Officer Discretion in Immigration Decision-Making. A Comparative Analysis of Canada and the United States-2026

Abstract

Immigration law is often described as a rules-based system in which outcomes follow automatically from statutory compliance. In practice, however, immigration decisions are heavily shaped by officer discretion. Immigration officers are required not only to verify documents but also to assess credibility, evaluate risk, interpret evidence, and determine whether an applicant has genuinely met the legal standard set by law. This article examines how officer discretion operates in the Canadian and United States immigration systems. It focuses on the legal foundations of discretion, its three main operational components: credibility assessment, risk assessment, and interpretation of evidence and the constitutional and administrative law limits that constrain its exercise. Drawing on statutory frameworks, recent case law, and administrative law principles, including the Supreme Court of Canada’s decision in Vavilov (2019), the article argues that officer discretion is not arbitrary. Rather, it is a structured, reviewable form of administrative judgment that applicants and practitioners must understand in order to navigate immigration systems effectively. The article concludes by outlining practical implications for application preparation and refusal response strategies in both jurisdictions.