ANDERSON

 Interim Decision #3231




                        MATTER OF ANDERSON
                          In Deportation Proceedings
                                    A-42057285

                   Decided by Board September 30, 1994

(1)A conditional permanent resident alien who seeks to remove the conditional basis of
  that status by means of a waiver under section 216(c)(4) of the Immigration and
  Nationality Act, 8 U.S.C. § 1186a(c)(4) (1988), should apply for any applicable waiver
  provided under that section.
(2) An alien whose application for a specific waiver under section 216(c)(4) of the Act
  has been denied by the Immigration and Naturalization Service may not seek
  consideration of an alternative waiver under that section in deportation proceedings
  before the immigration judge.
(3) Where an alien becomes eligible for an additional waiver under section 216(c)(4) of
  the Act due to changed circumstances, the proceedings may be continued in order to
  give the alien a reasonable opportunity to submit an application to the Service.
(4) Inasmuch as the Board of Immigration Appeals only has authority to review a waiver
  application after the Service and the immigration judge have considered it, an alien
  may not apply for a waiver under section 216(c)(4) of the Act on appeal.
CHARGE:
Order: Act of 1952—Sec. 241(a)(1)(D)(i) [

(a)(1)(D)(i))—Conditional
                       resident status terminated
ON BEHALF OF RESPONDENT:                          ON BEHALF OF SERVICE:
  Ann E. Benson, Esquire                            Robert Solmonson
  Catholic Social Services                          District Counsel
  3710 East 20th Avenue, Suite
  Anchorage, Alaska 99508-3418

BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members; Holmes,
     Alternate Board Member



   In a decision dated August 13, 1992, the immigration judge found
the respondent deportable under section 241(a)(1)(D)(i) of the Immigration and Nationality Act, 

(a)(1)(D)(i) (Supp. IV
1992), as an alien whose conditional permanent resident status had
been terminated, and granted her request for voluntary departure. The
respondent has appealed from the immigration judge's finding of
deportability. The appeal will be dismissed.

                                         888
                                               Interim Decision #3231

   The respondent is a 31-year-old native and citizen of the Philippines. On September 11, 1989, she entered the United States as a
conditional permanent resident pursuant to section 216 of the Act, 8
U.S.C. § I 186a (1988), on the basis of her February 23, 1989,
marriage to a United States citizen. On September 10, 1991, the
respondent filed an Application for Waiver of Requirement to File
Joint Petition for Removal of Conditions (Form 1-752) with the
Immigration and Naturalization Service.
   The respondent was interviewed by the Service regarding her waiver
application on November 21, 1991. A transcript of the interview was
presented by the Service at the hearing and was admitted into evidence
without objection from the respondent. The respondent's statements
during the interview and her testimony during the hearing were
consistent. The following facts are not in dispute.
   The respondent began corresponding with her husband by letter
approximately 1 year before their marriage. The correspondence was
initiated through the respondent's sister and brother-in-law. The
respondent's sister is married to a United States citizen and lives in
Kodiak, Alaska, as did the respondent's husband. At the time they
began writing to each other, the respondent's husband was married. He
obtained a divorce from his wife on January 30, 1989. He then
traveled to the Philippines, arriving on February 12, 1989, when the
respondent met him for the first time. They were married in the
Philippines on February 23, 1989.
   The respondent's husband returned to Kodiak in early March. He
then began living with another woman. The respondent was informed
of this development by her sister. In July 1989 she began seeing a man
in the Philippines by whom she became pregnant. The respondent
entered the United States as a conditional permanent resident on
September 11, 1989, to join her husband. She was greeted by her
brother-in-law, who drove her to her husband's home. When the
respondent saw that another woman was still living with her husband,
she immediately asked her brother-in-law to take her to stay with her
sister. She has since remained with her sister and brother-in-law. Her
son was born on April 27, 1990. According to the respondent's waiver
application, her son has been residing in the Philippines since
December 19, 1990. The respondent provided babysitting services at
her sister's home for her husband's son from his previous marriage and
allowed her husband to visit her there until he moved to Fairbanks,
Alaska. The respondent has not seen her husband since he left in
November 1989, although she has communicated with him by
telephone.
   The Act provides two means by which the conditional basis of a
conditional permanent resident's status may be removed. The alien
                                 889
 Interim Decision #3231

and the United States citizen spouse may file a joint petition to
remove the conditional basis of the alien's permanent resident status
under section 216(c)(1) of the Act, or the alien may file an application
for a waiver of the requirement to file a joint petition under section
216(c)(4).' Matter of Mendes, 201:N Dec. 833 (BIA 1994); Matter of
Balsillie, 

