Interim Decision #3231 

MATTER OF ANDERSON 

In Deportation Proceedings 

A-42057285 

Decided by Board September 30, 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. 

CHARGE: 

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

resident status terminated 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Ann E. Benson, Esquire Robert Solmonson 

Catholic Social Services District Counsel 

3710 East 20th Avenue, Suite 

Anchorage, Alaska 99508-3418 

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

Alternate Board Member 

In a decision dated August 13, 1992, the immigration judge found 

the respondent deportable under section 241(a)(1)(D)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1)(D)(i) (Supp. IV 

1992), as an alien whose conditional permanent resident status had 

been terminated, and granted her request for voluntary departure. The 

respondent has appealed from the immigration judge's finding of 

deportability. The appeal will be dismissed. 

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Interim Decision #3231 

The respondent is a 31-year-old native and citizen of the Philippines. On September 11, 1989, she entered the United States as a 

conditional permanent resident pursuant to section 216 of the Act, 8 

U.S.C. § I 186a (1988), on the basis of her February 23, 1989, 

marriage to a United States citizen. On September 10, 1991, the 

respondent filed an Application for Waiver of Requirement to File 

Joint Petition for Removal of Conditions (Form 1-752) with the 

Immigration and Naturalization Service. 

The respondent was interviewed by the Service regarding her waiver 

application on November 21, 1991. A transcript of the interview was 

presented by the Service at the hearing and was admitted into evidence 

without objection from the respondent. The respondent's statements 

during the interview and her testimony during the hearing were 

consistent. The following facts are not in dispute. 

The respondent began corresponding with her husband by letter 

approximately 1 year before their marriage. The correspondence was 

initiated through the respondent's sister and brother-in-law. The 

respondent's sister is married to a United States citizen and lives in 

Kodiak, Alaska, as did the respondent's husband. At the time they 

began writing to each other, the respondent's husband was married. He 

obtained a divorce from his wife on January 30, 1989. He then 

traveled to the Philippines, arriving on February 12, 1989, when the 

respondent met him for the first time. They were married in the 

Philippines on February 23, 1989. 

The respondent's husband returned to Kodiak in early March. He 

then began living with another woman. The respondent was informed 

of this development by her sister. In July 1989 she began seeing a man 

in the Philippines by whom she became pregnant. The respondent 

entered the United States as a conditional permanent resident on 

September 11, 1989, to join her husband. She was greeted by her 

brother-in-law, who drove her to her husband's home. When the 

respondent saw that another woman was still living with her husband, 

she immediately asked her brother-in-law to take her to stay with her 

sister. She has since remained with her sister and brother-in-law. Her 

son was born on April 27, 1990. According to the respondent's waiver 

application, her son has been residing in the Philippines since 

December 19, 1990. The respondent provided babysitting services at 

her sister's home for her husband's son from his previous marriage and 

allowed her husband to visit her there until he moved to Fairbanks, 

Alaska. The respondent has not seen her husband since he left in 

November 1989, although she has communicated with him by 

telephone. 

The Act provides two means by which the conditional basis of a 

conditional permanent resident's status may be removed. The alien 

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Interim Decision #3231 

and the United States citizen spouse may file a joint petition to 

remove the conditional basis of the alien's permanent resident status 

under section 216(c)(1) of the Act, or the alien may file an application 

for a waiver of the requirement to file a joint petition under section 

216(c)(4).' Matter of Mendes, 201:N Dec. 833 (BIA 1994); Matter of 

Balsillie, 20 I&N Dec. 486 (BIA 1992). Section 216(c)(1)(A) of the Act, 

through reference to section 216(4)(2), requires that the joint petition 

be filed during the 90 -day period before the second anniversary of the 

date the alien obtained conditional permanent resident status. The 90-

day limit is not imposed for the filing of a waiver request. 

