BERNARDO ( 2024 )

Cite as 28 I&N Dec. 781 (BIA 2024) Interim Decision #4072
Matter of Walter Gabriel BERNARDO, Respondent
Decided February 7, 2024
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
When a petition to remove the conditions on residence is withdrawn before United States
Citizenship and Immigration Services prior to adjudication, the Immigration Judge
ordinarily cannot review the merits of that petition in removal proceedings. Matter of
Mendes, 20 I&N Dec. 833 (BIA 1994), followed.
FOR THE RESPONDENT: Jessica Zagier Wallace, Esquire, Miami, Florida
BEFORE: Board Panel: GREER and LIEBMANN, Appellate Immigration Judges;
PEPPER, Temporary Appellate Immigration Judge.
LIEBMANN, Appellate Immigration Judge:
In a decision dated August 29, 2019, the Immigration Judge denied the
respondent’s petition to remove the conditions on his permanent residence.
See section 216(c) of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1186a(c) (2018). The respondent has appealed from that decision. The
appeal will be dismissed.
The respondent, a native and citizen of Argentina, married a United States
citizen and became a conditional permanent resident based on that marriage.
Thereafter, the respondent and his wife jointly filed a Form I-751, Petition to
Remove Conditions on Residence. His wife later withdrew the petition,
alleging that the marriage was fraudulent. The respondent and his wife
separated but are still married. United States Citizenship and Immigration
Services (“USCIS”) terminated the respondent’s conditional permanent
resident status and placed the respondent in removal proceedings.
The respondent requested that the Immigration Judge review the denial
of the joint petition. The Immigration Judge denied the Form I-751 because
the respondent had not demonstrated that he entered into a qualifying
marriage with his wife. The respondent appealed, arguing that the
Immigration Judge erroneously evaluated his eligibility for a waiver of the
joint filing requirement rather than reviewing the joint petition. 1 We review
1
A conditional permanent resident may seek a waiver of the joint filing requirement
under section 216(c)(4) of the INA, 8 U.S.C. § 1186a(c)(4). The respondent, however, did
not apply for a waiver before USCIS, and thus the Immigration Judge’s analysis of this
781
Cite as 28 I&N Dec. 781 (BIA 2024) Interim Decision #4072
the termination of the respondent’s conditional permanent resident status de
novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2020).
A conditional permanent resident and his spouse may seek to remove the
conditions of his residence by filing a joint petition with USCIS pursuant to
section 216(c)(1) of the INA, 8 U.S.C. § 1186a(c)(1). See Matter of Mendes,
20 I&N Dec. 833, 835 (BIA 1994). If USCIS denies the joint petition, an
Immigration Judge may review this decision. Id. at 836. However, when
one of the parties withdraws support for the petition prior to adjudication, the
petition is no longer a “joint” petition and is considered “not filed.” Id. at
837–38. The respondent has the burden of proof in removal proceedings to
show that the petition was properly filed under section 216(c)(1) of the INA,
8 U.S.C. § 1186a(c)(1). INA § 216(c)(2)(B), 8 U.S.C. § 1186a(c)(2)(B);
Matter of Mendes, 20 I&N Dec. at 838.
The respondent has not satisfied his burden of proof. Although the
respondent and his wife submitted a joint petition to remove the conditions
on the respondent’s residence, his wife subsequently withdrew the petition.
As required by the regulations, USCIS notified the respondent that his
conditional resident status had been terminated because of the withdrawal
and provided him with the derogatory information on which it relied to
terminate his conditional resident status. See 8 C.F.R. § 1216.3(a) (2024).
The respondent admitted the allegation in the notice to appear that his
conditional resident status was terminated because of the withdrawal of the
Form I-751 petition and conceded removability. When a petition to remove
the conditions on residence is withdrawn before USCIS prior to adjudication,
the Immigration Judge ordinarily cannot review the merits of that petition in
removal proceedings. Thus, the respondent’s Form I-751 petition was not
properly before the Immigration Judge. Cf. Matter of H. N. Ferreira, 28 I&N
Dec. 765, 769 (BIA 2023) (holding that an Immigration Judge should
ordinarily review the denial of a properly filed Form I-751).
Despite admitting that his petition was withdrawn, the respondent
requested that the Immigration Judge review USCIS’ termination of his
conditional permanent resident status, claiming that his wife withdrew the
petition under duress because she was facing pending criminal charges.
Although the respondent testified about conversations he had with his wife
following the withdrawal of the petition, his wife did not testify on his behalf
nor provide an affidavit to support his assertion that she was coerced into
withdrawing the petition. The respondent also did not present any other
evidence to support his claim. Because the respondent has presented
insufficient evidence to substantiate this claim, we do not need to decide
issue is not on point. Additionally, the respondent is not eligible for the “good faith” waiver
the Immigration Judge addressed in his decision because he and his wife remain married.
INA § 216(c)(4)(B), 8 U.S.C. § 1186a(c)(4)(B).
782
Cite as 28 I&N Dec. 781 (BIA 2024) Interim Decision #4072
whether the Immigration Judge had the authority to review his claim that the
Form I-751 petition was withdrawn due to coercion.
Accordingly, the respondent has not shown that the Form I-751 petition
was properly filed under section 216(c)(1) of the INA, 8 U.S.C.
§ 1186a(c)(1). See Matter of Mendes, 20 I&N Dec. at 837–38. Because the
joint petition was not properly before the Immigration Judge, we will not
reach the respondent’s challenge to the Immigration Judge’s denial of his
motion for a subpoena. Regarding the respondent’s claim that remand is
necessary because portions of the transcript of proceedings were marked as
indiscernible, he has not identified any testimony or information that is
missing from the transcript that would alter the disposition of this case. See
Matter of Kagumbas, 28 I&N Dec. 400, 406 (BIA 2021) (recognizing that a
transcript with testimony marked as indiscernible will often not require a
remand when the indiscernible testimony is not critical to the outcome of the
case). We will therefore dismiss the respondent’s appeal. 2
ORDER: The appeal is dismissed.
2
Given our disposition of this matter, we decline to address the respondent’s request for
supplemental briefing.
783