This beneficent operations instruction permitted two alternative interpretations, each of which was taken up by the federal courts. In the case of Nicholas v. INS, the petitioner asked the Ninth Circuit Court of Appeals to overrule the district director’s decision to deny his nonpriority status application. The court determined that the operations instruction confers a “substantive benefit upon the alien, rather than setting up an administrative convenience,”and thus is essentially a legislative rule requiring a strict standard of application, and not one allowing the INS a significant amount of discretion. The Fifth Circuit held in Soon Bok Yoon v. INS that the INS was not required to notify an alien that nonpriority status might be applicable.
The Deferred Action Program of the Bureau of Citizenship and Immigration Services: A Possible Remedy for Impossible Immigration Cases,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol41/iss2/7