As previously noted, the respondent, who was not living with her 

husband, chose to file a waiver application pursuant to section 

216(c)(4) of the Act. That section, which provides for three separate 

waivers of the conditional basis of a conditional permanent resident's 

status, provides as follows: 

HARDSHIP WAIVER.—The Attorney General, in the Attorney General's 

discretion, may remove the conditional basis of the permanent resident status for 

an alien who fails to meet the requirements of paragraph (1) if the alien 

demonstrates that— 

(A) extreme hardship would result if such alien is deported, 

(B) the qualifying marriage was entered into in good faith by the alien spouse, 

but the qualifying marriage has been terminated (other than through the death of 

the spouse) and the alien was not at fault in failing to meet the requirements of 

paragraph (1), or 

(C) the qualifying marriage was entered into in good faith by the alien spouse 

and during the marriage the alien spouse or child was battered by or was the 

subject of extreme cruelty perpetrated by his or her spouse or citizen or 

permanent resident parent and the alien was not at fault in failing to meet the 

requirements of paragraph (1). 

In determining extreme hardship, the Attorney General shall consider circumstances 

occurring only during the period that the alien was admitted for permanent residence 

on a conditional basis. The Attorney General shall, by regulation, establish measures 

to protect the confidentiality of information concerning any abused alien spouse or 

child, including information regarding the whereabouts of such spouse or child. 

Section 216(c)(4) of the Act, 8 U.S.C. § 1186a(c)(4) (Supp. V 1993); 

see also Matter of Balsillie, supra. 

On her waiver application, the respondent indicated that she was 

lAt the time the respondent requested a 'waiver, these applications were filed on two 

separate forms, the joint petition being on Form 1-751, and the application for a waiver 

being on Form 1-752. These applications have now been consolidated into a new Form I751 (Petition to Remove the Conditions on Residence), on which the applicant 

designates the grounds for the requested removal of the conditional basis of the 

permanent resident status. See 56 Fed. Reg. 55,931 (1991); see also 57 Fed. Reg. 6181 

(1992); Form 1-751, as reproduced in 5 Charles Gordon & Gittel Gordon, App. 127A-7 

(rev. ed. 1992). 

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Interim Decision #3231 

seeking a waiver under section 216(c)(4)(A) of the Act on the basis of 

extreme hardship. On January 30, 1992, the district director issued a 

decision denying the respondent's waiver application, and deportation 

proceedings were initiated under section 241(a)(1)(D)(i) of the Act. In 

denying the waiver application, the district director stated that the 

respondent bad failed to demonstrate that her deportation from the 

United States would result in extreme hardship. See 8 C.F.R. 

§ 216.5(e) (1992). The respondent appeared before the immigration 

judge on May 15, 1992, with her representative and stated that she 

wished to apply for a waiver under section 216(c)(4) of the Act. 

However, the respondent's representative stated that the respondent 

was seeking a "just cause waiver," which the immigration judge 

treated as a request for the waiver under section 216(c)(4)(B) of the 

Act. 

At a reconvened deportation hearing on August 13, 1992, the 

immigration judge informed the respondent's counsel that the respondent was ineligible for the section 216(c)(4)(B) waiver because her 

marriage had not been terminated. The respondent's counsel requested 

a continuance to look into the possibility of terminating the marriage. 

However, the immigration judge, after hearing the respondent's 

testimony, concluded that the circumstances surrounding the marriage 

supported the Service's position that the marriage had not been 

entered into in good faith. As a result, the immigration judge 

determined that a continuance was not warranted and found that the 

respondent was ineligible to apply for a waiver under section 

216(c)(4)(B) because she remained married to her husband. 

On appeal, the respondent argues that she is entitled to a waiver 

under section 21 6(c)(4)(C) of the Act because she entered into the 

marriage in good faith and was subjected to humiliating treatment by 

her husband. In particular, she alleges that her husband treated her 

with extreme insensitivity by engaging in an adulterous relationship 

after their marriage. She also claims that she should be given an 

opportunity to terminate her marriage, thereby indicating that she still 

seeks to apply for the waiver under section 216(c)(4)(B), as argued 

before the immigration judge. 

At the outset, a jurisdictional issue arises from the fact that the 

respondent requested a waiver under section 216(c)(4)(B) of the Act 

from the immigration judge after the denial of her section 216(c)(4)(A) 

waiver application by the district director. The question before us is 

whether the respondent, whose application for one of the three waivers 

under section 216(c)(4) was denied by the Service, can seek consideration before the immigration judge of an alternative waiver under that 

section. We hold that she cannot. 

