I751 Waivers Presented by Law Office of Irene

I-751 Waivers Presented by Law Office of Irene Mugambi P. C. and Larry Davis P. C. Texas Chapter Spring Conference April 26, 2014

Conditional Residency Defined • Marriage results in conditional residency (CR) unless it is more than 2 years old at the time of granting immigrant status. INA § 216, 8 USC §¶ 1186 a. • The period is measured from the time residency status is accorded. Joint petitions are filed during the 90 day period preceding the expiration of CR. If window is missed couple can still file for “good cause and extenuating circumstances” CR children are usually included on parents’ petition however under certain circumstances must file separately.

Types of I-751 Waivers 1. The Beneficiary entered into the marriage in good faith, but his/her spouse subsequently died, - waiver provisions of 216(c)(4) don’t apply but certain requirements must be met 2. The termination of the beneficiary’s status and removal would result in extreme hardship. 3. The Beneficiary entered into a good the marriage in good faith, but the marriage was later terminated due to annulment or divorce 4. The Beneficiary entered into the marriage in good faith and the couple remained married, but the beneficiary has been battered or subjected to extreme cruelty by the U. S. citizen or permanent resident spouse.

I-751 Marriage Dissolved due to Divorce or Annulment Cannot file joint waiver Alien spouse may filed a waiver of the joint application under 8 CFR §¶ 216. 5, 1216. 5 Can file waiver any time after CR 6 status and before removal proceedings

Married but legally separated? May I-751 jointly If divorce is pending, USCIS will issue an RFE permitting 87 days to submit evidence. Once decree is provided then case covents to waiver. If no decree is available, USCIS will continue to process as joint petition. (Kurzban’s Immigration Law Sourcebook, 14 th Edition, citing Memo, Neufeld Acting Director, USCIS, I-751 Filed prior to Termination of Marriage (April 3, 2009).

What happens if USCIS denies the I-751 Applicant is placed in removal proceedings INA § 237(a)(1), USC )§ 127(a)(1)(D); 8 CFR§ 216. 4 (d)(2), 1216. 4(d)(2). ¶¶¶ No appeal of I-751 except in removal proceedings; Matter of Mendes, 20 I & N Dec. 833 (BIA 1994). Client cannot file the I-751 with the IJ for the first time. Legal Opinion, Cook, General Counsel (January 9, 1990), reprinted in 67 No. 6 Interpreter Releases 159, 170 (Feb. 5, 1990).

proceedings prior to divorce being final what happens? Request a continuance before IJ to allow time for the divorce to be concluded Move to reopen proceedings after divorce is finalized and the ability to file the I-751 waiver.

BIA Cases on I-751 in removal proceedings Matter of Stowers, 22 I&N Dec. 605 (BIA 1999). Matter of Lemhammad, 20 I&N Dec. 316 (BIA 1991). Matter of Mendes, 20 I&N Dec (BIA 1994).

Hypothetical Mary a devout Ethiopian Orthodox met John a naturalized USC who was visiting his parents in Ethiopia. The couple fell in love and John asked for Mary’s hand in marriage. John returned to the US and filed a K-1 visa for Mary. Upon Mary’s entry into the US, the couple got married. He filed for her CR 6 status and was approved. One month thereafter, John decided that Mary had become hyper religious and that she was no longer allowed to attend church. He became violent with her on several occasions. John became obsessed with Mary’s movements, and decided to control all her finances in an effort to reign her in. Mary decided she had enough of his physical abuse and left him. Her CR 6 is due to expire soon. John has told her that if she leaves he will make sure she never gets her green card. Mary does not believe in divorce because it goes against her faith. Can Mary proceed with filing for her conditions to be lifted despite still being married to him? What evidence would she need?

• Battered Spouse Waiver Must prove bona fides of marriage Must prove subjected to battery or extreme cruelty Available to individuals who have been ordered removed and deported and or let their conditional status terminate and failed to depart after status terminated. 8 CFR §¶ 216. 5(e)(3)(ii).

Hypothetical Maria married Jose a USC in California in 1988. He petitioned her in 1989, and her CR 6 status was granted within a few months. No I-751 was filed and CR 6 status expired in 1991. In 1992 after having had their third child, Maria left Jose. Maria left due to severe domestic violence. She moved around from shelter to shelter and eventually decided to return to her home country El Salvador in 1996. In 1997 USCIS placed her in removal proceedings and entered an in absentia order against her? Maria’s children now want to return back to the US. Is Maria eligible to seek the battered spouse waiver assuming she had all the necessary documentation to prove the violence?

Extreme Hardship Waiver Threshold is “extreme” No fixed meaning and not inflexible Use traditional extreme hardship factors If possible include nexus between factor and violence Factually determined

Hypothetical Nooria is from Afghanistan and entered the US in July, 2010 as a K 1. She had met her fiancée for the first and only time at the couple’s engagement party in her small village 200 miles south of Kabul. The couple married soon after she arrived and moved in with his parents in New York City. Also living with them was his 5 -year-old son from his previous marriage and his two younger sisters. Things went well at first until the husband started spending days at the computer playing video games. He never wanted to leave the house or have any relations with Nooria and when she tried to get him to be more social or to be intimate he would become verbally abusive and sometimes physically push her away. He never otherwise struck Nooria but would often discipline his son physically. The son had to be taken to the hospital once because of these disciplinary actions. Feeling alone she reached out by email to her male cousin who she had grown up with in Afghanistan to discuss her situation and ask for advice. They corresponded for several weeks by email until her sister-in-law discovered one of the emails on the computer and brought it to the family’s attention. This caused much strife in the family with threats of divorce and shame for her and her family in Afghanistan. (So much so that the male cousin in Afghanistan had to flea their country out of fear for his life over threats from Nooria’s husband’s extended family and seek asylum in Pakistan. ) Nooria was so distraught over the whole situation that she overdosed on Tylenol one day and had to be rushed to the hospital. Her uncle from Texas eventually traveled to New York and “rescued” her while she was still in the hospital. With assistance of the police, Nooria and her uncle went to her husband’s home and gathered her personal belongings and left for Texas. They have come to you for help in filing for the removal of conditions, which will expire in one month. What advice do you have? Would it be different if the CR has already expired?