Boluk v. Holder

by Mark Fleming

Boluk v. Holder (2nd Cir., June 7, 2011)
JACOBS, Leval, Katzmann

Summary:  Petitioner appealed the agency’s denial of a “hardship waiver” for failing to timely file a joint petition with his U.S. citizen spouse, the marriage to whom had ended, in order to lift the conditional residency under 8 U.S.C. § 1186a.  The petitioner argued that the agency erred as a matter of law by placing the burden of proving eligibility for a hardship waiver on him and in applying the incorrect standard in assessing whether the marriage was entered into in good faith.  The Second Circuit affirmed the agency’s denial of a hardship waiver, holding that under 8 U.S.C. § 1186a(c)(4)(B) and 8 C.F.R. § 1216.5(e)(2) petitioner does have the burden of proving eligibility for the waiver.  See In re Mendes, 20 I. & N. Dec. 833 (BIA 1994); Hammad v. Holder, 603 F.3d 536, 539, 543 (9th Cir. 2010); see also Hijazi v. Dep’t of Homeland Sec., 239 F. App’x 629, 631 (2d Cir. 2007).  Likewise, the Court affirmed that the agency applied the proper standard of proof for establishing eligibility for a waiver, which the petitioner did not satisfy.

Read the opinion here.