MENDES
(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,
(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.
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 rеcord 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
As a result of the withdrawal of support for the joint petition, the Service terminatеd 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 аllegation 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
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,
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,
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.”
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 deportatiоn 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.
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 thе language of the Act. Section
(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
(i) 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 90 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)(2)(A) provides that if
(i) 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 interviеw. 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 proрerly 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 petitioning spouse.” The joint nature of the petition is also reflected in the corresponding regulations. See
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
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 bеar the burden of proving otherwise in deportation proceedings under section 216(c)(2)(B) of the Act, or of demonstrating 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, thе 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. § 216.5].”
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
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 immigratiоn 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 bе 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 shе 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 mаrriage 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
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 statemеnt. However, the respondent has offered no evidence whatsoever 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(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. See
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 immigration judge for further proceedings consistent with this opinion and the entry of a new decision.