MENDES

Interim Decision #3224

MATTER OF MENDES

In Deportation Proceedings

A 29018206

-

Decided by Board June 16, 1994

(1)Although the Immigration and Nationality Act provides one ground of deportability

where conditional permanent resident status has been terminated, it sets forth three

means whereby such termination may take place, each reviewable in deportation

proceedings.

(2)Different procedural and substantive consequences follow from which section of law

the Immigration and Naturalization Service applies in terminating an alien's

conditional permanent resident status, including the allocation of the burdens of proof

in subsequent deportation proceedings

(3) Where the parties to a marriage have jointly filed a Petition to Remove the

Conditions on Residence (Form I-751) under section 216(c)(1) of the Act, 8 U.S.C.

§ 1186a(c)(I) (1988), but one of the parties withdraws support from the petition

beftne its adjudication, the joint petition shall he considered withdrawn and shall be

adjudicated under section 216(c)(2)(A) of the Act.

(4) When a respondent in deportation proceedings has not filed an application for a

waiver under section 216(c)(4) of the Act and is prima facie eligible for such relief, the

proceedings should be continued in order to grant the respondent a reasonable

opportunity to file the application before the regional service center director and for

the center director to decide the application.

CHARGE:

Order: Act of 1952—Sec. 241(a)(1)(DXi) [8 U.S.C. § 1251(a)(1)(D)(03—Conditional

resident status terminated

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:

Donal Eoin Reilly, Esquire Naomi G. Litvin

Iandoli & Associates General Attorney

36 Melrose Street

Boston, Massachusetts 02116

BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members

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

011

Interim Decision #3224

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 applica-

tion. 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.' 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(e)(2)(A)(i) for failure to file a joint petition.

At the hearing before the immigration judge, the respondent argued

that the Service improperly

i 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

1 We note that the Service's notice of termination discusses the events which allegedly

transpired at the interview. However, the operative fact in the decision was the

husband's withdrawal of support for the petition. We clarify here that we have made no

negative inference from the background statements contained in the notice of

termination, and our decision is in no way based on those statements. We further note

that as the basis for termination, the notice of termination erroneously cites section

216(c)(2)(B) of the Act, which relates to the initiation of deportation proceedings.

However, the parties agree that the basis of termination was section 216(c)(2)(A)(i).

li3z1

Interim Decision #3224

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 condi-

tional permanent resident status can occur in three ways. First, the

Service can affirmatively terminate the conditional permanent resi-

dent 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 condition-

al permanent resident status upon adjudicating the joint petition and

determining that the facts and information contained in the joint

2 Thcac applications were formerly filed on two separate forms, the joint petition being

Form 1-751, and the application for a waiver being Form 1-752. These applications have

now been consolidated into a new Form 1-751 (Petition to Remove the Conditions on

Residence), on which the applicant designates the grounds for the requested removal of

the conditional basis of the permanent resident status.

Interim Decision #3224

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 proceed-

ings. 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

21 6(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) (discussing the burden of proof in proceedings

premised on section 216(b)(2) of the Act).

In order to determine which section of law should be applied where

the petitioning spouse withdraws support for the joint petition before

it is adjudicated, we turn first to the language of the Act. Section

R14

Interim Decision #3224

216(c)(1) of the Act states that in order for the conditional basis of an

alien spouse's permanent residence to be removed,

(A)the alien spouse and the petitioning spouse (if not deceased) jointly must

submit to the Attorney General, during the period described in subsection (d)(2), a

petition which requests the removal of such conditional basis and which states, under

penalty of perjury, the facts and information described in subsection (d)(1), and

(B) in accordance with subsection (d)(3), the alien spouse and the petitioning

spouse (if not deceased) must appear for a personal interview before an officer or

employee of the Service respecting the facts and information described in subsection

(d)( 1 ).

Section 216(c)(3)(A) of the Act then provides that if

(1) a petition is filed in accordance with the provisions of paragraph (1)(A), and

(ii) the alien spouse and petitioning spouse appear at the interview described in

paragraph (1)(B),

the Attorney General shall make a determination, within 40 days of the date of the

interview, as to whether the facts and information described in subsection (d)(1) and

alleged in the petition are true with respect to the qualifying marriage.

