A. Burden of Proof and Standard of Proof

In matters involving immigration benefits, the applicant always has the burden of proving that he or she is eligible to receive the immigration benefit sought. [1] See INA 291. See Matter of Arthur, 16 I&N Dec. 558 (BIA 1978). See Matter of Rivero-Diaz, 12 I&N Dec. 475 (BIA 1967).

The standard of proof applied in adjustment proceedings should not be confused with the burden of proof. [2] The person who bears the burden of proof must submit evidence to satisfy the applicable standard of proof. The standard of proof relates to the persuasiveness of the evidence necessary to meet the eligibility requirements for a particular benefit.

In adjustment of status, the standard of proof is generally preponderance of the evidence, proving a claimed fact is more likely than not to be true. [3] See Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). If the applicant is unable to prove his or her eligibility for the immigration benefit by a preponderance of the evidence, the officer must request additional evidence or deny the application. [4] The law occasionally requires a higher standard of proof. For example, the higher standard of “clear and convincing evidence” is required to rebut the presumption of a prior fraudulent marriage. See INA 245(e)(3).

B. Discretion

Most adjustment applicants may only be granted permanent resident status in the discretion of USCIS. [5] See INA 245(a).

The following table highlights the adjustment case types that involve discretion.

Adjustment Applications Involving Discretion

INA 245(a) Adjustment (including family and employment based as well as the Diversity Visa Program)

Human Trafficking Victim Adjustment

Crime Victim Adjustment

Asylum Adjustment

Cuban Adjustment Act

Former Soviet Union, Indochinese, or Iranian Parolees (Lautenberg Parolees)

Diplomats or High Ranking Officials Unable to Return Home (Section 13 of the Act of September 11, 1957)

The following table highlights the adjustment cases that do not involve discretion. Therefore, provided the applicant meets all eligibility requirements, USCIS must approve the application.

Adjustment Applications Not Involving Discretion

NACARA (Nicaraguan Adjustment and Central American Relief Act of 1997) [6] See Title II of Pub. L. 105-100, 111 Stat. 2160, 2193 (November 19, 1997).

Refugee Adjustment

HRIFA (Haitian Refugee Immigration Fairness Act of 1998) [7] See Division A, Section 902 of Pub. L. 105-277, 112 Stat. 2681, 2681-538 (October 21, 1998).

Persons Born Under Diplomatic Status

Presumption of Lawful Admission

American Indian Creation of Record

For adjustment case types that involve discretion, the exercise of favorable discretion and the approval of an adjustment application is a matter of administrative grace – meaning the application is worthy of favorable consideration. [8] 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, 16 I&N Dec. 314 (BIA 1977). For adjustment case types that involve discretion, discretion can only extend up to the substantive and jurisdictional limits of the applicable law. Discretion cannot be used to justify an action that is not authorized by law.

1. Determining Whether Favorable Exercise of Discretion is Warranted

For adjustment case types that involve discretion, an applicant who meets the eligibility requirements contained in the law is eligible for adjustment of status but is not entitled to adjustment. The applicant has the burden of proving that discretion should be exercised in his or her favor. [9] See Matter of Arai, 13 I&N Dec. 494 (BIA 1970). See Matter of Ortiz-Prieto, 11 I&N Dec. 317 (BIA 1965). An applicant must supply information within his or her knowledge that is relevant and material to a determination of whether adjustment is warranted. [10] See Matter of Marques, 16 I&N Dec. 314 (BIA 1977). See Matter of Mariani, 11 I&N Dec. 210 (BIA 1965). See Matter of De Lucia, 11 I&N Dec. 565 (BIA 1966). See Matter of Francois, 10 I&N Dec. 168 (BIA 1963). See Matter of Pires Da Silva, 10 I&N Dec. 191 (BIA 1963).

An officer must first determine whether the applicant otherwise meets the legal eligibility requirements. For example, in adjudicating an application for adjustment under INA 245(a), the officer first determines if the applicant is barred from applying for adjustment, is eligible to receive an immigrant visa, is admissible to the United States, and if a visa number is immediately available.

If the officer finds that the applicant meets the eligibility requirements, the officer then determines whether the application should be granted as a matter of discretion.

2. Issues and Factors to Consider

Absent compelling negative factors, an officer should exercise favorable discretion and approve the application. [11] See Matter of Arai, 13 I&N Dec. 494 (BIA 1970). See Matter of Lam, 16 I&N Dec. 432 (BIA 1978). If the officer finds negative factors, the officer must weigh all of the positive and negative factors. The list of issues and factors may include, but is not limited to:

Eligibility;

Immigration status and history;

Family unity;

Length of residence in the United States;

Business and employment; and

Community standing and moral character.

