INA §237(a)(1)(D): Removal After Termination of Conditional Permanent Residence

A conditional permanent resident is an LPR, but the status is subject to the additional requirements of INA §216 or §216A. Family based conditional residence generally arises when permanent residence is obtained through a qualifying marriage less than two years old. Certain immigrant investors and their derivatives are governed by the separate entrepreneur conditional residence statute.

The physical card's expiration should not be confused with the legal termination event. The case should identify when conditional residence was granted, which statute applied, what petition was required to remove conditions, what USCIS decided, and the effective date and stated basis of any termination.

Section 237(a)(1)(D)(i) makes a person deportable when conditional permanent residence under §216 or §216A has been terminated under the respective statute. The NTA should therefore be compared to the actual USCIS termination notice and the procedural history leading to it.

A case in which an I-751 remains pending, a termination notice was withdrawn, or USCIS reopened the underlying petition can present a different posture from a case with a completed termination. The immigration court record should reflect the current agency action rather than a stale database entry or an incomplete summary.

INA §216(b) permits termination before the second anniversary when DHS determines, among other things, that the qualifying marriage was entered for the purpose of procuring immigrant admission, was judicially annulled or terminated other than through death, or involved prohibited consideration for the filing of the qualifying petition.

The statute gives the conditional resident a right to request review of that determination in the removal proceeding. For a termination under §216(b)(1), the statute places the burden on DHS to establish by a preponderance of the evidence that a specified termination condition was met. That burden is distinct from other I-751 termination scenarios.

INA §216(c) requires the petition to remove conditions during the statutory filing period, subject to provisions allowing consideration of certain late petitions for good cause and extenuating circumstances. If the required petition is not filed, the statute provides for termination of conditional residence as of the second anniversary.

In a removal proceeding based on this type of termination, §216(c)(2)(B) places the burden described there on the conditional resident to establish compliance with the petition and interview requirements. A defense should therefore determine whether a petition was in fact filed, whether it was late, whether USCIS accepted a late filing, and what statutory or regulatory relief remains available.

The conditional residence statute also addresses failure to appear for the required personal interview, while recognizing a good-cause concept. The record should identify whether an interview was actually scheduled, whether notice was received, whether USCIS excused or waived the interview, whether the petitioning spouse was deceased, and whether another statutory filing posture applied.

A missed interview should not be analyzed through a generic abandonment label. The statute and current agency record should be reviewed to determine what termination decision USCIS made and what burden the removal proceeding assigns to the parties.

When the joint petition is filed and the required interview occurs, DHS determines whether the statutory facts concerning the qualifying marriage are true. If DHS makes an adverse determination and terminates status, the statute permits review in the removal proceeding.

For this type of adverse determination, §216(c)(3)(D) places the burden on DHS to establish by a preponderance of the evidence that the relevant facts and information alleged in the petition were not true with respect to the qualifying marriage. This is another reason the termination notice must be classified correctly before the parties discuss burden of proof.

INA §216(c)(4) provides waiver provisions for specified circumstances, including extreme hardship, a qualifying marriage entered in good faith that terminated, and battery or extreme cruelty based provisions. The statutory requirements differ among the waiver categories.

A conditional resident whose joint filing cannot succeed may therefore have a waiver route that must be evaluated independently. Evidence of a bona fide marriage can remain central even after divorce. An abuse-based waiver can involve additional confidentiality and evidentiary considerations. Timing and USCIS jurisdiction over the waiver filing should be incorporated into the immigration court strategy.

Matter of Bador, 28 I&N Dec. 638 (BIA 2022), addresses an important interaction between conditional-residence termination and the general fraud waiver. The Board held that INA §237(a)(1)(H) does not waive removability under §237(a)(1)(D)(i) when conditional residence was terminated for failure to file the required joint petition, because that basis for termination is separate and independent from fraud.

