The Board of Immigration Appeals Defines Scope of Review for INA § 216(c)(4) “Hardship Waivers” – Matter of Herrera Del Orden, 25 I. & N. Dec. 589 (BIA 2011)

If the United States Citizenship and Immigration Service (USCIS) denies a conditional resident’s waiver request to remove the condition (filed on Form I-751), he or she may renew the waiver request in Immigration Court.  Moreover, the Board of Immigration Appeals has now held that an immigrant “may introduce, and the Immigration Judge should consider, any relevant evidence without regard to whether it was previously submitted or considered in proceedings before the [USCIS].”  This precedential decision not only clarifies the role of an Immigration Judge, but also affirms the rights of aliens to present evidence on their behalf in removal proceedings.

As a result of the Immigration Marriage Fraud amendments Act of 1986, marriage to a United States citizen results in “conditional” immigrant status unless it is more than 2 years old at the time of granting immigrant status.  Most times, couples will file a joint petition on Form I-751 within 90 days of their second anniversary of immigrant status to remove the condition.  The petition is supported with evidence of bona fide marriage, such as joint ownership of property or joint tenancy; commingling of finances; birth certificates of any children; and affidavits from friends and family.

However, if the immigrant cannot file the joint petition with their United States citizen spouse, INA § 216(c)(4) provides for a “hardship waiver.”  Congress provided three independent basis for the waiver: 1) the immigrant would suffer “extreme hardship” if she were to be removed; 2) the marriage was entered into in good faith  “but the qualifying marriage has been terminated”; and/or 3) the marriage was entered into good faith and the immigrant was subject to “extreme cruelty.”  The Board of Immigration Appeals in Matter of Anderson held that these three “hardship waivers” are separate and independent and each ground should be asserted where applicable.

Although collectively the waivers are known as “hardship waivers,” only the first waiver requires the immigrant establish that she would suffer extreme hardship if she were removed from the United States.  However, it is important to note that the USCIS and the Immigration Judge will only consider the hardship to the immigrant that arose during the conditional status period.  A waiver based on extreme hardship may be filed even if the couple is merely separated.

An immigrant may also file for a waiver based on “extreme cruelty.”  Although the term “extreme cruelty” is sometimes limited to physical violence, Congress defined “extreme cruelty” to encompass psychological and emotional abuse as well.  Furthermore, federal regulations note that “battery or extreme cruelty” includes “acts that, in and of themselves, may not initially appear violent but are part of an overall pattern of violence.”  Again, “violence” is not limited to physical acts; instead “[p]sychological or sexual abuse or exploitation … shall be considered acts of violence.”  The United Nations’ Special Rapporteur on Violence Against Women has defined domestic violence as “all acts of gender-based physical, psychological, and sexual abuse” that includes “threats, intimidation, coercion, stalking [and] humiliating verbal abuse.”  If an immigrant believes she may have suffered extreme cruelty, than it is important for the immigrant to seek not only help with her immigration status, but also help for her personal safety and well-being.  Again, this waiver may be filed even if the couple is still legally married but the spouse refuses to cooperate.

Unlike the previous two waivers, “the good faith marriage waiver,” requires that the marriage be terminated before the immigrant files the waiver on Form I-751.  Similar to a joint petition, this waiver is supported with evidence of bona fide marriage, such as joint ownership of property or joint tenancy; commingling of finances; birth certificates of any children; and affidavits from friends and family.

If USCIS denies the waiver, the alien is placed in removal proceedings and an Immigration Judge may “review” the denial.  In Matter of Herrera Del Orden, the Board noted that “it is the Immigration Judge’s function to create, not review, a record” and therefore concluded that “that he or she is presumed to have jurisdiction to gather and receive evidence pertinent to an application for relief from removal.”  The Board also considered  “the rights and burdens of the respondent” affirming the “the statutory right to a reasonable opportunity to present evidence on his or her own behalf.”

This precedential decision clears the way for immigrants to present a robust defense in immigration court and possibly avoid the harsh consequences of removal from the United States.

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