SINGH

Cite as 24 I&N Dec. 331 (BIA 2007) Interim Decision #3587

In re Yadvender SINGH, Respondent

File A40 537 854 - New York

Decided as amended October 11, 20071

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

There is no conflict between section 216(c)(4) of the Immigration and Nationality Act,

8 U.S.C. § 1186a(c)(4) (2000), and its implementing regulation at 8 C.F.R. § 1216.5(e)(1)

(2007) where both provide the same start date for the circumstances to be considered in

determining a conditional permanent resident’s application for an extreme hardship waiver

and only the statute provides an end date for the relevant period.

FOR RESPONDENT: Alan Michael Strauss, Esquire, New York, New York

FOR THE DEPARTMENT OF HOMELAND SECURITY: Randa Zagzoug, Deputy Chief

Counsel

BEFORE: Board Panel: HURWITZ, Acting Vice Chairman; HOLMES and MILLER,

Board Members.

HURWITZ, Acting Vice Chairman:

When this case was last before us on April 9, 2003, we dismissed the

respondent’s appeal from an Immigration Judge’s decision of September 25,

2000, and denied his motion to remand for further proceedings. The matter is

now before us pursuant to an August 29, 2006, decision of the United States

Court of Appeals for the Second Circuit. Singh v. U.S. Dep’t of Justice, 461

F.3d 290 (2d Cir. 2006). Holding that the two reasons given by the Board for

denying the respondent’s motion to remand were not correct, the court vacated

our decision insofar as it denied the motion. See id. at 293-94. For the reasons

explained below, we again deny the respondent’s motion to remand.

The respondent, a native and citizen of India, entered the United States as

a conditional lawful permanent resident on December 2, 1986, based on his

marriage to a United States citizen. Under section 216 of the Immigration and

Nationality Act, 8 U.S.C. § 1186a (2000), the respondent could have removed

1

On our own motion, we amend the July 11, 2007, order in this case. The amended order

makes editorial changes consistent with our designation of the case as a precedent.

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the conditional limitation on his status by filing a joint application with his

wife during a 90-day period preceding the second anniversary of his lawful

entry into the United States as a conditional permanent resident. However, on

August 18, 1987, the respondent’s wife obtained an annulment, which declared

the marriage null and void. Thereafter, the respondent filed an Application

for waiver of requirement to file joint petition for removal of

conditions (Form I-752). The application was based on a claim that the

respondent had entered into his marriage in good faith. See section

216(c)(4)(B) of the Act. The application was denied on March 24, 1989, by

the former Immigration and Naturalization Service (now the Department of

Homeland Security) on the basis that the respondent had not demonstrated that

his marriage was entered into in good faith. The respondent was served with

an Order to Show Cause and Notice of Hearing (Form I-221) alleging that his

conditional permanent residence had been terminated. At his hearing before

the Immigration Judge, the respondent renewed his waiver application, which

was denied.2

The respondent then filed an appeal, along with a motion to remand for the

purpose of applying for a different waiver based on extreme hardship pursuant

to section 216(c)(4)(A) of the Act. The respondent alleged in his motion that

his removal would result in extreme hardship because of issues related to his

second marriage and the children from that marriage. We denied the motion

for the following reasons. First, the respondent had an opportunity to apply for

a hardship waiver before the Immigration Judge and chose instead to pursue

a waiver under section 216(c)(4)(B). Second, the respondent’s motion was

based on hardship that arose subsequent to his period of conditional residence,

and section 216(c)(4) provides that “[i]n 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.” Thus, the evidence that the respondent sought to have considered

would not support an application for a waiver.

The respondent filed a petition for review with the Second Circuit. The

court of appeals concluded that “[t]he BIA’s decision, and the government’s

defense of it, expose a clear conflict between the relevant statute and the

agency’s corresponding regulation, which, to date, as far as we have found, has

not been acknowledged let alone reconciled.” Singh v. U.S. Dep’t of Justice,

supra, at 295. The court observed that the regulation at 8 C.F.R. § 216.5(e)(1)

(2006) provides that “[i]n considering an application for a waiver based upon

an alien’s claim that extreme hardship would result from the alien’s removal

from the United States, the director shall take into account only those factors

2

The respondent raised other issues at the hearing, but they are not currently before us.

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that arose subsequent to the alien’s entry as a conditional permanent resident.”

According to the court, the regulation conflicted with section 216(c)(4) of the

Act and the Board had to comply with the regulation. Specifically, we were

required to consider the respondent’s evidence of hardship as long as it related

to factors that arose after the respondent’s entry as a conditional permanent

resident.

Given the court’s reading of the regulation, our second reason for denying

the motion (the fact that the respondent did not apply for a hardship waiver

before the Immigration Judge) was also not a valid reason to deny the motion.

This is because the respondent’s allegations of hardship related to events that

occurred subsequent to the hearing before the Immigration Judge and therefore

could not have been presented at the hearing.

In our prior decision, we did not specifically address the regulation.3

However, we now explain why we find that there is no conflict between the

regulation we are bound to apply and section 216(c)(4)(A) of the Act, and why

we find that we have complied with the regulation. Section 216(c)(4) requires

us to “consider circumstances occurring only during the period that the alien

was admitted for permanent residence on a conditional basis.” Thus, the

statute provides both a start date and an end date for the period during which

the relevant circumstances must occur. In contrast, the regulation provides

only the start date for the relevant circumstances, stating that “only those

factors that arose subsequent to the alien’s entry as a conditional permanent

resident” can be considered. 8 C.F.R. § 1216.5(e)(1) (2007). The regulation

does not contain any language that specifically contradicts the language of the

statute.

