Chapter 8 - Discretionary Analysis

Many immigration benefits require the requestor^[1] to demonstrate that the request merits a favorable exercise of discretion in order to receive the benefit.^[2] For these benefits, a discretionary analysis is a separate, additional component of adjudicating the benefit request. Whether to favorably exercise discretion is typically assessed after an officer has determined that the requestor meets all applicable threshold eligibility requirements.

The discretionary analysis involves the review of all relevant, specific facts and circumstances in an individual case. However, there are limitations on how the officer may exercise discretion; the officer may not exercise discretion arbitrarily, inconsistently, or in reliance on biases or assumptions.

In some contexts, there are regulations and case law that outline certain factors that officers must review and use as a guide in making a discretionary determination. However, there is no exhaustive list of factors that officers must consider. To perform a discretionary analysis, officers must weigh all positive factors present in a particular case against any negative factors in the totality of the record.^[3] The analysis must be comprehensive, specific to the case, and based on all relevant facts known at the time of adjudication. For complex or difficult cases, officers should consult with supervisors and local counsel. 

A. Applicability

Congress generally provides discretionary authority explicitly in the statutory language that governs an immigration benefit. In some instances, however, discretionary authority is less explicit and must be inferred from the statutory language. Executive agencies may also outline their discretionary authority explicitly in regulations.^[4]

Many immigration benefit requests are filed under provisions of law that require the favorable exercise of discretion to administer the benefit.^[5] In these cases, the benefit requestor has the burden of demonstrating eligibility for the benefit sought and that USCIS should favorably exercise discretion.^[6] Where an immigration benefit is discretionary, meeting the statutory and regulatory requirements alone does not entitle the requestor to the benefit sought.

Certain immigration benefits are not discretionary.^[7] In these cases, if the requestor properly filed and meets the eligibility requirements then USCIS must approve the benefit request. There is no discretionary analysis as part of the adjudication, and these requests cannot be denied as a matter of discretion.

The following table provides a non-exhaustive overview of immigration benefits and whether discretion is involved in the adjudication of such benefits.

B. Overview of Discretion

1. Definition

The Board of Immigration Appeals (BIA) has described the exercise of discretion as:

• A balancing of the negative factors evidencing the person’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.^[31]
• A matter of administrative grace where the applicant has the burden of showing that discretion should be exercised in his or her favor.^[32]
• A consideration of negative factors and the need for the applicant to offset such factors by showing unusual or even outstanding equities.^[33]

These characterizations imply that the exercise of discretion cannot be arbitrary, inconsistent, or dependent on intangible or imagined circumstances.

In short, discretion is defined as the ability or power to exercise sound judgment in decision-making. While the discretionary analysis gives the officer some autonomy in the way in which he or she decides a particular case after all applicable eligibility requirements are established, that autonomy may only be exercised within the confines of certain legal restrictions. These restrictions define the scope of the officer’s discretionary authority.^[34]

2. Adjudicative Discretion

There are two broad types of discretion that may be exercised in the context of immigration law: prosecutorial (or enforcement) discretion^[35] and adjudicative discretion. The scope of discretion is defined by what type of discretionary decision is being made. This chapter only discusses the exercise of adjudicative discretion.

Adjudicative discretion requires an officer to decide whether to exercise discretion favorably when adjudicating a request for an immigration benefit. This decision is guided by the applicable statutes, regulations, and policies that outline the eligibility requirements for the benefit and the facts present in the case at issue. The U.S. Supreme Court has referred to adjudicative discretion as merit-deciding discretion.^[36]

In general, an officer may exercise favorable adjudicative discretion to approve a benefit request when the requestor has met the applicable eligibility requirements and negative factors impacting discretion are not present.^[37] An exercise of discretion to grant a benefit may also be appropriate when the requestor has met the eligibility requirements for the benefit, and the positive factors outweigh the negative factors. An exercise of discretion to deny, rather than to grant, may likewise be appropriate when the requestor has met the requirements of the request, but negative factors found in the course of the adjudication outweigh the positive factors.

3. Who Exercises Discretion

Congress expressly granted discretion to the Secretary of Homeland Security in deciding when to grant certain immigration benefits. For example, the Immigration and Nationality Act (INA) states: “The Secretary of Homeland Security or the Attorney General, in the Secretary’s or the Attorney General’s discretion and under such regulations as the Secretary or the Attorney General may prescribe, may adjust to the status of an alien lawfully admitted for permanent residence the status of any alien granted asylum . . . .”^[38]

The Secretary’s discretionary power is delegated to the officer, through DHS and USCIS. Therefore, when an officer exercises discretion in adjudicating a request for an immigration benefit, the officer is exercising discretion on behalf of the Secretary of Homeland Security.

