U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5/07 leesb11rg Pike, S11ite 2000 Falls Ch11rch, Virginia 22041

Mann, George P. Law Offices of George P. Mann, P.C. 33505 W. 14 Mile Road, Suite 20 Farmington Hills Ml 48331-0000

OHS/ICE Office of Chief Counsel - DET 333 Mt. Elliott St., Rm. 204 Detroit, Ml 48207

Immigrant & Refugee Appellate Center | www.irac.net

Name: JUBRAN, IMAD HANI

A047-214-217

Date of this notice: 2125/2011

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

Donna Carr Chief Clerk

Enclosure

Panel Members: Miller, Neil P.

Cite as: Imad Hani Jubran, A047 214 217 (BIA Feb. 25, 2011)

U.S. Department of Justice

executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File:

A047 214 217 - Detroit, MI

Date:

FEB 2 5 2011

In re: MAD HANI JUBRAN IN REMOVAL PROCEEDINGS MOTION ON BEHALF OF RESPONDENT: APPLICATION: Reconsideration George P. Mann, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

The respondent moves the Board pursuant to 8 C.F .R.1003.2 to reconsider our decision dated October 6, 2010. We denied the respondent's motion to reopen proceedings. In our decision dated March 1, 2010, we dismissed the respondent's appeal from the Immigration Judge's May 1, 2008, decision which found him removable and denied his application for a waiver under section 216(c)(4)(A) of the Immigration and Nationality Act, 8U.S.C.l 186a(c)(4)(A) [extreme hardship waiver]. We also denied the respondent's motion to remand. The Department of Homeland Security ("OHS") has not responded to the respondent's present motion. The motion will be granted. The respondent's motion to reconsider (filed on November 5, 2010) is timely. 216(c)(4)(B) of the Act (good faith waiver) was timely filed. Upon

reconsideration, we find that the respondent's subsequent application for a waiver under section Section 216(c)(2)(A) of the Act provides that if no joint petition is timely filed, the [DHS] shall terminate the permanent resident status of the alien as of the second anniversary of the alien's lawful admission for permanent residence. In contrast, section 216(c)(4) of the Act does not specify any required filing period for extreme hardship or good faith waivers. The respondent filed a complaint for divorce on April 15, 2009 (Motion Exh. F, motion to reopen filed on June 1, 2010). The respondent filed for a good faith waiver with the U.S. Citizenship and Immigration Services ("USCIS") on May 1, 2009 (Motion Exhs. A and B, motion to remand filed on Nov. 5, 2009). TheUSCIS's April 3, 2009, memorandum (Motion Exh. B, motion to reopen filed on June l , 2010) provides for processing good faith waiver requests when the alien is in pending divorce proceedings. Although not binding on the Board or Immigration Judges, the USCIS's memorandum provides useful practical guidance which is not contrary to section 216 of the Act or its implementing regulations. The respondent presented evidence (Motion Exh. G, motion to reopen filed on June 1, 2010) that his divorce became final on October l , 2009. Because the USCIS lacked authority to adjudicate the respondent's good faith waiver request, we will reopen proceedings so the USCIS will now have such authority. See 8 C.F.R. 1216.5(a)(2) (a conditional resident who is in removal proceedings may apply for an extreme hardship or good faith waiver only until such time as there is a final removal order). Upon remand, the Immigration Judge should continue the proceedings to allow the USCIS to adjudicate the respondent's waiver application or, if the parties agree, administratively

Cite as: Imad Hani Jubran, A047 214 217 (BIA Feb. 25, 2011)

/'

A047 214 217

close the proceedings pending the USCIS's adjudication. Dec. 605

See generally Matter ofStowers, 22 I&N

(BIA 1999) (where an alien is prima facie eligible for a waiver under section 216(c)(4) of

the Act and wishes to have the [USCIS] adjudicate an application for such waiver, proceedings should be continued in order to allow the USCIS to adjudicate the application). Accordingly, the following orders will be entered. ORDER: The motion to reconsider is granted.

Immigrant & Refugee Appellate Center | www.irac.net

FURTHER ORDER: The proceedings are reopened. FURTHER ORDER: We vacate our October 6, 2010, decision. FURTHER ORDER: We vacate only that portion of our March 1, 2010, decision which denied the respondent's motion to remand. FURTHER ORDER: We remand the record for further proceedings not inconsistent with the foregoing opinion. 1

j>---FOR THE BOARD

The respondent in his motion to reconsider at 4 states that on April 1, 2010, he re-filed his

application for a good faith waiver with theUSCIS (receipt number WAC-10-182-00133). We used this receipt number to check the status of this petition on the USCIS website, but the case could not be found application is pending before the USCIS. The DHS may also submit evidence on this issue. 2

in the case status system. Upon remand, the respondent should provide evidence that his

Cite as: Imad Hani Jubran, A047 214 217 (BIA Feb. 25, 2011)