Section 216(c)(4) Hardship Waiver
section 216 of the Act, immigrants who obtain their lawful permanent
residence based on marriages to U.S. citizens or lawful permanent
residents are granted conditional resident status for two years. To
remove the conditional basis of the alien’s permanent residence,
the alien and the alien’s spouse must file, within ninety days
before the two-year anniversary of the grant of conditional residence,
a joint petition, Form I-751, with DHS and appear for a personal interview.
INA 216(c)(1); 8 C.F.R. 1216.4.
If DHS deems that the marriage was entered into in good faith, the
conditions on the alien spouse’s residency are removed. Id.
of an alien’s conditional resident status can occur in one of
several ways. First, under INA 216(b)(1), DHS may terminate an alien’s
conditional resident status before the expiration of the two-year
conditional period if it determines that the qualifying marriage is
fraudulent, that it was judicially annulled or terminated, or that
a fee or other consideration was given for the filing of the marriage
petition. 8 C.F.R. 1216.3(a); see
also Matter of Lemhammad,
20 I&N Dec. 316 (BIA 1991). The Department may also terminate
the conditional status for failure to timely file a joint petition
or to appear for a scheduled interview before a DHS officer. INA 216(c)(2)(A);
8 C.F.R. 1216.4(a)(6). In addition, the Department may terminate an
alien’s conditional resident status upon adjudicating the joint
petition and determining that the facts and information contained
therein are untrue. INA 216(c)(3)(C); 8 C.F.R. 1216.4(c).
alien whose conditional permanent resident status has been terminated
under INA 216 is removable. INA 237(a)(1)(D)(i). An alien has the
right to request a review of the Department’s determination
to terminate her conditional resident status in removal proceedings.
INA Section 216(b)(2), (c)(2)(B), and (c)(3)(D); Matter
of Gawaran, 20 I&N Dec. 938, 942 (BIA 1995), aff’d,
91 F.3d 1332 (9th Cir. 1996).
an alien fails to meet the joint petition requirements under INA 216(c)(1),
the alien may file a Form I-751 application, indicating she is applying
for a discretionary waiver of the requirement to file the petition.
INA 216(c)(4); 8 C.F.R. 1216.5; see
also Matter of Tee,
20 I&N Dec. 949, 951-952 (BIA 1995); Matter
of Anderson, 20 I&N Dec. 888 (BIA 1994); Matter
of Balsillie, 20 I&N Dec. 486 (BIA 1992).
An alien applying for a Section 216(c)(4) waiver must demonstrate
that: (1) “extreme hardship” will result if the alien
is removed; (2) the qualifying marriage was entered into in good faith
by the alien spouse, but the marriage has been terminated, other than
by death, and the alien was not at fault in failing to meet the
joint petition and interview requirements; or (3) the qualifying marriage
was entered into in good faith by the alien spouse and during
the marriage, the alien spouse or child was battered or subjected
to extreme cruelty by her spouse or citizen or permanent resident
parent and the alien was not at fault in failing to meet the joint
petition and interview requirements. INA 216(c)(4); 8 C.F.R. 1216.5(a)(i)-(iii).
considering an application for a Section 216(c)(4) waiver based upon
a claim of “extreme hardship,” only those factors that
arose subsequent to the aliens’s entry as a conditional permanent
resident should be taken into account. INA 216(c)(4); 8 C.F.R.
1216.5(e)(1). Further, there is no conflict between INA § 216(c)(4)
and its implementing regulation at 8 C.F.R. § 1216.5(e)(1) (BIA
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. Matter
of Singh, 24 I&N Dec. 331 (BIA 2007). Although any removal
from the U.S. is likely to result in a certain degree of hardship,
only in those cases where the hardship is extreme should the waiver
be granted. 8
INA 216(c)(4) cannot be used to waive a sham marriage. See
of Stockwell, 20 I&N Dec. 309 (BIA 1991) (finding that
IMFA was designed to check the validity of marriages and to ensure
that aliens could not sidestep the immigration laws by entering into
considering whether an alien entered into a qualifying marriage in
good faith, evidence relating to the commitment of both parties to
the marital relationship is to be considered. 8 C.F.R. 1216.5(e)(2).
Such evidence may include documents relating to the degree to which
the financial assets and liabilities of the parties were combined,
documents relating to the length of time the parties cohabited after
the marriage and after the alien obtained conditional resident status,
birth certificates of children born to the marriage, testimony regarding
courtship, the wedding ceremony, shared residences and experience,
as well as other pertinent evidence. See
of Patel, 19 I&N Dec. 774, 784 (BIA 1988); Matter
of Phillis, 15 I&N Dec. 385, 387 (BIA 1975). The conduct
after the marriage can also be considered when looking to the intent
at the time of the marriage. Id.
considering an application for a Section 216(c)(4) waiver under subsection
(C), the phrase, “was battered
by or was the subject of extreme cruelty” includes, but is not
limited to, being the victim of any act or threatened act of violence,
including any forceful detention, which results or threatens to result
in physical or mental injury. 8 C.F.R. 1216.5(3).
Psychological or sexual abuse or exploitation, including rape, molestation,
incest, or forced prostitution are considered acts of violence. Id.
TO GENERIC TEMPLATE