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attorneystatutetestimonyasylumvisa
attorneystatuteappealhearingtestimonyasylumvisanaturalization

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Usmani v. AG

Facts

Ubaid Usmani, a native and citizen of Pakistan, entered the United States in 1995 as a non-immigrant visitor. After overstaying his visa, he was charged with removability. Usmani initially applied for asylum but later withdrew that application to seek adjustment of status under INA 245(i). Although he was statutorily eligible for adjustment, the IJ denied his application due to concerns about inconsistencies in his testimony regarding his political activities.

Ubaid Usmani, a native and citizen of Pakistan, entered the United States in 1995 as a non-immigrant visitor authorized to remain for a temporary period not to exceed six months. When he remained beyond that period, the Immigration and Naturalization Service ('INS') issued him a notice to appeal, charging him with removability under INA 237(a)(1)(B), 8 U.S.C. 1227(a)(1)(B). Usmani filed an application for asylum and withholding of removal based on his political opinion. Before the hearing, Usmani withdrew his application and filed an application to adjust status under INA 245(i), 8 U.S.C. 1255(i). The parties do not dispute that Usmani was statutorily eligible to adjust status. Usmani received an approved labor certificate from the Department of Labor and an approved I-140 employment-based visa petition prior to applying for adjustment of status under 245(i), thus making him statutorily eligible for adjustment. During Usmani's testimony, the government elicited several inconsistencies in the testimony regarding whether or not Usmani had participated in Pakistani political groups or Muslim student groups, and whether he had ever been arrested.

Issue

Whether, in immigration proceedings, the Attorney General had discretion to deny a petition for adjustment of status under INA 245(i) once an alien was statutorily eligible for adjustment.

Whether, in immigration proceedings, the Attorney General has discretion to deny a petition for adjustment of status under INA 245(i) once the petitioner is statutorily eligible for adjustment.

Rule

The court applied the principle that the use of the word 'may' in a statute implies some degree of discretion, and that the statutory language of 245(i) indicates Congressional intent that the IJ have discretion.

The court applied the principle that the use of the word 'may' in a statute implies some degree of discretion, and that the statutory language of 245(i) indicates Congressional intent that the IJ have discretion.

Analysis

The court concluded that the plain language of 245(i) indicates that the IJ has discretion to deny adjustment of status, despite Usmani's statutory eligibility. The court noted that the absence of the phrase 'in his discretion' does not negate the discretionary authority implied by the use of 'may'. The BIA's interpretation of the statute as discretionary was deemed a permissible construction.

The court concluded that the plain language of 245(i) indicates that the IJ has discretion to deny adjustment of status, despite Usmani's statutory eligibility. The court noted that the absence of the phrase 'in his discretion' does not negate the discretionary authority implied by the use of 'may'. The BIA's interpretation of the statute as discretionary was deemed a permissible construction.

Conclusion

The court held that 245(i) creates discretionary authority for the Attorney General to deny adjustment of status. Therefore, the petition was denied.

The court held that 245(i) creates discretionary authority for the Attorney General to deny adjustment of status. Therefore, the petition was denied.

Who won?

The United States government prevailed in the case because the court upheld the BIA's decision that the IJ had the discretion to deny Usmani's application for adjustment of status.

The United States government prevailed in the case because the court upheld the BIA's decision that the IJ had the discretion to deny Usmani's application for adjustment of status.

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