On the other hand, section 216(c)(2XA) provides that if

(1) no petition is filed with respect to the alien in accordance with the provisions

of paragraph (1)(A), or

(ii) unless there is good cause shown, the alien spouse and petitioning spouse fail

to appear at the interview described in paragraph (1)(B),

the Attorney General shall terminate the permanent resident status of the alien as of

the second anniversary of the alien's lawful admission for permanent residence.

These sections of the Act make it clear that the alien spouse and the

petitioning spouse are required to act in tandem in filing the petition

and appearing for the interview. The respondent argues, and the

immigration judge found, that the filing and appearance requirements

are satisfied if the petition was filed and the parties appeared for the

interview, even if one of the parties withdraws from the joint petition.

In doing so, the respondent is simply arguing that under a strict

reading of the Act, the petition was "filed," and the parties "appeared"

for the interview and that the joint petition was therefore properly

pending before the Service. However, we give greater weight to the

Act's requirement that "the alien spouse and the petitioning spouse

... jointly must submit" the petition, and the Act's repeated reference

to the requirements imposed upon "the alien spouse and the petition-

ing spouse." The joint nature of the petition is also reflected in the

corresponding regulations. See 8 C.F.R. §§ 216.2(c), 216.4(a), (b), (c)

(1994). In short, if one party to the marriage withdraws support for the

petition, it can hardly be considered a "joint" petition any longer.

We also take into account the Act's use of the words "petitioning

spouse" in connection with the joint petition. The use of this phrase

reflects that the joint petition procedure is an extension of the initial

Interim Decision #3224

visa petition procedure of section 204 of the Act, 8 U.S.C. § 1154

(1988 & Supp. V 1993). As such, the petitioning spouse is clearly

contemplated as being an integral part of the removal of the

conditional basis of the alien's lawful permanent resident status under

the joint petition procedure. In this connection, we note that the

regulations have long provided that written withdrawal by the

petitioner of a relative visa petition prior to the alien's adjustment of

status or entry on the basis of that petition constitutes automatic

revocation of the petition, even though it was already approved. 8

C.F.R. § 205.1(a)(1) (1994). Thus, it is consistent with the existing

statutory and regulatory scheme to hold that written withdrawal by the

petitioner automatically withdraws the joint petition from consider-

ation.

As discussed above, the burdens of proof in deportation proceedings

differ depending on whether the joint petition is considered as not

filed or is reviewed on its merits. In the context of a withdrawn

petition, the net result is that if the Service terminates the alien's status

on the ground that the joint petition is considered not properly filed,

the respondent will bear the burden of proving otherwise in deporta-

tion proceedings under section 216(c)(2)(B) of the Act, or of demon-

strating that a waiver is warranted under the provisions of section

216(c)(4). The respondent argues that this shift of the burden of proof

onto her because of her husband's withdrawal of support for the joint

petition is unfair. However, we find that the, shift in the burden of

proof is consistent with the statutory structure and intent.

If a withdrawn petition is considered as not filed, the respondent is

simply placed in the position of an alien whose spouse refuses to join

in the filing of a joint petition. The regulations provide that "if the

petitioning spouse refuses to join in the filing of the petition, the

conditional permanent resident may apply for a waiver of the

requirement to file the joint petition in accordance with the provisions

of [8 C.F.R. § 216.51." 8 C.F.R. § 216.4(a)(1) (1994); see also section

216(c)(4) of the Act. Thus, the Act and the regulations anticipate the

possibility that marriages entered into in good faith may have broken

down by the time the 2 year anniversary of the grant of status arrives

-

and provide the waivers of section 216(c)(4) to address those cases in

which the petitioning spouse refuses to proceed. In doing so, Congress

chose to shift the burden of proof onto the alien to show that even

though the marriage failed, it was entered into in good faith.

