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"Discretion" in Immigration Law

Posted by Christopher Keen | Mar 18, 2022 | 0 Comments

What does “discretion” mean in the immigration process?

“I am eligible for Adjustment of Status legally, so will I get approved automatically?”

Whenever I meet with clients, I first go over the options they have. We consider types of relief or visas they are eligible for. After we discuss those options, we need to discuss the second part of nearly every type of case that goes before immigration courts and USCIS (United States Citizenship and Immigration Services). That is “discretion.” 

This article answers several questions about discretion.

What exactly is discretion? How do I use discretion to strengthen my case? How do I show that I deserve discretionary approval of my case?

Now, back to the original question – about being eligible legally for a relief, such as adjustment of status. Being eligible legally could be any other type of relief as well since most will require a positive decision about the discretion of the case.

It may seem like being eligible and being approved should go together. However, this is not the case. You must still meet the discretionary requirements. “Discretion” means that even if a person is statutorily eligible for a benefit, CIS (Citizenship and Immigration Services) will examine factors to determine if they deserve the benefit. Thus, even if for example an immigrant is married to a US Citizen, and is legally eligible to get a green card, unless they can show that balancing all the factors, she deserves it, CIS can still deny the application. These factors will be considered by USCIS (United States Citizenship and Immigration Services) or by the Immigration Court to determine whether they will exercise their discretion favorably and grant your request to become a Lawful Permanent Resident. These factors are explained in an important immigration case called Matter of Marin, 16 I&N Dec. 581, 584 (BIA 1978) and other cases. This case identified basic and specific factors like what kind of person the applicant is, what their situation is, and what their history is.

Even though the Marin case is older, from 1978, it established some important ways the court will analyze a case to see who deserves to have discretion and who does not. Mr. Marin was from Colombia and was asking the Immigration Judge to allow him to remain the US with a waiver. He had been charged with criminal sale of cocaine in New York. The laws for this type of crime and how it affects immigration have changed, but at the time, he could seek a waiver to remain in the United States.

He served about 30 months (about 2 and a half years) out of a sentence of 1 year to life. At that time, even though he admitted he was deportable, he could ask the judge to grant him relief under 212(c) so he could remain here as a Lawful Permanent Resident. The Immigration Judge held that Mr. Marin had not shown any “unusual or outstanding equities” so he denied his case. Mr. Marin appealed, arguing that the judge had not applied any uniform standard in deciding whether he should be allowed to stay. He pointed to many other decisions where the courts had used several factors in determining whether to exercise their discretion.

Unfortunately for Mr. Marin, his application was denied. He was single, had no children or family in the US, and his criminal case weighed heavily against him. He did not prove to the court that he merited a positive use of discretion.

In considering his arguments, the Board of Immigration Appeals pointed out that many factors are considered when deciding a case based on discretion. The court said that “each case must be judged on its own merits. The Immigration Judge must balance the adverse factors evidencing the alien's undesirability as a permanent resident with the social and humane considerations present in his behalf…”  But what exactly were those factors? The court listed several, which came to be used as the factors an immigration court will use to do a test of discretion.

The Marin court listed some positive and some negative factors to be considered

Positive Factors

  • Family Ties to the US (children, spouse, parents, other relatives)
  • Length of time in the US (particularly when residence in the US began at an early age)
  • Evidence of hardship to the respondent and the family if deportation occurs
  • Service in the military
  • Work history
  • Property and business ties
  • Evidence of value and service to the community
  • Proof of a genuine rehabilitation if a criminal record exists
  • Evidence of good moral character (such as affidavits from family, friends, and responsible community members)
  • Community Ties (relationships in their neighborhoods, memberships in churches, clubs, and other organizations)

Negative factors

  • Nature and underlying circumstances of the criminal or other negative history triggering the immigration proceedings
  • Presence of serious violations of immigration laws
  • Evidence of Criminal history, its nature, recency, seriousness
  • Other evidence of the respondent's bad character or undesirability as a permanent resident

The CIS officer or the court will then place these factors on a hypothetical scale and balance them. If the positive outweighs the cumulative negative factors, and you otherwise are eligible, you should be granted a positive exercise of discretion and become a lawful permanent residence.

Keep in mind, there are ways to overcome any negative factors that may be present in your case. As an example, if someone was convicted of shoplifting, and it occurred a long time ago, the person went to classes, paid a fine, and then had good behavior, they can show rehabilitation. Then the negative factor of the crime would be lessened by these factors. In addition, there are ways to strengthen your case by emphasizing certain positive factors that the adjudicators like to see. One client may have been convicted of a DUI, but then joined Alcoholics Anonymous and helped others to recover. This turns the negative criminal history into a positive. Officers and judges are human. They know we all make mistakes and want to see rehabilitation.

Sometimes clients come to me with some negative factors, and we can help them plan a strategy to overcome those in the future (either before they apply, or during the time the application is pending) and the results can be better.

An experienced immigration attorney can really improve your chances of showing evidence that you merit a positive exercise of discretion. For example, an attorney familiar with the judge assigned to your case may have experience with the judge's perspective on certain negative factors, such as a DUI, or other criminal convictions. The attorney can help with choosing appropriate evidence to help overcome that negative factor. Experienced attorneys that have seen how the agencies such as USCIS and the courts react to certain factors can really help ameliorate these when helping you convince the adjudicator you deserve the discretion you seek. This will help you to present the strongest case possible. An experienced attorney can help you identify and present the positive factors while appropriately framing any negative factors. Often a case is won or lost on the strength of this type of evidence.

Date:  March 18, 2022

About the Author

Christopher Keen

As the founding attorney for Keen Law Offices, LLC, J. Christopher Keen received a Bachelor of Arts degree in History from Brigham Young University. He then went on to receive his Juris Doctor degree from J. Reuben Clark Law School at Brigham Young University. Since that time, he has been admitted to practice before all of the state courts in Utah.


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