 (BIA 1992). Section 216(c)(1)(A) of the Act,
through reference to section 216(4)(2), requires that the joint petition
be filed during the 90 day period before the second anniversary of the
                           -


date the alien obtained conditional permanent resident status. The 90-
day limit is not imposed for the filing of a waiver request.
   As previously noted, the respondent, who was not living with her
husband, chose to file a waiver application pursuant to section
216(c)(4) of the Act. That section, which provides for three separate
waivers of the conditional basis of a conditional permanent resident's
status, provides as follows:
          HARDSHIP WAIVER.—The Attorney General, in the Attorney General's
       discretion, may remove the conditional basis of the permanent resident status for
       an alien who fails to meet the requirements of paragraph (1) if the alien
       demonstrates that—
         (A) extreme hardship would result if such alien is deported,
         (B) the qualifying marriage was entered into in good faith by the alien spouse,
      but the qualifying marriage 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
      paragraph (1), or
         (C) the qualifying marriage was entered into in good faith by the alien spouse
      and during the marriage the alien spouse or child was battered by or was the
      subject of extreme cruelty perpetrated by his or her spouse or citizen or
      permanent resident parent and the alien was not at fault in failing to meet the
      requirements of paragraph (1).
   In 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. The Attorney General shall, by regulation, establish measures
   to protect the confidentiality of information concerning any abused alien spouse or
   child, including information regarding the whereabouts of such spouse or child.
Section 216(c)(4) of the Act, 8 U.S.C. § 1186a(c)(4) (Supp. V 1993);
see also Matter of Balsillie, supra.
   On her waiver application, the respondent indicated that she was

  lAt the time the respondent requested a 'waiver, these applications were filed on two
separate forms, the joint petition being on Form 1-751, and the application for a waiver
being on Form 1-752. These applications have now been consolidated into a new Form I-
751 (Petition to Remove the Conditions on Residence), on which the applicant
designates the grounds for the requested removal of the conditional basis of the
permanent resident status. See 

 (1991); see also 

(1992); Form 1-751, as reproduced in 5 Charles Gordon & Gittel Gordon, App. 127A-7
(rev. ed. 1992).

                                         890
                                                 Interim Decision #3231

 seeking a waiver under section 216(c)(4)(A) of the Act on the basis of
extreme hardship. On January 30, 1992, the district director issued a
 decision denying the respondent's waiver application, and deportation
proceedings were initiated under section 241(a)(1)(D)(i) of the Act. In
denying the waiver application, the district director stated that the
 respondent bad failed to demonstrate that her deportation from the
United States would result in extreme hardship. See 

(e) (1992). The respondent appeared before the immigration
judge on May 15, 1992, with her representative and stated that she
wished to apply for a waiver under section 216(c)(4) of the Act.
However, the respondent's representative stated that the respondent
was seeking a "just cause waiver," which the immigration judge
treated as a request for the waiver under section 216(c)(4)(B) of the
Act.
   At a reconvened deportation hearing on August 13, 1992, the
immigration judge informed the respondent's counsel that the respondent was ineligible for the section 216(c)(4)(B) waiver because her
marriage had not been terminated. The respondent's counsel requested
a continuance to look into the possibility of terminating the marriage.
However, the immigration judge, after hearing the respondent's
testimony, concluded that the circumstances surrounding the marriage
supported the Service's position that the marriage had not been
entered into in good faith. As a result, the immigration judge
determined that a continuance was not warranted and found that the
respondent was ineligible to apply for a waiver under section
216(c)(4)(B) because she remained married to her husband.
   On appeal, the respondent argues that she is entitled to a waiver
under section 21 6(c)(4)(C) of the Act because she entered into the
marriage in good faith and was subjected to humiliating treatment by
her husband. In particular, she alleges that her husband treated her
with extreme insensitivity by engaging in an adulterous relationship
after their marriage. She also claims that she should be given an
opportunity to terminate her marriage, thereby indicating that she still
seeks to apply for the waiver under section 216(c)(4)(B), as argued
before the immigration judge.
   At the outset, a jurisdictional issue arises from the fact that the
respondent requested a waiver under section 216(c)(4)(B) of the Act
from the immigration judge after the denial of her section 216(c)(4)(A)
waiver application by the district director. The question before us is
whether the respondent, whose application for one of the three waivers
under section 216(c)(4) was denied by the Service, can seek consideration before the immigration judge of an alternative waiver under that
section. We hold that she cannot.
   Original jurisdiction to rule on the merits of an application for a
                                  891
    Interim Decision #3231

