Matter of Mendes, Interim Decision Number 3224
| Decision Date | 16 June 1994 |
| Docket Number | A-29018206.,Interim Decision Number 3224 |
| Citation | 20 I&N Dec. 833 |
| Parties | MATTER OF MENDES. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
This is an appeal by the Immigration and Naturalization Service from the June 8, 1992, decision of an immigration judge terminating proceedings in this matter. The appeal will be sustained and the record will be remanded.
The respondent is a native and citizen of Cape Verde. She entered the United States on May 28, 1987, as a nonimmigrant visitor for pleasure with authorization to remain for 6 months or less. She did not leave the United States upon expiration of this period. On November 27, 1988, she married a United States citizen who subsequently filed a petition to accord her immediate relative status under section 201(b) of the Immigration and Nationality Act, 8 U.S.C. § 1151(b) (1988). That petition was approved and on October 2, 1989, the respondent was granted lawful permanent resident status on a conditional basis under section 216(a) of the Act, 8 U.S.C. § 1186a(a) (1988). In order to remove the conditional basis of the lawful permanent residence pursuant to section 216(c)(1) of the Act, an alien and his or her petitioning spouse must file a joint petition during the 90-day period before the second anniversary of the date the alien obtained that status. The respondent and her husband did so on September 4, 1991, and an interview was scheduled to review the merits of that application. See section 216(c)(1)(B) of the Act. The respondent and her husband appeared for that interview on November 20, 1991; however, during the course of the interview the respondent's husband executed a statement withdrawing his support for the petition.
As a result of the withdrawal of support for the joint petition, the Service terminated the respondent's conditional resident status under section 216(c)(2)(A)(i) of the Act for failure to file a joint petition.1 The Service thereafter issued an Order to Show Cause and Notice of Hearing (Form I-221) initiating deportation proceedings. The Order to Show Cause charged the respondent with deportability as an alien whose permanent resident status on a conditional basis has been terminated. The charge is specifically based on an allegation that the respondent's conditional resident status was terminated under section 216(c)(2)(A)(i) for failure to file a joint petition.
At the hearing before the immigration judge, the respondent argued that the Service improperly terminated her status on the ground that no petition was filed. She argued that the petition was in fact filed and that the Service should have adjudicated the petition on its merits under section 216(c)(3) of the Act. The Service argued that the withdrawal of support for the petition by the respondent's husband nullified the filing, so that termination for failure to file a joint petition was the correct basis for termination. Upon consideration of briefs submitted on this preliminary issue, the immigration judge rendered his decision. The immigration judge agreed with the respondent and terminated proceedings upon finding that the petition had been filed and that the Service therefore could not terminate the respondent's status for failure to file a joint petition. The Service appealed and the parties reiterate their positions on appeal.
In an effort to remedy abuses of the visa petition process based on marriages to United States citizens or lawful permanent residents, Congress enacted the Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537 ("IMFA"). Section 216 of the Act, added by the IMFA, was designed to check the validity of marriages and to ensure that aliens could not sidestep the immigration laws by entering into a fraudulent marriage. Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991). The IMFA created a system whereby immigrants who attained their lawful permanent residence on the basis of marriage would be granted that status on a conditional basis for 2 years. The removal of the conditional basis of the status by the Service was intended to provide a second opportunity to detect marriages which were not entered into in good faith.
The Act provides two means by which the conditional basis of a conditional permanent resident's status may be removed. First, 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. Second, the alien may file an application for a waiver of the requirement to file the joint petition under section 216(c)(4), which provides three distinct grounds for a waiver. See Matter of Balsillie, 20 I&N Dec. 486 (BIA 1992).2
The Act also provides that any alien with permanent resident status on a conditional basis who has had such status terminated under section 216 is deportable. Section 241(a)(1)(D)(i) of the Act, 8 U.S.C. § 1251(a)(1)(D)(i) (Supp. V 1993). Termination of an alien's conditional permanent resident status can occur in three ways. First, the Service can affirmatively terminate the conditional permanent resident status before the 2-year conditional period has expired. Section 216(b)(1) of the Act. Second, the status can be terminated for failure to timely file a joint petition or appear for the interview thereon. Section 216(c)(2)(A) of the Act. Third, the Service can terminate the conditional permanent resident status upon adjudicating the joint petition and determining that the facts and information contained in the joint petition are not true. Section 216(c)(3)(C) of the Act. Each of these determinations is reviewable in subsequent deportation proceedings. Sections 216(b)(2), (c)(2)(B), and (c)(3)(D) of the Act. Thus, the Act provides one ground of deportability for termination of conditional permanent resident status, but sets forth three means whereby such termination may take place, each reviewable in deportation proceedings. The regulations further provide that once an alien is in deportation proceedings, the denial of a waiver under section 216(c)(4) of the Act, if any, may also be reviewed in those proceedings. 8 C.F.R. § 216.5(f) (1994).
Here, the dispute is over which section of the Act the Service should properly have applied in adjudicating the joint petition. A number of consequences follow from the section the Service chooses to apply. For instance, failure to properly file the joint petition under section 216(c)(2)(A) of the Act results in "the automatic termination of the alien's permanent residence status and the initiation of proceedings to remove the alien from the United States." 8 C.F.R. § 216.4(a)(6) (1994). On the other hand, if the Service proceeds to an adjudication of the merits of the joint petition under section 216(c)(3)(C) of the Act and determines that derogatory information exists on the pertinent issues, the petitioners are to be offered an opportunity to rebut such information before a final determination is made. 8 C.F.R. § 216.4(c) (1994). Thus, the section under which the Service adjudicates the joint petition affects the procedural rights accorded the alien before the Service.
A second consequence of the section of law under which the Service adjudicates the petition is the allocation of the burden of proof in the ensuing deportation proceedings if the conditional permanent resident status is terminated. In a deportation proceeding premised on section 216(c)(2)(B) of the Act (failure to file a petition or failure to appear for the interview), the burden of proof is on the alien to establish compliance with the requirements for a joint petition and interview. Id.; 8 C.F.R. § 216.4(a)(6) (1994). On the other hand, in a deportation proceeding premised on section 216(c)(3)(D) of the Act (Service's adverse determination on the merits of the joint petition), the burden is on the Service to show by a "preponderance of the evidence" that the facts and information set forth by the petitioners in the joint petition are not true and that the petition was properly denied. Id.; 8 C.F.R. § 216.4(d)(2) (1994); see also Matter of Lemhammad, 20 I&N Dec. 316 (BIA 1991) ().
In order to...
To continue reading
Request your trial