In re Velarde
| Decision Date | 06 March 2002 |
| Docket Number | Interim Decision Number 3463,File A70 178 696. |
| Citation | 23 I&N Dec. 253 |
| Parties | In re Mario Eduardo VELARDE-Pacheco, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
BEFORE: Board En Banc: SCHMIDT, VILLAGELIU, GUENDELSBERGER, MOSCATO, MILLER, BRENNAN, and OSUNA, Board Members. Concurring Opinions: HOLMES, Board Member, joined by HURWITZ, Board Member; ROSENBERG, Board Member; ESPENOZA, Board Member. Dissenting Opinions: GRANT, Board Member; PAULEY, Board Member, joined by SCIALABBA, Acting Chairman; DUNNE, Vice Chairman; FILPPU, COLE, OHLSON, and HESS, Board Members.
VILLAGELIU, Board Member:
This case was last before us on June 12, 2001, when we dismissed the respondent's appeal from an Immigration Judge's decision finding him removable as an alien who was inadmissible at the time of entry and ineligible for any form of relief. The respondent now seeks to reopen the proceedings, arguing that he is prima facie eligible for adjustment of status based on his bona fide marriage to a United States citizen. The motion will be granted and the record will be remanded to the Immigration Judge for further proceedings.
The respondent is a 25-year-old native and citizen of Mexico. At a hearing on October 27, 1997, the Immigration Judge ordered the respondent deported to Mexico. The respondent filed a timely appeal from that decision.
On February 23, 1999, the respondent married a United States citizen. The couple's son was born on July 24, 1999. On April 30, 2001, the respondent's wife filed a Petition for Alien Relative (Form I-130) with the Service on the respondent's behalf, and he simultaneously filed an Application to Register Permanent Residence or Adjust Status (Form I-485), pursuant to 8 C.F.R. § 245.2(a)(2)(i) (2001), seeking the benefits of section 245(i) of the Act, 8 U.S.C. § 1255(i) (2000).
We dismissed the respondent's appeal on June 12, 2001. On September 10, 2001, the respondent filed the present motion to reopen with supporting documentation that includes a copy of his marriage certificate, a copy of his son's birth certificate, and copies of his filing fee receipts. He has also submitted copies of his adjustment application and supporting documentation, as required by 8 C.F.R. § 3.2(c)(1) (2001). These materials include the birth certificate of the couple's United States citizen son as evidence of the bona fide nature of their marriage. See 8 C.F.R. §§ 204.2(a)(1)(iii)(B)(4), 245.1(c)(9)(v)(D) (2001).
The respondent argues that he should be given an opportunity to adjust his status to that of a lawful permanent resident as a result of his marriage to a United States citizen, and he urges us to reopen proceedings and remand his case to the Immigration Judge to allow him to apply for such relief.
In its response to the respondent's motion, the Immigration and Naturalization Service argues that we are precluded from reopening this case by our decisions in Matter of Arthur, 20 I&N Dec. 475 (BIA 1992), and Matter of H----A----, Interim Decision 3394 (BIA 1999).
The issue before us is whether we should modify our policy, stated in Matter of Arthur, supra, and reaffirmed in Matter of H---- A----, supra, to deny a motion to reopen to apply for adjustment of status that is based on an unadjudicated visa petition filed by a United States citizen or lawful permanent resident on behalf of his or her spouse, in light of the Service's recently revised procedures regarding the joining of untimely motions to reopen that are submitted after visa petition approval.
In Matter of Arthur, supra, the respondent filed a motion to reopen with the Immigration Judge, claiming eligibility for adjustment of status based on his marriage to a United States citizen after the commencement of deportation proceedings. The respondent filed a Form I-485, and a Form I-130 was submitted on his behalf. The Immigration Judge denied the respondent's motion because the I-130 had not yet been adjudicated by the Service. We affirmed, modifying our holding in Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), which treated pending visa petitions that are prima facie approvable as already approved for purposes of reopening based on the simultaneous filing provisions of 8 C.F.R. § 245.2(a)(2)(i). Matter of Arthur, supra, at 477.