In many cases, the INA still refers to the Attorney General’s discretion because the statutory text has not been changed to reflect the creation of DHS and the transfer of many functions from the U.S. Department of Justice (DOJ) to DHS.^[39] If USCIS has adjudicative authority over the benefit, the statute should be read as conferring the power to exercise discretion on the Secretary of Homeland Security.^[40]

4. Discretion

Eligibility Threshold

For discretionary benefits, there is never discretion to grant an immigration benefit if the benefit requestor has not first met all applicable threshold eligibility requirements.

It is legally permissible to deny an application as a matter of discretion without determining whether the requestor is otherwise eligible for the benefit.^[41] However, the record is essentially incomplete if USCIS denies an application, petition, or request in its exercise of discretion without making a determination concerning eligibility.

Therefore, as a matter of policy, officers should generally make a specific determination regarding eligibility before addressing the exercise of discretion. Where denying the benefit request is appropriate, 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.

Lack of Negative Factors

A person’s threshold eligibility for the benefit sought is generally also a positive factor. Therefore, absent any negative factors, USCIS ordinarily exercises discretion positively.^[42] Generally, if there are no negative factors to weigh against that positive factor, denial of the benefit would be an inappropriate use of discretion.

C. Adjudicating Discretionary Benefits

When adjudicating a discretionary benefit, the officer should first determine whether the requestor meets all threshold eligibility requirements. For example, in adjudicating an application for adjustment of status under INA 245(a), the officer should first determine:

• Whether the applicant was inspected and admitted or paroled or has an approved petition as a VAWA self-petitioner;
• Is eligible to receive an immigrant visa;
• Is admissible to the United States for permanent residence; and
• Has an immigrant visa immediately available to him or her at the time he or she files the adjustment application.^[43]

If the officer finds that the requestor does not meet the eligibility requirements but may be eligible for a waiver, exemption, or other form of relief, the officer should determine whether the requestor qualifies for a waiver, exemption, or other form of relief. Not all applications are concurrently filed, and in some instances, applicants must file a separate waiver application or application for relief and have that application approved before the applicant qualifies for the benefit. 

If the officer finds that the requestor meets the eligibility requirements because of an approved waiver, exemption, or other form of relief, the officer must then determine whether the request should be granted as a matter of discretion. If the officer finds that the requestor does not meet all applicable eligibility requirements, the officer can still include a discretionary analysis in the denial. The discretionary determination is the final step in the adjudication of a benefit request. Adding a discretionary analysis to a denial is useful if an appellate body on review disagrees with the officer’s conclusion that the requestor failed to meet the threshold eligibility requirements. In such a situation, the discretionary denial may still stand.

1. Basic Adjudication Steps

Officers should generally follow a three-step process when adjudicating a benefit request involving a discretionary analysis.

Fact Finding^[44]

Fact finding refers to the process of gathering and assessing evidence. The focus of fact finding should be to obtain credible evidence relevant to a requestor’s eligibility for the benefit, including the discretionary determination. If a requestor is interviewed, the officer should elicit information pertinent to fact finding during the interview. As part of fact finding, officers should evaluate relevant information present in the record. Depending on the benefit sought, such information might include, but is not limited to:

• Immigration history;
• Family ties in the United States;
• Any serious medical conditions;
• Any criminal history;
• Other connections to the community; or
• Information indicating a public safety or national security concern.

Background information may be relevant for eligibility determinations and to the exercise of discretion.

For discretionary benefits, the benefit requestor has the burden of showing that a favorable exercise of discretion is warranted through the submission of evidence.^[45] In cases where negative factors are present, the officer may ask the requestor directly why he or she warrants a favorable exercise of discretion. The officer should document any response, or lack thereof, in the record.

Determining Whether Requestor First Meets Threshold Eligibility Requirements

The discretionary analysis is the final step in the adjudication. Generally, the officer should first determine whether the requestor meets all threshold eligibility requirements before beginning the discretionary analysis. If the officer determines the requestor has not met the eligibility requirements for the benefit sought, the officer may deny the request without completing a discretionary analysis. However, an officer may include a discretionary analysis if a discretionary denial would be warranted even if the requestor had met the threshold statutory and regulatory requirements.

