Introduction: Matter of Arai, 13 I&N Dec. 494 (BIA 1970)

On March 4, 1970, the Board of Immigration Appeals (BIA) issued an important precedent decision in Matter of Arai, 13 I&N Dec. 494 (BIA 1970) [PDF version]. In Matter of Arai, the Board held that where there are adverse factors weighing against the approval of an adjustment of status application, the applicant may need to offset those factors by showing “unusual or even outstanding equities.” In cases where there are no adverse factors present, the adjustment of status will ordinarily be granted, albeit still as a matter of discretion.

Despite its age, Matter of Arai remains a significant decision and has been cited to in subsequent precedential decisions by the Board and by federal courts. In this article, we will first examine Matter of Arai itself and then discuss subsequent developments and why it remains good law to this day.

Factual and Procedural History: 13 I&N Dec. at 494-95

The respondent, a native and citizen of Chile, had entered the United States as a visitor in 1968. One day before his period of authorized stay was to expire, he filed an application for status as a temporary worker or trainee. Several months later, his application was denied. Shortly after the denial, the respondent was granted voluntary departure. However, he remained beyond his voluntary departure date.

The respondent, who was concededly removable for being a visa overstay, sought adjustment of status under section 245 of the Immigration Nationality Act (INA) to work as a specialty cook in Japanese cuisine. He had an approved labor certification supporting his application. The respondent met the statutory eligibility requirements for adjustment.

The special inquiry officer considering the respondent’s application denied it, relying on the Attorney General decision in Matter of Ortiz-Prieto, 11 I&N Dec. 317 (A.G. 1965) [PDF version]. The special inquiry officer weighed that the respondent had engaged in employment before his petition for nonimmigrant trainee status was adjudicated as a negative factor against granting adjustment of status. Under Matter of Ortiz-Prieto, the Attorney General held that “the extraordinary discretionary relief provided in section 245 of the [INA] can only be granted in meritorious cases…” In the instant case, the special inquiry officer concluded that the respondent’s case presented no unusual equities that would weigh in favor of granting his application for adjustment of status under the Ortiz-Prieto standard.

The Board initially sustained the respondent’s appeal in an unpublished decision, withdrew the special inquiry officer’s order, and granted the respondent’s application for adjustment of status. In the instant decision, the Board elaborated on its reasoning in further detail.

New Rule and Modifying Ortiz-Prieto: 13 I&N Dec. at 494-96

The Board in Matter of Arai determined that “the language set forth in Matter of Ortiz-Prieto … should be clarified and modified because it is too broad in its impact and probably more demanding than necessary.” Accordingly, the Board issued Matter of Arai to supersede the language used in Matter of Ortiz-Prieto.

The Board explained that the decision to grant adjustment of status under section 245 is discretionary. This means that even if the applicant is eligible for adjustment, the application may be denied as a matter of discretion.

The Board held that “[i]t is difficult and probably inadvisable to set up restrictive guidelines for the exercise of discretion.” The reason for this determination is that “applications for adjustment must of necessity be resolved on an individual basis.” In lieu of “restrictive guidelines,” the Board established a general rule that where “adverse factors are present in a given application, it may be necessary for the applicant to offset these by a showing of unusual or even outstanding equities.” In short, if there are factors weighing against granting an application for t adjustment, the burden is on the applicant to overcome those adverse factors. Depending on the severity of the adverse factors, the applicant may need to establish “unusual or even outstanding equities” to establish that he or she merits the favorable exercise of discretion on his or her adjustment application.

The Board listed examples of equities that will generally “be considered as countervailing factors meriting the exercise of administrative discretion”:

Family ties;
Hardship;
Length of residence in the United States; and
Other favorable factors.

The Board stated that where no adverse factors exist, “adjustment will ordinarily be granted, still as a matter of discretion.”

Resolving the Instant Case: 27 I&N Dec. at 495

The Board held that the case presented “no adverse factors affecting the respondent’s application.” In light of this, the Board did not find it necessary for the respondent to establish any outstanding equities.

Limits of Superseding Matter of Ortiz-Prieto

Matter of Arai has been a relatively influential decision, while Matter of Ortiz-Prieto, which it superseded, has been seldom referenced since. However, the Board made clear in Matter of Blas, 15 I&N Dec. 626 (BIA 1974) [PDF version], that Matter of Ortiz-Prieto is not entirely mooted by Matter of Arai.

