Interim Decision #3240 

MATTER OF TEE 

In Deportation Proceedings 

A-26748296 

Decided by Board January 10, 1995 

An alien becomes statutorily ineligible for approval of a joint petition under section 

21 6(c)(1) of the Immigration and Nationality Act, 8 U.S.0 § 1186a(cX I) (1988), where 

the marriage has been terminated prior to adjudication of the petition by the 

immigration judge. 

CHARGE: 

Order: Act of 1952—Sec. 24 i(a)(9)(B) [8 U.S.C. § 1251(a)(9)(B)j—Conditional resident 

status terminated 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Keith W. Bell, Esquire Robert Solmonson 

3351 Arctic Boulevard District Counsel 

Anchorage, Alaska 99503 

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

Alternate Board Member 

The respondent has appealed from the March 14, 1991, decision of 

an immigration judge finding her deportable as charged and denying 

her joint petition to remove the conditional basis of her lawful 

permanent resident status under section 216 of the Immigration and 

Nationality Act, 8 U.S.C. § 11 86a (1988), as well as her request for the 

privilege of voluntary departure. During the pendency of this appeal, 

the respondent filed a motion to remand the record to the immigration 

judge in order to present an application for a waiver under section 

216(c)(4) of the Act, 8 U.S.0 § 1186a(cX4) (Supp. V 1993). The 

record will be remanded to the immigration judge for further 

proceedings. 

The respondent is a 33-year-old native and citizen of Malaysia. She 

entered the United States on January 30, 1981, as a nonimmigrant 

student. On April 22, 1986, the respondent married Arthell Hubbard, 

a United States citizen. On the basis of a petition filed by her husband, 

the respondent was granted lawful permanent resident status on a 

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conditional basis under section 216(a) of the Act on January 9, 1987. 

In order to remove the conditional basis of the lawful permanent 

residence, section 216(c)(1) of the Act requires the alien and his or her 

petitioning spouse to file a joint petition during the 90-day period 

before the second anniversary of the date the alien obtained that 

status. The respondent and her husband did so on December 12, 1988. 

However, on April 21, 1989, during the pendency of the interview and 

investigation process by officers of the Immigration and Naturalization Service, the respondent was divorced from her United States 

citizen husband. The record is not clear as to whether the district 

director was notified of the divorce or not. Upon conclusion of the 

investigation, the district director denied the joint petition on 

February 7, 1990. The respondent was accordingly placed in deportation proceedings by issuance of an Order to Show Cause and Notice of 

Hearing (Form I-221) on May 8, 1990. 

The respondent appeared before the immigration judge and submitted the joint petition for review pursuant to section 216(c)(3)(D) of the 

Act. At the time of the hearing in this matter, the respondent was 

remarried to another United States citizen, by whom she was 

expecting a child. Upon conclusion of the evidence and testimony of 

the parties, the immigration judge issued a decision finding that the 

respondent had entered into her first marriage in order to secure an 

immigration benefit. The joint petition was accordingly denied. 

Voluntary departure was also denied, both on grounds of statutory 

ineligibility and in the exercise of discretion. The respondent appealed, 

asserting that the evidence does not support a finding that the 

marriage was not bona fide and arguing that her applications for relief 

were improperly denied_ 

Upon consideration of the record of proceedings, we find that the 

immigration judge should not have considered the merits of the joint 

petition under section 216(c)(1) of the Act as the respondent was 

statutorily ineligible for such relief. 

In a deportation proceeding where the immigration judge is 

reviewing a joint petition denied by the Service on its merits, 

the burden of proof shall be on the Attorney General to establish, by a preponderance 

of the evidence, that the facts and information described in subsection (d)(1) and 

alleged in the petition are not true with respect to the qualifying marriage. 

Section 216(c)(3)(D) of the Act (emphasis added); see also 8 C.F.R. 

§ 216.4(d)(2) (1994). Among the "facts and information" which the 

Service roust prove untrue is the allegation by joint petitioners that 

"the qualifying marriage ... has not been judicially annulled or 

terminated, other than through the death of a spouse." Section 

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216(d)(1)(A)(11) of the Act (emphasis added); see also 8 C.F.R. 

§ 216.4(a) (1994). 

