[rayiner]

> misrepresentation. 'Adjustment of status' is not 'if the government really likes you', it's a process that's available by rule

I’m using a colloquialism to convey how much latitude the administration has under the wording of statue. It says that the “status of an alien who was inspected and admitted or paroled into the United States … may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe…”

When the statute says an officer “may … in his discretion” do something, that’s Congress giving very broad latitude to the executive to make case by case determinations.

The word “discretion” has a special meaning under the APA. The APA says that courts can’t review agency actions that are “committed to agency discretion by law.” The Supreme Court has read that carve out narrowly (because otherwise I think you have serious due process problems). But Congress using the word “discretion” here at the very least conveys how much latitude Congress intended to give the administration with respect to adjustment of status.

[anigbrowl]

That's a lot of words because you no counter to the point I made about rulemaking. This blanket change seems to me to violate the APA, and as I mentioned above it's questionable whether Blanche has authority to set policy at all given his lack of confirmation. I anticipate this being set aside as arbitrary and capricious.

[rayiner]

It depends on what kind of change in practice is at issue. Was it a practice that was dictated by rules? If so you need a new rule making. But I don’t believe that’s the case here. The memo here says that, to the extent decisions are within the discretion of immigration officers, remember that you don’t have to let anyone adjust their status.

You don’t need a rulemaking to release guidance on the exercise of discretion, even if that new guidance changes prior agency discretionary practice. Agencies do that all the time.