The Board held in Matter of Blas that although, as held in Matter of Arai, family ties will ordinarily result in the favorable exercise of discretion in adjustment cases, it will generally not do so “where it appears that the alien has engaged in a course of deception designed to produce those very ties.” The Board reaffirmed Matter of Arai, but it stated that it appeared there was a need for further clarification of the paragraph setting forth general principles for weighing “unusual or even outstanding equities” against adverse factors.

Here, the Board also reaffirmed Matter of Ortiz-Prieto to the extent it held that section 245 adjustment relief is “extraordinary” and that “the extraordinary discretionary relief provided in section 245 of the [INA] can only be granted in meritorious cases, and the burden is always upon the alien to establish that his application for relief merits favorable consideration.” By reaffirming Matter of Arai as well, the Board maintained the standard set forth for weighing favorable equities against adverse factors.

Board Extends Matter of Arai to Case Where Unauthorized Employment Was Necessary to Labor Certification

In Matter of Lam, 16 I&N Dec. 432 (BIA 1978) [PDF version], the Board addressed a case where an application for adjustment based on an approved employment-based petition was denied because the respondent’s labor certification approval depended on qualified experience gained through the respondent’s unauthorized employment.

The respondent’s application was initially denied without any reference to Matter of Arai. The Board reversed the denial, finding that the conclusion that the labor certification application would not have been approved but for the respondent’s unauthorized employment did not support denying the application for adjustment of status absent other negative factors. Regarding Matter of Arai, the Board stated that “we must assume that Arai’s work experience in the United States was crucial to his labor certification…” Thus, denying an adjustment application on this basis “[could not] be reconciled with the decision in Matter of Arai…”

Preconceived Intent as a Negative Factor

The Board has consistently recognized “preconceived intent” as a negative factor weighing against granting adjustment that often cannot be overcome. Matter of Blas stands as one of the main Board precedents where an application for adjustment was denied in large part due to the preconceived intent of the applicant to circumvent the immigration laws to obtain lawful permanent resident status. However, in Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980) [PDF version], and Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981) [PDF version], the Board held that preconceived intent alone should not result in the denial of adjustment based on an immediate relative petition, although other adverse factors in addition to preconceived intent may support the denial of adjustment of status in such cases. We discuss this further on site [see section].

Reference to Matter of Arai and Matter of Ortiz-Prieto in the USCIS Policy Manual

The USCIS addresses both Matter of Arai and Matter of Ortiz-Prieto in its Policy Manual (PM) at 7 USCIS PM A.10, “Legal Analysis and Use of Discretion” [link]. The PM provides binding guidance to all USCIS officers. In the section referencing the two decisions, the USCIS distinguishes the concept of being “eligible” for adjustment of status from being “entitled” to adjustment of status. It explains that, because the decision whether to grant adjustment is inherently discretionary, eligibility under the INA does not confer entitlement to having any given adjustment of status application granted. It states that the applicant has the burden of proving that he or she merits the favorable exercise of discretion. The Board’s decision in Matter of Arai continues to provide guidance on how to consider if an applicant merits the favorable exercise of discretion in cases where there are adverse factors as well as where there are no adverse factors.

Conclusion

Matter of Arai made clear that there is no binding rule for exercising discretion in adjustment cases. Instead, it provided general guidance for adjudicating adjustment applications where there are adverse factors and where there are no adverse factors. In general, where there are adverse factors, the adjustment applicant bears the burden of establishing unusual or even outstanding equities to overcome the adverse factors. Where there are no adverse factors, adjustment will generally be granted, albeit still subject to the exercise of discretion. In any case, the alien seeking adjustment always has the burden of establishing that he or she is (1) eligible for adjustment and (2) merits the favorable exercise of discretion.

When applying for adjustment of status, an individual should consult with an experienced immigration attorney. An experienced attorney will be able to evaluate the specific facts and provide case-specific guidance on how to proceed.

We discuss adjustment of status in a growing collection of articles in our website’s section on the subject [see category]. Please also see our articles on the unauthorized employment bars to adjustment [see article] and exceptions to these bars [see article].