By Susan Schreiber
If you represent conditional resident clients, you already know that they need to file either an I-751 joint petition or a waiver in order to retain residency status. Under INA § 216(c)(4), one category of waiver eligibility applies to conditional residents who establish that their removal will result in extreme hardship. But what is the relevant time period for determining extreme hardship? Can it include all hardship circumstances, including those arising after the initial two-year conditional residency period? According to a recent Board of Immigration Appeals decision, the answer to that question is no. In Matter of Munroe, 26 I&N Dec. 428 (BIA 2014), the Board ruled that the pertinent period for determining whether an individual's removal will result in extreme hardship is the two-year period for which that individual was admitted as a conditional resident.
How did the Board come to this decision? In Munroe, the underlying case concerned a respondent who entered the United States in 1997 as a conditional resident. Shortly thereafter she separated from her U.S citizen spouse, and then divorced him in 1999. Over a period of time spanning nine years, the respondent submitted three separate I-751 waivers, with the last one submitted in 2008, while the respondent was in removal proceedings, and after she had remarried in 2007. In this third I-751 application, the respondent sought a waiver based on extreme hardship, largely referencing circumstances relating to separation from her current husband and her three children born between 2001 and 2007. USCIS denied the waiver, finding that the relevant time period for determining extreme hardship was limited to her conditional residence, which began in 1997 and terminated two years later in 1999. Upon review, the immigration judge disagreed with USCIS, finding that the relevant hardship period extended until August 2004, when the respondent's first I-751 waiver application was denied, which allowed for consideration of hardship as it related to separation from the respondent's eldest child. The Immigration Judge granted the waiver and DHS then appealed the decision to the Board.
On appeal, the Board focused on the language of INA § 216(c)(4), which states that in determining extreme hardship, the DHS should "consider circumstances occurring only during the period that the alien was admitted for permanent residence on a conditional basis." Rejecting arguments that this language is subject to interpretation, the Board found that the statutory reference to "period of admission" clearly describes a set time frame that corresponds to the two-year period for which the individual was admitted as a conditionalresident alien. In the Board's analysis, the fact that the DHS has statutory authority to terminate conditional residency early in some circumstances and to extend conditional residency while an I-751 application is pending, doesn't render the statutory language of 216(c)(4) uncertain. "The period of time for which an alien "was admitted' remains the same 2-year period regardless of any subsequent actions by the USCIS. Therefore the statutory language is unambiguous and we must apply it accordingly." The Board also noted that it's decision is in accord with decisions in the 6th and 9th circuits that have directly addressed this issue. Hammad v. Holder, 603 F. 3d 536 (9th Cir. 2010); Abdulahad v. Holder, 581 F.3d 290 (6th Cir 2009).
Based on the Munroe decision, the end date of the hardship period is the last day of the two-year period of an individual's admission as a conditional permanent resident.
To read the full Board decision, click here: http://www.justice.gov/eoir/vll/intdec/vol26/3817.pdf.