Dallas Immigration Lawyers of Chavez & Valko, LLP

Immigration Law Articles by Chavez & Valko, LLP Attorneys

Advanced Topics in Conditional Permanent Residence (I-751)

by Martin Valko*

Introduction

Following allegations of rampant marriage fraud between aliens and U.S. citizens or lawful permanent residents, Congress passed Immigration Marriage Fraud Amendments of 1986 (IMFA).FN1 This law requires married couples to jointly file a Petition for Removal of Condition (Form I-751) during the 90-day period preceding the second anniversary of the alien spouse's acquisition of resident status.FN2 Generally, the couples will file the I-751 petition with the U.S. Citizenship & Immigration Services (CIS) no sooner than twenty-one months from the date the alien spouse becomes a conditional permanent resident (CPR). Under current processing times, a well-supported I-751 petition is usually adjudicated within six months to one year from the date of filing.FN3

Not all I-751 petitions follow the general processing framework. Some petitions are filed beyond the 90-day period out of necessity or oversight. Petitions filed as waivers may be filed at any time before or after the expiration of CPR status.FN4 At times, the I-751 petition is filed or reviewed during removal proceedings.

This article will focus on issues which reach beyond the ordinary and timely filing of an I-751 petition, as well as offer some practical guidance over the process. First, this article will cover instances where the couple has neither divorced nor separated legally during the 90-day period preceding CPR expiration. Second, this article will discuss the process after CPR has been "terminated" with emphasis on the processing of I-751 petitions during removal proceedings. Finally, this article will address special issues covering the effect of CPR status on the naturalization of military spouses living abroad, as well as issues relating to dependent CPR beneficiaries.

NOT DIVORCED YET

Generally, a CPR must file an I-751 petition jointly with the spouse to remove the condition on permanent residence status. The joint I-751 petition must be filed within 90 days prior to the expiration of CPR status. The CIS may waive joint filing if the CPR has divorced from the spouse and the marriage in which they had entered into was done in good faith.FN5 However, no waiver exists in situations where the CPR and the spouse are legally separated or have initiated divorce proceedings. Recently a CIS memorandum was issued to address such scenario (the "Neufeld memo"). The Neufeld memo provides guidance to immigration officers on how to process I-751 petitions - filed jointly or as a waiver - where the CPR is legally separated or is in divorce (or annulment) proceedings, and the marriage has not been terminated.FN6

Requesting a waiver of joint filing prior to divorce - In cases where the couple is separated or in divorce proceedings, the Neufeld memo instructs the adjudicators to not issue a flat-out denial of a waiver request based on the "divorced but good faith marriage" option simply because the CPR was not divorced at the time of filing the I-751 petition. But rather, CIS will now issue a Request for Evidence (RFE) with a response period of 87 days to allow the CPR additional time to supplement the waiver request with evidence of finalized divorce or annulment, i.e., a copy of the final divorce decree or annulment. The case will then be adjudicated on its merits in accordance with established procedure.

If, however, the CPR fails to respond to the RFE within the required time, the petition will be denied and a Notice of Termination of Conditional Resident Status will be issued. The case will then be processed for issuance of a Notice to Appear (NTA). The CPR may be able to establish waiver eligibility before an immigration judge should the marriage be terminated during removal proceedings.FN7

Practice Pointer: The Neufeld memo does not expressly confer the CPR the right to file a waiver based on a pending divorce, but instead, instructs ISOs to not deny such waiver in the first instance. Implicitly, however, the memo allows CPRs to file a waiver without the divorce so long as the final decree is supplemented before an RFE. This provides the CPR considerable flexibility, especially in matters where the spouse is unwilling or unable to sign jointly. Nonetheless the CPR should be prepared to provide as much evidence as possible to establish that the marriage was entered into in good faith.

Practice Pointer: Clients contemplating or awaiting divorce should be advised that filing a waiver will start the clock (so to speak) on filing supplemental evidence of divorce before the RFE deadline. The practitioner should bear in mind the complexity of the divorce and timeframe for obtaining a final divorce decree by discussing the matter with a family law attorney if possible. Clients should be advised that the divorce may not be finalized within the RFE timeframe. Thus, the timing of the petition should be carefully evaluated with the client.

Practice Pointer: What if CIS issues a notice terminating CPR status, but your client obtains the divorce decree immediately thereafter? If the NTA has not been issued and filed with immigration court, the CPR may want to try reopening the decision to terminate CPR status by way of a motion to reopen filed with CIS. See 8 C.F.R. § 103.5 (an alien may request to reopen "an action" by the Service). The regulations appear to support such maneuver: Notwithstanding termination, "[d]uring the ensuing removal proceedings, the alien may submit evidence to rebut the determination of the director." 8 C.F.R. § 216.3. At their discretion, CIS may cancel their NTA and consider the divorce decree for approval of the I-751 waiver.

Filing a joint petition prior to divorce - According to the Neufeld memo, if the CPR is unable to establish eligibility for a waiver, the only other option is to file a joint petition with the spouse.FN8 The CIS may not deny a joint petition solely because the spouses are separated and/or have initiated divorce or annulment proceedings. However, these actions may suggest that the CPR entered into the marriage for the sole purpose of procuring permanent resident status.FN9

If the CIS encounters a jointly-filed petition from a couple who has legally separated or in divorce proceedings, the CIS will issue an RFE with a response period of 87 days requesting evidence of divorce. Once the required information is received, the CIS will treat the matter as a waiver case.FN10

Failing to respond to the RFE or provide evidence of divorce will prompt a review of the submitted bona fides of the marriage. The adjudicator must then determine whether the case should be approved, denied, or referred for an in-person interview at the local Field Office.FN11 If the adjudicator determines there is no sufficient evidence of a good-faith marriage, then the couple is scheduled for an in-person interview with a notation on their file that they are separated or have initiated divorce proceedings.FN12 The memorandum states that the condition on residence will be removed if both co-petitioners appear for an interview and the officer determines that the four required facts are true.FN13

All in all, CIS is instructed to approve a jointly-filed petition in cases involving pending divorce or legal separation if:

1. CPR and spouse file a joint petition within 90 days;

2. CPR and spouse appear for an interview; and

3. CIS determines that the marriage was legal where it took place, has not been terminated, was not entered into for procuring permanent resident status and no fee was paid for the filing of the underlying immigrant petition (other than to an attorney).

Practice pointer: If the CPR does not obtain a divorce decree during the RFE stage, the practitioner should direct the adjudicator to the Neufeld memo which indicates that the petition is approvable notwithstanding lack of a divorce so long as there is evidence of a bona fide marriage.

