– Michael J. Gurfinkel
Some people hope or believe that if consuls or immigration officers hear their grave predicament, they would be filled with mercy and compassion and approve their case. If their situation is dire, and they tearfully pour out their heart and soul, this will help in getting their case approved.
What people need to understand is that many laws are written in stone. By that I mean some immigration benefits require rigid compliance with the law. Mercy, compassion and discretion have no bearing on the person’s eligibility. In those situations, no matter how heartbroken a consul or immigration officer may be over the person’s situation, the law does not allow them to approve the case, no matter how much the person pleads or begs for kind consideration. It is important for people to know when mercy and compassion apply and when rigid compliance is required.
For example, under the Child Status Protection Act (CSPA), there is a mathematical formula for determining a child’s age. Either the child’s age computes to be under 21, or it does not. If it does not, the child is not eligible, no matter what. It does not matter arguing the child will be left behind, that the child was only a baby when the petition was filed, etc. This type of law is rigidly applied and there is no discretion for the consul or immigration officer to overlook or ignore these legal requirements.
However, there is also a separate CSPA requirement that the child applies for or “seek to acquire” their visa within one year of availability. In that situation, there could be room for discretion if the deadline was missed because of “extraordinary circumstances.”
Other situations, such as marital cases or petition, require the couple to have been “unmarried” on their wedding day. Otherwise, the marriage would be void as bigamous if one of them is still married to somebody else at the time they marry. The petition could not be approved. It does not matter how heartbroken the couple may be, or how aggravating it may be to them; the law requires compliance and there really is no room for mercy or compassion for this requirement. The officer cannot approve a marital petition based on a void or bigamous marriage.
In other cases, there could be room for mercy, compassion and discretion, such as with fraud waivers, provisional waivers or humanitarian revalidation cases. In those situations, the officer can exercise “discretion,” enabling him to weigh and balance the positive factors against the negative factors, and decide whether the person should be “forgiven” and the case approved.
If you are applying for an immigration benefit, you should consult with an attorney who can evaluate your case, including situations where you must strictly comply with the law or whether the benefit you are applying for involves the officer’s exercise of discretion. If the law is rigidly applied, it does no good for you to cry or beg or seek compassion and mercy. Instead, an attorney can help you determine if you meet the actual legal requirements.
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