In re Munroe
| Decision Date | 24 October 2014 |
| Docket Number | Interim Decision #3817 |
| Parties | Matter of Keisha MUNROE, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
For purposes of establishing an alien's eligibility for a waiver under section 216(c)(4)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(c)(4)(A) (2012), the relevant period for determining whether an alien's removal would result in extreme hardship is the 2-year period for which the alien was admitted as a conditional permanent resident.
FOR RESPONDENT: Spiro Serras, Esquire, New York, New York
DONOVAN, Temporary Board Member:
In a decision dated September 27, 2010, an Immigration Judge found the respondent removable under section 237(a)(1)(D)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(D)(i) (2006), as an alien whose conditional permanent resident status has been terminated. The Immigration Judge also granted the respondent's request for a waiver under section 216(c)(4)(A) of the Act, 8 U.S.C. § 1186a(c)(4)(A) (2006), determining that her removal would result in extreme hardship. The Department of Homeland Security ("DHS") has appealed from that decision. The appeal will be sustained and the record will be remanded to the Immigration Judge for further proceedings.
The respondent is a native and citizen of Guyana who was admitted to the United States on July 3, 1997, as a conditional permanent resident pursuant to section 216 of the Act, on the basis of her April 11, 1996, marriage to a United States citizen. She was admitted as a conditional permanent resident for a 2-year period. The respondent and her husband separated after about 2 weeks and were divorced on March 24, 1999. She was therefore unable to meet the requirements for filing a joint petition toremove the conditions on her residence under section 216(c)(1) of the Act. On August 19, 1999, the respondent requested a waiver of the general joint petition requirement, which the United States Citizenship and Immigration Services ("USCIS") denied on August 6, 2004.
On January 13, 2005, the DHS issued a notice to appear charging the respondent with removability under section 237(a)(1)(D)(i) of the Act. While in proceedings on May 31, 2005, the respondent filed a second application for a waiver of the joint petition requirement under section 216(c)(4)(B) of the Act, claiming that she had entered into the now terminated marriage in good faith and was not at fault in terminating the marriage. The USCIS denied her second waiver application on March 8, 2006. The respondent married her current lawful permanent resident husband on May 4, 2007. They have three United States citizen children born in November 2001, December 2004, and September 2007.
On January 17, 2008, the respondent filed a third waiver application under section 216(c)(4)(A) of the Act, this time claiming that she would suffer extreme hardship if she were deported, primarily because she would be separated from her second husband and her children. The USCIS found that the period for determining extreme hardship began on July 3, 1997, when the respondent was granted conditional permanent resident status, and ended on July 3, 1999, when her status automatically terminated. On April 8, 2009, the USCIS denied the respondent's application because the hardship she claimed was not based on circumstances occurring during that 2-year period.
Each time the respondent filed a Petition to Remove Conditions on Residence (Form I-751), the USCIS issued a notice informing her that her conditional permanent resident status was extended for 1 year. Each time the respondent's Form I-751 was denied, the USCIS informed her that her conditional permanent resident status was terminated. She was instructed that her "previously accorded" permanent resident status was terminated on August 6, 2004, March 8, 2006, and April 8, 2009.
Before the Immigration Judge, the respondent conceded that she is removable as charged and sought to renew her request for an extreme hardship waiver under section 216(c)(4)(A) of the Act. The Immigration Judge found that the relevant period for determining extreme hardship began on July 3, 1997. Although she did not specify an end date for the hardship calculation, the Immigration Judge stated that it continued at least until August 6, 2004, when the USCIS denied the respondent's first waiver application. The Immigration Judge therefore considered the claimed hardship related to the respondent's first child, who was born in November 2001. However, because she found that the respondent's period of conditional permanent residence ended on August 6, 2004, theImmigration Judge did not consider whether there was hardship related to the two children who were born after that date or to the respondent's lawful permanent resident spouse, whom she married on May 4, 2007. Finding that the respondent established eligibility for the waiver, the Immigration Judge granted her application.
