What if my i-751 Petition to Remove Conditions on Residence is Denied?

If your i-751 Petition is denied, you have several different options available to you. The first thing you need to understand is that you can NOT appeal the denial of an i-751 petition, as there is no right of appeal under the law. However, as explained below, you can indirectly seek the review of your denial in several different ways. In addition, you always have the right to file another i-751 petition, especially if your circumstances have changed and you become eligible to file a Good Faith Marriage, Abused Spouse, or Hardship Waiver Petition. These options are discussed in more detail below.

OPTION #1 – File a Motion to Reconsider. If you think that your denial was based upon an incorrect application of law or policy, you may want to consider filing a Motion to Reconsider. This Motion is filed on Form i-290B Notice of Appeal or Motion and should be filed at the location and within the time frame set forth in the Instructions for that form. In order to have your Motion to Reconsider granted you will have to establish that the decision to deny your i-751 was incorrect based on the evidence of record at the time the decision was made. The motion should also be supported by citations and references to the relevant law, including statutes, regulations or precedent decisions and explain why this law was incorrectly applied to the facts of your petition. See 8 CFR 103.5(a)(3) for additional details.

OPTION #2 – File a Motion to Reopen. If you have new facts or evidence to present to support your i-751 petition, you should consider filing a Motion to Reopen. This Motion is also filed on Form i-290B Notice of Appeal or Motion and should be filed at the location and within the time frame set forth in the Instructions for that form. Your motion must be supported by affidavits and evidence which shows why you were eligible at the time you filed your petition and thus, why it should have been approved. In short, “new facts” means facts that you have not previously submitted to USCIS to support your petition. If your petition was denied due to abandonment (ie. that you did file a response on time to a Request for Evidence or a Notice of Intent to Deny OR you failed to appear for an interview) you may file a Motion to Reopen only if you can prove that:

• The evidence that USCIS requested was not material to your petition;
• You already submitted the required initial evidence with your petition;
• USCIS made a mistake and you actually did submit your response in time; or
• USCIS made a mistake and did not send the request for evidence or for your appearance to the correct address of record.

OPTION #3 – File another i-751 (Waiver) Petition. While joint i-751 petitions must be filed within 90 days of the date that your original conditional permanent residence expired (unless you establish good cause and extenuating circumstances), i-751 Waiver based petitions may be filed at any time, as long as a U.S. Immigration Judge has not entered a final order of removal against you. And technically, while there is no limit to the number of i-751 petitions that you can file, as a practical matter, you should only file these petitions in good faith and as soon as reasonably possible once you have established eligibility for the waiver. Note also that USCIS has original jurisdiction over i-751 petitions which means that i-751’s must always be filed with USCIS first, even if you are in removal proceedings before a U.S. Immigration Judge. This is discussed in more detail below.

OPTION #4 – Renew your i-751 in Removal Proceedings before a U.S. Immigration Judge. If your i-751 joint or waiver petition is denied and you are issued an i-862 Notice to Appear, you can request that the Immigration Judge review the denial of your i-751 petition. Note, however, that the Immigration Judge can ONLY review the reasons that your i-751 was denied by USCIS. Thus, if your circumstances have changed and you are later eligible under a different Waiver ground, you will have to file a new i-751 petition with USCIS and ask that the Immigration Judge continue your removal proceeding so that USCIS can make a decision on your new i-751 petition. If that new i-751 petition is approved by USCIS, you can ask the Immigration Judge to terminate (dismiss) your removal proceeding. If, however, your new i-751 is denied, then you can request that the Immigration Judge review the legal reasons for the denial. During this review before the Immigration Judge, the burden of proof will be on USCIS to establish by a preponderance of the evidence that either the facts and information in your petition were untrue OR that USCIS properly denied your i-751 petition. You may submit additional evidence to the Immigration Judge to prove that your i-751 waiver petition should be granted, even if you did not previously submit it to USCIS. Finally, note that if the I-751 petition that you are asking the Immigration Judge to review was jointly filed that you will become legally ineligible to have your conditions removed if you get divorced before the Judge adjudicates and makes a decision on your petition. In this case, you will have to ask for a continuance of your removal proceeding so that you can file an I-751 waiver petition with USCIS (presumably based on good faith marriage).

SPECIAL NOTE about BURDEN OF PROOF in Removal Proceedings.

If you are in removal proceedings before a U.S. Immigration Judge and you have requested that the Judge review the denial of your JOINT i-751 petition, USCIS will have the burden of proving that your marriage was not entered into in good faith and that it is not “bona fide” by a preponderance of the evidence. See INA 216(c)(2)(B). This is a factual determination that does not involve any discretion. Thus, if the facts contained in your joint i-751 are true, then your conditions must be removed; if they are not true, then your conditional status will be terminated.

I-751 WAIVER petitions, however, are treated differently, as the adjudication of waiver petitions is discretionary. This means that USCIS adjudicators may rely on their own opinion of the law, policy, or the facts of your case in making a decision as to whether to approve or deny your petition. Thus, it is said that the adjudicator’s opinion as to what evidence is credible and the weight to be given to that evidence (or not to be given) is within the sole discretion of the USICS adjudicator. Under this circumstance, the Immigration Judge reviews for an abuse of discretion and will reverse the denial only if the adjudicator committed plain error.

In short, your chances of convincing an Immigration Judge to reverse (and approve) the denial of a joint i-751 petition are much better than your chances of convincing the Judge to reverse the denial of a waiver petition. Again, this is due to the way that the law is set up regarding the burden of proof. You can think of the difference as mandatory (joint) versus discretionary (waiver). If the factual aspects of the joint petition are true (and there is no evidence of fraud), your conditions must be removed. On the other hand, because of the discretionary aspect of the adjudication of waiver petitions, the law requires the Immigration Judge to give more respect to the adjudicator’s decision, and thus it will be upheld in most cases unless it was based on plain error.

If your i-751 petition is denied, you should consult an experienced Immigration Lawyer to review the denial and discuss your options with you. Immigration Lawyer Sean D. Hummel has over 25 years of experience working with and representing alien immigrants before USCIS and the U.S. Immigration Court and has handled countless i-751 petitions, including complex petitions involving separation and divorce to a successful conclusion. Contact Sean D. Hummel to schedule your consultation today: (954) 385-3111 or sean@hummelaw.com.