CA2 Remands for BIA Consideration of Hardship Waiver Under INA §216(c)(4)(A)

Cite as "AILA InfoNet Doc. No. 07012262 (posted Jan. 22, 2007)"

Singh v. U.S. DOJ, (2d Cir. August 29, 2006)

In evaluating an extreme hardship waiver under INA §216(c)(4)(A), the regulations at 8 CFR §216.5(e)(1) specifically permit consideration of factors that arose subsequent to the grant of conditional resident status. It is therefore, improper for the BIA to limit its consideration to factors that arose only during the period of conditional residence.

Petitioner became a conditional permanent resident on December 2, 1986 based on his marriage to a U.S. citizen. On August 18, 1987, his wife obtained an annulment of the marriage. In accordance with INA §216(c)(4)(B), Petitioner filed for a waiver of the joint filing requirement for removal of the conditional basis of his status, on the ground that the marriage had been entered into in good faith. The INS denied the application and initiated deportation proceedings. By this time, Petitioner's conditional resident status had lapsed. Petitioner reasserted his request for a good faith marriage waiver before the immigration judge during a number of hearings, which ran from August 1990 to July 1998. Meanwhile, in 1992, Petitioner married another U.S. citizen with whom he subsequently had two children in 1996 and 2000. On September 25, 2000, the IJ issued a written decision denying Petitioner's good faith marriage waiver. On appeal before the BIA, Petitioner conceded that he could not establish by a preponderance of the evidence that his marriage had been entered into in good faith, and requested that the Board remand his case to the IJ for consideration of an extreme hardship waiver based on his second U.S. citizen spouse and two U.S. citizen children. The BIA denied Petitioner's motion finding that (1) the hardships that formed the basis for the waiver arose after his period of conditional residence had lapsed and therefore, could not be considered; and (2) remand was not proper because Petitioner had elected not to seek a waiver before the IJ, and instead applied for a good faith marriage waiver.

On review, the government essentially argued the same reasons articulated by the BIA in its opinion. The court rejected the government's claim that §216(c)(4) hardship waivers must be based on facts and events that occurred during the period of conditional residency. The court pointed out the conflict between the statute and the regulations. INA §216(c)(4) states, "[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" (emphasis added). On the contrary, 8 CFR §216.5(e)(1) states that "only those factors that arose subsequent to the alien's entry as a conditional permanent resident" shall be considered upon review of an extreme hardship waiver (emphasis added). The court noted that neither the BIA, nor the courts of appeal have addressed this conflict, but concluded that it was not necessary to resolve it to decide the present case. In Montilla v. INS, 926 F.2d 162, 167 (2d Cir. 1991), the court adopted the Supreme Court's Accardi doctrine and interpreted it to hold that "the failure of the [BIA] and of the Department of Justice to follow their own established procedures [constituted] reversible error." See United States ex rel, Accardi v. Shaughnessy, 347 U.S. 260 (1954). The court stated that 8 CFR §216.5(e)(1) clearly allows factors that arose subsequent to the grant of conditional resident status to be considered in a hardship waiver and that accordingly, the BIA's holding runs contrary to regulations issued by the INS and constituted an abuse of discretion.

The court also rejected the government's second argument that the motion to remand was properly denied because Petitioner could have applied for a hardship waiver earlier but chose not to. The court noted that neither the BIA nor the government cited any authority to support its contention that an individual cannot pursue a waiver on remand for which he did not originally apply. Furthermore, the court concluded that a motion to remand which sets forth new evidence is tantamount to a motion to reopen. The IJ adjourned Petitioner's final hearing and reserved decision on July 6, 1998. At that time, Petitioner and his wife were raising their first child and by the time Petitioner filed his motion to remand in January 2001, his second child had been born. The court concluded that Petitioner's motion was premised on evidence that was previously unavailable and that the BIA's failure to evaluate whether the change in Petitioner's family circumstances between July 1998 and January 2001 was "material" was an abuse of discretion. The petition for review was granted, the BIA's decision was vacated and the case was remanded for further proceedings.