The Ninth Circuit panel's reasoning that, " [u]nder Ayala-Chavez the Attorney General has broad discretion to grant or deny [212(c)] waivers and may establish general standards governing the exercise of such discretion 'as long as these standards are rationally related to the statutory scheme.' Id. " Rivas-Gomez v. Gonzales, 441 F.3d 1072, 1078 (9th Cir. 2006) (emphasis added) underscores, the argument that the use of the exceptional and extremely unusual hardship standard in adjudicating a 212(h) application is inappropriate. It is not rationally related to the statutory scheme in the INA overall or in 212(h) expressly, despite the panel's contention that "the Attorney General's heightened waiver standard for aliens convicted of violent or dangerous crimes is rationally related to the national immigration policy of not admitting aliens who would be a danger to society." The statutory scheme expressly sets out a standard - "exceptional hardship"
in 212(h) and a distinct standard in non-LPR cancellation of removal, 240a(b). The exceptional and extremely unusual hardship standard is used in relation to judging the level or degree of hardship, not the degree of violence or danger attached to a particular criminal violation.



It is ultra vires, first, on the basis that, with regard to hardship determinations, principles of statutory construction require that we give meaning to Congress' use of different language in different sections of the same statute. INS v. Cardoza-Fonseca. Therefore, if Ashcroft was invoking the exceptional and extremely unusual hardship standard to be considered as a factor in determining hardship, he was wrong; and, if he was imposing it on the ultimate discretionary determination made in a 212(h) waiver application, he violated the "weighing and balancing" that governs discretionary determinations under the INA. As in the BIA decisions in Matter of Edwards, and Matter of Sotelo, there can be no requirement of "outstanding equities" when such is not prescribed in the statute, although it may be used to express how the discretionary determination will be made, i.e., requiring a strong showing of favorable factors to offset adverse factors.