Removal of Conditions:  I-751

Statutes and Regulations

INA 216 Removal of Conditions hardship waiver for battered spouses is located here in INA 216(c)(4)(C); 8 USC 1186a(c)(4)(C).

8 CFR 216.5(e)(3)(ii):  Definition of "was battered by or was the subject of extreme cruelty" for waiver to remove conditions.

Cases

Appeals Courts

5th Circuit

5th Circuit found that there is no requirement of a good-faith marriage for an extreme hardship waiver to remove conditions.  Waggoner v. Gonzales Case #05-60625 5th Cir. May 30, 2007.

BIA

Matter of Anderson, 20 I. &N. Dec. 888, Interim Decision (BIA) 3231 (1994).  (1) A conditional permanent resident alien who seeks to remove the conditional basis of that
status by means of a waiver under section 216(c)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(c)(4) (1988), should apply for any applicable waiver provided under that section.  (2) An alien whose application for a specific waiver under section 216(c)(4) of the Act has been denied by the Immigration and Naturalization Service may not seek consideration of an alternative waiver under that section in deportation proceedings before the immigration judge.  (3) Where an alien becomes eligible for an additional waiver under section 216(c)(4) of the Act due to changed circumstances, the proceedings may be continued in order to give the alien a reasonable opportunity to submit an application to the Service.  (4) Inasmuch as the Board of Immigration Appeals only has authority to review a waiver application after the Service and the immigration judge have considered it, an alien may not apply for a waiver under section 216(c)(4) of the Act on appeal.

Matter of Lemhammad, 20 I. & N. Dec. 316, (BIA) 3151 (1991). (1)In a deportation proceeding where the alien is charged with deportability pursuant to section 241(a)(9)(B) of the INA, as an alien whose status as a conditional permanent resident has been terminated under section 216(b) of the Act, the burden is on the INS to show by a "preponderance of the evidence" that one of the conditions for termination of status described in section 215(b)(1)(A) of the Act has been met.  (2)  Original jurisdiction to rule on the merits of an Application for Waiver of Requirement to File Joint Petition for Removal of Conditions (Form I-752) rests only with the appropriate regional service center director, and not the IJ.

Matter of Stoward, 22 I. & N. Dec. 605, (BIA) 3383 (1999)   (1) An alien whose conditional permanent residence was terminated by the Immigration and Naturalization Service under section 216(b) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(b) (1994), before the 90-day petitioning period preceding the second anniversary of the grant of status, may file an application for a waiver under section 216(c)(4) of the Act, 8 U.S.C. § 1186a(c)(4).   (2) Where an alien is prima facie eligible for a waiver under section 216(c)(4) of the Act and wishes to have the Service adjudicate an application for such waiver, proceedings should be continued in order to allow the Service to adjudicate the application. Matter of Mendes, 20 I&N Dec. 833 (BIA 1994).

 

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