Interim Decision #3233 

MATTER OF NWOKOMA 

In Deportation Proceedings 

A-27106733 

Decided by Board October 28, 1994 

The Immigration and Naturalization Service retains authority to deny a Joint Petition 

to Remove the Conditional Basis of Alien's Permanent Resident Status (Form I-751) 

pursuant to section 216(c)(3XA) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1186a(c)(3)(A) (Supp. IV 1986), notwithstanding the Service's failure to adjudicate the 

joint petition within 90 days of the interview of the alien and his or her spouse. 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(1)(D)(i) [8 U.S.C. § 1251(a)(1)(D)(i)l—Conditional 

resident status terminated 

ON BEHALF OF RESPONDENT; 

Dick Ginsburg, Esquire 

Ginsburg & Neal 

Colonial Plaza, Building A, Suite 150 

1049 S.W. Baseline 

Hillsboro, Oregon 97123 

ON BEHALF OF SERVICE: 

David 13. Hopkins 

General Attorney 

BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members 

On February 10, 1993, an immigration judge terminated proceedings in this matter because the Immigration and Naturalization 

Service had not adjudicated the respondent's Joint Petition to Remove 

the Conditional Basis of the Alien's Permanent Resident Status (Form 

1-751) within 90 days of the Service interview regarding the joint 

petition.2 

The Service has appealed. The appeal will be sustained and the record 

remanded to the immigration judge for further proceedings. 

The respondent is a 29-year-old native and citizen of Nigeria. On 

I Respondent's counsel has filed a motion to withdraw his appearance. The request is 

granted for all purposes except receipt of this decision. See Matter of Rosales, 19 I&N 

Dec. 655 (BIA 1988). 

2The record reflects that on February 23, 1993, the immigration judge entered a 

supplemental order in which he removed the conditional basis of the respondent's 

Permanent residence. 

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Interim Decision #3233 

March 4, 1984, the respondent entered the United States as a 

nonimmigrant student. On November 17, 1987, the respondent 

acquired conditional permanent resident status under section 

216(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1186a(a)(1) (Supp. W 1986), by virtue of his marriage to a United 

States citizen. On or about November 6, 1989, the respondent and his 

spouse filed a joint petition under section 216(c)(1)(A) of the Act. On 

January 19, 1990, the respondent and his wife were interviewed by an 

officer of the Service pursuant to section 216(c)(1)(B) of the Act. On 

March 25, 1991, more than 14 months after the date of the interview, 

the Service issued a decision denying the joint petition on the ground 

that the respondent's marriage was entered into for the purpose of 

procuring his admission as an immigrant. The Service terminated the 

respondent's conditional permanent residence on or about January 28, 

1992. 

Deportation proceedings were accordingly initiated under section 

241(a)(1)(D) of the Act, 8 U.S.C. § 1251(a)(1)(D) (Supp. III 1991). At 

a deportation hearing before the immigration judge on February 10, 

1993, the respondent moved to terminate the proceedings because the 

Service had not adjudicated the joint petition within 90 days of the 

interview, as required by section 216(c)(3)(A) of the Act. The 

immigration judge granted the respondent's motion to terminate the 

proceedings on this basis, and the Service's appeal followed. 

On appeal, the Service submits first that it did make a "determination," within 90 days of the interview, that the respondent had not 

entered into his marriage in good faith. In the alternative, the Service 

contends that the immigration judge erred by terminating the proceedings due to its failure to adjudicate the joint petition within 90 days of 

the interview. The Service relies on the Supreme Court's decision in 

Brock v. Pierce County, 476 U.S. 253 (1986), as support for the 

position that the Service retains authority to deny a joint petition even 

where the petition has not been adjudicated within 90 days of the 

interview. In that case, the Supreme Court stated: 

This Court has frequently articulated the "great principle of public policy, applicable 

to all governments alike, which forbids that the public interests should be prejudiced 

by the negligence of the officers or agents to whose care they are confided." [citations 

omitted]. We would be most reluctant to conclude that every failure of an agency to 

observe a procedural requirement voids subsequent agency action, especially when 

important public rights are at stake. 

Id. at 260. 

Section 216(c)(3)(A) of the Act provides in pertinent part that 

following an alien's submission of a joint petition and his appearance 

with his spouse for an interview regarding that petition, "the Attorney 

General shall make a determination, within 90 days of the date of the 

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Interim Decision #3233 

interview, as to whether" the information in the joint petition is true. 

The regulations, in turn, provide that following submission of the joint 

petition, "Mlle director shall adjudicate the petition within 90 days of 

the date of the interview, unless the interview is waived in accordance 

with paragraph (b)(1) of this section." 3 C.F.R. § 216.4(0 (1994). 

We find no merit to the Service's initial argument on appeal. The 

Service submits that the examining officer who conducted the 

interview of the respondent and his spouse did make a "determination" concerning the joint petition within 90 days of the interview. 