Practice pointer: The interview requirement for co-petitioners may potentially present some problems to the CPR if the USC spouse is unwilling or fails to attend. According to the Neufeld memo, a joint petition may not be approved if one of the petitioners fails to appear at the interview. But this seemingly applies only to joint petitions, not necessarily to waiver requests. If CPR acquires a divorce decree prior to the interview, counsel should request that the joint petition be treated as a waiver thereby eliminating the interview requirement. Alternatively, nothing in the memo prohibits counsel from requesting the petition to be treated as a waiver and rescheduling the interview within a reasonable time in which counsel believes a divorce decree will be available. If so, counsel should provide a letter from the divorce attorney or court documents indicating when a divorce decree should be expected.

Filing a joint petition prior to reported marital problems

What if your client reports marital problems to you after the joint petition is filed? First, marital problems alone are insufficient to justify the treatment received on cases involving legal separation or pending divorce proceedings. If the CPR or spouse expresses an intention to divorce, it is incumbent on counsel to explain the different processes outlined in the Neufeld memo. The parties may decide to suspend or postpone divorce proceedings in view of the complications involved. Or in cases where CPR expiration is quite some time away, the couple may decide to facilitate divorce to allow the CPR to execute her waiver request upon divorce.

In cases where one party may not be as amicable or cooperative with the other, it might be necessary to switch from joint petition to a waiver request depending on the situation.FN14

Practice pointer: Timing is everything. Clients should be well informed about the varying processes under the Neufeld memo in view of pending or imminent divorce litigation.

Practice pointer: Above all, it is important to include extensive documentation demonstrating the bona fides of the marriage. Even where marital problems arise, the main issue is whether the marriage was initially entered into in good faith.

Practice pointer: In the age of "what you put online stays online," practitioners should remind their clients to be aware of social media networking sites such as Facebook, MySpace, or Twitter. Clients' postings are within reach of the adjudicating officers who may be searching the net to corroborate the petitioners' bona fide marriage.

FAILURE TO TIMELY FILE I-751 LEADS TO REMOVAL PROCEEDINGS

Failure to file results in an automatic termination of conditional status - Failure to properly file I-751 petition during the 90-day period preceding the second anniversary of the alien's acquisition of resident status will result in automatic termination of the alien's conditional resident status.FN15 Similarly, conditional permanent residence terminates if the petitioners fail to appear for an interview.FN16 Before issuing the NTA, however, the CIS must provide the alien with an opportunity to review and rebut any derogatory evidence.FN17 While it is safe to assume that CIS will eventually initiate removal proceedings against alien,FN18 it will generally "shelve" the case for 90 days before issuing an NTA.FN19

Untimely petitions may be accepted after the required time period if the CPR demonstrates to the satisfaction of CIS, in writing, that there was "good cause" for the failure to timely file.FN20 According to the VSC, late-filed petitions should have "sufficient" reason or explanation to be considered.FN21 After revocation of the CPR status or denial of the I-751 application, the alien will be put in removal proceedings and will have the burden to prove compliance with filing requirements.FN22

Practice pointer: Keep in mind that termination of CPR status triggers unlawful presence, although it could be argued that LPR status does not terminate until an immigration judge issues an order (see below). Therefore, practitioners should carefully explain the consequences of sections 212(a)(9)(B)(i)(I) and (II) of the INA to clients who wish to travel outside of the United States.

Practice pointer: Under section 245(d) of the INA, an alien who became a CPR is not eligible to adjust status under 245(a) of the INA.FN23 However, the BIA adopted a narrow interpretation of the regulations, which seemingly allows adjustment of status under section 245(a) of an alien whose CPR status was terminated by CIS.FN24

Removal Proceedings

According to the regulations, if the joint petition is filed prior to jurisdiction vesting with the immigration judge, the CIS may excuse the delay, restore lawful residence to the alien, and cancel any outstanding Notice to Appear.FN25 If, on the other hand, the petition is not filed until after the jurisdiction had vested with the immigration court, the immigration judge may terminate the matter upon joint motion to terminate by the alien and U.S. Immigration and Customs Enforcement.FN26

The BIA has held that an immigration judge cannot consider a joint petition or a waiver petition in the first instance.FN27 If a waiver application was filed with CIS prior to jurisdiction vesting with the immigration court, removal proceedings should be continued to allow adjudication of the petition by CIS.FN28

In the event that the CIS denies the I-751 petition, the immigration judge can review the denial de novo, without regard to whether the petition was filed before or after the commencement of removal proceedings.FN29 The CIS bears the burden of proof to establish, by preponderance of evidence, that the facts of the underlying petition are not true with respect to the qualifying marriage.FN30 Moreover, the immigration judge is precluded from review of the denied petition if the parties had filed jointly but have divorced prior to the removal hearing.FN31

Finally, in cases where circumstances underlying the waiver have changed, the immigration judge may not consider an alternate ground for a waiver that was not raised before the CIS in the first place.FN32 Because aliens in removal proceedings may apply for a waiver only until there is a final removal order, the immigration judge should continue the proceedings to allow the CPR to submit a waiver with the CIS.FN33

Practice pointer: Although CPR status may be automatically terminated for failure to file the I-751 petition, the BIA had recognize the principle that an alien's permanent resident status does not cease until the entry of a final administrative order removing the alien from the U.S.FN34

SPECIAL ISSUES

1. Applying for naturalization under §319(b) of the INA prior to adjudication of I-751 petition.

Recent USCIS memorandum modified the basis under which an alien who was admitted as a lawful permanent resident on a conditional basis ("conditional resident" or "CR") pursuant to §216 of the INA may be naturalized under §319(b) of the Act prior to the removal of the conditions.FN35

In 1952, the Congress enacted §319(b) to protect interests of spouses of certain U.S. citizens who are regularly employed abroad such as spouses of U.S. Armed Forces personnel or other U.S. Government employees stationed abroad. These spouses were allowed to naturalize without having to demonstrate any specific period of residence or physical presence in the U.S.FN36

The Neufeld Memo on Conditional Permanent Residents and Naturalization under §319(b) of the INA allows CPRs who were admitted pursuant to §216 to seek naturalization under §319(b), although they still must comply with the requirements of §216. Additionally, such CPRs who naturalize under §319(b) prior to the required 90-day filing of §216 are not required to file the I-751 petition for purposes of §216. Nevertheless, they must establish that the qualifying marriage met the four requirements of §216(d)(1)(A) of the INA. The memo amends the Adjudicator's Field Manual and outlines procedure for dealing with specific fact patterns involving filing the I-751 petition and N-400 application.

2. Filing from abroad or while stationed abroad pursuant to government or military orders.

The law allows for the I-751 petition to be filed regardless whether the CR is physically present in the United States.FN37 However, when the CR is outside the U.S. at the time of the filing, he or she must return along with the U.S. citizen spouse and any dependent children in order to comply with the interview requirements.FN38

The current USCIS practice for petitioners who indicated a foreign address and who are currently living abroad is to hold the I-751 petitions in abeyance. These petitioners will not be scheduled for their biometrics appointment or have the petition adjudicated until the married couple demonstrates the intent to return permanently to the United States.

