpose of circumventing immigration laws;
Other indicators of an applicant or beneficiary's character.

The USCIS emphasized that the foregoing list is non-exhaustive. Many of the factors may not apply to a particular case. Furthermore, “the officer may consider any relevant fact in the discretionary analysis.”

Weighing Positive and Negative Factors in the Discretionary Analysis

Exercising discretion means weighing both positive and negative discretionary factors and considering them in the context of the totality of the circumstances in the case.

Determining whether the favorable exercise of discretion is warranted depends on a case-specific analysis. If there are serious negative factors weighing against granting the request, the favorable exercise of discretion may not be warranted without there being unusual or outstanding equities in favor of the requestor.

In making a discretionary determination, the reviewing USCIS officer must consider the totality of the facts and circumstances in each particular case. In so doing, the officer must consider generally applicable discretionary factors with respect to the specific facts of a particular case.

The USCIS advises adjudicators that “[t]here is no formula for determining the weight to be given a specific positive or negative factor.” Instead, officers should first consider each factor individually before weighing all the factors as a whole. Positive and negative factors must be balanced against each other before being weighed cumulatively. The USCIS instructs officers to not, in the final analysis, consider each factor in isolation from the other factors. The weight given to each factor “may vary depending on the facts of a particular case as well as the relationship of the factor to other factors in the analysis.

The USCIS explains that discretionary factors in a given case are often interrelated. For this reason, USCIS officers must determine whether each factor is positive or negative and how each factor affects other factors under consideration, if at all. In general, certain kinds of factors may weigh more heavily than other factors. For this reason, the USCIS notes that it is possible that a small number of positive factors could outweigh a large number of negative factors, depending on the facts of the particular case under review.

If, after considering the factors individually and weighing them cumulatively, the officer determines that the positive factors outweigh the negative factors, the officer should find that the requestor merits the favorable exercise of discretion. If, however, the negative factors outweigh the positive factors, the officer may decline to favorably exercise his or her discretion regarding the benefit request. The USCIS notes that there may be cases where a single negative factor is so significant that it may prompt the negative exercise of discretion notwithstanding any countervailing positive factors.

If the officer denies a benefit request as a matter of discretion, the officer must include in the record why he or she is not exercising discretion in the requestor's favor. The USCIS provides that the denial notice should clearly delineate both the positive and negative factors and explain why the negative factors outweigh the positive factors.

Explanations of Discretionary Determinations

USCIS officers are instructed to provide a careful explanation of their findings and analysis when writing a discretionary decision. In short, officers must set forth the positive and negative factors and explain how he or she weighed the factors in determining whether to favorably exercise discretion on the benefit request.

If the officer favorably exercises discretion upon finding that there were no negative factors weighing against granting the benefit request, the officer may succinctly note in the requestor's file that the requestor was eligible and that no negative factors were present.

If the officer favorably exercises discretion because he or she finds that, while there were negative factors present, they were outweighed by the positive factors, then the officer should include his or her deliberations in the record. The officer must note the favorable factors in the file.

If the officer ultimately denies a request based on finding that the negative factors outweigh the positive factors, the officer's written decision must contain an analysis of the relevant factors. The officer must address each negative factor individually and then together in the context of all the facts of the particular case. The officer must also note the positive factors that were ultimately outweighed by the negative factors.

When denying a benefit request as an exercise of discretion, USCIS officers must generally provide written notice to the requestor:

Indicate the decision to deny was made as a matter of discretion;
Identify, specifically, each positive factor presented by the facts of the case;
Identify, specifically, each negative factor;
Explain the relative decisional weight given to each negative and positive factor; and
Explain the cumulative weight given to the negative and positive factors, and reason for the outcome.

Thus, where benefit requests are denied on discretionary grounds, the requestor should be given a clear understanding of how the reviewing officer reached his or her unfavorable decision.