In reviewing the statute and the corresponding regulation, we are mindful

of the fundamental canons of statutory construction that a statute and its

implementing regulations should be read as a whole and, where possible,

afforded a harmonious interpretation, see, e.g., Carmichael v. The Payment

Center, Inc., 336 F.3d 636 (7th Cir. 2003), and that the words of a statute must

be read in their context and with a view to their place in the overall regulatory

scheme, see Food and Drug Admin. v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000). We must look to see whether the regulation harmonizes

with the plain language of the statute. See Nat’l Muffler Dealers Ass’n, Inc.

v. United States, 440 U.S. 472, 477 (1979).

3

We note that 8 C.F.R. § 216.5(e)(1), which applies to the Department of Homeland

Security, was duplicated in 2003 at 8 C.F.R. § 1216.5(e)(1), which applies to the Executive

Office for Immigration Review, including the Board of Immigration Appeals. See Aliens

and Nationality; Homeland Security; Reorganization of Regulations, 68 Fed. Reg. 9824,

9837 (Feb. 28, 2003).

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In the matter before us we find no conflict between the statute and the

implementing regulation. Both provide the same start date for the evidence we

may consider. The regulation is silent about a termination point for the

evidence, so we look to the statute and find that a termination point is clearly

set out there. In applying the statute and the applicable regulation to the matter

before us, we find that the respondent’s evidence of hardship pertains to a time

period outside of the relevant period. Because of this, the evidence the

respondent submitted does not support his application for a waiver. The

evidence also does not support a motion to reopen for a hearing on a waiver

application because it is not material to the application. See 8 C.F.R.

§ 1003.2(c)(1) (2007) (stating that a motion to reopen will not be granted

unless the evidence sought to be offered is material).

Furthermore, even if the respondent’s evidence did concern matters within

the relevant period, we would deny the respondent’s motion to remand for the

reasons that follow. First, the motion does not meet the general regulatory

requirements for motions to reopen. A motion to reopen must, among other

things, state the new facts to be considered at the reopened hearing and must

be supported by affidavits or other evidentiary materials demonstrating

prima facie eligibility for the relief sought. See 8 C.F.R. § 1003.2(c)(1); see

also INS v. Abudu, 485 U.S. 94 (1988); Matter of Coelho, 20 I&N Dec. 464

(BIA 1992). A motion to reopen will not be granted unless the evidence

sought to be offered is material and was not available and could not have been

discovered or presented at the former hearing. See 8 C.F.R. § 1003.2(c)(1).

An alien who seeks to remand or to reopen proceedings to pursue relief bears

a heavy burden of proving that if proceedings were reopened, with all the

attendant delays, the new evidence would likely change the result in the case.

See Matter of Coelho, supra.

The respondent has not presented sufficient previously unavailable material

evidence to support a remand. The new evidence submitted relates to the fact

that the respondent and his second wife now have a second child, born

March 10, 2000, and that the respondent’s mother-in-law has become a United

States citizen. The other evidence submitted with the motion relates to events

that occurred before the Immigration Judge closed the record in this case on

July 6, 1998, and is therefore not new. The motion before us does not include

an affidavit from the respondent explaining how the new evidence supports his

claim of extreme hardship. Nor is there any other evidence that specifically

explains his claim. The evidence that a second child was born and that the

respondent’s mother-in-law has become a citizen is not sufficient, in our view,

to warrant a remand so that the respondent may seek a hardship waiver.

Next, we conclude that the respondent’s motion should be denied as a

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matter of discretion. The Board has broad discretion to deny a motion to

reopen. See INS v. Doherty, 502 U.S. 314, 323 (1992); INS v. Rios-Pineda,

471 U.S. 444 (1985). In his decision, the Immigration Judge found that the

respondent’s “marriage was one set up solely for the purpose of procuring an

alien registration card for the Respondent and providing [his first wife] with

a monetary bonus for her assistance.” We agreed in our decision that “[t]he

respondent entered into his first marriage in order to obtain an immigration

benefit” and that “the respondent entered into a marriage for the purpose of

evading the immigration laws.” We continue to concur with the Immigration

Judge that the respondent entered into his first marriage for the purpose of

evading the immigration laws and obtaining an immigration benefit.

We find that the respondent’s entry into a false marriage and his attempt to

obtain immigration benefits based on that marriage are strong negative factors.

However, we must balance those adverse factors against the equities of record.

The respondent has resided in the United States for a lengthy period; he has

been married to his second wife, a United States citizen, since 1992; he has

two young United States citizen children; and his wife has family and other

significant ties in the United States. In considering the factors presented, we

find that the respondent’s attempt to circumvent our country’s immigration

laws by entering into a false marriage outweighs the positive factors.

Accordingly, even if the respondent’s motion had presented new material

evidence, we would deny the motion as a matter of discretion. See INS v.

Doherty, supra; INS v. Rios-Pineda, supra; 8 C.F.R. § 1003.2(a).

Accordingly, the respondent’s motion to remand will be denied.

ORDER: The motion is denied.

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