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Entitlement vs. Discretionary Relief or "Administrative Grace"

by Joseph P. Whalen

Entitlement goes beyond mere 'eligibility'. It must be a legally enforceable right under the Constitution or statute to be considered an entitlement. Entitlement, however, normally hinges on ultimately proving statutory eligibility for the benefit sought.

What is the first step to obtaining relief from removal? It is demonstrating prima facie eligibility for some form of benefit. The further significant difference between merely being potentially eligible for relief rather than entitled to it, is that after establishing prima facie eligibility one must then demonstrate that they are worthy of a favorable exercise of discretion.

"In visa petition proceedings, the burden of proof is on the petitioner to establish eligibility for the benefit sought by a preponderance of the evidence. Matter of Brantigan, 11 I&N Dec. 15 1 (BIA 1965). The issue "is not one of discretion but of eligibility."The issue "is not one of discretion but of eligibility." Matter of Polidoro, 12 I&N Dec. 353 (BIA 1967)[1] . In this case, the petitioner has shown eligibility for the benefit sought[2]. "

Matter of Polidoro held:

Since petitioner, a naturalized U.S. citizen, was 35 years of age at the time of her adoption in 1960, she has not been adopted in accordance with the provisions of section 10l(b)(1)(E) of the Immigration and Nationality Act, as amended, and consequently, is ineligible to confer immediate relative status on her adoptive father, the beneficiary.

And concluded....

"The argument of counsel has been noted. The issue in visa petition proceedings is not one of discretion but of eligibility. The appeal will be dismissed." [Emphasis added.]

Matter of Patel, 17 I&N Dec. 597 (BIA 1980)[3] reminds us that an exercise of discretion is a matter of administrative grace for which one must must be worthy. On the other hand, when one is entitled to something as a matter of right especially a legally enforceable right, no amount of ineffective assistance of counsel or bungling by the Government is insurmountable when the case reaches a fair and just jurist.

"The grant of an application for adjustment of status under section 245 is a matter of administrative grace. An applicant has the burden of showing that discretion should be exercised in his favor." At p. 601

On January 26, 2012, the Third Circuit Court of Appeals rendered a non-precedential decision regarding the suitability of providing nunc pro tunc approval in order to right a procedural wrong as long as doing so does not go beyond appropriate bounds to reach such a remedy.

".... Jacobo contended that under In re Morales, 21 I. & N. Dec. 130, 133 (BIA 1996) (en banc), she had a right to have her case administratively opened and closed so she could pursue the benefits to which she was entitled under ABC.

On June 22, 2010, the BIA denied Jacobo's motion to reconsider. It held any rights to administrative closure under ABC or In re Morales do not extend to ABC class members who, like Jacobo, are subject to a final order of deportation. Jacobo moved for a stay, which was granted, and filed a petition for review. >II. 3

The issue before us is narrow: whether the BIA's decision to deny Jacobo reconsideration, based on its conclusion that her entitlement to administrative closure under ABC had been vitiated by the removal order from 1996, was legally correct.4 ..."

Footnotes in original:

"3 The BIA had jurisdiction under 8 C.F.R. 1003.1(b)(3) & 1240.15. We have jurisdiction over final orders of removal pursuant to 8 U.S.C. 1252(a)(1).

4 Accordingly, many issues raised during earlier stages of this case are not before us. We do not review the IJ's decision to deny reopening or the BIA's affirming on appeal. Jacobo's petition for review was timely only to the BIA's denial of reconsideration. See 8 U.S.C. 1252(b)(1) (providing that a "petition for review must be filed not later than 30 days" after a final order). Moreover, our review of the BIA's denial of reconsideration is limited solely to its conclusion that Jacobo was ineligible for administrative closure under ABC. Although the BIA denied reconsideration for additional reasons- e.g., it held Jacobo was no longer eligible for relief under NACARA because she would have had to request such in 1998-Jacobo's petition for review contested only the administrative closure determination. See United States v. Rawlins, 606 F.3d 73, 82 n.11 (3d Cir. 2010) (holding an appellant "waived [an] issue by failing to develop it in the argument section of his brief"); Simmons v. City of Philadelphia, 947 F.2d 1042, 1065 (3d Cir. 1991) ("[A]bsent extraordinary circumstances, briefs must contain statements of all issues presented for appeal, together with supporting arguments and citations.")."

