Cite as 24 I&N Dec. 331 (BIA 2007) Interim Decision #3587
1
On our own motion, we amend the July 11, 2007, order in this case. The amended order
makes editorial changes consistent with our designation of the case as a precedent.
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In re Yadvender SINGH, Respondent
File A40 537 854 – New York
Decided as amended October 11, 20071
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
There is no conflict between section 216(c)(4) of the Immigration and Nationality Act,
8 U.S.C. § 1186a(c)(4) (2000), and its implementing regulation at 8 C.F.R. § 1216.5(e)(1)
(2007) where both provide the same start date for the circumstances to be considered in
determining a conditional permanent resident’s application for an extreme hardship waiver
and only the statute provides an end date for the relevant period.
FOR RESPONDENT: Alan Michael Strauss, Esquire, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Randa Zagzoug, Deputy Chief
Counsel
BEFORE: Board Panel: HURWITZ, Acting Vice Chairman; HOLMES and MILLER,
Board Members.
HURWITZ, Acting Vice Chairman:
When this case was last before us on April 9, 2003, we dismissed the
respondent’s appeal from an Immigration Judge’s decision of September 25,
2000, and denied his motion to remand for further proceedings. The matter is
now before us pursuant to an August 29, 2006, decision of the United States
Court of Appeals for the Second Circuit. Singh v. U.S. Dep’t of Justice, 461
F.3d 290 (2d Cir. 2006). Holding that the two reasons given by the Board for
denying the respondent’s motion to remand were not correct, the court vacated
our decision insofar as it denied the motion. See id. at 293-94. For the reasons
explained below, we again deny the respondent’s motion to remand.
The respondent, a native and citizen of India, entered the United States as
a conditional lawful permanent resident on December 2, 1986, based on his
marriage to a United States citizen. Under section 216 of the Immigration and
Nationality Act, 8 U.S.C. § 1186a (2000), the respondent could have removedCite as 24 I&N Dec. 331 (BIA 2007) Interim Decision #3587
2 The respondent raised other issues at the hearing, but they are not currently before us.
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the conditional limitation on his status by filing a joint application with his
wife during a 90-day period preceding the second anniversary of his lawful
entry into the United States as a conditional permanent resident. However, on
August 18, 1987, the respondent’s wife obtained an annulment, which declared
the marriage null and void. Thereafter, the respondent filed an Application
for waiver of requirement to file joint petition for removal of
conditions (Form I-752). The application was based on a claim that the
respondent had entered into his marriage in good faith. See section
216(c)(4)(B) of the Act. The application was denied on March 24, 1989, by
the former Immigration and Naturalization Service (now the Department of
Homeland Security) on the basis that the respondent had not demonstrated that
his marriage was entered into in good faith. The respondent was served with
an Order to Show Cause and Notice of Hearing (Form I-221) alleging that his
conditional permanent residence had been terminated. At his hearing before
the Immigration Judge, the respondent renewed his waiver application, which
was denied.2
The respondent then filed an appeal, along with a motion to remand for the
purpose of applying for a different waiver based on extreme hardship pursuant
to section 216(c)(4)(A) of the Act. The respondent alleged in his motion that
his removal would result in extreme hardship because of issues related to his
second marriage and the children from that marriage. We denied the motion
for the following reasons. First, the respondent had an opportunity to apply for
a hardship waiver before the Immigration Judge and chose instead to pursue
a waiver under section 216(c)(4)(B). Second, the respondent’s motion was
based on hardship that arose subsequent to his period of conditional residence,
and section 216(c)(4) provides that “[i]n determining extreme hardship, the
Attorney General shall consider circumstances occurring only during the
period that the alien was admitted for permanent residence on a conditional
basis.” Thus, the evidence that the respondent sought to have considered
would not support an application for a waiver.
The respondent filed a petition for review with the Second Circuit. The
court of appeals concluded that “[t]he BIA’s decision, and the government’s
defense of it, expose a clear conflict between the relevant statute and the
agency’s corresponding regulation, which, to date, as far as we have found, has
not been acknowledged let alone reconciled.” Singh v. U.S. Dep’t of Justice,
supra, at 295. The court observed that the regulation at 8 C.F.R. § 216.5(e)(1)
(2006) provides that “[i]n considering an application for a waiver based upon
an alien’s claim that extreme hardship would result from the alien’s removal
from the United States, the director shall take into account only those factorsCite as 24 I&N Dec. 331 (BIA 2007) Interim Decision #3587
3
We note that 8 C.F.R. § 216.5(e)(1), which applies to the Department of Homeland
Security, was duplicated in 2003 at 8 C.F.R. § 1216.5(e)(1), which applies to the Executive
Office for Immigration Review, including the Board of Immigration Appeals. See Aliens
and Nationality; Homeland Security; Reorganization of Regulations, 68 Fed. Reg. 9824,
9837 (Feb. 28, 2003).
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that arose subsequent to the alien’s entry as a conditional permanent resident.”
According to the court, the regulation conflicted with section 216(c)(4) of the
Act and the Board had to comply with the regulation. Specifically, we were
required to consider the respondent’s evidence of hardship as long as it related
to factors that arose after the respondent’s entry as a conditional permanent
resident.
Given the court’s reading of the regulation, our second reason for denying
the motion (the fact that the respondent did not apply for a hardship waiver
before the Immigration Judge) was also not a valid reason to deny the motion.
This is because the respondent’s allegations of hardship related to events that
occurred subsequent to the hearing before the Immigration Judge and therefore
could not have been presented at the hearing.