The USCIS implemented policy guidance to instruct the Service Centers to continue processing petitions where the CRs are temporarily abroad pursuant to government or military orders with an APO/FPO mailing address on the form. All other CRs who are temporarily overseas but not pursuant to government or military orders or, where the CR is abroad pursuant to government or military orders but does not provide an APO/FPO mailing address, are put on an "overseas hold."FN39 Finally, I-751 petitions that indicate that the CR is temporarily overseas, but not pursuant to government or military orders, are reviewed for information concerning the reason they are overseas and when they intend to return to the U.S.FN40

Practice pointer: Practitioners should advise their CPR clients about the need to file for a re-entry permit if the length of their trip will be regarded by the USCIS as abandonment of permanent residence.

3. Dependent Beneficiaries

Verification of Inclusion - Dependent children of conditional residents who acquired CR status concurrently with the parent may be included in the joint petition.FN42 If the child's conditional residence was acquired on the same date or within 90 days of the parent's acquisition of conditional residence, a child shall be deemed to have acquired the CR status concurrently with the parent.FN43 Thus, if the dependent child conditional resident is eligible to be listed as a dependent child in the I-751 petition, the child should receive the "Verification of Inclusion of a Dependent in Filing of Form I-751" receipt from the Service Center. Moreover, there is no bar on filing I-751 petition for each individual permanent resident, and such a filing would ensure that each CR receives an I-751 receipt.FN44

Misclassifying Alien to be a Conditional resident - While the IMFA of 1986 covered spouses, children or spouses, and fiancé(e)s, it did not include children where alien parent did not obtain residency through a qualifying marriage under §216 of the Act. Following several cases of misclassification of certain dependent children of alien and U.S. citizen parents, then-INS clarified this point in a legal opinion.FN45 Specifically, the issues involved the IMFA's definitions of "alien spouse" and "alien son or daughter."FN46

The Cook Memo states that conditions of §216 apply only to aliens who qualify as an "alien spouse" or "alien son or daughter" defined in §216(g)(2). Consider the following fact pattern.

Example: An alien who adjusted her status pursuant to the diversity visa lottery selection marries a U.S. citizen. After their marriage, the U.S. citizen husband files a family immigrant petition on behalf of his wife's biological daughter (or his step-daughter) Klaudyna, who was 6 years old when the couple married. Following the grant of an immigrant visa abroad, Klaudyna enters the U.S., and is given the CR-2 or dependent of a conditional resident classification. Moreover, the USCIS takes the position that, under §216 of the INA, Klaudyna was properly classified as a dependent conditional resident, and is therefore, subject to I-751 filing.

The Cook Memo outlined two contradictory possibilities. The first is that an alien spouse to the marriage does not have to obtain an immigration benefit based on the marriage for that partner's biological child to be classified as an "alien son or daughter." The second is that alien may be classified as an "alien son or daughter," and thus as a conditional resident, only if his or her parent qualifies as an "alien spouse." The first reading focuses on the marriage itself, not on whether the alien partner to the marriage obtained an immigration benefit based on it, and results in an "unnatural reading" of the statute.FN47

The second reading, by contrast, considers the entire §216(g)(1) in attempting to construe §216(g)(3). Under this interpretation, a qualifying marriage is a marriage on the basis of which an alien who is party to the marriage obtains permanent residence. The status of an alien son or daughter, therefore, is a derivative status that exists only when the alien who is a party to the marriage qualifies as an alien spouse. The ambiguity is largely caused by the term "qualifying marriage" in §216(g)(3). Thus, according to then-INS legal counsel, the only reasonable reading of §216(g) is that an alien qualifies as an alien son or daughter only if his or her alien parent qualifies as an alien spouse, as defined in §216(g)(1).FN48

Based on the above analysis, because Klaudyna's mother in our example above obtained permanent residence on her own, and independently of marriage to her U.S. citizen husband, she does not qualify as an "alien spouse" under §216. Therefore, her daughter Klaudyna is not an "alien daughter" and her permanent residence should not be subject to §216 of the INA. She should have been originally admitted into the United States as an immediate relative.

* Martin Valko is a partner at Chavez & Valko, LLP, a full-service immigration law firm with offices in Dallas and Fort Worth, TX, with practice focusing on family- and employment-based immigration. Among others, he represents and provides counsel to several Fortune 500 companies, Track & Field and Olympic athletes, a professional race car team, and several NHL players.

FN1 In passing the amendment, Congress relied on a 1984 INS survey claiming that many visa petitions based on marriages between aliens and U.S. citizens were fraudulent. This survey was later disputed by a Service official indicating that it was "statically invalid and lacked any probative value regarding the actual incidence of marriage fraud." Although another survey was ordered to be conducted, then-INS Commissioner Alan C. Nelson cited the 1984 survey to the Congress and stated that up to 30 percent of marriages between aliens and U.S. citizens were suspect. 66 Interpreter Releases 1011 (Sep. 11, 1989).

FN2 INA §216 provides for conditional permanent resident status for certain spouses and children of U.S. citizens and lawful permanent residents, and the requirements for the removal of the condition. Given that the current wait time for immigrant visas in the family second preference category is more than 2 years, this article will refer to a marriage between aliens and U.S. citizens only.

FN3 See 8 C.F.R. §216.4(a)(5). The supporting evidence that the marriage was not entered into for purpose of evading the immigration laws may include documentation of joint ownership, common residence, commingling of financial resources, birth certificates of children born to the marriage, affidavits of third parties with knowledge of the couple's bona fide relationship, and other evidence. See also Vermont Service Center Stakeholders Meeting Questions (August 20, 2009), posted on AILA InfoNet at Doc. No. 09090265 (Sep. 2, 2009) (hereinafter VSC Stakeholders Meeting). According the VSC officials, the current I-751 processing time is 6 months.

FN4 See INA §216(c)(4). Waivers from joint filing are available if conditional resident demonstrates that (1) the conditional resident entered into the qualifying marriage in good faith, but the spouse has died; or (2) the conditional resident entered into the qualifying marriage in good faith, but the qualifying marriage has been terminated due to divorce or annulment; or (3) the conditional resident entered into the qualifying marriage in good faith, remained married, but during the marriage the conditional resident or child was battered or was subject of extreme cruelty perpetrated by U.S. citizen or LPR spouse (or parent in case of a child); or (4) that the termination of conditional resident's status would result in extreme hardship if such alien is removed. But see Waggoner v. Gonzalez, 488 F.3d 632 (5th Cir. 2007); also see Adjudicator's Field Manual, §25.1(e)(2) (hereinafter AFM) indicating that the extreme hardship waiver provision does not require that the applicant establish that the marriage was entered into in good faith.