"Although nunc pro tunc remedies cannot be issued in violation of a statute, at issue here is whether an administrative error by the INS in the 1990s deprived Jacobo of a "significant benefit" to which she was entitled- namely, of the opportunity to file a de novo asylum application under ABC. See Edwards, 393 F.3d at 310. Whether administrative error in fact occurred is a factual question we leave to the factfinder. But the BIA's denial of reconsideration based on the 1996 removal order, made without any investigation of whether Jacobo was wrongfully deprived a benefit due to the government's error, would deprive Jacobo of potential equitable relief to which she could be entitled in the BIA and in this Court. [Emphasis added.]

"We also recognize Jacobo's entitlement to nunc pro tunc relief - as well as to ABC relief and to the right to seek administrative closure- turns on her date of entry. Had Jacobo not entered before October 1, 1990, she would not be a "class member" under ABC, see ABC, 760 F. Supp. at 799 (defining the settlement class as "Guatemalans in the United States as of October 1, 1990"), nor would she be entitled to seek administrative closure in Immigration Court, to pursue her claim to ABC benefits with UCSIS, see Morales, 21 I. & N. Dec. at 130 (holding that when an individual requests administrative closure, the IJ should first determine whether the movant qualifies as a "class member" under paragraph 1 of ABC). In turn, were Jacobo ineligible for both ABC benefits and administrative closure, she would have no grounds upon which to request relief nunc pro tunc. But no trier of fact has yet made a finding as to Jacobo's entry date. The government contends she entered on November 26, 1991, citing her 1993 application for asylum. Jacobo contends she entered before October 1, 1990, citing a photograph of her allegedly taken in 1989 in New Jersey, as well as the INS's "ABC Eligibility Checklist" from July 14, 1997. She also claims her asylum application was not filled out in her handwriting and cannot be trusted. It would be improper for us to determine Jacobo's entry date in the first instance. Konan v. Attorney Gen., 432 F.3d 497, 501 (3d Cir. 2005) (holding "a reviewing court is powerless to decide in the first instance issues that an agency does not reach"). But the fact that no adjudicatory body has made a determination about when Jacobo entered the country is insufficient at this juncture to foreclose her ability to seek equitable relief altogether. [Emphases added.]


For the reasons stated above, we will grant the petition for review, vacate the Board's order, and remand for proceedings consistent with this opinion."

As noted, Jacobo is non-precedential but makes valid points in support of persuasive arguments for equitable remedial relief in order to overcome procedural shortcomings. This of course is limited to situations where there is an underlying entitlement to begin with. It is further noted that the Court of Appeals did not attempt to become the "fact-finder" but instead remanded the case for that purpose and implicitly suggesting that the BIA to do the same.

On the same day that the Third Circuit issued Jacobo, the Fourth Circuit issued a precedential decision in Turkson v. Holder, No. 10-1984, (4th Cir. 1/26/12), in which the court took the strong position that the BIA must stick to its proper role as an appellate body who is usually confined to a paper-based review and is in no position to second guess the IJ's fact-finding especially as it relies on the evaluation of the credibility of oral testimony. In particular, any adverse credibility determinations based on oral testimony coupled with demeanor are generally out of bounds for the appellate reviewers. The Fourth Circuit did just what the Third Circuit did. It also remanded the case for a do-over under the proper approach.

Think about it.


2 From a non-precedent AAO Decision at: Jan112007_01C5101.pdf

About The Author

Joseph P. Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.