Vera Putro v. Loretta E. Lynch
828 F.3d 578
| 7th Cir. | 2016Background
- Vera Putro, a Latvian national, married U.S. citizen Michael Zalesky in 2004 and received conditional lawful permanent resident status in July 2006.
- Zalesky died in November 2006, within the two-year conditional period, making a joint I-751 petition impossible.
- Putro timely filed Form I-751 in June 2008, checking the box seeking a waiver of the joint-filing requirement because her spouse had died; USCIS construed the filing as a discretionary waiver request and denied it, alleging marriage fraud.
- The IJ and the Board treated the filing as a waiver request, placed the burden on Putro to prove the marriage was bona fide, found her testimony and witnesses unpersuasive, and ordered her removal.
- On review, the Seventh Circuit held that death during the conditional period exempts a petitioner from the joint-filing requirement (per Matter of Rose), so USCIS erred by treating Putro’s petition as a waiver and by shifting the burden of proof to her.
- The court granted the petition and remanded so the agency can adjudicate the I-751 under the correct standard (agency must disprove bona fides by a preponderance; removal of conditions is mandatory if requirements met).
Issues
| Issue | Putro's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether death of spouse during the two-year conditional period excused the joint-filing requirement | Death within the conditional period triggers the exemption; no discretionary waiver required | Agency initially treated petition as a discretionary waiver request | Exemption applies; petition should not have been treated as seeking a waiver |
| Proper burden of proof for bona fides of marriage on an exempted petition | If exempt, government must prove marriage was not bona fide by preponderance | Because USCIS construed it as a waiver, Putro must prove bona fides | Government bears burden to disprove bona fides on exempted petition; IJ erred in shifting burden |
| Applicability of discretionary waiver statute (8 U.S.C. §1186a(c)(4)(B)) | Waiver is inapplicable because termination by death is excluded | Agency relied on waiver provisions in denying relief | Waiver statute does not apply when spouse died; agency misapplied law |
| Remedy when agency misapplies exemption and burden | Remand for application of correct legal standard | Government sought remand to Board to consider Matter of Rose | Court remanded to agency for reconsideration under proper standard; petition granted |
Key Cases Cited
- Marin-Rodriguez v. Holder, 612 F.3d 591 (7th Cir. 2010) (remand standards and when court may decide legal issues rather than remanding)
- Lara v. Lynch, 789 F.3d 800 (7th Cir. 2015) (allocation of burden for discretionary waiver applicants)
- Zerrouk v. U.S. Att’y Gen., [citation="553 F. App'x 957"] (11th Cir. 2014) (recognizing exemption for death during conditional period while upholding substantial-evidence review on bona fides)