The Board also held that §237(a)(1)(H) cannot be used in place of, or combined with, the good-faith marriage waiver in INA §216(c)(4)(B) to eliminate the joint-petition requirement. A respondent facing a §237(a)(1)(D) charge therefore must identify the actual reason for termination and pursue the correct §216 waiver or review mechanism rather than treating §237(a)(1)(H) as a substitute.

BIA precedent recognizes that a conditional resident whose status was terminated before the ordinary filing window may still seek an applicable §216(c)(4) waiver. In Matter of Stowers, the Board addressed the relationship between early termination, waiver eligibility, and continuation of proceedings so the agency could adjudicate a qualifying waiver request.

The precise procedural options depend on current jurisdiction and case posture, but the important point is that termination should not automatically be treated as eliminating every later I-751 waiver path. Counsel should determine whether a waiver is pending, can be filed, or could materially affect the removal charge.

Marriage based conditional residence cases should identify whether the petitioning spouse died during the conditional period. The statute treats death differently from an ordinary judicial termination of the marriage, and BIA precedent has addressed the effect of a petitioning spouse's death on the petition process.

The record should include the death certificate, timely petition history, evidence of the marriage, and communications with USCIS. A case should not be analyzed as a routine joint-petition failure when the reason joint participation became impossible was the petitioning spouse's death.

Where the dispute concerns whether the marriage was bona fide, evidence after the wedding can be relevant to the couple's intent when they married. Joint residence, insurance, taxes, bank records, children, travel, photographs, communications, leases, beneficiary designations, and testimony can all provide context.

But quantity alone is not the goal. A file full of jointly addressed mail may be less persuasive than a coherent record explaining courtship, household arrangements, finances, family knowledge, periods of separation, and the reasons the relationship later succeeded or failed. Adverse facts should be addressed directly rather than omitted.

Some I-751 cases involve site visits, interviews, third-party statements, social media, or investigative reports. Those records can become important DHS evidence in removal proceedings, but the respondent should obtain and examine the actual material rather than rely only on the summary in a denial or termination notice.

Temporary moves, work schedules, separate finances, family obligations, roommate arrangements, or marital difficulty can create facts that appear suspicious when viewed without context. The defense should identify what the investigator observed, whether the information was accurate, and what contemporaneous evidence explains the circumstances.

INA §237(a)(1)(D) also reaches termination of conditional permanent residence under the entrepreneur statute. Those cases are not marriage cases and should not be analyzed through I-751 standards. Investment amount, capital source, enterprise activity, job creation, sustainment, and other EB-5 statutory requirements can be central.

The underlying USCIS petition history and the particular termination provision under §216A should therefore be identified before preparing the removal defense. Although §237(a)(1)(D) is the same general deportability subsection, the evidence and substantive standards differ materially between family based and investor conditional residence.

The conditional residence statute expressly allocates different burdens depending on the type of termination. Some substantive DHS termination determinations require DHS to establish the stated condition or adverse petition determination by a preponderance of the evidence in the removal proceeding.

By contrast, the statute assigns specified compliance burdens to the conditional resident in removal proceedings following termination for failure to file the required petition or satisfy the interview requirement. The termination notice and statutory subsection should therefore be identified before pleadings or briefing describe who must prove what.

A respondent can challenge the validity of the conditional residence termination while also preserving another available form of relief. A marriage based conditional resident might pursue an I-751 waiver, adjustment in an appropriate posture, cancellation if eligible, protection, or another remedy depending on the facts.

The court strategy should distinguish the government's §237(a)(1)(D) charge from any collateral USCIS petition. A favorable USCIS action may affect the removal case, but jurisdiction and procedural mechanisms must be identified rather than assuming an immigration judge can directly adjudicate every I-751 issue.

Collect the original immigrant petition and adjustment or immigrant visa file, the conditional green card, every I-751 or I-829 filing, RFEs, NOIDs, interview notices, investigative materials, termination or denial decisions, proof of filing, marital or investment evidence, and all immigration court charging documents.

