PHAM & CLOVES, PLLC

PHAM & CLOVES, PLLC - Houston Green Card Attorneys

I usually do not rant and rambling on and on, especially in a blog.  However, I am making an exception today.  It never cease to amaze me as to how our tax money is “well-spent” by our government.  The latest evidence of how wasteful our government spend our tax dollars is a decision by the Board of Immigration Appeals (BIA) on January 25, 2010, In Matter of Rose, 25 I&N Dec. 181 (BIA 2010).  The BIA reversed its own decision a year ago, and remand the case to the immigration judge to make the decision in accordance to their new interpretation of the INA.

Mrs. Rose received her conditional green card through her U.S. citizen husband’s sponsorship in 1995.  Soon thereafter, Mr. Rose died.  After 2 years of her conditional residency, Mrs. Rose timely filed a petition to remove the conditions of residence, Form I-751.   In 1999, the INS (currently U.S.C.I.S) denied her application, stating that (1) she failed to file the application “jointly,” and (2) she was not qualified for a waiver of filing a joint petition.  Mrs. Rose was put in removal proceeding; whereby, she applied again with the immigration judge and was also denied.  Mrs. Rose timely filed her appeal with the BIA.  The BIA, after consideration, denied her appeal in January of 2009 (10 years after her 1999 denial by INS).    Mrs. Rose, through her counsel, timely filed a Motion to Reconsider to the BIA.  After their second evaluation, the BIA finally reversed its previous holding, and remand Mrs. Rose’s case to the immigration court for review accordingly.

INA section 216(d)(1) states that,

IN GENERAL.-In order for the conditional basis established under subsection (a) for an alien spouse or an alien son or daughter to be removed-

(A) the alien spouse and the petitioning spouse (if not deceased) jointly must submit to the Attorney General, during the period described in subsection (d)(2), a petition which requests the removal of such conditional basis and which states, under penalty of perjury, the facts and information described in subsection (d)(1), and

(B) in accordance with subsection (d)(3), the alien spouse and the petitioning spouse (if not deceased) must appear for a personal interview before an officer or employee of the Service respecting the facts and information described in subsection (d)(1).

(Emphasis added)

The INS and the immigration judge interpreted the statutes to say that if there is no joint petition, then the applying spouse must qualify for an “extreme hardship” waiver under the INA.  It does not take a genus to figure that the statute requires a “joint” petition and “joint” interview only if the spouse is NOT deceased.  In case a sponsoring spouse is deceased, how does someone file a “joint” petition?   If Congress did not intend for the surviving spouse to be able to file on her own, they would have not inserted (if not deceased) into the statute.  It is simple as that.  However, it takes our government over 10 years, more likely than not, 100’s of researching and working hours, and thousands of tax dollars, as well as thousands of dollars for Mrs. Rose, to come to a seemingly reasonable, straight-forward decision.

If you or your loved ones needs to file an application and petition to remove your conditions on a conditional green card, contact our Houston green card lawyers and our Houston green card application attorneys.  Our no non-sense attorney will get to the point and properly file for I-751 Petition to remove the  conditions of residence.