FN5 See Form I-751, Petition to Remove Conditions on Residence, Page 1, Part 2. Basis for Petition, requesting a waiver of joint filing and the following options: (c.) My spouse is deceased; (d.) I entered into the marriage in good faith but the marriage was terminated through divorce or annulment; (e.) I am a conditional resident spouse who entered a marriage in good faith, and during the marriage I was battered by or was the subject of extreme cruelty by my U.S. citizen or permanent resident spouse or parent; (f.) I am a conditional resident child who was battered by or subjected to extreme cruelty by my U.S. citizen or conditional resident parent(s); (g.) The termination of my status and removal from the United States would result in an extreme hardship.

FN6 See USCIS Memorandum, "I-751 filed Prior to Termination of Marriage" (Apr. 3, 2009), posted on AILA InfoNet at Doc. No. 09072166 (July 21, 2009) (hereinafter, Neufeld Memo).

FN7See Neufeld Memo.

FN8 See INA §216(c)(3)(A) and (B).

FN9 See Neufeld Memo.

FN10 Id.

FN11 Id.

FN12 This statement seems to be referring about an "in-person interview" only when the CR fails to respond to the RFE

FN13 The Neufeld Memo seems to be referring to INA §216(d)(1)(A), that the "[1] qualifying marriage was entered into in accordance with the laws of the place where the marriage took place, [2] has not been judicially annulled or terminated, other than through the death of a spouse, and [3] was not entered into for the purpose of procuring an alien's admission as an immigrant; and [4] no fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparation of a lawful petition) for the filing of a [I-130 or I-129F] petition with respect to the alien spouse or alien son or daughter."

FN14 See notes from the VSC Stakeholders Meeting. According the VSC officials, 18 to 25 percent of I-751 cases are referred to District Office for interview. Similarly, California Service Center AILA Liaison was advised that for petitions pending at the CSC, the applicant may send a notice of change in the relationship or request for a joint petition to be considered as a waiver, posted on AILA InfoNet at Doc. No. 09092883 (Sep. 28, 2009).

FN15 INA §216(c)(2); 8 C.F.R. §216.4(a)(6).

FN16 8 C.F.R. §216.4(b)(3). Aliens may seek review of the decision to terminate their status by USCIS in removal proceedings, but the burden shall be on them to establish compliance with the interview requirements.

FN17 8 C.F.R. §216.3(a).

FN18 8 C.F.R. §216.4(a)(6).

FN19 See VSC Stakeholders Meeting.

FN20 8 C.F.R. §216.4(a)(6).

FN21 See VSC Stakeholders Meeting.

FN22 INA §216(c)(2)(B); 8 C.F.R. §216.4(a)(6).

FN23 8 C.F.R. §245.1(c)(5).

FN24 See Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991); also see Adjudicator's Field Manual, §25.1(d).

FN25 8 C.F.R. §216.4(a)(6).

FN26 Id.

FN27 Matter of Stowers, 22 I&N Dec. 605, Int. Dec. 3383 (BIA 1999).

FN28 Matter of Lemhammad, 20 I&N Dec. 316, at 322-323 (BIA 1991).

FN29 Stowers at 13.

FN30 INA §216(c)(3)(D); see also In re Kyomuhendo (A95208078), BIA slip opinion (July 28, 2008) (BIA must defer to the immigration judge's factual findings, including findings as to the credibility of testimony, unless they are clearly erroneous. It will review questions of law de novo. In it, the BIA held that the DHS did not meet their burden of proving beyond a preponderance of the evidence that the facts and information set forth by the petitioners are not true or that the petition was properly denied).

FN31 See Matter of Tee, 20 I&N Dec. 949 (BIA 1995).

FN32 See Matter of Anderson, 20 I&N Dec. 888 (BIA 1994); see also Matter of Gawaran, 20 I&N Dec. 938 (BIA 1995).

FN33 8 C.F.R. §216.5(a)(2).

FN34 Matter of Stowers, 22 I&N Dec. 605, Int. Dec. 3383 (BIA 1999), referring Matter of Lok, 18 I&N Dec. 101, 105 (BIA 1981) (discussing termination of lawful permanent residence within the meaning of section 101(a)(20) of the INA).

FN35 See USCIS Memorandum, "Conditional Permanent Residents and Naturalization under Section 319(b) of the Act" (Aug. 4, 2009), posted on AILA InfoNet at Doc. No. 090080761 (Aug. 07, 2009) (hereinafter Neufeld N-400 Memo).

FN36 See Neufeld N-400 Memo.

FN37 8 C.F.R. §216.4(a)(4).

FN38 Id.

FN39 Minutes from a USCIS-AILA Meeting on March 19, 2009, posted on AILA InfoNet at Doc. No. 09031920 (March 19, 2009).

FN40 Id.

FN42 8 C.F.R. §216.4(a)(2).

FN43 Id.

FN44 AILA/Vermont Service Center Liaison Committee Practice Pointer: I-751 Receipts for Conditional Resident Dependents, posted on AILA InfoNet at Doc. No. 08121660 (Dec. 16, 2008).

FN45 Legal Opinion, Cook, General Counsel (Jan. 12, 1990), reprinted in 67 No. 6 Interpreter Releases 159, 166-68 (Feb. 5, 1990) (hereinafter Cook Memo).

FN46 See Cook memo. It also considered the availability of waivers of the join filing requirement for hardship or good cause.

FN47 Id.

FN48 Id.

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THE WEAPON: ADMISSIONS OF CRIMINAL CONDUCT WITHOUT A CONVICTION - INADMISSABILITY UNDER §212(a)(2)(A)(i)

by Gary Frost*

[Download the article in PDF version]

It is no surprise to anyone in or out of the practice of law that a criminal conviction can be the basis of finding an alien inadmissible. However, lay individuals express surprise whenever they learn that an alien can also be found inadmissible for merely admitting to criminal activity even where there has been no conviction. Fellow practitioners are certainly less surprised by this fact, but are often surprised by the legal requirements that must be met for an alien to be found inadmissible. No doubt, the fact that an alien can be found inadmissible for admitting to criminal conduct is a potentially powerful weapon in the government's arsenal. Yet, for the government to use this weapon effectively, it must comply with laws that even DHS admits are little known and seldom cited. As you will see, the case law that dictates how admissions should be taken is surprisingly old.FN1

I. What does the law say?

The INA makes an alien inadmissible for admitting to two types of criminal offenses even though they may never have been convicted of those offenses:

Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of --

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or

(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substance Act (21 USC 802)), is inadmissible.FN2

On its face, two important aspects about the provision leap from the page; one obvious and one not so obvious. First, the provision obviously makes clear that an alien need only admit to criminal activity to be found inadmissible. Yet, not so obvious is the type of admission that the alien must make -- and it is under this aspect that DHS, CBP, ICE and even immigration judges routinely get it wrong from the start.

