Chapter 5 - Discretion
If the applicant meets all other statutory and regulatory requirements of the waiver, the officer must determine whether to approve the waiver as a matter of discretion. [1] Meeting the other statutory and regulatory requirements alone does not entitle the applicant to relief. [2]
The discretionary determination is the final step in the adjudication of a waiver application. The applicant bears the burden of proving that he or she merits a favorable exercise of discretion. [3]
A. Discretionary Factors
The officer must weigh the social and humanitarian considerations against the adverse factors present in the applicant’s case. [4] The approval of a waiver as a matter of discretion depends on whether the favorable factors in the applicant's case outweigh the unfavorable ones. [5]
The following table provides some of the factors relevant to the waiver adjudication.
|
Category |
Favorable Factors |
Unfavorable Factors |
|---|---|---|
|
Waiver Eligibility |
|
Not applicable – Not meeting the statutory requirements of the waiver results in a waiver denial. A discretionary analysis is not necessary. |
|
Family and Community Ties |
|
|
|
Criminal History, Moral Character (or both) |
|
|
|
Other |
|
|
B. Discretionary Determination
When making a discretionary determination, the officer should review the entire record and give the appropriate weight to each adverse and favorable factor. Once the officer has weighed each factor, the officer should consider all of the factors cumulatively to determine whether the favorable factors outweigh the unfavorable ones. If the officer determines that the positive factors outweigh the negative factors, then the applicant merits a favorable exercise of discretion.
Example
A lengthy and stable marriage is generally a favorable factor in the discretionary analysis. On the other hand, the weight given to any possible hardship to the spouse that may occur upon separation may be diminished if the parties married after the commencement of removal proceedings with knowledge of an impending removal. [7]
Example
In general, when reviewing an applicant’s employment history, an officer may consider the type, length, and stability of the employment. [8]
Example
In general, when reviewing an applicant’s history of physical presence in the United States, the officer may favorably consider residence of long duration in this country, as well as residence in the United States while the applicant was of young age. [9]
Example
When looking at the applicant's presence in the United States, the officer should evaluate the nature of the presence. For example, a period of residency during which the applicant was imprisoned may diminish the significance of that period of residency. [10]
C. Cases Involving Violent or Dangerous Crimes
If a noncitizen is inadmissible on criminal grounds involving a violent or dangerous crime, an officer may not exercise favorable discretion unless the applicant has established, in addition to the other statutory and regulatory requirements of the waiver that:
-
The case involves extraordinary circumstances; or
-
The denial would result in exceptional and extremely unusual hardship. [11]
Extraordinary circumstances involve considerations such as national security or foreign policy interests. Exceptional and extremely unusual hardship is substantially beyond the ordinary hardship that would be expected as a result of denial of admission, but it does not need to be so severe as to be considered unconscionable. [12] Depending on the gravity of the underlying criminal offense, a showing of extraordinary circumstances may still be insufficient to warrant a favorable exercise of discretion. [13]
Footnotes
[^ 1] If the applicant does not meet another statutory requirement of the waiver, USCIS denies the waiver and a discretionary analysis is not necessary. However, an officer may still include a discretionary analysis if the applicant’s conduct is so egregious that a discretionary denial would be warranted even if the applicant had met the other statutory and regulatory requirements. Adding a discretionary analysis to a denial is also useful if an appellate body on review disagrees with the officer’s conclusion that the applicant failed to meet the statutory requisites for the waiver. For more information on exercising discretion generally, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 8, Discretionary Analysis [1 USCIS-PM E.8].
[^ 2] See Reyes-Cornejo v. Holder, 734 F.3d 636 (7th Cir. 2013). See Matter of Cervantes-Gonzalez (PDF), 22 I&N Dec. 560 (BIA 1999). See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296 (BIA 1996).
[^ 3] See Matter of De Lucia (PDF), 11 I&N Dec. 565 (BIA 1966). See Matter of T-S-Y-, 7 I&N Dec. 582 (BIA 1957).
[^ 4] See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296 (BIA 1996).
[^ 5] See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296 (BIA 1996) (relating to a criminal waiver under INA 212(h)(1)(B)). See Matter of Marin (PDF), 16 I&N Dec. 581 (BIA 1978) (relating to an INA 212(c) waiver). See Matter of Tijam, 22 I&N Dec. 408 (BIA 1998) (relating to a fraud or misrepresentation finding (INA 212(a)(6)(C)(i)) and the discretionary waiver under former INA 241(a)(1)(H) [renumbered as INA 237(a)(1)(H) by IIRIRA]).
[^ 6] In particular, if a finding of extreme hardship is a statutory eligibility requirement, the finding of extreme hardship permits, but does not require, a favorable exercise of discretion. Once extreme hardship is found, extreme hardship becomes a factor that weighs in favor of granting relief as a matter of discretion.
[^ 7] See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296 (BIA 1996). See Ghassan v. INS, 972 F.2d 631 (5th Cir. 1992).
[^ 8] See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296 (BIA 1996).
[^ 9] See Diaz-Resendez v. INS, 960 F.2d 493 (5th Cir. 1992).
[^ 10] See Douglas v. INS, 28 F.3d 241 (2nd Cir. 1994).
[^ 11] See INA 212(h). See 8 CFR 212.7(d). See Matter of Jean (PDF), 23 I&N Dec. 373 (A.G. 2002) (relating to a waiver of inadmissibility granted in connection with INA 209(c), refugee or asylee adjustment of status).
[^ 12] See Matter of Monreal, 23 I&N Dec. 56 (BIA 2001).
[^ 13] See 8 CFR 212.7(d).