In our prior decision, we did not specifically address the regulation.3
However, we now explain why we find that there is no conflict between the
regulation we are bound to apply and section 216(c)(4)(A) of the Act, and why
we find that we have complied with the regulation. Section 216(c)(4) requires
us to “consider circumstances occurring only during the period that the alien
was admitted for permanent residence on a conditional basis.” Thus, the
statute provides both a start date and an end date for the period during which
the relevant circumstances must occur. In contrast, the regulation provides
only the start date for the relevant circumstances, stating that “only those
factors that arose subsequent to the alien’s entry as a conditional permanent
resident” can be considered. 8 C.F.R. § 1216.5(e)(1) (2007). The regulation
does not contain any language that specifically contradicts the language of the
statute.
In reviewing the statute and the corresponding regulation, we are mindful
of the fundamental canons of statutory construction that a statute and its
implementing regulations should be read as a whole and, where possible,
afforded a harmonious interpretation, see, e.g., Carmichael v. The Payment
Center, Inc., 336 F.3d 636 (7th Cir. 2003), and that the words of a statute must
be read in their context and with a view to their place in the overall regulatory
scheme, see Food and Drug Admin. v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000). We must look to see whether the regulation harmonizes
with the plain language of the statute. See Nat’l Muffler Dealers Ass’n, Inc.
v. United States, 440 U.S. 472, 477 (1979). Cite as 24 I&N Dec. 331 (BIA 2007) Interim Decision #3587
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In the matter before us we find no conflict between the statute and the
implementing regulation. Both provide the same start date for the evidence we
may consider. The regulation is silent about a termination point for the
evidence, so we look to the statute and find that a termination point is clearly
set out there. In applying the statute and the applicable regulation to the matter
before us, we find that the respondent’s evidence of hardship pertains to a time
period outside of the relevant period. Because of this, the evidence the
respondent submitted does not support his application for a waiver. The
evidence also does not support a motion to reopen for a hearing on a waiver
application because it is not material to the application. See 8 C.F.R.
§ 1003.2(c)(1) (2007) (stating that a motion to reopen will not be granted
unless the evidence sought to be offered is material).
Furthermore, even if the respondent’s evidence did concern matters within
the relevant period, we would deny the respondent’s motion to remand for the
reasons that follow. First, the motion does not meet the general regulatory
requirements for motions to reopen. A motion to reopen must, among other
things, state the new facts to be considered at the reopened hearing and must
be supported by affidavits or other evidentiary materials demonstrating
prima facie eligibility for the relief sought. See 8 C.F.R. § 1003.2(c)(1); see
also INS v. Abudu, 485 U.S. 94 (1988); Matter of Coelho, 20 I&N Dec. 464
(BIA 1992). A motion to reopen will not be granted unless the evidence
sought to be offered is material and was not available and could not have been
discovered or presented at the former hearing. See 8 C.F.R. § 1003.2(c)(1).
An alien who seeks to remand or to reopen proceedings to pursue relief bears
a heavy burden of proving that if proceedings were reopened, with all the
attendant delays, the new evidence would likely change the result in the case.
See Matter of Coelho, supra.
The respondent has not presented sufficient previously unavailable material
evidence to support a remand. The new evidence submitted relates to the fact
that the respondent and his second wife now have a second child, born
March 10, 2000, and that the respondent’s mother-in-law has become a United
States citizen. The other evidence submitted with the motion relates to events
that occurred before the Immigration Judge closed the record in this case on
July 6, 1998, and is therefore not new. The motion before us does not include
an affidavit from the respondent explaining how the new evidence supports his
claim of extreme hardship. Nor is there any other evidence that specifically
explains his claim. The evidence that a second child was born and that the
respondent’s mother-in-law has become a citizen is not sufficient, in our view,
to warrant a remand so that the respondent may seek a hardship waiver.
Next, we conclude that the respondent’s motion should be denied as aCite as 24 I&N Dec. 331 (BIA 2007) Interim Decision #3587
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matter of discretion. The Board has broad discretion to deny a motion to
reopen. See INS v. Doherty, 502 U.S. 314, 323 (1992); INS v. Rios-Pineda,
471 U.S. 444 (1985). In his decision, the Immigration Judge found that the
respondent’s “marriage was one set up solely for the purpose of procuring an
alien registration card for the Respondent and providing [his first wife] with
a monetary bonus for her assistance.” We agreed in our decision that “[t]he
respondent entered into his first marriage in order to obtain an immigration
benefit” and that “the respondent entered into a marriage for the purpose of
evading the immigration laws.” We continue to concur with the Immigration
Judge that the respondent entered into his first marriage for the purpose of
evading the immigration laws and obtaining an immigration benefit.
We find that the respondent’s entry into a false marriage and his attempt to
obtain immigration benefits based on that marriage are strong negative factors.
However, we must balance those adverse factors against the equities of record.
The respondent has resided in the United States for a lengthy period; he has
been married to his second wife, a United States citizen, since 1992; he has
two young United States citizen children; and his wife has family and other
significant ties in the United States. In considering the factors presented, we
find that the respondent’s attempt to circumvent our country’s immigration
laws by entering into a false marriage outweighs the positive factors.
Accordingly, even if the respondent’s motion had presented new material
evidence, we would deny the motion as a matter of discretion. See INS v.
Doherty, supra; INS v. Rios-Pineda, supra; 8 C.F.R. § 1003.2(a).
Accordingly, the respondent’s motion to remand will be denied.
ORDER: The motion is denied.