Matter of Rose – I751 Waiver Not Required

A hardship waiver of Petition to Remove Conditions is not required if the U.S. citizen spouse died during the 2-year conditional period.

The U.S. Department of Justice Board of Immigration Appeal (“BIA”) made a decision on an appeal case on January 25, 2010 in which the BIA said that a conditional resident from marrying a U.S. citizen, who has timely filed form I-751 (petition to remove condition) and appeared for the interview, does not need a Immigration and Naturalization Act (“INA”) hardship waive in the situation that the U.S citizen spouse died during the 2-year conditional period.

In the Matter of Rose decided by the BIA, Lynette Rose was married to Lloyd Rose, a U.S. citizen, in September 1995. Mr. Rose died of a heart attack on October 26, 1995. Mrs. Rose timely filed a Petition to Remove Conditions on Residence (Form I-751) and appeared in the former Immigration and Naturalization Service (“INS”, now is the U.S. Citizenship and Immigration Services) for an interview. On May 20, 1999, the INS issued a Notice of Intent to Deny, advising Mrs. Rose that her responses at the interview and evidence failed to demonstrate bona fides of the marriage, which raised questions about whether the marriage was entered into solely for purposes of gaining immigration benefit.

On August 4, 1999, the former INS issued a Notice of Adverse Action denying the I-751 petition and terminating the Mrs. Rose’s conditional lawful permanent resident status. The decision noted that the Mrs. Rose’s petition was denied “for the reasons stated in the Service’s intent.” Mrs. Rose was then placed in removal proceedings in Immigration Court.

An Immigration Judge reviewed Mrs. Rose I-751 petition in the removal proceedings. The Immigration Judge also denied the petition on the grounds that the petition (i) was not jointly filed and (ii) the Mrs. Rose did not establish that she was eligible for a INA section 216(c)(4) waiver of the joint petition and interview requirements in section 216(c)(1) of the Act.

Section 216(c)(1) of INA provides two requirements for removing the conditional basis of an alien spouse’s status, a petition and an interview. The two requirements are:

  • (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).

After reviewing the appeal the BIA decided that sections 216(c)(1)(A) and (B) expressly exempt alien spouses whose petitioning spouses are deceased from the “joint” filing and interview requirements. Therefore, as a widowed conditional resident who timely filed a form I-751 and appeared for a personal interview, Mrs. Rose was not an alien who fail[ed] to meet” the section216(c)(1) requirements. Rather, Mrs. Rose complied with the requirements of sections 216(c)(1)(A) and (B) when she timely filed her I-751petition to remove the conditions on her residence with the former INS and appeared at her scheduled interview.

As a result, Mrs. Rose did not need a section 216(c)(4) waiver in order for her I-751 petition to be decided on the facts asserted pursuant to the requirements in the INA, which must be established in all I-751 petitions whether jointly filed or not.

In sum, the BIA finds that the death of a petitioning spouse during the 2-year conditional period excuses the general requirement that a petition to remove the conditional basis of an alien spouse’s status must be “joint.” Thus, a separate waiver under section 216(c)(4) of the INA is not required if the surviving spouse timely files an I-751 petition requesting removal of the conditional basis of his or her status and appears for a personal interview.

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