In the process of determining whether the requestor has met the eligibility requirements for the benefit sought, the officer might find that certain facts related to threshold eligibility for the specific benefit may also be relevant to the discretionary determination.

For example, if an officer finds that an adjustment applicant was convicted of a crime, the applicant might be inadmissible. The criminal conviction may also affect the discretionary analysis.

Conducting Discretionary Analysis

The act of exercising discretion involves the weighing of positive and negative factors and considering the totality of the circumstances in the specific case. In the immigration context, the goal is to assess whether, based on the totality of the circumstances, the person warrants a favorable exercise of discretion.^[46]

2. Identifying Discretionary Factors

Any facts related to the person’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. A person’s conduct can include how he or she entered the United States and what he or she has done since arrival, such as employment, schooling, or any evidence of criminal activity. Whether the person has family members living in the United States also is relevant to the discretionary analysis. 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. Humanitarian concerns may include, but are not limited to, health issues.

Precedent case law provides guidance on how to consider evidence and weigh the positive and negative factors present in a case. These precedent decisions and USCIS guidance provide a framework to assist officers in arriving at decisions which are consistent and fair.^[47]

Factors That May Be Considered

There are a number of factors or factual circumstances that are generally considered when conducting a discretionary analysis. Factors may include, but are not limited to:

• Whether the requestor is eligible for the benefit sought;^[48]
• The applicant or beneficiary’s ties to family members in the United States and the closeness of the underlying relationships;^[49]
• Hardship due to an adverse decision;^[50]
• The applicant or beneficiary’s value and service to the community;^[51]
• 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 person began residing in the United States;^[52]
• Service in the U.S. armed forces;^[53]
• History of employment;^[54]
• Property or business ties in the United States;^[55]
• 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;^[56]
• 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);^[57]
• Criminal history (in the United States and abroad) and whether the applicant or beneficiary has rehabilitated and reformed;^[58]
• Community service beyond any imposed by the courts;
• Whether the person is under an unexecuted administratively final removal, deportation, or exclusion order;^[59]
• Public safety or national security concerns;^[60]
• 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.^[61]
• Findings of juvenile delinquency;^[62]
• Compliance with immigration laws;^[63]
• 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;^[64]
• Other indicators of an applicant or beneficiary’s character.^[65]

This is a non-exhaustive list of factors; the officer may consider any relevant fact in the discretionary analysis.

3. Weighing Factors

The act of exercising discretion involves weighing both positive and negative factors and considering the totality of the circumstances in the case before making a decision. Whether a favorable exercise of discretion is warranted is case-specific and depends on the evidence of positive and negative factors submitted by the requestor. As the negative factors grow more serious, a favorable exercise of discretion may not be warranted without the existence of unusual or outstanding equities in the case.^[66]

Totality of the Circumstances: Evaluating the Case-Specific Considerations for Each Factor

An officer must consider the totality of the facts and circumstances of each individual case involving discretionary benefit requests. To do so, officers should ensure discretionary factors are considered in the context of all factors in the case.

There is no formula for determining the weight to be given a specific positive or negative factor. Officers should not attempt to assign numbers or points to a specific factor to determine if one factor is more or less favorable than another. Officers should consider each factor separately and then all the factors as a whole. The negative and positive factors should be balanced against each other and then evaluated cumulatively.^[67] 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.

Discretionary factors are often interrelated. Officers must therefore determine whether each particular factor is positive or negative and how it affects the other factors under consideration. Some factors are generally given more weight than others. A small number of positive factors may overcome a larger number of negative factors, and vice versa, depending on the specific factors.

For example, when weighing the positive and negative factors, the officer should not consider the various factors individually, in isolation from one another.^[68] When considering each factor individually, without considering how all the factors relate to each other, it becomes difficult to weigh the positive and negative factors properly.

Once the officer has weighed each factor individually, the officer should consider all the factors cumulatively to determine whether the unfavorable factors outweigh the favorable ones. If, after weighing all the factors, the officer determines that the positive factors outweigh the negative factors, then the requestor merits a favorable exercise of discretion. If the negative factors outweigh the positive factors, then the officer may decline to favorably exercise discretion and deny the benefit request. There may be instances where the gravity of a negative factor is of such significance that the factor by itself weighs heavily against a favorable exercise of discretion.^[69]

Cases that are denied on the basis of an unfavorable exercise of discretion must include an officer’s explanation of why USCIS is not exercising discretion in the requestor’s favor.^[70] The denial notice must clearly set forth the positive and negative factors considered and explain why the negative factors outweigh the positive factors.