According to the Service, the examining officer must have decided that 

the joint petition should be denied because she prepared a Record of 

Deportable Alien (Form 1-213) immediately after she conducted the 

interview of the respondent and his spouse. However, the regulations 

at 8 C.F.R. § 216.4(d)(2) (1990) provide that the Service shall give 

"written notice" to the alien of the decision to deny a joint petition. 

The respondent here did not receive "written notice" of the decision to 

deny the joint petition until, at the earliest, March 1991. We therefore 

conclude that the Service did not make a "determination," within the 

meaning of the Act and the regulations, to deny the joint petition 

within 90 days of the January 1990 interview. 

The alternative argument presented by the Service is that the 

immigration judge misconstrued the Act and the regulations by 

terminating the proceedings due to the Service's failure to adjudicate 

the joint petition within 90 days of the interview of the respondent and 

his spouse. The immigration judge reasoned that the 90-day requirement for the Service to adjudicate the joint petition is stated in 

mandatory terms and therefore is binding on the Service. The 

immigration judge concluded that if the Service does not adjudicate 

the Form 1-751 within 90 days of the interview, the conditional basis 

of the alien's permanent residence should be removed, and deportation proceedings should be terminated. 

Despite the language in the statute and the regulations indicating 

that the Service "shall" adjudicate the joint petition within 90 days of 

the interview, the Service contends on appeal that it retains authority 

to deny a joint petition after the 90-day period has expired. As noted 

earlier, the Service cites Brock v. Pierce County, supra, to support its 

position that the language of the Act is directory, not mandatory, and 

does not deprive the Service of jurisdiction over the joint petition after 

expiration of the 90-day time limit. The Service argues that to hold 

otherwise would contravene the congressional intent behind the 

Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-

639, 100 Stat. 3537 ("IMFA"), which enacted the provisions of section 

216 of the Act. The bulk of the Service's argument is based on a legal 

opinion issued by the General Counsel for the Service on June 21, 

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1990, entitled "INS' ability to deny petition for change in permanent 

resident status after expiration of the statutory time limit." 

We find that the proper construction of section 216 requires that 

flexibility be built into this statutory scheme, rather than a rigid 

adherence to the 90-day provision. We find such an approach to be 

consistent with the purposes of the Act, as well as with the Supreme 

Court's decision in Brock v. Pierce County, supra. Section 216 of the 

Act was enacted as part of the IMFA. The purpose of that act was to 

deter marriage fraud. See H.R. Rep. No. 906, 99th Cong., 2d Sess. 

(1986), reprinted in 1986 U.S.C.C.A.N. 5978. The IMFA created 

section 216 of the Act as a means of checking the validity of marriages 

by which aliens have attained permanent resident status. Section 216 

provides that an alien spouse who is granted permanent resident status 

by means of marriage to a United States citizen shall be granted such 

status on a conditional basis. That condition must be lifted by the 

approval of a second petition filed within 90 days before the second 

anniversary of the date on which the alien obtained lawful admission 

for permanent residence. By requiring the alien and spouse to apply to 

the Service to lift the conditional basis of the permanent residence, the 

IMFA was designed to ensure that aliens could not side-step the 

immigration laws by entering into a fraudulent marriage. See Matter of 

Stockwell, 20 I&N Dec. 309 (BIA 1991). 

The Service argties that to preclude it from denying joint petitions 

when the 90-day limit has not been met would contravene the purpose 

of the IMFA. The Service further argues that had Congress intended to 

bestow a benefit on conditional permanent residents who engaged in 

marriage fraud, merely because the Service failed to act upon their 

petitions within the deadline, it would have explicitly done so. We 

agree. Congress' failure to impose a penalty on the Service for failure 

to abide by the 90-day deadline is in marked contrast to the 

consequences for an alien who fails to comply with the 90-day 

requirement for filing the joint petition. 3The imposition of a penalty 

on the applicant for failure to timely file the petition is consistent with 

the purpose of the Act in ensuring that fraudulent marriages are 

uncovered in a timely manner. Imposing the filing deadline, as well as 

consequences for failure to do so, ensures that aliens who have entered 

3The Act and the regulations provide that lawful permanent resident status is 

automatically terminated if the alien and his or her spouse do not file a joint petition to 

remove the conditional basis of permanent residence within the 90-day period 

immediately preceding the second anniversary of the date on which the alien obtained 

lawful pciinclicat =sick= on a conditional back. Section 216(c)(2)(A) of the Act; ft 

C.F.R. § 216.4(a)(6)+(1994); see also sections 216(0(1)(4 (3)(A), (dX2) of the Act; 8 

C.F.R. §§ 216.2(c), 216.4(a)(1) (1994). That deadline may only be waived for good cause 

shown. Section 216(d)(2)(B) of the Act; 8 C.F.R. § 216.4(a)(6) (1994). 

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Interim Decision #3233 

into marriages merely to procure immigration benefits cannot indefinitely prolong their conditional permanent resident status by failing to 

file the joint petition during the requisite period. 

