Vasquez v. Holder, 2010 U.S. App. LEXIS 7970 (9th Cir. April 19, 2010): Retaining Lawful Residency After Denial of An I-751 Joint Petition

Vasquez v. Holder, 2010 U.S. App. LEXIS 7970 (9th Cir. April 19, 2010): Retaining Lawful Residency After Denial of An I-751 Joint Petition

By Deborah Smith

A recent Ninth Circuit decision, Vasquez v. Holder, may raise serious problems for conditional permanent residents whose I-751 joint petitions are denied. Although the decision concentrated more on another point, practitioners should not overlook the potential that the decision will block full permanent residency for and lead to the removal of their clients. Deborah Smith explains why Vasquez is so important and how to handle it.


People immigrating to the United States based on new marriages become conditional permanent residents for two years. Filing an I-751 petition to remove the conditions on permanent residence has always been a perilous endeavor in cases involving termination of the marriage, legal impediments to the marriage, or marriage fraud. Under the Ninth Circuit's Vasquez decision, the world of I-751 filings in these cases has become a lot more complicated.


This much is clear: Each conditional resident of the United States who gains lawful resident status through marriage to a United States citizen must file a joint petition with his or her U.S.-citizen spouse using Form I-751 to remove the conditions on residence within ninety days of the two-year conditional status expiring. What happens when the joint petition is filed and subsequently denied is more murky. The Immigration and Nationality Act ("INA" or "Act") provides waivers of the joint-filing requirement in certain circumstances. United States Citizenship and Immigration Services ("USCIS"), previously the Immigration and Naturalization Service ("INS"), has issued a number of policy memoranda and guidance documents on the availability of joint-filing waivers. The Board of Immigration Appeals has issued a number of precedent decisions concerning these waivers. Recently, the Ninth Circuit's Court of Appeals waded into the debate on I-751 waivers in Vasquez v. Holder, reaching the stunning conclusion that the INA prohibits applying for a waiver when a joint petition has been filed and denied on the merits, at least in situations where marriage fraud has been proven and the conditional resident spouse seeks an extreme hardship waiver. This commentary analyzes the facts and holding of Vasquez, and provides practical advice on preparing I-751 petitions, preserving the ability to request I-751 waivers, and when necessary, challenging the court's conclusion in Vasquez.

Factual Background.

Renerose Vasquez, a native and citizen of the Philippines, immigrated to the United States as the spouse of a U.S. citizen. She was admitted as a conditional resident, and together with her husband timely filed a joint petition to remove the conditions on her residence. Ultimately, the former INS denied the I-751 petition and terminated Vasquez's conditional resident status. According to the court, the husband admitted during an I-751 interview that the marriage was entered into for the sole purpose of providing immigration benefits for his wife. The INS notice terminating status indicated that the petition "no longer represents the signature of the United States citizen spouse[.]" Removal proceedings then commenced against Vasquez, and in the course of those proceedings, she filed two separate I-751 waiver petitions with the INS, one based on extreme hardship and the other based on a good-faith marriage that ended in divorce. The INS denied the extreme-hardship waiver, and the Immigration Judge ("IJ") and then Board of Immigration Appeals ("BIA" or "Board") upheld that denial.The court's opinion does not indicate what happened with the good-faith marriage waiver. [footnote omitted]

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The author is grateful for the review and substantive comments of Russell R. Abrutyn and D. Jackson Chaney on an earlier version of this article, and for the skillful editing of Molly J. Liskow. The final piece is much improved due to their thoughtful and intelligent advice. Any remaining errors belong solely to the author.