BIA Holds That, Given The Significance Of A Respondent’s Interest In Securing Review Of a Denial Of A Petition To Remove The Conditions On Permanent Residence, An Immigration Judge Should Ordinarily Review The Denial Of A Form I-751 Upon The Request Of The Respondent.
On December 19, 2023, the Board of Immigration Appeals (BIA or Board) remanded a case to the Immigration Judge (IJ); Respondent’s Form I-751 had been denied by USCIS and his conditional resident status terminated. In removal proceedings he sought review of the denial, as provided by statute, but the IJ granted a DHS motion to terminate without considering Respondent’s objection to termination.
Respondent obtained conditional permanent residence through marriage to a U.S. citizen. After a divorce, he filed a Form I-751 petition to remove the conditions on his permanent residence. As explained, USCIS denied the I-751, finding Respondent married for the sole purpose of evading the immigration law, and initiated removal proceedings, charging him under INA §237(a)(I)(D)(i) as one whose conditional residence had been terminated.
In court, Respondent initially sought review of the I-751 denial; the IJ found that DHS did not establish Respondent’s removability and terminated proceedings. In the absence of further review, the termination of Respondent’s conditional residence remained in effect. Thus, Respondent filed a second I-751, claiming that he had married in good faith, the marriage had ended, he was not at fault for failing to file the I-751 jointly with his spouse, and that he would suffer extreme hardship if removed. USCIS again denied the I-751 and placed Respondent into proceedings under §237(a)(I)(D)(i). The Notice to Appear (NTA) alleged that Respondent’s lawful status had been terminated because he did not prove that his marriage was entered into in good faith and he did not qualify for an extreme hardship waiver.
At a 2019 hearing before the IJ, DHS, stated that it did not have Respondent’s file and requested a continuance to locate it. Respondent did not object “but asked that proceedings move forward as quickly as possible to obtain review of USCIS’s decision denying his most recent petition to remove the conditions on his residence.” The IJ granted a 1-month continuation. But DHS failed to find the file by the next hearing and the IJ asked the Government if it was moving to terminate for failure to prosecute; the DHS attorney said that she was. Respondent then objected on the ground that dismissal could only be sought on an enumerated ground and failure to locate a file was not one such ground. Respondent also contended that dismissal left him without a way to obtain review of USCIS’s I-751 denial, something he had been pursuing for close to a decade. However, the IJ granted DHS’ motion to terminate on the ground that the court lacked jurisdiction to interfere with the Government’s prosecutorial discretion. This appeal followed.
The BIA’s decision begins by explaining that this case requires it to reconcile an IJ’s “regulatory authority to terminate” proceedings with a respondent’s “interest in having the Immigration Judge review” the USCIS denial of an I-751. Accordingly, notes the decision, IJs have significant latitude to control, and substantial authority to adjudicate, their cases; this include the authority to dismiss or terminate proceedings. But, reminded the Board, such actions by the court “must be consistent with the law.”
The opinion then sets forth the rule that those who obtain lawful resident status through marriage (usually) must first be deemed conditional residents; such status provides USCIS with time to examine the bona fides of a marriage more fully. Conditional residents and their U.S. citizen spouses must jointly file a Form I-751 in a timely manner and appear for a personal interview, if requested. In a footnote, the BIA discussed how some bona fide marriages “still fail” but that a conditional permanent resident, unable to file jointly, can file alone, seeking a discretionary waiver based on having entered the marriage in good faith, extreme hardship in the event of removal, or that they have been subjected to battery or extreme cruelty by the U.S. citizen.
Where USCIS finds that the marriage was entered into for the purpose of procuring admission as an immigrant, has been annulled or terminated other than through death, or payment made for the filing of the petition, explained the Board, USCIS must terminate the conditional status and issue an NTA. Further, a USCIS decision to terminate conditional resident status is reviewable in removal proceedings by the IJ. Under current regulations, “this is the only permitted avenue for review.” Lastly, where the basis for USCIS’ denial of a Form I-751 is the denial of the waiver of the joint filing requirement, the IJ reviews the denial of the waiver as well.
In terms of reviewing I-751 denials, the BIA next set forth the rules handed down by precedent: A DHS decision to commence proceedings is not reviewable by the IJ or Board; after a case is filed with the court, DHS “merely has the privilege” of moving for dismissal and the IJ must independently adjudicate the motion. Further, because DHS does not have unilateral authority to cancel an NTA once proceedings commence, a DHS motion to terminate constitutes a request that the IJ exercise the authority to terminate the proceedings.
Here, the IJ erred in concluding that he had to terminate proceedings because DHS had moved to do so. Instead, he “should have adjudicated the motion after considering the underlying facts and circumstances.” Because he mistakenly concluded that the DHS motion divested him of jurisdiction, the IJ did not consider Respondent’s interest in obtaining review of the USCIS denial. This interest in having the IJ review the I-751 denial is significant. The regulations hold that when USCIS terminates one’s conditional residence by denying a I-751, there is no appeal from that decision to any higher authority within USCIS and “the noncitizen must be placed in removal proceeds.” At that point, noted the decision, the denial of the I-751 and any associated waivers is reviewable only by the IJ.
As previously explained in Matter of Mendes, 20 I&N Dec. 833 (BIA 1994), when an IJ terminates removal proceedings without first reviewing a Form I-751 denial, a respondent is left in legal limbo, because he or she is no longer a lawful resident but has not been found removable. Therefore, given the significance of a respondent’s interest in securing review of a denial of a Form I-751, an IJ should ordinarily review such a denial upon the request of a respondent. The matter was thus remanded for the IJ to undertake that review and for the entry of a new decision. Matter of Ferreira, 28 I&N Dec. 765 (BIA 2023).