Original jurisdiction to rule on the merits of an application for a 

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Interim Decision #3231 

• waiver of the requirement to file a joint petition is with the 

appropriate regional service center director, rather than the immigration judge.2 Matter of Lemhamnzad, 20 l&N Dec. 316 (BIA 1991); 8 

C.F.R. § 216.5(c) (1994). The immigration judge only has jurisdiction 

to review the denial of a waiver application. Matter of Lemhammad, 

supra; 8 C.F.R. § 216.5(f) (1994). 

The waiver application contains a section which sets forth the three 

alternative grounds for the waiver under section 216(c)(4) and allows 

the alien to indicate which applies.3The respondent selected the 

extreme hardship alternative. The district director's denial of the 

respondent's waiver request was accordingly limited to consideration 

of her claim of extreme hardship under section 216(c)(4)(A) of the Act. 

At the time she initially filed her waiver application, the respondent 

should have applied for any waiver that she deemed applicable to her. 

She could not later request a waiver from the immigration judge under 

section 216(c)(4)(B) of the Act after having applied only for the waiver 

under section 216(c)(4)(A) with the Service. In order to have an 

alternative waiver under section 216(c)(4)(B) considered, the respondent should have submitted a new application to the Service. To rule 

otherwise would be to allow circumvention of the regulatory jurisdictional scheme and could serve to encourage aliens to withhold 

evidence and arguments until the review stage for purposes of delay. 

We note that if the respondent had become statutorily eligible to 

apply for the section 216(c)(4)(B) waiver by virtue of changed 

circumstances, i.e., through the termination of her marriage between 

the time that her waiver application was denied and her appearance 

before the immigration judge, she could have sought a continuance 

from the immigration judge to pursue her alternative application with 

the Service. See Matter of Mender, supra. 

2According to 8 C.F.R. § 216.5(d) (1994), the regional service center director may 

refer the application to the appropriate district and require the applicant to appear for 

an interview. C.f. 8 C.F.R. § 216.4(b)(1) (1994) (joint petition). 

3The three waivers under section 2 i 6(c)(4) of the Act each have separate conditions, 

with differing evidentiary requirements. Manor of Balsillia, supra. The regulations at 8 

C.F.R. § 216.5(e)(1) (1994) regarding the hardship waiver under section 216(c)(4)(A) 

place the burden on the alien to establish extreme hardship, i.e., that which exceeds the 

hardship necessarily attendant upon deportation. With respect to the good faith waiver 

under section 216(c)(4)(B), the regulations at 8 C.F.R. § 216.5(e)(2) (1994) state that 

"evidence relating to the amount of commitment by both parties to the marital 

relationship," such as documentation of joint financial activities, length of residence 

together, and birth certificates of children born to the marriage, must be considered. The 

application for a waiver based on extreme mental cruelty or battery undcr section 

216(c)(4XC) must be supported by proof of physical abuse or of extreme mental cruelty, 

the latter requiring the evaluation of a professional recognized by the Service as an 

expert in the field. 8 C.F.R. § 216.5(e)(3) (1994). 

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Interim Decision #3231 

We must also determine whether the respondent can apply for a 

waiver under section 216(c)(4)(C) of the Act on appeal. For the reasons 

stated above, we conclude that such a waiver request must be 

submitted to the regional service center, which exercises original 

jurisdiction, rather than to this Board. Furthermore, we only have 

authority to review a waiver application after the immigration judge 

has considered it. We note in this regard that although the alleged 

circumstances of extreme mental cruelty were known to the respondent at the time she filed her waiver application with the Service, she 

chose not to pursue a waiver on that basis. 

Accordingly, the appeal will be dismissed. 

ORDER: The appeal is dismissed. 

FURTHER ORDER: Pursuant to the immigration judge's 

order and in accordance with our decision in Matter of Chouliaris, 16 

1&N Dec. 168 (BIA 1977), the respondent is permitted to depart from 

the United States voluntarily within 30 days from the date of this 

order or any extension beyond that time as may be granted by the 

district director; and in the event of failure so to depart, the 

respondent shall be deported as provided in the immigration judge's 

order. 

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