For marriage cases, also gather evidence covering the entire relationship rather than only the months immediately before filing. For investor cases, preserve the full business and capital record. Then identify the statutory termination mechanism, burden of proof, review procedure, pending collateral filings, and alternative relief. That framework prevents very different conditional residence cases from being treated as one generic I-751 denial.

Conditional residence cases can involve early termination, failure to file, failure to appear, denial of a joint petition, denial of a waiver, reopening, or another agency action. Those events should not be treated as interchangeable merely because they concern Form I-751 or conditional residence.

The operative USCIS decision should be compared with the petition, RFE or NOID, interview record, investigative evidence, response, and later agency correspondence. The statute assigns different burdens to different termination mechanisms.

Identifying the exact mechanism before pleadings helps avoid arguing under the wrong burden or treating a procedural filing problem as though USCIS had made a substantive marriage fraud determination.

When a respondent seeks review of a USCIS denial of a §216(c)(4) waiver in removal proceedings, BIA precedent recognizes that the immigration judge may consider relevant evidence even if USCIS did not previously consider it. Matter of Herrera Del Orden describes the scope of that review as consistent with the immigration judge's ordinary powers and duties in removal proceedings.

This can matter when significant evidence became available after USCIS adjudication, when the original filing was incomplete, or when later testimony and documents clarify disputed facts.

The opportunity to present additional evidence does not eliminate the applicable statutory burden. It does, however, mean the removal case should be prepared as a complete evidentiary proceeding rather than simply an appellate review of the paper USCIS record.

A conditional resident may face a §237(a)(1)(D) charge because status was terminated and also face a separately pleaded marriage fraud or historical inadmissibility theory. The factual evidence may overlap, but the statutory grounds are distinct.

Section 237(a)(1)(D) focuses on termination under §216 or §216A. Section 237(a)(1)(G) contains specific marriage fraud provisions. Section 237(a)(1)(A) can raise a separate question about inadmissibility at an earlier admission or adjustment.

The NTA and any later charging document should therefore be analyzed charge by charge. Success on the I-751 termination issue does not automatically dispose of every separately alleged fraud theory.

A genuine marriage can later end because of incompatibility, financial conflict, relocation, infidelity, family pressure, abuse, or other ordinary relationship problems. The later failure of the marriage does not itself establish that the parties lacked a genuine marital intent when they married.

Evidence should therefore explain the history of the relationship rather than merely count joint documents. Courtship, wedding plans, residence, finances, family interaction, travel, children, periods of separation, counseling, attempts at reconciliation, and the circumstances of divorce can all provide context.

Where adverse evidence exists, explaining it directly with contemporaneous corroboration is generally more informative than omitting it from the chronology.

Where the required joint petition was timely filed and the statutory process resulted in an adverse determination concerning the truth of the petition, INA §216 provides for review in removal proceedings and specifies the government's burden for that review.

The case should identify what facts USCIS said were untrue and the evidence supporting each determination. A broad conclusion that the marriage was not bona fide should be separated into the actual factual propositions on which the agency relied.

The respondent can then present testimony and documents addressing those propositions while keeping the statutory burden visible. This is different from a termination based simply on failure to timely file the petition or comply with the interview requirement.

The waiver provisions in §216(c)(4) are not a single undifferentiated benefit. Extreme hardship, good faith marriage followed by termination, and battery or extreme cruelty theories contain different eligibility elements and can require different evidence.

When USCIS denies a waiver, the removal case should identify which waiver ground was requested, which statutory element USCIS found lacking, and whether other evidence bears on that element. If more than one waiver basis is legally available, each should be analyzed on its own terms.

Evidence relevant to discretion should also be separated from evidence necessary to establish statutory eligibility. That structure makes the review more precise and prevents a favorable-equities presentation from obscuring an unresolved eligibility element.