4. Supervisory Review^[71]

Officers should discuss complex or difficult cases with their supervisors, as needed, particularly those involving criminality or national security issues, regardless of whether the outcome is favorable or unfavorable to the applicant. As appropriate, supervisors may raise issues with USCIS local counsel.

Sometimes a case, especially when coupled with government errors or delay and compelling humanitarian factors, may justify an exercise of discretion resulting in an extraordinarily favorable outcome for the applicant. Officers considering such action should carefully confirm the availability of such action under the law, weigh the factors as in every discretionary decision, consult with supervisors or counsel, and make a record of the analysis and consultation.

D. Documenting Discretionary Determinations

When issuing a decision that involves a discretionary determination, a careful explanation of the officer’s findings and analysis (communicating the positive and negative factors considered and how the officer weighed these factors) helps ensure that the decision is legally sufficient and appropriate. The discretionary determination gives the officer authority to ultimately approve a benefit or form of relief or deny a benefit or form of relief when the applicant otherwise meets eligibility requirements. Officers, however, cannot exercise that authority arbitrarily or capriciously.

Favorable Exercise of Discretion

If no negative factors are present, the officer may provide a simple statement in the file noting the absence of negative factors (for example, comments indicating that the applicant is eligible, that there are no negative factors, and that therefore USCIS grants the benefit in the exercise of discretion).

If an officer grants a benefit in the exercise of discretion where negative factors are present but the positive factors outweigh the negative factors, the file should contain a record of the officer’s deliberations. The officer should clearly annotate the favorable factors in the file. The officer should also annotate the file regarding any consultations that supported the approval in complex or difficult cases. In some situations, the file annotation may be the only record or documentation for other officers to understand the reasons for the decision.

The officer should indicate the rationale for the decision in a clear manner so that it is easily understandable to others reviewing the file. This may include the officer addressing the discretionary issues in the written decision or by making an annotation in the file.

Unfavorable Exercise of Discretion^[72]

If negative factors outweigh the positive factors and USCIS denies the benefit request, the written decision must contain an analysis of the factors considered in exercising discretion, where possible.^[73]

Negative factors must never be analyzed in a generalized way. The decision must address negative factors on an individualized basis, applying the totality of the circumstances to the specific facts of the case. The decision should specify both the positive and negative factors that the officer identified and considered in support of the decision and should explain how the officer weighted the different factors. The denial notice should set forth the rationale for the decision so that the officer’s deliberation may be understood by the requestor as well as any administrative reviewer (such as the Administrative Appeals Office or immigration judge) and the federal courts.

Articulating Analysis Separately for Discretion and Threshold Eligibility Requirements

In cases involving the negative exercise of discretion, officers should generally articulate clearly the legal analysis of whether the applicant meets the threshold eligibility requirements and then, separately, the discretionary analysis.

Denying Benefit Requests as a Matter of Discretion

If the officer denies a benefit request as a matter of discretion, the officer generally must, in the written notice to the requestor:^[74]

• 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.

By including the appropriate articulation of discretionary determinations in USCIS decision-making, officers enhance the quality of adjudications and provide appropriate explanation to the requestor.

Footnotes

[^ 1] For purposes of this Policy Manual part, the term requestor means the person, organization, or business requesting an immigration benefit from USCIS. This may include an applicant or petitioner, depending on the request.

[^ 2] See Matter of Patel (PDF), 17 I&N Dec. 597 (BIA 1980). See the program-specific Policy Manual part to determine whether the adjudication of a benefit request requires the exercise of discretion.

[^ 3] See Section C, Adjudicating Discretionary Benefits, Subsection 3, Weighing Factors [1 USCIS-PM E.8(C)(3)].

[^ 4] For example, see Kucana v. Holder, 558 U.S. 233 (2010) (comparing discretion provided in statutory language against regulations promulgated by the U.S. Department of Justice).

[^ 5] See, for example, INA 245(a) (adjustment of status).

[^ 6] See INA 291. See Matter of Patel (PDF), 17 I&N Dec. 597 (BIA 1980). See Matter of Leung (PDF), 16 I&N Dec. 12 (BIA 1976). See Matter of Arai (PDF), 13 I&N Dec. 494 (BIA 1970).

