TEE

                                                            Interim Decision #3240




                             MATTER OF TEE
                          In Deportation Proceedings
                                    A-26748296

                    Decided by Board January 10, 1995

  An alien becomes statutorily ineligible for approval of a joint petition under section
21 6(c)(1) of the Immigration and Nationality Act, 8 U.S.0 § 1186a(cX I) (1988), where
the marriage has been terminated prior to adjudication of the petition by the
immigration judge.
CHARGE:
Order: Act of 1952—Sec. 24 i(a)(9)(B) [

(a)(9)(B)j—Conditional resident
                      status terminated
ON BEHALF OF RESPONDENT:                             ON BEHALF OF SERVICE:
  Keith W. Bell, Esquire                              Robert Solmonson
  3351 Arctic Boulevard                               District Counsel
  Anchorage, Alaska 99503

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


   The respondent has appealed from the March 14, 1991, decision of
an immigration judge finding her deportable as charged and denying
her joint petition to remove the conditional basis of her lawful
permanent resident status under section 216 of the Immigration and
Nationality Act, 

 86a (1988), as well as her request for the
privilege of voluntary departure. During the pendency of this appeal,
the respondent filed a motion to remand the record to the immigration
judge in order to present an application for a waiver under section
216(c)(4) of the Act, 8 U.S.0 § 1186a(cX4) (Supp. V 1993). The
record will be remanded to the immigration judge for further
proceedings.
   The respondent is a 33-year-old native and citizen of Malaysia. She
entered the United States on January 30, 1981, as a nonimmigrant
student. On April 22, 1986, the respondent married Arthell Hubbard,
a United States citizen. On the basis of a petition filed by her husband,
the respondent was granted lawful permanent resident status on a
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conditional basis under section 216(a) of the Act on January 9, 1987.
In order to remove the conditional basis of the lawful permanent
residence, section 216(c)(1) of the Act requires the alien and his or her
petitioning spouse to file a joint petition during the 90-day period
before the second anniversary of the date the alien obtained that
status. The respondent and her husband did so on December 12, 1988.
However, on April 21, 1989, during the pendency of the interview and
investigation process by officers of the Immigration and Naturalization Service, the respondent was divorced from her United States
citizen husband. The record is not clear as to whether the district
director was notified of the divorce or not. Upon conclusion of the
investigation, the district director denied the joint petition on
February 7, 1990. The respondent was accordingly placed in deportation proceedings by issuance of an Order to Show Cause and Notice of
Hearing (Form I-221) on May 8, 1990.
   The respondent appeared before the immigration judge and submitted the joint petition for review pursuant to section 216(c)(3)(D) of the
Act. At the time of the hearing in this matter, the respondent was
remarried to another United States citizen, by whom she was
expecting a child. Upon conclusion of the evidence and testimony of
the parties, the immigration judge issued a decision finding that the
respondent had entered into her first marriage in order to secure an
immigration benefit. The joint petition was accordingly denied.
Voluntary departure was also denied, both on grounds of statutory
ineligibility and in the exercise of discretion. The respondent appealed,
asserting that the evidence does not support a finding that the
marriage was not bona fide and arguing that her applications for relief
were improperly denied_
   Upon consideration of the record of proceedings, we find that the
immigration judge should not have considered the merits of the joint
petition under section 216(c)(1) of the Act as the respondent was
statutorily ineligible for such relief.
   In a deportation proceeding where the immigration judge is
reviewing a joint petition denied by the Service on its merits,

  the burden of proof shall be on the Attorney General to establish, by a preponderance
  of the evidence, that the facts and information described in subsection (d)(1) and
  alleged in the petition are not true with respect to the qualifying marriage.

