In re H-a-
| Decision Date | 25 May 1999 |
| Docket Number | Interim Decision #3394 |
| Parties | In re H-A-, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
This case was last before us on April 17, 1997, when we denied the respondent's motion to reopen filed on September 25, 1996, for the purpose of applying for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (1994 & Supp. II 1996). The motion to reopen was denied because the visa petition filed on the respondent's behalf had not yet been approved. The respondent has submitted a motion to reconsider our April 17, 1997, denial of his motion and has also submitted a "Supplement to Motion to Reconsider" based on the fact that the immediate relative visa petition filed on his behalf was subsequently approved. We construe the respondent's May 20, 1998, "supplement" to be a motion to reopen because he has presented evidence that was previously unavailable. Such motion is both time and number barred under 8 C.F.R. § 3.2(c)(2) (1999). The respondent's motion to reconsider our April 17, 1997, decision will be denied.1
The respondent is a 37-year-old male native and citizen of Sudan2 who entered the United States on January 26, 1990, as a nonimmigrant authorized to stay for 6 months. He overstayed his visa. The Immigration and Naturalization Service issued him an Order to Show Cause and Notice of Hearing (Form I-221) on June 24, 1993. The respondent filed an asylum application with the Immigration Court, which was denied on January 31, 1994. The Immigration Judge did, however, grant the respondent voluntary departure until March 7, 1994. The respondent appealed the Immigration Judge's decision to deny asylum. While the appeal was pending with this Board, the respondent married a United States citizen on July 27, 1994.
We dismissed the respondent's appeal on September 7, 1995, but gave him 30 days from the date of our order to voluntarily depart the United States. On September 18, 1996, nearly a year after the respondent's voluntary departure period ended and over 2 years after the couple were married, the respondent's spouse filed a Petition for Alien Relative (Form I-130) on his behalf with the Service. The respondent also filed an application to adjust his status with the Service on the same day. One week later, on September 25, 1996, the respondent filed with this Board a motion to reopen his deportation proceedings so that he could apply for adjustment of status.3 The Service did not file an opposition to the motion. Because the visa petition had been filed only a week earlier, the Service had not yet adjudicated it when the respondent filed his motion to reopen. We denied the respondent's motion on April 17, 1997, in accordance with Matter of Arthur, 20 I&N Dec. 475 (BIA 1992), which requires an approved immediate relative visa petition before a case may be reopened for adjustment of status. In Matter of Arthur, supra, we determined that we will not grant
motions to reopen for the consideration of adjustment applications based upon unadjudicated visa petitions which fall within the ambit of sections 204(g) and 245(e) of the Act, 8 U.S.C. §§ 1154(g) and 1255(e) (Supp. II 1990), as discussed more fully infra.
On May 16, 1997, the respondent filed a timely motion to reconsider our April 17, 1997, decision denying his motion to reopen. See 8 C.F.R. § 3.2(b)(2) (1997).4 In the motion to reconsider, the respondent, through counsel, argues that the Board should revisit its decision in Matter of Arthur, supra, because it is inconsistent with the new motions regulations, which permit only one motion to reopen to be filed no later than 90 days after the final administrative decision. See 8 C.F.R. § 3.2(c)(2) (effective July 1, 1996). The respondent's motion to reconsider is based on the dissenting opinion that was part of our April 17, 1997, decision. The respondent contends that we should provide an exception to the Arthur rule because it is now inconsistent with due process, in light of the motions regulations. He argues that if we continue to apply Matter of Arthur without exception, we will be effectively foreclosing adjustment of status to eligible aliens because the motions regulations do not provide sufficient time for the visa petition adjudication process to be completed before the deadline for filing a motion to reopen expires.
The issue before us is whether to modify our holding in Matter of Arthur, supra, and permit an alien to file a timely motion to reopen on the basis of a simultaneously filed adjustment application and an unapproved immediate relative visa petition that is based upon a marriage entered into during deportation or removal proceedings.
We conclude that Matter of Arthur should not be modified. The rationale for the Arthur rule remains because Congress has not modified the presumption it created in section 5 of the Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537, 3543 ("IMFA"), and the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 ("IMMACT 90"), that a marriage entered into after the institution of proceedings is fraudulent, unless overcome by a showing of clear and convincing evidence that it is bona fide. See Matter of Arthur, supra, at 479. Congress also mandated that the filing of motions be limited
in time and number in order to reach finality in deportation cases. These motions restrictions will end many cases where eligibility for relief arises late in the process, not just marriage fraud cases. As a result, the regulations will effectively require most out-of-time claimants, not just those with unadjudicated immediate relative visa petitions, to pursue their applications outside the context of deportation or removal proceedings, and often to do so outside of the United States. To create an additional exception to the motions restrictions for aliens falling within sections 204(g) and 245(e) of the Act would undermine the purpose of such restrictions—finality in deportation and removal cases. Finally, as we stated in Matter of Arthur, the suggested modification would "constitute a substantial and unwarranted intrusion into the district director's authority" if this Board attempts or, more particularly, if Immigration Judges attempt to evaluate whether clear and convincing evidence of a bona fide marriage has been shown. See id. at 479; 8 C.F.R. § 204.2 (1999).
In Matter of Arthur, supra, we modified our decision in Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), based on Congress' 1986 enactment of the IMFA. Congress saw immigration-related marriage fraud as a serious problem and passed legislation designed to deter fraud by aliens seeking to acquire lawful permanent residence in the United States through marriage to a United States citizen or a lawful permanent resident alien. Section 5 of the IMFA provides, regarding an alien's right to enter or remain the United States, that if the alien marries while an administrative or judicial proceeding is pending, he or she may not use that marriage as a basis for adjustment of status or to gain immediate relative or preference status. See H.R. Rep. No. 99-906, at 11 (1986), reprinted in 1986 U.S.C.C.A.N. 5978, 5983; see also sections 204(g), 245(e)(1) of the Act.
In 1990, Congress amended the IMFA by creating a bona fide marriage exception. In section 702 of the IMMACT 90, 104 Stat. at 5086, Congress enacted a provision that allows an alien to overcome the marriage fraud presumption, but only if he or she is able to demonstrate by clear and convincing evidence the bona fides of the marriage. This provision also limits an alien to one administrative review in order to promote finality. See H.R. Rep. No. 101-723(I), at 51-52 (1990), reprinted in 1990 U.S.C.C.A.N. 6710, 6731-32; H.R. Conf. Rep. No. 101-955, at 128 (1990), reprinted in 1990 U.S.C.C.A.N. 6784, 6793; see also section 245(e)(3) of the Act.
It was within this framework that we issued our decision in Matter of Arthur, supra. In Matter of Arthur, we stated that the presumption established
in Matter of Garcia, supra,5 was inconsistent and incompatible with the congressionally mandated presumption that marriages entered into after the institution of proceedings are fraudulent. Matter of Arthur, supra, at 479. We held that motions to reopen for adjustment of status based upon unadjudicated visa petitions which fall within the ambit of sections 204(g) and 245(e) of the Act will not be granted.6
In section 545(d) of the IMMACT 90, 104 Stat. at 5066, Congress also addressed the problem of successive and frivolous administrative motions. See Stone v. INS, 514 U.S. 386, 400 (1995) (). Congress directed the Attorney General to issue regulations limiting the number of motions to reopen and the maximum time period during which a motion to reopen may be submitted. See H.R. Conf. Rep. No. 101-955, at 133 (1990),
reprinted in 1990 U.S.C.C.A.N. 6784, 6798. In fact, the restrictions Congress had in mind were much more restrictive than those eventually...
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