[^ 7] See, for example, INA 316 (naturalization).

[^ 8] See Petition for a Nonimmigrant Worker (Form I-129). See INA 101(a)(15). See INA 214 and 8 CFR 214.

[^ 9] See Petition for Alien Fiancé(e) (Form I-129F). See INA 101(a)(15)(K). See INA 214(d) and INA 214(r). See 8 CFR 214.2(k).

[^ 10] See Application To Extend/Change Nonimmigrant Status (Form I-539). See INA 214 and 8 CFR 214.

[^ 11] See Application for Advance Permission to Enter as a Nonimmigrant (Form I-192). See INA 212(d)(3)(A).

[^ 12] See Application for Travel Documents, Parole Documents, and Arrival/Departure Records (Form I-131). See INA 212(d)(5)(A).

[^ 13] See Application for Temporary Protected Status (Form I-821). See INA 244 and 8 CFR 244.

[^ 14] See Refugee/Asylee Relative Petition (Form I-730). See INA 207 and 8 CFR 207.

[^ 15] Except for following-to-join refugee adjudications. See 8 CFR 207.7.

[^ 16] See Application for Asylum and for Withholding of Removal (Form I-589). See INA 208 and 8 CFR 208. See Matter of Pula (PDF), 19 I&N Dec. 467, 471 (BIA 1987).

[^ 17] See Petition for Alien Relative (Form I-130). See INA 203(a) and INA 204(a)(1)(A)-(D). See 8 CFR 204.

[^ 18] See Immigrant Petition for Alien Workers (Form I-140). See INA 203(b) and INA 204(a)(1)(E)-(G). See 8 CFR 204.

[^ 19] See Immigrant Petition by Alien Investor (Form I-526). See INA 203(b) and INA 204(a)(1)(H). See 8 CFR 204.

[^ 20] See Application to Register Permanent Residence or Adjust Status (Form I-485). For more information on how to conduct a discretionary analysis in the context of an adjustment application, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 10, Legal Analysis and Use of Discretion [7 USCIS-PM A.10].

[^ 21] See, for example, INA 245(a) and INA 209(b). Exceptions include adjustment of status based on Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA), Title II of Pub. L. 105-100 (PDF), 111 Stat. 2160, 2193 (November 19, 1997); refugee-based adjustment under INA 209(a)(2); adjustment of status based on Haitian Refugee Immigration Fairness Act of 1998 (HRIFA), Section 902 of Division A, Title IX of Pub. L. 105-277 (PDF), 112 Stat. 2681, 2681-538 (October 21, 1998); adjustment of status based on Liberian Refugee Immigration Fairness (LRIF) law, Section 7611 of the National Defense Authorization Act for Fiscal Year 2020, Pub. L. 116-92 (PDF), 113 Stat. 1198, 2309 (December 20, 2019).

[^ 22] See Application to Register Permanent Residence or Adjust Status (Form I-485). See INA 249. See 8 CFR 249. For more information, see Volume 7, Adjustment of Status, Part O, Registration [7 USCIS-PM O].

[^ 23] See INA 289 and 8 CFR 289.

[^ 24] See Application for Waiver of Grounds of Inadmissibility (Form I-601). See Application for Provisional Unlawful Presence Waiver (Form I-601A). See Application by Refugee for Waiver of Grounds of Excludability (Form I-602). See, for example, INA 209(c), INA 212(a)(9)(B)(v), INA 212(a)(9)(C)(iii), and INA 212(g)-(i). For more information on how to conduct a discretionary analysis in the context of a waiver application, see Volume 9, Waivers and Other Forms of Relief, Part A, Waiver Policies and Procedures, Chapter 5, Discretion [9 USCIS-PM A.5].

[^ 25] See Application for Permission to Reapply for Admission into the United States After Deportation or Removal (Form I-212). See INA 212(a)(9)(A)(iii) and INA 212(a)(9)(C)(ii).

[^ 26] See Application for Employment Authorization (Form I-765). See INA 274A. See 8 CFR 274a.12. For more information, see Volume 10, Employment Authorization [10 USCIS-PM].

[^ 27] See Petition to Remove Conditions on Residence (Form I-751). See Petition by Investor to Remove Conditions on Permanent Resident Status (Form I-829). See INA 216 and INA 216A. See 8 CFR 216.

