Safe Havens

(B)  Termination of Marriage-Based Conditional Residence.  The noncitizen may request review in removal proceedings where conditional residence status was terminated because the government found the marriage was improper, entered into for the purpose of obtaining entry as an immigrant, or annulled or terminated, or that a payment was given for the filing of a petition. The government bears the burden to prove by a preponderance of the evidence that the conditional residence was properly revoked.[1384]

[1384] INA § 216(b)(2), 8 U.S.C. § 1186a(b)(2), as amended by the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA), Pub. L. No. 102-232, § 302(e)(8), 105 Stat. 1733; INA § 216A(b)(2), 8 U.S.C. § 1186b(b)(2), as enacted by the Immigration Act of 1990, Pub. L. No. 101-649, § 121(b), 104 Stat. 4978, and as amended by MTINA 302(b)(4). See 8 C.F.R. § 216.4(a)(6).  The government can introduce a certified copy of the divorce decree, and establish by a preponderance of the evidence that before the second anniversary of obtaining conditional permanent residence, the qualifying marriage had been “judicially terminated, other than through the death of [his] spouse.”  Matter of Lemhammed, 20 I. & N. Dec. 327 (BIA 1991). Cf. Matter of Mendes, 20 I. & N. Dec. 833 (BIA 1994) (withdrawal of support for a joint petition by the petitioning spouse does not automatically show that marriage was made in bad faith).  See C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 42.06[3] (2004).