On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A073-883-390.
The opinion of the court was delivered by: Ikuta, Circuit Judge
Argued and Submitted February 12, 2010 -- San Francisco, California
Before: Alfred T. Goodwin, Marsha S. Berzon and Sandra S. Ikuta, Circuit Judges.
In 1995, Ivad Mohammed Hammad, a Palestinian immigrant to the United States, was granted permanent resident status on a conditional basis, based on a petition filed by his U.S. citizen wife. His permanent resident status lapsed when his wife admitted to Immigration and Naturalization Service (INS) officials that she had entered into the marriage for a fee, and withdrew her support of his petition to remove the condition on his residency. Now remarried, Hammad appeals a determination by the Board of Immigration Appeals (BIA) that he is not entitled to permanent resident status. Because the BIA's determination was supported by substantial evidence, we deny his petition.
Before discussing the facts of this case, we provide a brief overview of the statutory and regulatory framework that allows an alien to obtain legal permanent residency status based on a petition from the alien's U.S. citizen spouse. See 8 U.S.C. §§ 1154(a), 1186a.
Under § 1154(a), a U.S. citizen may file a petition with the INS*fn1 to adjust the status of an alien spouse. An alien with a qualifying marriage to a U.S. citizen is generally granted the status of lawful permanent resident, but maintains this status on a conditional basis for a two-year period. § 1186a(a)(1).*fn2
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);*fn3 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).*fn4
If the INS does not terminate the alien's conditional resident status under § 1186a(b)(1), then ninety days before the end of the two-year period of conditional status, the alien may attempt to remove the conditional aspect of the permanent resident status by following the procedure outlined in § 1186a(c). First, the alien and spouse must jointly file a petition requesting removal of the condition. § 1186a(c)(1)(A). Next, the alien and spouse must appear for a personal interview before the INS. § 1186a(c)(1)(B). Following the interview, if the INS determines that the alien's marriage to the citizen was entered into in good faith, the INS will remove the condition on the alien's resident status. § 1186a(c)(3)(A)- (B). If the INS makes an unfavorable determination, it will terminate the alien's resident status as of the date of the determination. § 1186a(c)(3)(C). The alien may appeal this determination to the BIA, in which case the burden of proof is on the INS "to establish, by a preponderance of the evidence, that the facts and information [contained in the petition] are not true with respect to the qualifying marriage." § 1186a(c) (3)(D).
There are exceptions to this general procedure. Relevant here, if the alien fails to meet the requirements for timely filing a joint petition, or for jointly appearing for a personal interview, the alien may seek a waiver of these requirements. Upon request, at "the Attorney General's discretion," the INS can waive this requirement, and remove the conditional basis of the permanent resident status, if the alien demonstrates that the marriage to the U.S. citizen "was entered into in good faith by the alien spouse, but... has been terminated (other than through the death of the spouse) and the alien was not at fault in failing to meet the requirements" of submitting a joint petition and appearing for a personal interview. § 1186a(c)(4)(B).*fn5 The INS also can remove the conditional basis of the alien's permanent resident status if "extreme hardship would result if such alien is removed." § 1186a(c)(4)(A). Hardship is judged by considering "circumstances occurring only during the period that the alien was admitted for permanent residence on a conditional basis." § 1186a(c)(4). Generally, in considering these waiver requests, "[t]he determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General." § 1186a(c)(4).
If the alien does not file the joint petition within the ninety-day period set forth in the statute, then the alien's conditional permanent resident status automatically terminates on the second anniversary of the date the alien received that status. § 1186a(c)(2)(A); 8 C.F.R. § 1216.4(a)(6). In a subsequent removal proceeding, "the burden of proof shall be on the alien ...