[^ 28] When a family-based conditional permanent resident files a Petition to Remove Conditions on Residence (Form I-751) as a waiver request based on termination of marriage, battery or extreme cruelty, or extreme hardship, it is a discretionary decision. See INA 216(c)(4).

[^ 29] See Application for Naturalization (Form N-400). See INA 316. For more information, see Volume 12, Citizenship and Naturalization [12 USCIS-PM].

[^ 30] See Application for Certificate of Citizenship (Form N-600). See INA 301, INA 309 and INA 320. For more information, see Volume 12, Citizenship and Naturalization, Part K, Certificates of Citizenship and Naturalization [12 USCIS-PM K].

[^ 31] See Matter of Marin (PDF), 16 I&N Dec. 581, 584 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 300 (BIA 1996).

[^ 32] See Matter of Patel (PDF), 17 I&N Dec. 597 (BIA 1980) (adjustment of status). See Von Pervieux v. INS, 572 F.2d 114, 118 (3rd Cir. 1978). See Ameeriar v. INS, 438 F.2d 1028, 1030 (3rd Cir. 1971). See Matter of Marques (PDF), 16 I&N Dec. 314 (BIA 1977).

[^ 33] See Matter of Ortiz-Prieto (PDF), 11 I&N Dec. 317 (BIA 1965).

[^ 34] See Subsection 4, Discretion [1 USCIS-PM E.8(B)(4)].

[^ 35] Prosecutorial discretion is a decision to enforce or not enforce the law against someone. Prosecutorial discretion is exercised when an agency makes a decision with respect to enforcing the law. USCIS, along with other DHS agencies such as U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection, has the authority to exercise prosecutorial discretion related to immigration enforcement actions it may take, particularly in the context of initiating removal proceedings through the issuance of a non-mandatory Notice to Appear. Prosecutorial discretion does not decrease USCIS’ commitment to enforcing the immigration laws. Rather, it is a means to use agency resources in a way that best accomplishes the mission of administering and enforcing the immigration laws of the United States.

[^ 36] See INS v. Doherty (PDF), 502 U.S. 314 (1992).

[^ 37] See Matter of Arai (PDF), 13 I&N Dec. 494, 496 (BIA 1970) (“In the absence of adverse factors, adjustment will ordinarily be granted, still as a matter of discretion.”). See Matter of Pula (PDF), 19 I&N Dec. 467, 474 (BIA 1987) (“In the absence of any adverse factors, however, asylum should be granted in the exercise of discretion.”).

[^ 38] See INA 209(b).

[^ 39] As of March 1, 2003, in accordance with Section 1517 of the Homeland Security Act of 2002 (HSA), Pub. L. 107-296 (PDF), 116 Stat. 2135, 2311 (November 25, 2002), any reference to the Attorney General in a provision of the INA describing functions that were transferred from the Attorney General or other DOJ official to DHS by the HSA “shall be deemed to refer to the Secretary” of Homeland Security. See 6 U.S.C. 557 (codifying Section 1517 of the HSA).

[^ 40] See 6 U.S.C. 275.

[^ 41] See INS v. Abudu (PDF), 485 U.S. 94, 105 (1988). See INS v. Bagamasbad (PDF), 429 U.S. 24, 26 (1976). See INS v. Rios-Pineda (PDF), 471 U.S. 444 (1985).

[^ 42] See Matter of Arai (PDF), 13 I&N Dec. 494, 496 (BIA 1970). See Matter of Lam (PDF), 16 I&N Dec. 432 (BIA 1978).

[^ 43] See INA 245(a). See Volume 7, Adjustment of Status, Part B, 245(a) Adjustment, Chapter 2, Eligibility Requirements [7 USCIS-PM B.2].

[^ 44] See Chapter 6, Evidence [1 USCIS-PM E.6].

[^ 45] See 8 CFR 103.2(b)(1).

[^ 46] See Matter of Marin (PDF), 16 I&N Dec. 581, 586-587 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990).

[^ 47] See Matter of Arai (PDF), 13 I&N Dec. 494, 496 (BIA 1970). See Matter of Lam (PDF), 16 I&N Dec. 432, 434 (BIA 1978). See Matter of Marin (PDF), 16 I&N Dec. 581, 584 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301 (BIA 1996).