The statute requires that an alien admit to the elements that make up the criminal statute. This means that it is not enough for an alien to admit that he committed a crime involving moral turpitude or a drug offense. The alien must admit to the elements that make up the crime. The perfect example of this is Matter of C, 1 I&N Dec. 14 (BIA AG 1940). In that case an alien admitted to committing perjury. Because there is no question that perjury is a crime involving moral turpitude, the alien would appear to be inadmissible for admitting to criminal conduct under the (old exclusion) statute. Not so fast said the court. The record did not disclose any evidence that the alien had admitted to the essential elements of the crime of perjury. The alien only told the officer that he perjured himself. Consequently, the alien was not inadmissible because he had not admitted to the elements that make up the crime of perjury.

The mistake made in that case and the mistake that practitioners see most often in this setting is where immigration officials, whether they be a district adjudications officer, a customs officer, a trial attorney or even the immigration judge, attempts to elicit an admission that the alien has committed the crime. Ironically, directly asking the alien whether the have, for example, committed bank fraud, will not, by itself, provide the basis to allege inadmissibility, but it is also the very thing that the Federal Law Enforcement Training Center teaches officers not to do!FN3 Practitioners are most likely to encounter this issue during interviews with CIS as the result of an application or petition that has been filed for an immigration benefit. Practitioners may also encounter this issue as the result of a statement given by the alien to CPB or ICE officers. Further, the issue could arise in removal proceedings during questioning by trial attorneys or the immigration judge. Finally, practitioners might see the issue arise in statements given to law enforcement officers or prosecutors. Regardless of who is asking the questions of the alien, strict requirements must be followed to elicit a proper admission if it is to be used as the basis for inadmissibility.

One of the concerns that the BIA seems to have with finding an alien inadmissible for merely admitting to criminal activity is the inherent position of power that an officer has when encountering an alien and the potential abuse of that power. Consequently, through several cases, the BIA has outlined the requirements that must be followed to minimize the appearance of abuse. These rules "were not based on any specific statutory requirement but appear to have been adopted for the purpose of insuring that the alien would receive fair play and to preclude any possible later claim by him that he had been unwittingly entrapped into admitting the commission of a crime involving moral turpitude."FN4 It is important to note that although the precedent decisions that define these rules almost exclusively come from CIMT cases, the rules apply equally to cases that involve admissions related to controlled substance offenses as well.FN5

II. What is the officer required to do? (aka playing by the rules)

A. The officer must give a full explanation for the reason to take the statement

Interestingly this rule is not one dictated by the BIA. However, it is a rule that comports with the BIA's notion of "fair play." The rule appears in the Foreign Affairs Manual and requires consular officers to "give the applicant a full explanation of the purpose of the questioning" when eliciting admissions from visa applicants concerning the commission of criminal offenses.FN6 Surprisingly, the Adjudicators Field Manual does not contain a similar provision even though an adjudications officer is often serving in essentially the same capacity as the consular officer.

The problem, of course, is determining what a "full explanation of the purpose of the questioning" looks like. Unfortunately, there does not appear to be any precedent decisions as a guide. In this respect, practitioners may have great leeway in attacking statements where the reason for the questioning is brief, non-existent, or falsely purports to be seeking information unrelated to the criminal conduct.

Of course, the fact that this "requirement" does not stem from any court case also opens the door to the additional problem that it could be argued that it is not a requirement at all. Practitioners should not surrender this point because as stated above, the requirement does exists in certain immigration procedures and is in accord with BIA's concern of fair play.

B. The officer must provide the essential elements of the criminal statute

Here we see the BIA's first attempts to limit the potential for abuse when an alien is being questioned about criminal activities.FN7 Section 212(a)(2)(A)(i) requires that an alien admit to the essential elements of the offense. Thus, the only way to do this is to tell the alien what those elements are and then ask questions to determine whether the alien has acted in a manner that meets each element.

This requirement presents several hurdles for both the officer and the alien. First, unless the officer already has knowledge the alien may have engaged in criminal activity, the issue will likely only arise as the result of routine questioning, for example, during an application of admission or an adjustment interview. Consequently, the officer is not likely to be prepared with the appropriate criminal statute in front of them, let alone the essential elements that make up the offense. Therefore, unless the officer shifts gears to retrieve the statute, they are more likely to fail to abide by the rule and ask legally conclusory questions such as, "Have you ever possessed crack cocaine?"

Second, assuming the officer takes the time to retrieve the statute from the book shelf or internet, they will still have to be able to recognize the correct criminal statute to refer to based on the facts that the alien has provided that prompted the inquiry in the first place. Experienced prosecutors can get this wrong so there is no reason to believe that adjudications officers, for example, will always get this right. It may be the alien has indeed committed acts which make up the elements of one offense, but if the officer provides the elements of a similar, but incorrect statute, then the alien would be in a position to truthfully deny the questions or the officer will be unable to use the alien's statement as a proper admission.

Third, when confronted with direct questions about the elements that make up the criminal statute, it can be difficult for an alien to deny the factual allegations. This is especially true in situations where the alien has provided a previous statement to some authority. For example, if, as a part of a criminal investigation, the alien gives a sworn statement to police about a more serious offense, but is able to plea to a petty offense, you can bet that an immigration officer would attempt to use that sworn statement against them.

Fourth, invariably whatever criminal statute the officer retrieves will contain one or more words that have a specific legal definition. It is unlikely that the officer or the alien will know what these definitions are. Thus questions about the essential elements can breakdown because each party may have a different understanding of what the elements mean. This pitfall leads to the next rule.

C. The officer must provide an explanation of the crime in terms that the alien can understand

There is no question that criminal statutes are often long, complex and made up of divisible sections. Understanding whether an individual has violated the statute can be difficult for even experienced lawyers, much less a layman. Recognizing this, in Matter of K the BIA requires that the alien be provided the elements of the crime in a manner that the alien can understand and provide definitions for any word that has a legal definition. For instance, ordinary people have an idea what the definition of "possession" is in everyday usage. However, if an officer is questioning an alien whether she has possessed a controlled substance under the Texas Health & Safety Code, the officer must provide the alien with the definition of "possession" as defined in the Texas Controlled Substance Act.FN8

It does not matter whether there is a common understanding as to a given word's definition. The only thing that matters is how the law defines that word. It is also important to note that this is an affirmative requirement. In other words, the officer must provide the definition in terms that the alien can understand before the alien can admit to the particular statutory element. The officer cannot take the position that the alien should ask a question if they do not understand something.

III. What should the practitioner do? (aka holding the government's feet to the fire)

On one hand, in the training material provided by the FLETC, the government is justifiably boastful about the weapon they have under §212(a)(2)(A)(i) and are somewhat contemptuous of the sophistication of aliens seeking immigration benefits.FN9 On the other hand, there is a recognition on their part that they have several hoops to jump through to properly use the weapon. The knowledge of these hoops is the practitioner's counter to the government's weapon. From the outset, it should not be forgotten that it is the government's burden to prove by clear and convincing evidence that the charge of inadmissibility can be sustained. In a great sense, this burden is harmonious with the BIA's concern for abuse and fair play. When analyzing the government's conduct in eliciting an admission from an alien, this principal should always be at the forefront of the practitioner's mind.