In cases where a removal order has been issued to an “arriving alien” but not executed, USCIS generally does not exercise favorable discretion. The USCIS officer may consult with the local Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO) office concerning the merits and equities of the case and whether the removal order might be withdrawn.

If ICE withdraws or rescinds the removal order or obtains a withdrawal or rescission of the removal order from EOIR, then the local USCIS field office adjudicates the case as appropriate. If the removal order is not withdrawn or rescinded, then the removal order should be considered a significant adverse factor and any denial of adjustment may include the grounds cited in the removal order.

3. Proper Use of Discretion

The exercise of discretion does not mean the decision can be arbitrary, inconsistent, or dependent on intangible or imagined circumstances. At the same time, there is no calculation that lends itself to a certain conclusion.

An officer should determine whether to approve an adjustment application as a matter of discretion by:

Considering any positive or negative factors relevant to the applicant’s case;

Evaluating the case-specific considerations for each factor;

Avoiding the use of numbers, points, or any other analytical tool that suggest quantifying the exercise of favorable or unfavorable discretion; and

Assessing whether on balance a favorable exercise of discretion is warranted in light of all the facts and the positive and negative factors.

Precedent case law provides guidance on how to consider evidence and weigh the favorable and adverse 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.

Discretionary decisions that involve complex or unusual facts, whether the outcome is favorable or unfavorable to the applicant, may require supervisory review. Further, officers may consult the Office of Chief Counsel through appropriate supervisory channels.

C. Summary of Adjudication Involving Discretion

The following tables provide a general guideline for how eligibility requirements and discretion play a role in the decision on an adjustment application.

Summary of Adjudication Involving Discretion

Has Applicant Otherwise Met Eligibility Requirements?

Does Applicant Warrant a Favorable Exercise of Discretion?

Decision

Yes

Yes, the positive factors outweigh the negative factors

Approve the application. Eligibility requirements are met and a favorable exercise of discretion is warranted.

Yes

No, the negative factors outweigh the positive factors

Deny the application. Eligibility requirements are met but a favorable exercise of discretion is not warranted.

The officer should explain the reasons why USCIS is not exercising discretion in the applicant’s favor. The officer should clearly set forth the positive and negative factors considered and why the negative factors outweigh the positive factors.

No

No, even if the positive factors outweigh the negative factors

Deny the application. Eligibility requirements are not met.

The officer should explain the reasons why the applicant has not met the eligibility requirements. Even if the positive factors outweigh the negative factors, discretion cannot be used to approve an application if the applicant does not meet the statutory requirements.

No

No, the negative factors outweigh the positive factors

Deny the application. Eligibility requirements are not met and a favorable exercise of discretion is not warranted.

It is generally preferable to describe both the statutory and discretionary reasons for the denial, but an officer is not required discuss the discretionary grounds where the statutory ones are clear.

If the determination on eligibility requirements might be overturned (e.g., where there is an unsettled area of law), an officer should explain the discretionary basis for denying the case.

The officer should explain the reasons why USCIS is not exercising discretion in favor of the applicant. The officer should clearly describe the positive and negative factors considered and why the negative factors outweigh the positive factors.

Footnotes


1. [^]

See INA 291. See Matter of Arthur, 16 I&N Dec. 558 (BIA 1978). See Matter of Rivero-Diaz, 12 I&N Dec. 475 (BIA 1967).

2. [^]

The person who bears the burden of proof must submit evidence to satisfy the applicable standard of proof.

3. [^]

See Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010).

4. [^]

The law occasionally requires a higher standard of proof. For example, the higher standard of “clear and convincing evidence” is required to rebut the presumption of a prior fraudulent marriage. See INA 245(e)(3).

5. [^]

See INA 245(a).

6. [^]

See Title II of Pub. L. 105-100, 111 Stat. 2160, 2193 (November 19, 1997).

7. [^]

See Division A, Section 902 of Pub. L. 105-277, 112 Stat. 2681, 2681-538 (October 21, 1998).

8. [^]

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, 16 I&N Dec. 314 (BIA 1977).

9. [^]

See Matter of Arai, 13 I&N Dec. 494 (BIA 1970). See Matter of Ortiz-Prieto, 11 I&N Dec. 317 (BIA 1965).

10. [^]

See Matter of Marques, 16 I&N Dec. 314 (BIA 1977). See Matter of Mariani, 11 I&N Dec. 210 (BIA 1965). See Matter of De Lucia, 11 I&N Dec. 565 (BIA 1966). See Matter of Francois, 10 I&N Dec. 168 (BIA 1963). See Matter of Pires Da Silva, 10 I&N Dec. 191 (BIA 1963).

11. [^]

See Matter of Arai, 13 I&N Dec. 494 (BIA 1970). See Matter of Lam, 16 I&N Dec. 432 (BIA 1978).