Matter of Lemhammad
| Decision Date | 22 May 1991 |
| Docket Number | A-27935756.,Interim Decision Number 3151 |
| Citation | 20 I&N Dec. 316 |
| Parties | MATTER OF LEMHAMMAD In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated June 29, 1990, the immigration judge found the respondent deportable under section 241(a)(9)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(9)(B) (1988), denied his Application for Waiver of Requirement to File Joint Petition for Removal of Conditions (Form I-752) ("hardship waiver") on jurisdictional grounds, and denied his application for voluntary departure in lieu of deportation. The respondent has filed a timely appeal from that decision. The appeal will be dismissed.
The respondent is a 26-year-old native and citizen of Jordan. He entered the United States on October 29, 1983, as a nonimmigrant. Subsequently, the respondent married a United States citizen. On June 3, 1988, based on this marriage, the respondent obtained permanent resident status on a conditional basis pursuant to section 216 of the Act, 8 U.S.C. § 1186a (1988). However, on October 25, 1989, the marriage was terminated by a divorce decree issued by the District Court of Arapahoe County, Colorado.1
On May 10, 1990, the Immigration and Naturalization Service issued an Order to Show Cause and Notice of Hearing (Form I-221) against the respondent, charging him with deportability under section 241(a)(9)(B) of the Act, as an alien whose conditional permanent resident status under section 216 of the Act had been terminated. More specifically, the Order to Show Cause charges that the respondent's status had been properly terminated pursuant to section 216(b) or (c) of the Act. Section 216(b)(1)(A)(i) and (ii) of the Act provide for the termination of an alien's conditional permanent resident status where the Attorney General determines, before the second anniversary of the alien's obtaining his status, that the qualifying marriage was either "entered into for the purpose of procuring [the] alien's entry as an immigrant" or was "judicially annulled or terminated, other than through the death of a spouse." Under section 216(c) of the Act, termination of the alien's conditional permanent resident status is based on his failure to properly file a petition to remove such conditional basis in accordance with section 216(c)(1)(A) of the Act or his failure to appear at the personal interview described in section 216(c)(1)(B) of the Act.
At the deportation hearing, the respondent admitted that he had received notice from the Service that his conditional permanent resident status had been terminated on April 17, 1990. In addition, the respondent admitted that his marriage had been judicially terminated by divorce on October 25, 1989. However, he denied that he had entered into his marriage for the purpose of evading the immigration laws. The Service introduced into evidence a certified copy of the divorce decree and argued that deportability under section 241(a)(9)(B) of the Act had been established, since the respondent's conditional permanent resident status had been properly terminated pursuant to section 216(b)(1)(A)(ii), as an alien whose qualifying marriage had been judicially terminated other than through the death of a spouse. Ultimately, the Service opted not to go forward on the alternate allegation under section 216(b)(1)(A)(i) that the respondent had entered into the marriage for the purpose of procuring immigrant status.
The respondent also sought relief from deportation by applying for a hardship waiver of the requirement to file a joint petition for removal of conditions and for voluntary departure. Both the respondent and his United States citizen brother testified in support of the respondent's applications for relief. In rebuttal, the Service presented two affidavits, one a transcription of a sworn statement taken from the respondent's ex-wife, and the other an affidavit from a foreign student. In the latter, the foreign student attested that he had paid the respondent money to impersonate him at a local college by attending his classes and taking his exams. In addition, the Service presented two witnesses, the respondent's ex-wife and the Service investigator who had prepared both affidavits.
The immigration judge concluded that the Service had, in fact, met its burden of proof with respect to section 216(b)(1)(A)(ii) of the Act and found the respondent deportable under section 241(a)(9)(B). The immigration judge also found that the "bulk of the testimony" presented at the deportation hearing did not demonstrate that the respondent had entered into the marriage for the purpose of procuring his immigrant status. With respect to the hardship waiver application, the immigration judge determined that he had no jurisdiction to rule on its merits. The immigration judge reasoned that the regulations require that the hardship waiver be filed originally with the regional service center director having jurisdiction over the alien's place of residence. See 8 C.F.R. § 216.5(c) (1991). Since the respondent had never filed a waiver application with the regional service center director, the immigration judge concluded he lacked jurisdiction over the matter.2 The immigration judge also denied the respondent's application for voluntary departure because, for a fee, the respondent had posed as other foreign students enrolled at a local college and taken final examinations for them. In reaching this conclusion, the immigration judge relied upon the student's affidavit and the testimony provided by the Service investigator.
On appeal, the respondent, through counsel, raises several arguments. First, the respondent opines that the mere dissolution of a marriage should not be sufficient grounds for deportation under section 216 of the Act. Instead, he believes that where the parties to the qualifying marriage were granted a "no-fault" divorce, the Act should require proof by clear, unequivocal, and convincing evidence that the noncitizen spouse was "at fault" in the termination of the marriage. Secondly, the respondent contends that he qualifies for the hardship waiver. In support of this contention, the respondent discusses the "factors [which he feels] taken together would certainly cry out for a waiver of deportation." However, the respondent does not contest the immigration judge's jurisdictional findings.
With respect to his voluntary departure application, the respondent argues on appeal that the immigration judge abused his discretion in denying it solely on the basis that the respondent had taken courses for other students. The respondent contends that his "taking of several courses" is not "so repugnant" as to constitute a lack of good moral character. In addition, the respondent argues that the Service's use of students' affidavits, rather than oral testimony, denied him his right to due process. Finally, without further explanation, the respondent states the following: "In Woodby v. INS, 385 U.S. 276, (1966), the Supreme Court held that the grounds for deportation must be found to be true by clear, unequivocal, and convincing evidence."
The Service brief in opposition to the respondent's appeal basically agrees with the immigration judge's decision. Regarding the denial of voluntary departure, the Service alleges that fraud was inherent in the respondent's money-making scheme on campus. In addition, it is argued that the respondent's criminal conviction of domestic assault, which was not discussed by the immigration judge in his decision, provides further justification for the denial of voluntary departure. With respect to the respondent's hardship waiver application, the Service agrees with the immigration judge's jurisdictional findings. It argues, however, in the alternative, that even if jurisdiction is found to exist, the evidence submitted by the respondent does not rise to the requisite level of extreme hardship.
Pursuant to the Order to Show Cause, the respondent was charged with deportability under section 241(a)(9)(B) of the Act, as an alien whose status as a conditional permanent resident under section 216 of the Act has been terminated.3 Section 216(b)(1)(A) of the Act provides, in pertinent part, that such termination may occur if the Attorney General determines, before the second anniversary of the alien's obtaining the status of lawful admission for permanent residence [on a conditional basis], that —
(A) the qualifying marriage —
(i) was entered into for the purpose of procuring an alien's entry as an immigrant, or
(ii) has been judicially annulled or terminated other than through the death of a spouse.
(Emphasis added).
The Attorney General is required to notify the parties involved that the alien's conditional permanent resident status is being terminated.4 See 8 C.F.R. § 216.3(a...
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