Matter of Anderson, Interim Decision Number 3231
| Decision Date | 30 September 1994 |
| Docket Number | A-42057285,Interim Decision Number 3231 |
| Parties | MATTER OF ANDERSON In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated August 13, 1992, the immigration judge found the respondent deportable under section 241(a)(1)(D)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1)(D)(i) (Supp. IV 1992), as an alien whose conditional permanent resident status had been terminated, and granted her request for voluntary departure. The respondent has appealed from the immigration judge's finding of deportability. The appeal will be dismissed.
The respondent is a 31-year-old native and citizen of the Philippines. On September 11, 1989, she entered the United States as a conditional permanent resident pursuant to section 216 of the Act, 8 U.S.C. § 1186a (1988), on the basis of her February 23, 1989, marriage to a United States citizen. On September 10, 1991, the respondent filed an Application for Waiver of Requirement to File Joint Petition for Removal of Conditions (Form I-752) with the Immigration and Naturalization Service.
The respondent was interviewed by the Service regarding her waiver application on November 21, 1991. A transcript of the interview was presented by the Service at the hearing and was admitted into evidence without objection from the respondent. The respondent's statements during the interview and her testimony during the hearing were consistent. The following facts are not in dispute.
The respondent began corresponding with her husband by letter approximately 1 year before their marriage. The correspondence was initiated through the respondent's sister and brother-in-law. The respondent's sister is married to a United States citizen and lives in Kodiak, Alaska, as did the respondent's husband. At the time they began writing to each other, the respondent's husband was married. He obtained a divorce from his wife on January 30, 1989. He then traveled to the Philippines, arriving on February 12, 1989, when the respondent met him for the first time. They were married in the Philippines on February 23, 1989.
The respondent's husband returned to Kodiak in early March. He then began living with another woman. The respondent was informed of this development by her sister. In July 1989 she began seeing a man in the Philippines by whom she became pregnant. The respondent entered the United States as a conditional permanent resident on September 11, 1989, to join her husband. She was greeted by her brother-in-law, who drove her to her husband's home. When the respondent saw that another woman was still living with her husband, she immediately asked her brother-in-law to take her to stay with her sister. She has since remained with her sister and brother-in-law. Her son was born on April 27, 1990. According to the respondent's waiver application, her son has been residing in the Philippines since December 19, 1990. The respondent provided babysitting services at her sister's home for her husband's son from his previous marriage and allowed her husband to visit her there until he moved to Fairbanks, Alaska. The respondent has not seen her husband since he left in November 1989, although she has communicated with him by telephone.
The Act provides two means by which the conditional basis of a conditional permanent resident's status may be removed. The alien and the United States citizen spouse may file a joint petition to remove the conditional basis of the alien's permanent resident status under section 216(c)(1) of the Act, or the alien may file an application for a waiver of the requirement to file a joint petition under section 216(c)(4).1 Matter of Mendes, 20 I&N Dec. 833 (BIA 1994); Matter of Balsillie, 20 I&N Dec. 486 (BIA 1992). Section 216(c)(1)(A) of the Act, through reference to section 216(d)(2), requires that the joint petition be filed during the 90-day period before the second anniversary of the date the alien obtained conditional permanent resident status. The 90-day limit is not imposed for the filing of a waiver request.
As previously noted, the respondent, who was not living with her husband, chose to file a waiver application pursuant to section 216(c)(4) of the Act. That section, which provides for three separate waivers of the conditional basis of a conditional permanent resident's status, provides as follows:
(B) the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through the death of the spouse) and the alien was not at fault in failing to meet the requirements of paragraph (1), or
(C) the qualifying marriage was entered into in good faith by the alien spouse and during the marriage the alien spouse or child was battered by or was the subject of extreme cruelty perpetrated by his or her spouse or citizen or permanent resident parent and the alien was not at fault in failing to meet the requirements of paragraph (1).
In determining extreme hardship, the Attorney General shall consider circumstances occurring only during the period that the alien was admitted for permanent residence on a conditional basis. The Attorney General shall, by regulation, establish measures to protect the confidentiality of information concerning any abused alien spouse or child, including information regarding the whereabouts of such spouse or child.
Section 216(c)(4) of the Act, 8 U.S.C. § 1186a(c)(4) (Supp. V 1993); see also Matter of Balsillie, supra.
On her waiver application, the respondent indicated that she was seeking a waiver under section 216(c)(4)(A) of the Act on the basis of extreme hardship. On January 30, 1992, the district director issued a decision denying the respondent's waiver application, and deportation proceedings were initiated under section 241(a)(1)(D)(i) of the Act. In denying the waiver application, the district director stated that the respondent had failed to demonstrate that her deportation from the United States would result in extreme hardship. See 8 C.F.R. § 216.5(e) (1992). The respondent appeared before the immigration judge on May 15, 1992, with her representative and stated that she wished to apply for a waiver under section 216(c)(4) of the Act. However, the respondent's representative stated that the respondent was seeking a "just cause waiver," which the immigration judge treated as a request for the waiver under section 216(c)(4)(B) of the Act.
At a reconvened deportation hearing on August 13, 1992, the immigration judge informed the respondent's counsel that the respondent was ineligible for the section 216(c)(4)(B) waiver because her marriage had not been terminated. The respondent's counsel requested a continuance to look into the possibility of terminating the marriage. However, the immigration judge, after hearing the respondent's testimony, concluded that the circumstances surrounding the marriage supported the Service's position that the marriage had not been entered into in good faith. As a result, the immigration judge determined that a continuance was not warranted and found that the respondent was ineligible to apply for a waiver under section 216(c)(4)(B) because she remained married to her husband.
On appeal, the respondent argues that she is entitled to a waiver under section 216(c)(4)(C) of the Act because she entered into the marriage in good faith and was subjected to humiliating treatment by her husband. In particular, she alleges that her husband treated her with extreme insensitivity by engaging in an adulterous relationship after their marriage. She also claims that she should be given an opportunity to terminate her marriage, thereby indicating that she still seeks to apply for the waiver under section 216(c)(4)(B), as argued before the immigration judge.
At the outset, a jurisdictional issue arises from the fact that the respondent requested a waiver under section 216(c)(4)(B) of the Act from the immigration judge after the denial of her section 216(c)(4)(A) wai...
To continue reading
Request your trial