Section 216(c)(3)(D) of the Act (emphasis added); see also 

(d)(2) (1994). Among the "facts and information" which the
Service roust prove untrue is the allegation by joint petitioners that
"the qualifying marriage ... has not been judicially annulled or
terminated, other than through the death of a spouse." Section

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216(d)(1)(A)(11) of the Act (emphasis added); see also 

(a) (1994).
    Thus, the Act requires the Service to demonstrate in deportation
proceedings that the facts and information in the petition "are not
true" with respect to the marriage, and the joint petition must include
information to the effect that the marriage "has not been" annulled or
terminated. Considering that the Act requires a present demonstration
that the marriage has not been annulled or terminated, it is clear that
the qualifying marriage must be ongoing in order for a joint petition to
be approved. We accordingly find by the plain meaning of the Act that
an alien becomes statutorily ineligible for approval of a section
216(c)(1) joint petition upon termination of the marriage, other than
through the death of the spouse, before its adjudication by an
immigration judge.
    This holding is consistent with the statutory scheme enacted as
section 216 of the Act by the Immigration Marriage Fraud Amendments of 1986, 

 Stat. 3537. Under that
scheme, the joint petition procedure is an extension of the initial visa
petition procedure of section 204 of the Act, 

 (1988 &
Supp. V 1993). Matter of Mende:, 

 (BIA 1994). As
such, the petitioning spouse is clearly considered an integral part of the
process of removal of the conditional basis of the alien's lawful
permanent resident status under the joint petition procedure. Id In
this connection, we note that the regulations have long provided that
the legal termination of the marriage between a petitioner and the
beneficiary of a relative visa petition, prior to the alien's adjustment of
status or entry on the basis of that petition, constitutes automatic
revocation of the petition, even though it was already approved. 

(a)(4) (1994). 1 Thus, it is consistent with the existing
statutory and regulatory scheme to hold that divorce automatically
withdraws the joint petition from consideration.
    Moreover, where the marriage has been terminated, the respondent
is still entitled under the statutory scheme to apply for a waiver of the
requirement to file a joint petition under section 216(c)(4) of the Act.
This, gives the alien an opportunity to demonstrate that the conditional
basis of the permanent residence should be removed despite the
termination of the marriage- See generally Matter of Mendes, supra;
Matter of Balsillie, 

 (BIA 1992).
    Accordingly, since the respondent was not married to the petition-
  1 We note that the joint petition provisions of the Act make allowance for the death of
a petitioning spouse, just as do the regulations governing initial eligibility for a relative
petition. Compare 

(b) and 205.1(aX3) (1994) with section
216(d)(1)(A)(i)(I1) of the Act.

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ing spouse at the time of the hearing, she was no longer eligible for
relief from deportation by means of a joint petition to remove the
conditional basis of her lawful permanent resident status. Thus, the
petition should have been denied for statutory ineligibility, thereby
obviating consideration of the merits of the petition.
   On July 24, 1991, soon after the immigration judge's decision in
this case, the respondent filed an application with the district director
for a waiver under section 216(c)(4)(A) of the Act. The district director
subsequently denied the petition, and the respondent then filed a
motion with this Board to remand this matter to the immigration
judge so that the denial of the petition could be reviewed pursuant to 

(1) (1994). We have held that where a respondent
becomes statutorily eligible for a waiver under section 216(c)(4) by
virtue of changed circumstances, she may request a continuance of
deportation proceedings in order to submit the waiver request to the
Service for adjudication. Matter of nderson, 

 (BIA
1994); Matter of endes, supra. Here, the changed circumstance of the
respondent's divorce actually occurred before the initiation of deportation proceedings. However, in view of the erroneous assumption by all
of the parties, to> this proceeding, including the immigration judge, that
presentation of the merits of the joint petition in deportation
proceedings was nevertheless appropriate, we shall remand the record
for consideration of the waiver request, and for such other matters as
are consistent with this opinion.
    We note that one of the reasons the Service opposed the motion to
remand was that the respondent had not paid a filing fee for a motion
to reopen. Where a motion to remand is in, the nature of a motion to
reopen, it must comply with the substantive requirements for a motion
to reopen. Matter of Coelho, 

 (BIA 1992). However, a
filing fee is not required for a motion to remand.
    With regard to the joint petition, we have not here addressed the
bona fides of the respondent's marriage to Arthell Hubbard for the
same reason that the petition should not have been considered by the
immigration judge. If another application is presented, the relevance
of the testimony and evidence already submitted to the immigration
judge can be considered at that time.
   ORDER:        The record is, remanded to the immigration judge for
further proceedings consistent with this opinion and the entry of a new
decision.




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