Example of Weight of Positive and Negative Discretionary

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In the government’s brief in opposition, it describes the ways in which Mr. Bradley failed to follow protocol for obtaining legal status in the United States. He overstayed his visa for an extended period of time, meanwhile working illegally. When he did petition to adjust his status to that of a legal permanent resident through his marriage, he and his wife failed to attend the interview. It was only after this that DHS decided to remove Mr. Bradley from the country. The government asserts that Mr. Bradley could not adjust his status as a defense to removal after the expiration of his visa. As a VWP entrant, Mr. Bradley waived his right to a removal proceeding and therefore could not appeal to the Board when USCIS made the determination that he abandoned his application. However, and this is the good news as a matter of law and policy: the government affirms that DHS has the discretion not to execute a removal order against someone admitted under the VWP who then overstays the allowed 90-day period and permit that individual to adjust.

In Mr. Bradley’s case, USCIS weighed both favorable and negative factors in making its discretionary determination to deny his I-485 application for adjustment of status. While USCIS acknowledged that he was married to a U.S. citizen, the multiple negative factors outweighed the positive and his application was denied—a result that could potentially be avoided if the factors weighed in his favor.

Favorable factors that bear on a positive exercise of discretion may include but are not limited to the following: (1) being a spouse of a U.S. citizen; (2) having an approved I-130 petition; and (3) evidence of good moral character. Thus, the relief that either DHS or USCIS had the discretionary authority to grant Bradley was not offered and the government remained firm that eligibility for adjustment of status is not a defense to an order of removal. Nevertheless, according to the government’s brief, other VWP entrants are not barred from relief if they overstay their 90-day visa and later attempt to adjust their status through marriage.

The Solicitor General merely restates — and makes policy that ought to bind USCIS — what has been the common practice and experience for most (but not all) field offices across the country.

If you have a case that raises an issue addressed in this (or any AILA Amicus) blog post, please send the info to amicus@aila.org. AILA is interested in tracking these cases and may provide intervention when appropriate.

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Edited January 5, 2011 by brokenfamily