[^ 48] See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301 (BIA 1996) (In the context of waivers of inadmissibility requiring a showing of extreme hardship: “. . . those found eligible for relief under section 212(h)(1)(B) will by definition have already established extreme hardship to qualified family members, which would be a factor favorable to the alien in exercising discretion.”).

[^ 49] See Matter of Arai (PDF), 13 I&N Dec. 494, 496 (BIA 1970). See Matter of Marin (PDF), 16 I&N Dec. 581, 584 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301-302 (BIA 1996) (“. . . if the alien has relatives in the United States, the quality of their relationship must be considered in determining the weight to be awarded this equity.”).

[^ 50] See Matter of Arai (PDF), 13 I&N Dec. 494, 496 (BIA 1970). See Matter of Marin (PDF), 16 I&N Dec. 581, 585 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301 (BIA 1996).

[^ 51] See Matter of Marin (PDF), 16 I&N Dec. 581, 585 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990).

[^ 52] See Matter of Arai (PDF), 13 I&N Dec. 494, 496 (BIA 1970). See Matter of Marin (PDF), 16 I&N Dec. 581, 584-85 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301 (BIA 1996). Residence must be lawful to be considered a positive factor. See Matter of Lee (PDF), 17 I&N Dec. 275, 278 (Comm. 1978).

[^ 53] See Matter of Marin (PDF), 16 I&N Dec. 581, 585 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301 (BIA 1996).

[^ 54] See Matter of Lam (PDF), 16 I&N Dec. 432, 434 (BIA 1978). See Matter of Marin (PDF), 16 I&N Dec. 581, 585 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301-302 (BIA 1996) (“. . . if the alien has a history of employment, it is important to consider the type of employment and its length and stability.”).

[^ 55] See Matter of Marin (PDF), 16 I&N Dec. 581, 585 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301 (BIA 1996).

[^ 56] See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301 (BIA 1996).

[^ 57] See Matter of Marin (PDF), 16 I&N Dec. 581, 585 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990).

[^ 58] See Matter of Marin (PDF), 16 I&N Dec. 581, 585 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301 (BIA 1996). However, reformation is not an absolute prerequisite to a favorable exercise of discretion. Rather, the discretionary analysis must be conducted on a case-by-case basis, with rehabilitation a factor to be considered in the exercise of discretion. See Matter of Edwards (PDF), 20 I&N Dec. 191, 196 (BIA 1990) (considering rehabilitation a significant factor in view of the nature and extent of the respondent’s criminal history, which spanned 10 years).

[^ 59] USCIS generally does not exercise discretion favorably to grant adjustment where the adjustment applicant has an unexecuted removal order. For information on the effect of an unexecuted removal order of an arriving alien on adjustment of status, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 10, Legal Analysis and Use of Discretion, Section B, Discretion, Subsection 2, Issues and Factors to Consider [7 USCIS-PM A.10(B)(2)].

[^ 60] For definitions of public safety and national security concerns, see Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (PDF), PM-602-0050.1, issued June 28, 2018.

[^ 61] The officer should not go behind the record of conviction to reassess an applicant’s ultimate guilt or innocence, but rather inquire into the circumstances surrounding the commission of the crime in order to determine whether a favorable exercise of discretion is warranted. See Matter of Edwards (PDF), 20 I&N Dec. 191, 197 (BIA 1990).

[^ 62] USCIS considers findings of juvenile delinquency on a case-by-case basis, based on the totality of the evidence, to determine whether a favorable exercise of discretion is warranted. Therefore, an adjustment applicant must disclose all arrests and charges. If any arrest or charge was disposed of as a matter of juvenile delinquency, the applicant must include the court or other public record that establishes this disposition. See Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 4, Documentation, Section A, Initial Evidence, Subsection 7, Certified Copies of Arrest Records and Court Dispositions [7 USCIS-PM A.4(A)(7)]. For more information, see Volume 7, Adjustment of Status, Part B, 245(a) Adjustment [7 USCIS-PM B] and Part F, Special Immigrant-Based Adjustment, Chapter 7, Special Immigrant Juveniles, Section C, Eligibility Requirements, Subsection 4, Admissibility and Waiver Requirements [7 USCIS-PM F.7(C)(4)].