In Matter of H---- A----, supra, we addressed a situation in which we initially denied the respondent's motion to reopen to apply for adjustment of status under section 245(i) of the Act, in accordance with the policy articulated in Matter of Arthur, because a Form I-130 filed on the respondent's behalf had not yet been approved by the Service. After the visa petition was eventually approved, we denied a subsequently filed motion to reconsider based on the time and number limits set forth in 8 C.F.R. § 3.2(c)(2). Matter of H---- A----, supra.
The effect of our policy in Matter of Arthur, supra, coupled with the regulation limiting respondents to one motion to reopen filed within 90 days of a final administrative decision and the Service's inability to adjudicate many I-130 visa petitions within that time frame, has been to deprive a small class of respondents, who are otherwise prima facie eligible for adjustment, of the opportunity to have their adjustment applications reviewed by an Immigration Judge. See sections 204(g), 245(e) of the Act, 8 U.S.C. §§ 1154(g), 1255(e) (2000); Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, § 5, 100 Stat. 3537, 3543; Immigration Act of 1990, Pub. L. No. 101-649, § 702, 104 Stat. 4978, 5086; 8 C.F.R. §§ 3.2(c)(2), 3.23(b)(3) (2001); see also INS v. Doherty, 502 U.S. 314 (1992); INS v. Abudu, 485 U.S. 94 (1988); Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996); Matter of Coelho, 20 I&N Dec. 464 (BIA 1992); H.R. Conf. Rep. No. 101-955, at 128 (1990), reprinted in 1990 U.S.C.C.A.N. 6784, 6793.
The Service recently revised its policy on joining untimely motions to reopen for adjustment of status. In a memorandum dated July 16, 2001, the Service's General Counsel stated that, given changes to the Act, including the "stop-time rule" of section 240A(d) of the Act, 8 U.S.C. § 1229b(d) (2000), and repeated amendments to section 245(i) of the Act, an amendment to the Service's guidance as it relates to adjustment of status and motions to reopen was warranted. See Memorandum for Regional Counsel for Distribution to District and Sector Counsel, Office of the General Counsel (July 16, 2001). The Service withdrew its "extraordinary and compelling circumstances" standard for joining such a motion, stating that assistant district counsels may now join in a motion to reopen for consideration of adjustment of status if that relief was not available to the alien at the former hearing, the alien is statutorily eligible for adjustment, and the alien merits a favorable exercise of discretion. Id.
We conclude that a properly filed motion to reopen may be granted, in the exercise of discretion, to provide an alien an opportunity to pursue an application for adjustment where the following factors are present: (1) the motion is timely filed; (2) the motion is not numerically barred by the regulations; (3) the motion is not barred by Matter of Shaar, 21 I&N Dec. 541 (BIA 1996), or on any other procedural grounds; (4) the motion presents clear and convincing evidence indicating a strong likelihood that the respondent's marriage is bona fide; and (5) the Service either does not oppose the motion or bases its opposition solely on Matter of Arthur, supra.
In the instant case, the respondent filed his first and only motion to reopen before this Board within 90 days of our decision dismissing his appeal. The respondent was not granted voluntary departure during proceedings before the Immigration Judge, and he is therefore not barred from adjustment of status for overstaying a voluntary departure period. See Matter of Shaar, supra. We find no other procedural bars to his motion to reopen.
Most importantly, the respondent has submitted clear and convincing evidence that his marriage is bona fide, based on the evidentiary standard set forth at 8 C.F.R. § 204.2(a)(1)(iii)(B). The respondent has submitted copies of his receipt for the I-485 filing fee; his receipt for the I-130 filing fee that was submitted on his behalf by his wife; his receipt for the additional sum prescribed by 8 C.F.R. § 245.10(b) (2001); his marriage certificate; and the birth certificate of his United States citizen son. He has also submitted an affidavit attesting that he has known his wife since 1995.
The Form I-485 filed by the respondent indicates that he and his wife have lived together at their current address since June 1999. Submission of such evidence, in compliance with the standards prescribed by 8 C.F.R. § 204.2(a)(1)(iii)(B) for establishing the bona fide nature of a marriage by clear and convincing evidence, indicates a high probability that the respondent...
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