Practitioners must scrutinize the transcript of the exchange between the officer and alien or the written statement provided by the alien. You should first be looking to see whether the officer has provided a full explanation for the reason to take the statement. Again, while it is true that the BIA has not made this a requirement and the AFM is silent about this as well, the argument should be asserted that such a requirement is consistent with the BIA's concern of fair play.

Next, practitioners should determine whether the officer has provided the essential elements of the offense and done so in a manner that the alien can understand, including providing any necessary legal definition. If the record does not reflect this has been done, the game should be over at that point. If the record shows that the officer did in fact provide the elements and definition, the question then becomes whether the alien understood the information provided. Does the record reflect multiple questions by the alien as to the meaning of what was being said? If so, it may be the alien was not being provided the elements in a manner that they could understand. Furthermore, it should be determined whether the interrogation was conducted in the alien's native language. If not, there is no question that the officer has not complied with the rule. Where the interrogation was conducted in the alien's language, it should be determined who served as the translator and what their skill level was in understanding complex legal issues and definitions and communicating them to the alien. The interrogation can easily breakdown where the translator does not effectively translate the officer's statements and questions to the alien. In fact the FLETC training material specifically advises officers to be careful when using a translator.FN10

The BIA has dictated several other requirements that must be met for an admission to be valid, although these appear to be less likely to be violated. For instance, admissions must be voluntarily given.FN11 Certainly there are examples where the officers intimidate and coerce improper admissions from aliens. However, it is not likely that you will come across the evidence to prove this. Typically, you will only have the officer's and the alien's testimony describing the interrogation setting and a transcript or written statement to review, which obviously does not reflect the entire setting or circumstances surrounding the interrogation.

Another, requirement is that admissions must be unequivocal.FN12 This requirement appears to be more of a corollary to the requirement that the alien be presented the elements in terms that they understand. It goes without saying that if the alien is weaving and dodging in their answers, then they're probably not making an unequivocal admission. However, the problem for a dancing alien is that it is their burden to prove that they are admissible.FN13 Dancing around the questions may quickly result in him being found inadmissible. Consequently, it is less likely that the alien will not answer questions when properly asked. Yet, if the record reflects that the alien is constantly asking questions as to the meaning of the elements, it is difficult to see how he is giving an unequivocal admission.

An additional requirement is that the admission be full and complete.FN14 Again, if the officer is complying with the rules, it is less likely that this requirement would be violated. On the other hand, if the officer has disregarded the other requirements, then they probably have not set up the interrogation where the alien could provide a full and complete admission in the first place.

If representing or advising a criminal defendant, to the extent possible, written admissions for a prosecutor should be avoided because, as mentioned earlier, immigration officers would likely attempt to use the statement against the alien.FN15 However, in the criminal setting, there is at least an argument that where an alien makes an admission about certain criminal conduct but then later is convicted of a different offense whether by plea or trial, the Immigration Service should be limited to what he was convicted of. In Matter of Medina-Lopez, in a pretrial confession, the alien admitted to robbing an individual. The court convicted him of robbery and assault as two separate offenses. "Here we have a conviction, and must be guided by what the court considered the respondent had done rather than by what he said he had done." Matter of Medina-Lopez, 10 I&N Dec. 7, 9 (BIA 1962). Under this theory, one could argue the conviction document trumps the statement and thus the admission cannot serve as a basis for inadmissibility. Of course this assumes that the conviction itself is not a CIMT or drug offense either!

IV. Conclusion

As a weapon, §212(a)(2)(A)(i) is arguably more lethal to an alien as compared to other inadmissibility subsections since the government need not prove that the alien's criminal conduct ultimately ended in a conviction and punishment. At the same time, the government's use of this weapon is beset with hazards that are easily violated.FN16

In removal proceedings, more often than not, the government already holds virtually all the cards in the deck. Consequently, the best defense against this weapon is the knowledge of the requirements and awareness of how they are violated. If the government is going to come to the table with a winning hand, then we must ensure that they at least play by the rules. Your knowledge of the rules and awareness of how the cards are played will ensure this.

"And the knowledge that they fear is a weapon to be used against them" - Neil Peart

* Gary Frost is a litigation associate at Chavez & Valko, LLP. Majority of his practice involves litigation in the Executive Office of Immigration Review, and in Federal Courts.

FN1 "It is not exactly clear why there are not more recent precedent decisions on this issue. However, there are numerous different factors to consider. First, INS trial attorneys are actively discouraged from appealing adverse decisions. As a result, when the Immigration Court admits an alien charged with admitting criminal activity, it is very unlikely the INS will appeal, even if it believes the decision was wrong. Secondly, since aliens seeking admission to the United States are often detained throughout the hearing process, they frequently elect removal from the United States rather than remaining in detention throughout a lengthy appeal. Finally, it appears that many officers are simply not knowledgeable about this charge and therefore do not use it aggressively." Keith Hunsucker, Senior Legal Advisor, Federal Law Enforcement Training Center, Criminal Without Conviction - Prosecuting the Unconvicted Arriving Criminal Alien Under Section 212(a)(2)(A) of the Immigration and Nationality Act, n. 13. (Attached to this article)

FN2 INA §212(a)(2)(A)(i)

FN3 "Questioning should always be in a confident presumptive manner. For example, an officer encounters as alien with an arrest for cocaine possession but no conviction. He should not ask: "Have you ever knowingly possessed a controlled substance?"" Keith Hunsucker, Senior Legal Advisor, Federal Law Enforcement Training Center, Criminal Without Conviction - Prosecuting the Unconvicted Arriving Criminal Alien Under Section 212(a)(2)(A) of the Immigration and Nationality Act, at 4.

FN4 Matter of K, 7 I&N Dec 594, 597 (BIA 1957), citing Matter of J-, 2 I&N Dec 285 (BIA 1945), modified by , Matter of E-V-, 5 I&N Dec 194 (BIA 1953).

FN5 Pazcoguin v. Radcliff, 292 F.3d 1209 (9^th Cir 2002)

FN6 9 FAM 40.21(a) Note 5.1

FN7 Matter of K, 7 I&N Dec.594 (BIA 1957)

FN8 Tex. Health & Safety §481.002(38)

FN9 "It is fortunate for law enforcement that an alien need only admit his criminal activity to be inadmissible to the United States. Initially, one might wonder why any individual would admit to uncharged criminal activity . . . [A]rriving aliens are often not as criminal savvy as the common street criminal." Hunsucker, supra at 1.