[^ 63] See Matter of Marin (PDF), 16 I&N Dec. 581, 584 (BIA 1978). See Matter of Lee (PDF), 17 I&N Dec. 275, 278 (Comm. 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301 (BIA 1996). However, the BIA found that a record of immigration violations standing alone does not conclusively support a finding of lack of good moral character. Further, how recent the deportation was can only be considered when there is a finding of a poor moral character based on moral turpitude in the conduct and attitude of a person which evinces a callous conscience. In such circumstances, there must be a measurable reformation of character over a period of time in order to properly assess an applicant’s ability to integrate into society. In all other instances, when the cause for deportation has been removed and the person now appears eligible for issuance of a visa, the time factor should not be considered. See Matter of Lee (PDF), 17 I&N Dec. 275 (Comm. 1978).

[^ 64] Although this factor could lead to a statutory denial under INA 204(c).

[^ 65] See Matter of Marin (PDF), 16 I&N Dec. 581, 584 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301 (BIA 1996).

[^ 66] See Matter of Marin (PDF), 16 I&N Dec. 581, 585 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301 (BIA 1996). For example, USCIS generally does not favorably exercise discretion in certain cases involving violent or dangerous crimes except in extraordinary circumstances. See 8 CFR 212.7(d). For more information, see Volume 9, Waivers and Other Forms of Relief, Part A, Waiver Policies and Procedures, Chapter 5, Discretion, Section C, Cases Involving Violent or Dangerous Crimes [9 USCIS-PM A.5(C)]. See Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 10, Legal Analysis and Use of Discretion, Section B, Discretion, Subsection 2, Issues and Factors to Consider [7 USCIS-PM A.10(B)(2)]. Another example relates to applicants seeking adjustment based on U nonimmigrant status: Depending on the nature of the adverse factors, applicants may be required to clearly demonstrate that denial of adjustment would result in exceptional and extremely unusual hardship. Even if the applicant makes such a showing, however, USCIS may still find favorable exercise of discretion is not warranted in certain cases. See 8 CFR 245.24(d)(11).

[^ 67] See Matter of Edwards (PDF), 20 I&N Dec. 191, 200 (BIA 1990) (concurring opinion).

[^ 68] See Matter of Pula (PDF), 19 I&N Dec. 467, 473-74 (BIA 1987).

[^ 69] See, for example, 8 CFR 212.7(d) (In adjudicating an application for a waiver of a criminal ground of inadmissibility involving a violent or dangerous crime, “depending on the gravity of the alien’s underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion . . . .”) For more information on discretion in the context of waivers of inadmissibility, see Volume 9, Waivers and Other Forms of Relief, Part A, Waiver Policies and Procedures, Chapter 5, Discretion [9 USCIS-PM A.5].

[^ 70] See 8 CFR 103.3(a).

[^ 71] Supervisory review is required in certain situations. The law provides for outcomes that may be extraordinarily favorable for the applicant but uphold principles of fairness and equity. See Munoz v. Ashcroft, 339 F.3d 950 (9th Cir. 2003) (stating, “It is true that equitable tolling is available in INA cases, as there is a 'presumption, read into every federal statute of limitation, that filing deadlines are subject to equitable tolling [and that] the same rebuttable presumption of equitable tolling . . . applies in suits against private defendants and . . . in suits against the United States’”, but concluding that the April 1, 1990 (asylum application deadline to qualify under the Nicaraguan Adjustment and Central American Relief Act, Title II of Pub. L. 105-100 (PDF), 111 Stat. 2160 (November 19, 1997)) is a statute of repose that cannot be subject to equitable tolling). See Mohawk Power Corp. v. Federal Power Commission, 379 F.2d 153, 160 (D.C. Cir. 1967) (“Conceptions of equity are not a special province of the courts but may properly be invoked by administrative agencies seeking to achieve ‘the necessities of control in an increasingly complex society without sacrifice of fundamental principles of fairness and justice.’”)

[^ 72] These analytical steps amplify guidance concerning denial notices, and do not replace them.

[^ 73] See 8 CFR 103.3(a). In some cases, the officer may not be able to fully reveal negative discretionary factors if they are classified. Additionally, an exception may be made for denial letters issued to applicants for admissions as a refugee under the U.S. Refugee Admissions Program, which contain only summary reasons for denials and are not required to contain detailed analysis of the basis for negative decisions.

[^ 74] See 8 CFR 103.3(a). In some cases, the officer may not be able to fully reveal negative discretionary factors if they are classified. Additionally, an exception may be made for denial letters issued to applicants for admissions as a refugee under the U.S. Refugee Admissions Program, which contain only summary reasons for denials and are not required to contain detailed analysis of the basis for negative decisions.