Criminal Defense of Immigrants

(D)  Abuse of Discretion.  In all matters the immigration authorities, including the Immigration Judges and BIA, are required to follow their own rules.  When an administrative agency inexplicably departs from past practices, precedents, and/or established procedures, it abuses its discretion.[207]  Although administrative agencies have broad discretion in many cases, they cannot proceed “at whim, shedding [their] grace unevenly from case to case.”[208]

[207] See, e.g., Margalli-Olvera v. INS, 43 F.3d 345 (8th Cir. 1994) (BIA abused discretion by changing its position without explanation re § 212(c) tolling period); Gonzalez-Batoun v. INS, 791 F.2d 681 (9th Cir. 1986) (BIA abused discretion when it gave no reason for deviation from past practice); Salehpour v. INS, 761 F.2d 1442 (9th Cir. 1985) (abuse of discretion occurs where agency interpretation is inconsistent with its own regulations); Ke Zhen Zhao v. U. S. DOJ, 265 F.3d 83 (2d Cir. 2000) (an abuse of discretion may be found in those circumstances where the government inexplicably departs from established policies).

[208] Sang Seup Shin v. INS, 750 F.2d 122, 125 (D.C. Cir. 1984).