FN10 "It is essential that this questioning be done in a language which the alien is fluent. An officer should always anticipate an allegation that the alien did not understand the questions. Any use of an interpreter should be carefully documented so that the interpreter can be called as a witness if necessary." Id. at n. 27

FN11 Matter of G, 1 I&N Dec. 225, 227 (BIA 1942)

FN12 Matter of L, 2 I&N Dec. 486 (BIA 1946); Matter of P, 4 I&N Dec. 252 (A.G. 1951)

FN13 INA §291

FN14 Matter of E-N-, 7 I&N Dec. 153 (BIA 1956)

FN15 See, Pazcoguin v. Radcliff, 292 F.3d 1209 (9^th Cir. 2002)(finding the alien inadmissible because statements he made during the visa issuance process in which he admitted to drug use to the doctor conducting a medical exam)

FN16 "Experience has demonstrated that very few law enforcement officers are aware of these rigid requirements. This is probably due to several reasons. First the statute does not suggest the need to provide a specific definition and explanation of the criminal charge to the alien . . . ." Hunsucker, supra at 3.

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REMOVAL OF CONDITIONS (I-751) IN FAMILY BASED APPLICATIONS

[Download the article in PDF version]

by Gary Frost*

I. History

A. Pre 1986

1. In the interest of family unity, Congress exempted the spouses of USC's from the per country ceilings imposed by the INA

2. As far back as 1953, the Supreme Court held that marriages entered into for the purpose of securing immigrant status with no intent of entering into a marriage relationship would be treated as if the marriage never existed. [Lutwak v. U.S., 344 U.S. 604 (1953)]

B. 1986 and Later

1. Immigration Fraud Amendments of 1986

a. Law passed as the direct result of statistics provided by INS to Congress indicating rampant marriage fraud. [But see, 66 Interpreter Releases 1011, September 11, 1989]

b. Amends part of the INA and adds new sections such as §§204(h), 216, 245(e)

2. Immigration Act of 1990

a. Among other things, attempted to address problems that defined how an alien could maintain status despite the breakdown of the marriage

b. Removed the "race to the courthouse" interpretation by the INA and added a battered spouse waiver

3. Violence Against Women Act of 1994

a. Among other things, amended the INA to allow any credible evidence of extreme mental cruelty to prove abuse to battered victim

II. Conditional Status

A. Conditional Permanent Resident Status of Certain Alien Spouses and Sons and Daughters INA §216

1. The spouse and derivative children of petitioner shall be considered conditional residents if the marriage is less than two years old at the time of admission for permanent resident status [216(a)(1)]

a. The conditional status applies regardless of whether the petitioner is a USC or LPR, but for practical matters only the spouses of USC's are subject to the condition because:

i. the availability immigrants visas for the spouse and children of LPR's is more than two years

ii. the stepchildren (less than 18 years old at marriage) of USC's require a separate visa petition and may or may not be subject to the condition

iii. the stepchildren (18 or older at marriage) will require visa petition from conditional resident and the availability immigrant visas is more than two years

b. Condition only exists where marriage is the basis of the principal petition

2. Conditional residents have all of the rights and privileges of other lawful permanent residents [8 CFR §216.1]

a. May reside and work in the US

b. May travel

c. May file for reentry permits

d. May file immigrant visa petitions for other family

e. Must register with Selective Service if required

3. The time spent in conditional status counts toward naturalization eligibility [§216(e)]

a. A conditional resident may even apply for naturalization while I-751 application is pending if alien qualifies [79 No.3 Interpreter Releases 66, 89-90 (Jan. 14, 2002)]

III. How to Remove the Conditional Status

A. Joint Petitions

1. What's the issue? - Was the marriage bona-fide at the time of its inception? [See, Matter of McKee, 17 I&N Dec 332 (BIA 1980); Matter of Mendes, 20 I&N Dec 833 (BIA 1994); Matter of Jara Riero, 24 I&N Dec 267 (BIA 2007); Bark v. INS, 511 F.2d 1200 (9^th Cir. 1975)]

2. Who is required to file a removal of condition application? - The spouse and alien granted conditional resident status are required to file a joint application for the removal of condition (Form I-751) [§216(c)]

a. BUT SEE, [Matter of Rose, 25 I&N Dec 181 (BIA 2010)] Conditional resident is not required to file a "joint petition" so long as she timely files the I-751 and attends a requested interview. Such an alien need not file a waiver application. Applicant should check the "My spouse is deceased" box in Part 2.

3. When is the application required to be filed?

a. Filing Deadline

i. In general, the application must be filed during the 90 day period before the second anniversary of the alien's admission for permanent residence (Practical Tip - tell your client to count back 90 days from the expiration date of their resident card to determine when the window opens) [§216(d)(2)(A)]

ii. Applications may be filed late if the alien can establish good cause and extenuating circumstances for failing to file on time [§216(d)(2)(B)]

iii. Conditional residents that are seeking a non-joint or waiver petitions may file the I-751 before, during or after he 90 day period. [8 CFR 216.5; Matter of Stowers 22 I&N Dec 605]

b. Application is filed at the Service Center having jurisdiction based on residence [8 CFR 216.4(a)(3)]

c. Alien need not be present in the US at the time of filing but would have to return if called to an interview [8 CFR 216.4(a)(4)]

d. Failure to file will result in the termination of the alien's status and the initiation of removal proceedings [8 CFR 216(a)(6)]

4. What does filing do for the alien?

a. Alien automatically remains a conditional resident until the I-751 is adjudicated [8 CFR 216.4(a)(1)]

i. USCIS will issue a letter extending the validity of the card for an additional twelve months [Yates Memo, Dec 2, 2003]

ii. If USCIS does not adjudicate the application within that additional twelve months, the alien can either get an I-551 stamp put in their passport or get an I- 94 [Yates Memo, Dec 2, 2003]

b. If a late application is accepted the conditional status is restored and erases any unlawful presence that may have accrued. [Sept 19, 1997 INS Memo, posted on AILA InfoNet at Doc. No. 97092240]

5. What supporting documents should be offered?

a. Documents evidencing the validity of the marriage or the marriage's good faith should be filed with the petition

i. The same types of documents that were offered during the adjustment of status should be provided: joint ownership of property, children's birth certificates, tax returns, photos, etc . . . . [8 CFR 216.4(a)(5)]

ii. Practical Tip - Ideally the client will have collected supporting documents about every three months for the past two years.

