Aliens who attain permanent resident status by marriage to a citizen are initially granted that status on a conditional basis for two years. 8 U.S.C. § 1186a(a)(1); 8 C.F.R. §§ 216.1-.4. Within ninety days before the two-year anniversary of the granting of conditional permanent residence, the alien and his or her spouse must jointly petition, by filing a Form 1-751, to remove the conditions on residence, and must attach documentary evidence establishing that the marriage was not entered into for purposes of evading United States immigration laws. 8 U.S.C. §§ 1186a(c)(1), (d); In re Stowers, 22 I. N. Dec. 605, 609 (B.I.A.1999). Aliens who are unable to file jointly may seek a discretionary waiver of the joint filing requirement from the government on one or more of three bases enumerated at 8 U.S.C. § 1186a(c)(4).
1. Mohammed first argues that the BIA's decision in In re Stowers required the IJ to continue his removal proceedings until the U.S. Citizenship and Immigration Services ("USCIS") rendered a decision on his third Form I-751 petition. See In re Stowers, 22 I. & N. Dec. 605 (BIA 1999). In In re Stowers, the BIA held "where an alien is prima facie eligible for a waiver under [8 U.S.C. § 1186a(c)(4)] and wishes to have his or her waiver application adjudicated by the [USCIS], the proceedings should be continued in order to allow the [USCIS] to adjudicate the waiver application."
Thus, "conditional resident status . . . technically ends when the [USCIS] terminates such status . . . ." In re Stowers, 22 I. & N. Dec. 605, 612 (BIA 1999); see also 8 C.F.R. § 216.3(a) ("The termination of status . . . shall take effect as of the date of such determination by the director, although the alien may request a review of such determination in removal proceedings."). Even after conditional resident status is terminated, a former conditional resident may apply for a hardship waiver. Stowers, 22 I. & N. Dec. at 613. If he does so, he temporarily retains his former status pending review in removal proceedings.
Cf. Estrada-Ramos v. Holder, 611 F.3d 318, 321 (7th Cir. 2010) (noting that "the BIA has held that 'lawfully admitted for permanent residence' does not apply to aliens who 'obtained their permanent resident status by fraud, or had otherwise not been entitled to it'") (quoting In re Koloamatangi, 23 I. & N. Dec. 548, 550 (BIA 2003)). Because Legarda has not shown prima facie eligibility for a waiver, Matter of Stowers, 22 I. & N. Dec. 605 (BIA 1999), and Matter of Mendes, 20 I. & N. Dec. 833 (BIA 1994), which she cites, are inapposite. Stowers holds that an alien may apply for waiver of the joint petition requirements for removal of conditions on residence even after her conditional resident status has been terminated by the INS (now USCIS). 22 I. & N. Dec. at 611-12. It also holds that where an alien is prima facie eligible for a waiver, removal proceedings should be continued to allow the INS (now USCIS) to decide the waiver application.
At any time before the end of the two-year conditional residency period, the INS may terminate the alien's permanent resident status if it determines that the alien's qualifying marriage is fraudulent, was judicially annulled or terminated, or that a fee or other consideration was paid to the citizen claiming to be a spouse. § 1186a(b)(1);see In re Stowers, 22 I. N. Dec. 605, 609 (BIA 1999). If the alien appeals this termination to the BIA, the burden of proof is on the agency "to establish, by a preponderance of the evidence, that the facts and information [presented by the alien] are not true with respect to the qualifying marriage." § 1186a(c)(3)(D).
However, that precedent applies only where a noncitizen makes a showing of prima facie eligibility for such waiver. See In re Stowers, 22 I. &N. Dec. 605, 613-14 (BIA 1999) (holding that "where a[] [noncitizen] is prima facie eligible for a [hardship] waiver . . . and wishes to have his or her waiver application adjudicated by [USCIS], the proceedings should be continued in order to allow [USCIS] to adjudicate the waiver application"); Mendes, 20 I. &N. Dec. at 840 (noting "that when a respondent in [removal] proceedings has not filed an application for a [hardship] waiver . . . and is prima facie eligible for such relief, the proceedings should be continued").
The appropriate statutory route for a noncitizen who wishes to forgo the requirements of a § 1186a(c)(1)(A) joint petition (because, for example, he cannot meet the requirement that the qualifying marriage has not been terminated) is an application for a hardship waiver under § 1186a(c)(4). In Re Stowers, 22 I. & N. Dec. 605, 609-10 (BIA 1999). Malik applied for a § 1186a(c)(4)(B) hardship waiver, which DHS denied because it did not find he and Benjamin "shared [a] life together" between when he received conditional status and when they divorced.
There appears to be some support for Adeyanju's argument that the BIA should have remanded to the IJ to grant continuances. See, e.g., Matter of Stowers, 22 I. & N. Dec. 605, 613–14 (BIA 1999) ("[W]here an alien is prima facie eligible for a waiver under section 216(c)(4) of the Act and wishes to have his or her waiver application adjudicated by the Service, the proceedings should be continued in order to allow the Service to adjudicate the waiver application."); Matter of Mendes, 20 I. & N. Dec. 833, 840 (BIA 1994) (similar); see also Jackson v. Mukasey, 305 F. App'x 369, 370 (9th Cir. 2008) ("As DHS never had the opportunity to adjudicate the application, however, we agree with Jackson's contention that the BIA was required to remand her case under" Stowers.). CONCLUSION
Diallo v. Gonzales, 447 F.3d 1274, 1282 (10th Cir. 2006) (internal quotation marks omitted). Mr. Taufu'i argues that the IJ and the BIA failed to follow the BIA's own precedent in In re Stowers, 22 I. & N. Dec. 605 (BIA 1999), which holds that "where an alien is prima facie eligible for a [hardship] waiver under section 216(c)(4) of the [Immigration and Nationality] Act [8 U.S.C. § 1186a(c)(4)] and wishes to have his or her waiver application adjudicated by the Service, the proceedings should be continued in order to allow the Service to adjudicate the waiver application." Id. at 613-14.
Because Singh was a former permanent resident who lacked conditional status when he filed his second and third petitions requesting hardship waivers, he had no status to extend. See In re Henry Stowers, 22 I. N. Dec. 605, 611 (BIA 1999) (holding that former conditional permanent residents may apply for a hardship waiver). C. Substantial Evidence of Extreme Hardship