The issue on appeal involves the relevant time period for determining extreme hardship for a waiver under section 216(c)(4)(A) of the Act. To decide what that period is, we must address the key sentence of section 216(c)(4)(A), which states: "In determining extreme hardship, the Secretary of Homeland Security shall consider circumstances occurring only during the period that the alien was admitted for permanent residence on a conditional basis." For the following reasons, we conclude that the relevant period for determining such hardship is the 2-year period that an alien was admitted for permanent residence on a conditional basis.
Interpreting the statute requires an understanding of the statutory scheme that governs conditional permanent resident status. Section 216 of the Act was enacted to deter marriage fraud as part of the Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, § 2, 100 Stat. 3537, 3537. It created a system under which aliens who acquire lawful permanent resident status based on a marriage of less than 2 years' duration are granted that status on a conditional basis for 2 years. This system allows the USCIS to check the bona fides of the marriage after the 2-year period to ensure that the marriage was not entered into for immigration purposes. See Matter of Mendes, 20 I&N Dec. 833, 835 (BIA 1994).
Section 216 of the Act allows aliens to remove the conditions on their residence in one of two ways. First, within 90 days of the second anniversary of the date the alien obtained conditional permanent resident status, the alien and his or her spouse may file a joint petition with the USCIS to remove the conditions. Section 216(c)(1) of the Act. The petition must be accompanied by documentation that demonstrates the bona fides of the marriage. 8 C.F.R. §§ 216.4(a)(1), (5), 1216.4(a)(1), (5) (2014). If the USCIS approves the petition, the conditions on the alien's permanent resident status are removed. Section 216(c)(3)(B) of the Act; 8 C.F.R. §§ 216.4(c)(4), 1216.4(c)(4). If the USCIS denies the petition,the alien may renew it in removal proceedings. 8 C.F.R. §§ 216.4(d)(2), 1216.4(d)(2).
Second, an alien who cannot file the joint petition can file an application to waive the joint petition requirement under section 216(c)(4) of the Act by demonstrating that (1) extreme hardship would result if the alien is removed from the United States; (2) the qualifying marriage was entered into in good faith but was terminated through no fault of the alien; or (3) the alien was subjected to abuse by either the spouse or the intended spouse. Sections 216(c)(4)(A)-(D) of the Act. See generally Matter of Anderson, 20 I&N Dec. 888 (BIA 1994) (). There is no specified time frame for filing a waiver application. See Matter of Stowers, 22 I&N Dec. 605, 611 (BIA 1999); 8 C.F.R. §§ 216.5(a)(2), 1216.5(a)(2) (2014). If the USCIS approves the waiver application, it removes the conditions on the alien's permanent resident status. The regulations provide that the denial of a waiver application may be reviewed in removal proceedings. 8 C.F.R. §§ 216.5(f), 1216.5(f).
An alien whose conditional permanent resident status has been terminated is removable pursuant to section 237(a)(1)(D)(i) of the Act. Conditional permanent resident status can be terminated in three ways. First, the USCIS can affirmatively terminate such status before the 2-year conditional period has elapsed. Section 216(b)(1) of the Act. Second, conditional permanent resident status terminates automatically if the alien and his or her spouse fail to timely file the joint petition or appear for the interview. Section 216(c)(2)(A) of the Act. Third, the USCIS can terminate an alien's conditional permanent resident status if it determines that the information provided in the joint petition is not true. Section 216(c)(3)(C) of the Act.
Congress instructed that in determining extreme hardship under section 216(c)(4) of the Act, the DHS should "consider circumstances occurring only during the period that the alien was admitted for permanent residence on a conditional basis." As with all cases involving statutory construction, we assume that "the legislative purpose is expressed by the ordinary meaning of the words" Congress chose to use. Matter of A-A-, 20 I&N Dec. 492, 495 (BIA 1992) (). When the language of the controlling statute is plain, there is no issue ofinterpretation because we "must give effect to the unambiguously expressed intent...
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