Usmani v. U.S. Att'y Gen., (11th Cir. Apr. 10, 2007)

INA §245(i) creates discretionary authority for the Attorney General to deny adjustment of status to an applicant who is statutorily eligible.

Petitioner, a native and citizen of Pakistan, entered the United States as a nonimmigrant visitor and stayed beyond his six month period of admission. In removal proceedings, Petitioner originally filed for asylum and withholding of removal based on his political opinion, but eventually withdrew the applications and elected to proceed with an application for adjustment of status under INA §245(i), as the beneficiary of an approved labor certification and I-140 visa petition. The parties did not dispute that Petitioner was statutorily eligible for §245(i) adjustment of status. However, the immigration judge denied Petitioner's adjustment application as a matter of discretion. The IJ cited concerns about several inconsistencies in Petitioner's testimony relating to his prior asylum application and concluded that Petitioner "did not deserve 'the extraordinary remedy of adjustment of status.'" The BIA affirmed.

On review, Petitioner argued that the IJ did not have discretionary authority to deny his adjustment application because unlike §245(a), which explicitly refers to the Attorney General's discretion, §245(i) does not. The court disagreed. Although the court had not yet addressed this precise question, it had previously referenced in dicta, the discretionary nature of §245(i) adjustment. Merchant v. U.S. Att'y Gen., 461 F.3d 1375, 1379 n.6 (11th Cir. 2006). Moreover, INA §245(i)(2) states that the Attorney General "may," upon receipt of the application and fee, adjust the status of the applicant to lawful permanent resident. The court explained that although "the mere use of 'may' is not necessarily conclusive of congressional intent" to provide for discretionary authority, Congress's omission of the phrase "in his discretion" does not overcome the presumption of discretion associated with the word "may." Furthermore, when Congress has intended mandatory action, it has used the word "shall." See e.g., INA §245(b). The court held that under these circumstances, the BIA's interpretation of §245(i) as discretionary is a "permissible, and logical construction" of the statute under Chevron U.S.A. v. NRDC, Inc., 467 U.S. 837 (1984). The petition for review was denied.