In contrast, while Congress clearly intended for the adjudication 

process to proceed in a timely manner (as indicated by the deadlines 

for interviewing and for adjudicating the petitions), Congress did not 

provide for the alien to be granted benefits regardless of merit where 

the Service did not comply with the deadlines. To do so would have 

sacrificed the central purpose of IMFA, namely, preventing the 

acquisition of immigration benefits by fraudulent marriages, to the 

cause of efficiency. 

Accordingly, we concur with the Service that the deadline imposed 

upon the Service falls within the holding of the Supreme Court in 

Brock v. Pierce County, supra. See also Saratoga Savings and Loan v. 

Federal Home Loan Bank, 879 F.2d 689 (9th Cir. 1989); Sierra Pacific 

Industries v. Lyng, 866 F.2d 1099 (9th Cir. 1989). As was the case 

there, the Act nowhere specifies the consequences of a failure by the 

government agency to meet the statutory deadline. Brock v. Pierce 

County, supra, at 259. Moreover, just as in Brock, the remedy 

suggested here for the Service's failure to meet the deadline (automatic 

lifting of the conditional basis of the permanent resident status) would 

run directly counter to the fundamental purpose of the statutory 

provisions in question, namely, to prevent and deter marriage fraud. 

Id at 263-64. 

It is, of course, well settled that when interpreting a statute, the 

plain meaning of the words used in the statute should ordinarily be 

applied. There is a "strong presumption that Congress expresses its 

intent through the language it chooses." INS v. Cardoza-Fonseca, 480 

U.S. 412, 432 n.12 (1987); see also Matter of Lemhammad, 20 I&N 

Dec. 316, 320-21 (BIA 1991). In Brock v. Pierce County, Supra, at 

262, however, the Supreme Court declined to interpret the language in 

section 106(b) of the Comprehensive Employment and Training Act 

("CETA"), Pub. L. No. 95-524, 92 Stat. 1909, 1926 (1978), codified at 

29 U.S.C. § 816(b) (Supp. V 1981), which provided that the Secretary 

of Labor "shall" issue a final determination regarding alleged abuse of 

CETA funds within 120 days of the receipt of the complaint, in such a 

manner as to preclude the Secretary from taking action after the 120-

day period had expired. 4Similarly in this case, and notwithstanding 

the language in section 216(c)(3XA) 'which provides that the "Attorney 

General shall" adjudicate the joint petition with 90 days of the 

interview, we conclude that the Service retains authority to deny a 

4CETA was repealed by the Job Training Partnership Act, Pub. L No. 97 -300, 

§ 184(a), 96 Stat. 1322, 1357 (1982). See Brock v. Pierce County, supra, at 255 n.1. 
Interim Decision #3233 

joint petition even in those cases where it fails to take action prior to 

the end of the 90-day period. We observe that if we were to treat the 

language that the "Attorney General shall" adjudicate within 90 days 

of the interview as mandatory, we would not only have to ignore the 

legislative history in IMFA regarding prevention of marriage fraud, we 

would also have to overlook the statutory language in section 

216(c)(3)(B) of the Act, which provides for removal of the conditional 

basis of an alien's permanent residence only where the Attorney 

General determines that the "facts and information [in a joint 

petition] are true." For all of the foregoing reasons, we conclude that 

the statutory language concerning the 90-day period for adjudication 

of the joint petition is merely directory, and not mandatory. 

We note finally that the Supreme Court state4 in Brock v. Pierce 

County, supra, that "[w]hen as here, there are less drastic remedies 

available for failure to meet a statutory deadline, courts should not 

assume that Congress intended the agency to lose its power to act." Id. 

at 260. One of the less drastic remedies suggested by the Court in that 

case was resort to a suit in federal district court to compel agency 

action on the basis of the Administrative Procedures Act ("APA"). Id. 

at 260 n.7. We point out that, while deportation proceedings are 

exempt from the provisions of the APA, rulemaking under the Act and 

other agency actions are not included within that exemption. See 

Matter ofAnselmo, 20 I&N Dec. 25 (BIA 1989); Matter of edorenko, 

19 I&N Dec. 57, 63-64 (BIA 1984). 

We conclude that the Service's failure to abide by the 90-day 

deadline does not result in the Service's loss of jurisdiction over the 

joint petition or in the automatic removal of the conditional basis of 

the respondent's lawful permanent resident status. Whether the 90 -day 

deadline imposed on the Service is enforceable by some other means in 

another forum is not for us to decide here. Accordingly, the appeal will 

be sustained, the decision of the immigration judge terminating 

proceedings reversed, and the record remanded for further proceedings. On remand, the Service retains the burden of proving the 

respondent's deportability pursuant to section 216(c)(3)(D) of the Act. 

ORDER: The appeal is sustained. 

FURTHER ORDER: The decision of the immigration judge 

terminating proceedings is reversed and the record is remanded to the 

immigration judge for further proceedings. 

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