Withdrawal of support for a joint petition by the petitioning spouse

does not necessarily demonstrate that the marriage was entered into in

bad faith. Nevertheless, it is bound to raise the question as to whether

that is the case. Hence, where the petitioning spouse refuses to join in

filing the joint petition or withdraws support from it, it is not

838

Interim Decision #3224

surprising that the Act then shifts the burden onto the alien to

demonstrate that the marriage was nevertheless entered into in good

faith.3

We find further support for our interpretation of the Act upon

consideration of the difficulties posed by the immigration judge's

decision to terminate proceedings. In adjudicating a joint petition or

waiver under section 216 of the Act in deportation proceedings, an

immigration judge is authorized to terminate proceedings and remove

the conditional basis of the respondent's permanent residence upon

finding in the respondent's favor. Here, however, the immigration

judge has not found that the marriage was bona fide, but has instead

simply terminated proceedings on the basis that the Service applied

the wrong standard in adjudicating the petition. However, this leaves

the respondent in legal limbo, as she is no longer a lawful permanent

resident, yet she also has not been found deportable. An alternative

might have been for the immigration judge to consider the joint

petition on its merits, since he considered it to still be a valid petition

despite the -withdrawal. However, this would result in the anomalous

situation in which the immigration judge would be adjudicating a

"joint" petition for which one of the parties has withdrawn support.

Hence, we find the only tenable approach to be that the petition is to

be considered as if never filed, and the respondent is left to pursue

whatever other remedies are provided by the Act.

The respondent also argues that it is unfair that she did not receive

the additional notice and opportunity to respond which would have

been afforded her if the joint petition had been denied on its merits

rather than considered withdrawn. Specifically, she complains that she

has not had an opportunity to respond to the statements regarding her

marriage in the notice of termination. We find no merit to this claim.

Since the petition has not been judged on its merits, there are no

findings regarding her marriage to rebut. Evidence of the bona fides of

her marriage can be presented in conjunction with an application for a

waiver, should she decide to pursue that course of action.

In her brief on appeal, the respondent also attempts to raise a

3 We note that the Service has taken the position that the present viability of a

marriage is not at issue in adjudicating joint petitions. See INS Legal Opinion, Paul

Virtue, INS Acting General Counsel (January 25, 1991), reported and reproduced in 69

Interpreter Releases, No. 2, January 13, 1992, at 80; cf. Matter of Soriano, 19 I&N Dec.

764 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of McKee, 17

I&N Dec. 332 (BIA 1980) (stating that the central question in visa petition cases is

whether the bride and groom intended to establish a life together at the time they were

married). Hence, if the petitioning spouse is willing to proceed with a joint petition

despite ongoing marital difficulties, the parties may do so. If not, the alien is left with the

waivers in section 216(0(4) of the Act.

Interim Decision #3224

factual issue regarding her husband's written withdrawal of support for

the petition. The respondent argues that it is not clear what was

intended by the statement, and that in particular it is not clear whether

her husband intended to withdraw the petition itself. We find no merit

to these contentions. There is no ambiguity in the husband's state-

ment, "It is my intention at this time to withdraw my support of the

joint petition in behalf of Maria Rodriguez (sic) Mendes." A joint

petition under section 216(c)(1) of the Act requires two petitioners,

and it is clear as a factual matter that the respondent's husband

withdrew his support from his portion of the joint petition. The

question of whether that withdrawal of support results in withdrawal

of the joint petition itself is precisely the question of law we have

addressed here. It does not depend on the personal intention of the

petitioning spouse.

Finally, the respondent suggests that the Service prevailed upon her

husband to withdraw the petition against his will. This suggestion even

seems to have influenced the immigration judge's decision, which

states that the respondent's husband was "prevailed upon" to sign a

statement. However, the respondent has offered no evidence whatso-

ever at the hearing or on appeal to support this allegation. As this

claim is entirely unsubstantiated, we need not address it here.

Accordingly, the appeal by the Service will be sustained, and this

matter will be remanded to the immigration judge in order to afford

the parties the opportunity to proceed in a manner consistent with this

opinion, including the filing of a waiver request before the Service, if

the respondent so chooses. In this regard, we note that when a

respondent in deportation proceedings has not filed an application for

a waiver under section 216(0(4) of the Act and is prima facie eligible

for such relief, the proceedings should be continued in order to grant

the respondent a reasonable opportunity to file the application before

the regional service center director and for the center director to

decide the application. See 8 C.F.R. §§ 216.5(c), 242.13 (1994); cf

section 216(d)(2)(C) of the Act. If the application is denied by the

center director, then it may be submitted to the immigration judge for

review pursuant to 8 § 216.5(1) (1994).

ORDER: The appeal by the Immigration and Naturalization

Service is sustained.

FURTHER ORDER: The decision of the immigration judge

terminating these proceedings is vacated.

FURTHER ORDER: The record is remanded to the immi-

gration judge for further proceedings consistent with this opinion and

the entry of a new decision.

OAA