Thus, the Act requires the Service to demonstrate in deportation 

proceedings that the facts and information in the petition "are not 

true" with respect to the marriage, and the joint petition must include 

information to the effect that the marriage "has not been" annulled or 

terminated. Considering that the Act requires a present demonstration 

that the marriage has not been annulled or terminated, it is clear that 

the qualifying marriage must be ongoing in order for a joint petition to 

be approved. We accordingly find by the plain meaning of the Act that 

an alien becomes statutorily ineligible for approval of a section 

216(c)(1) joint petition upon termination of the marriage, other than 

through the death of the spouse, before its adjudication by an 

immigration judge. 

This holding is consistent with the statutory scheme enacted as 

section 216 of the Act by the Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537. Under that 

scheme, the joint petition procedure is an extension of the initial visa 

petition procedure of section 204 of the Act, 8 U.S.C. § 1154 (1988 & 

Supp. V 1993). Matter of Mende:, 20 I&N Dec. 833 (BIA 1994). As 

such, the petitioning spouse is clearly considered an integral part of the 

process of removal of the conditional basis of the alien's lawful 

permanent resident status under the joint petition procedure. Id In 

this connection, we note that the regulations have long provided that 

the legal termination of the marriage between a petitioner and the 

beneficiary of a relative visa petition, prior to the alien's adjustment of 

status or entry on the basis of that petition, constitutes automatic 

revocation of the petition, even though it was already approved. 8 

C.F.R. § 205.1(a)(4) (1994). 1Thus, it is consistent with the existing 

statutory and regulatory scheme to hold that divorce automatically 

withdraws the joint petition from consideration. 

Moreover, where the marriage has been terminated, the respondent 

is still entitled under the statutory scheme to apply for a waiver of the 

requirement to file a joint petition under section 216(c)(4) of the Act. 

This, gives the alien an opportunity to demonstrate that the conditional 

basis of the permanent residence should be removed despite the 

termination of the marriage- See generally Matter of Mendes, supra; 

Matter of Balsillie, 20 I&N Dec. 486 (BIA 1992). 

Accordingly, since the respondent was not married to the petition1 We note that the joint petition provisions of the Act make allowance for the death of 

a petitioning spouse, just as do the regulations governing initial eligibility for a relative 

petition. Compare 8 C.F.R. §§ 204.2(b) and 205.1(aX3) (1994) with section 

216(d)(1)(A)(i)(I1) of the Act. 

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ing spouse at the time of the hearing, she was no longer eligible for 

relief from deportation by means of a joint petition to remove the 

conditional basis of her lawful permanent resident status. Thus, the 

petition should have been denied for statutory ineligibility, thereby 

obviating consideration of the merits of the petition. 

On July 24, 1991, soon after the immigration judge's decision in 

this case, the respondent filed an application with the district director 

for a waiver under section 216(c)(4)(A) of the Act. The district director 

subsequently denied the petition, and the respondent then filed a 

motion with this Board to remand this matter to the immigration 

judge so that the denial of the petition could be reviewed pursuant to 8 

C.F.R. § 216.5(1) (1994). We have held that where a respondent 

becomes statutorily eligible for a waiver under section 216(c)(4) by 

virtue of changed circumstances, she may request a continuance of 

deportation proceedings in order to submit the waiver request to the 

Service for adjudication. Matter of nderson, 20 I&N Dec. 888 (BIA 

1994); Matter of endes, supra. Here, the changed circumstance of the 

respondent's divorce actually occurred before the initiation of deportation proceedings. However, in view of the erroneous assumption by all 

of the parties, to> this proceeding, including the immigration judge, that 

presentation of the merits of the joint petition in deportation 

proceedings was nevertheless appropriate, we shall remand the record 

for consideration of the waiver request, and for such other matters as 

are consistent with this opinion. 

We note that one of the reasons the Service opposed the motion to 

remand was that the respondent had not paid a filing fee for a motion 

to reopen. Where a motion to remand is in, the nature of a motion to 

reopen, it must comply with the substantive requirements for a motion 

to reopen. Matter of Coelho, 20 I&N Dec. 464 (BIA 1992). However, a 

filing fee is not required for a motion to remand. 

With regard to the joint petition, we have not here addressed the 

bona fides of the respondent's marriage to Arthell Hubbard for the 

same reason that the petition should not have been considered by the 

immigration judge. If another application is presented, the relevance 

of the testimony and evidence already submitted to the immigration 

judge can be considered at that time. 

ORDER: The record is, remanded to the immigration judge for 

further proceedings consistent with this opinion and the entry of a new 

decision. 

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