6. Will there be an interview?

a. In most well supported application, USCIS will not call the couple to an interview and will simply approve the case based on the submitted petition.

b. If the petition raises potential fraud issues, an interview will likely be scheduled

i. Even though the law requires interviews to be scheduled within 90 days of filing of the petition, the deadline can be ignored. [§216(d)(3)]

c. Interviews may be set on a random basis even where fraud is not suspected

d. USCIS is required to make a decision within 90 days of the interview, but this deadline is routinely ignored [§216(c)(3)(A)(ii)]

e. Failure to appear for an interview will result in the alien's status being terminated [8 CFR 216.4(b)(3)]

7. What criteria does USCIS consider?

a. Criteria [§216(d); 8 CFR 216.4(c)]

i. Was the marriage valid in the jurisdiction where it took place?

ii. Was the marriage entered into in good faith?

iii. Was the marriage judicially annulled or terminated?

iv. Was a fee paid to the petitioning spouse to induce the filing of the petition?

b. USCIS is required to approve the petition if it meets all of the above criteria [§216(c)(3)(B)]

c. Since the main question is what was the couple's intention at the time they entered into the marriage, even marriages that have broken down are still approvable (Practical Tip - Good luck!)

i. Separation of the couple without additional evidence is not a sufficient basis to deny the petition [Matter of McKee, 17 I&N Dec 332 (BIA 1980)]

8. What happens if the petition is approved?

a. The resident alien will be issued a new I-551 that is valid for ten years

9. What happens if the petition is denied?

a. Initially a Notice of Intent to Deny will be issued giving the alien the opportunity to rebut [8 CFR 216.4(c)]

b. USCIS must provide written notice of the denial and state the reasons why. [§216(c)(3)(C); 8 CFR 216.4(d)(2)]

i. Denial terminates the alien's status and permission to work on the date of the decision

ii. No appeal of the decision, but alien will be permitted to file a motion to reconsider [8 CFR 103.5]

c. USCIS will issue a Notice to Appear [8 CFR 216(d)(2)]

i. Alien may seek review of the decision in removal proceedings

ii. Immigration and Customs Enforcement bears the burden of proving by a preponderance of the evidence that petition was properly denied for substantive reasons (fraudulent marriage, marriage terminated, fee paid to spouse). [§216(c)(3)(D)] The alien bears the burden of proof if the status was terminated for procedural reasons (failure to timely file, failure to attend interview, or showing good cause) [§216(c)(2)(B)]

d. A terminated alien who is having the decision reviewed may be issued a temporary I-551 or I-94 during the pendency of the review. [October 9, 1997 INS Memo, reprinted in 74 Interpreter Releases 1731 (Nov. 7, 1997)]

B. Non-Joint Petitions and Waiver Petitions

1. When would an alien file the petition on their own?

a. USC spouse has died

i. Conditional resident is not required to file a "joint petition" so long as she timely files the I-751 and attends a requested interview. [Matter of Rose, 25 I&N Dec 181 (BIA 2010)] Such an alien need not file a waiver application.

b. The marriage has terminated

c. The USC spouse can't or won't sign a joint petition or it would be risky to seek the spouse's assistance

d. A child that was granted conditional status more than 90 days after their conditional resident parent

2. When should the petition be filed?

a. As stated above non-joint and waiver petitions may be filed before, during, or after the 90 day window for joint petitions.

i. Aliens in removal proceedings must file a waiver petition before a final order is entered [8 CFR 216.5(a)(2)]

ii. Waiver petitions may be filed even if a joint petition was previously filed and denied [Opinion Letter, INS General Counsel, reprinted in 67 Interpreter Releases 168 (Feb. 5, 1990); See also, Matter of Mendes, 20 I&N Dec. 833 (BIA 1994)

3. What are the waiver grounds?

a. Extreme hardship [§216(c)(4)(A)]

i. This waiver is available regardless of whether the marriage exists or not

ii. The claim is the based on the extreme hardship that would occur to the alien, children or even a subsequent spouse. [ "INS Responds to Marriage Fraud Questions," Question No. 57, reprinted in 67 Interpreter Releases 341 (Mar. 19, 1990)]

iii. The hardship must be based on factors that arose after the granting of conditional status [8 CFR 216.5(e)(1)]

iv. The hardship must be extreme

v. There is no requirement to show that the marriage was entered into in good faith [Matter of Balsille, 20 I&N Dec. (BIA 1992)]

vi. Burden is on alien to prove hardship [8 CFR 216.5(e)(1)]

b. Good faith [§216(c)(4)(B)]

i. This waiver is only available after the marriage has been judicially terminated [April 10, 2003 Yates Memo , posted on AILA InfoNet at Doc. No. 03050643]

ii. Alien must prove that she entered into the marriage in good faith

c. Battered Spouse or Child and Extreme Cruelty [§216(c)(4)(C)]

i. This waiver is available regardless of whether the marriage exists or not [8 CFR 216.5(e)(3)(ii) ]

ii. Requires that the marriage was entered into in good faith and that the spouse or child was battered or subject to extreme cruelty during the marriage

iii. Alien parent may file the waiver based on the abuse to her child regardless of the child's immigration status [8 CFR 216.5(e)(3)]

iv. The regulations provide specific examples of violent acts that are considered extreme cruelty 8 [CFR 216.5(e)(i)]

v. There is a conflict between the regulations and the code. The regulations require that extreme cruelty claims include an evaluation from recognized professionals. [8 CFR 216.5(e)(iv-vii)]. However, the 1994 Amendment to the Act permits "any credible evidence" to be considered. [§216(c)(4)]

vi. USCIS must keep any information concerning the abused spouse or child confidential [§216(c)(4)]

4. Can an alien use one or more of the waiver grounds?

a. Yes. It does not matter whether all valid claims are presented at the same time or one after the other in new waiver petitions. However, an IJ can only review the grounds on which the application was denied. If the alien is prima facie eligible for another ground, the IJ should continue the proceedings to permit the alien to file a new waiver petition with the Service. [Matter of Mendes, 20 I&N Dec. 833 (BIA 1994); Matter of Tee, 20 I&N Dec. 949 (BIA 1995)]

5. Will there be an interview?

a. All but guaranteed and as before, failure to appear for the interview will result in termination of conditional status

6. Does USCIS have discretion in granting waiver?

a. Yes, but if the waiver is denied, the Service must give written notice of the decision and the reasons for the denial. Again there is no appeal of the decision but the decision may be reviewed by the IJ in removal proceedings. [8 CFR 216.5(f)]

7. Can conditional resident children petition on their own?

a. Yes. Where the child was not included on the parent's petition, the child may file their own petition. [8 CFR 216.4(a)(2)]

IV. Removal Proceedings

A. Scope of Review

1. IJ can only review petitions that have been denied by the Service. [§216(b)(2), (c)(2)(B) and (c)(3)(D); 8 CFR 216.3(a), 216.4(d)(2), and 216.5(f)]

2. IJ can only review the basis on which the petition was denied [Matter of Lemhammad, 20 I&N Dec. 316 (BIA 1991)

3. The scope of review is not defined but appears to be de novo. [See, Matter of Tee, 20 I&N Dec. 949 (BIA 1995); Legal Opinion, INS General Counsel, reprinted in 69 Interpreter Releases 627 (May 18, 1992)]

B. New grounds

1. The alien should move for the proceedings to be continued where the alien is prima facie eligible to file a waiver on a new ground. [Matter of Mendes, 20 I&N Dec. 833 (BIA 1994); Matter of Tee, 20 I&N Dec. 949 (BIA 1995)]

* Gary Frost is a litigation associate at Chavez & Valko, LLP. Majority of his practice involves litigation in the Executive Office of Immigration Review, and in Federal Courts.

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