•   waiver of the requirement to file a joint petition is with the
    appropriate regional service center director, rather than the immigration judge.2 Matter of Lemhamnzad, 20 l&N Dec. 316 (BIA 1991); 

(c) (1994). The immigration judge only has jurisdiction
    to review the denial of a waiver application. Matter of Lemhammad,
    supra; 

(f) (1994).
       The waiver application contains a section which sets forth the three
    alternative grounds for the waiver under section 216(c)(4) and allows
    the alien to indicate which applies.3 The respondent selected the
    extreme hardship alternative. The district director's denial of the
    respondent's waiver request was accordingly limited to consideration
    of her claim of extreme hardship under section 216(c)(4)(A) of the Act.
       At the time she initially filed her waiver application, the respondent
    should have applied for any waiver that she deemed applicable to her.
    She could not later request a waiver from the immigration judge under
    section 216(c)(4)(B) of the Act after having applied only for the waiver
    under section 216(c)(4)(A) with the Service. In order to have an
    alternative waiver under section 216(c)(4)(B) considered, the respondent should have submitted a new application to the Service. To rule
    otherwise would be to allow circumvention of the regulatory jurisdictional scheme and could serve to encourage aliens to withhold
    evidence and arguments until the review stage for purposes of delay.
       We note that if the respondent had become statutorily eligible to
    apply for the section 216(c)(4)(B) waiver by virtue of changed
    circumstances, i.e., through the termination of her marriage between
    the time that her waiver application was denied and her appearance
    before the immigration judge, she could have sought a continuance
    from the immigration judge to pursue her alternative application with
    the Service. See Matter of Mender, supra.
      2 According to 

(d) (1994), the regional service center director may
    refer the application to the appropriate district and require the applicant to appear for
    an interview. C.f. 

(b)(1) (1994) (joint petition).
      3 The three waivers under section 2 i 6(c)(4) of the Act each have separate conditions,
    with differing evidentiary requirements. Manor of Balsillia, supra. The regulations at 

(e)(1) (1994) regarding the hardship waiver under section 216(c)(4)(A)
    place the burden on the alien to establish extreme hardship, i.e., that which exceeds the
    hardship necessarily attendant upon deportation. With respect to the good faith waiver
    under section 216(c)(4)(B), the regulations at 

(e)(2) (1994) state that
    "evidence relating to the amount of commitment by both parties to the marital
    relationship," such as documentation of joint financial activities, length of residence
    together, and birth certificates of children born to the marriage, must be considered. The
    application for a waiver based on extreme mental cruelty or battery undcr section
    216(c)(4XC) must be supported by proof of physical abuse or of extreme mental cruelty,
    the latter requiring the evaluation of a professional recognized by the Service as an
    expert in the field. 

(e)(3) (1994).

                                               892
                                                Interim Decision #3231

   We must also determine whether the respondent can apply for a
waiver under section 216(c)(4)(C) of the Act on appeal. For the reasons
stated above, we conclude that such a waiver request must be
submitted to the regional service center, which exercises original
jurisdiction, rather than to this Board. Furthermore, we only have
authority to review a waiver application after the immigration judge
has considered it. We note in this regard that although the alleged
circumstances of extreme mental cruelty were known to the respondent at the time she filed her waiver application with the Service, she
chose not to pursue a waiver on that basis.
  Accordingly, the appeal will be dismissed.
   ORDER:        The appeal is dismissed.
   FURTHER ORDER:             Pursuant to the immigration judge's
order and in accordance with our decision in Matter of Chouliaris, 16
1&N Dec. 168 (BIA 1977), the respondent is permitted to depart from
the United States voluntarily within 30 days from the date of this
order or any extension beyond that time as may be granted by the
district director; and in the event of failure so to depart, the
respondent shall be deported as provided in the immigration judge's
order.




                                 893