INA Section 216(c)(4) Hardship Waiver

Under 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.

Termination 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).

Any 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. See 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).

If 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).

In 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 C.F.R. 1216.5(e)(1). INA 216(c)(4) cannot be used to waive a sham marriage. See Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991) (finding that part of IMFA was designed to check the validity of marriages and to ensure that aliens could not sidestep the immigration laws by entering into fraudulent marriages).

In 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 id.; Matter 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. at 387.  

In 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.