Synedzhuk v. Holder, 12-4203

• Decision Date: 03 December 2013
• Docket Number: No. 12-4203,12-4203
• Parties: VITALIY SYNEDZHUK, Petitioner, v. ERIC H. HOLDER, JR. , Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

VITALIY SYNEDZHUK, Petitioner, v. ERIC H. HOLDER, JR. , Attorney General of the United States, Respondent.

No. 12-4203

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED: December 3, 2013

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 13a1008n.06

On Petition for Review

from the Board of

Immigration Appeals

BEFORE: MERRITT and CLAY, Circuit Judges; and STAFFORD, District Judge.^*

STAFFORD, District Judge.

Vitaliy Synedzhuk, a native and citizen of Ukraine, petitions for review of a final order of the Board of Immigration Appeals (the "Board") denying Synedzhuk's (1) motion to reconsider the Board's denial of Synedzhuk's motion to reopen, (2) motion to reopen sua sponte, and (3) request for administrative closure. We deny the petition for review.

I.

Synedzhuk entered the United States on August 15, 1999, as a non-immigrant visitor with authorization to remain in the United States until November 14, 1999. His wife and two childrenstayed behind in Ukraine. Synedzhuk has lived in the United States since he entered the country in 1999.

In 2004, having divorced his Ukrainian wife, Synedzhuk married a United States citizen, who thereafter filed an immigrant visa petition on Synedzhuk's behalf. In 2007, after his United States citizen wife failed to appear at the requisite interview regarding the immigrant visa petition, the Department of Homeland Security ("DHS") placed Synedzhuk in removal proceedings. Following a hearing, an immigration judge ("IJ") denied Synedzhuk's applications for withholding of removal and for protection under the Convention Against Torture and ordered him removed. Among other things, the IJ found that Synedzhuk was not credible.

Synedzhuk appealed the IJ's order to the Board. Finding no error in the IJ's decision, the Board dismissed Synedzhuk's appeal on January 19, 2012. Synedzhuk did not seek reconsideration of the Board's decision or petition for review in federal court. His removal proceedings were thus concluded and his removal order became final on January 19, 2012.

On October 27, 2011, while his appeal of the IJ's removal order was pending, Synedzhuk divorced his first United States citizen wife. Soon after, on December 10, 2011, Synedzhuk married his current United States citizen wife. In January 2012, Synedzhuk's new wife filed an immigrant visa petition, and Synedzhuk filed an application for an adjustment to permanent resident status.

On February 8, 2012, citing his recent marriage, Synedzhuk filed with the Board a timely motion to reopen removal proceedings. Attached to his motion were documents that purportedly established the bona fides of his marriage. DHS opposed the motion to reopen, arguing that Synedzhuk did not meet his burden of providing clear and convincing evidence that his marriagewas bona fide. DHS also argued that discretionary reopening was not warranted in light of the IJ's earlier adverse credibility determination. Synedzhuk filed a two-page reply to DHS's opposition.¹

The Board denied Synedzhuk's motion to reopen. Citing Matter of Velarde, 23 I. & N. Dec. 253 (BIA 2002) and Matter of Lamus-Pava, 25 I. & N. Dec. 61 (BIA 2009), the Board first explained that a motion to reopen may be granted in the exercise of discretion when an alien enters a marriage during immigration proceedings and while a marriage-based visa petition is pending, provided that, among other things, (1) "the motion presents clear and convincing evidence indicating a strong likelihood that the respondent's marriage is bona fide;" and (2) "the government . . . does not oppose the motion." Velarde, 23 I. & N. at 256; see also Lamus-Pava, 24 I. & N. at 64-65 (clarifying that an alien's motion to reopen may not be denied solely on the basis of the government's opposition). The Board then summarized the evidence submitted by Synedzhuk in support of his motion to reopen before concluding, without elaboration, that Synedzhuk's motion did not satisfy the criteria set forth in Matter of Velarde "given the DHS's opposition."

Synedzhuk filed a timely motion to reconsider the denial of his motion to reopen. Noting that the Board "did not find that the bona fides of [his] marriage were compelling enough to warrant a remand," Synedzhuk submitted voluminous additional proof for the Board to consider. After the Board denied his motion for reconsideration, Synedzhuk filed the timely petition for review that is now before this Court.

II.

"A motion to reconsider 'shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision and shall be supported by pertinent authority.' " Yeremin v. Holder, 707 F.3d 616, 626 (6th Cir. 2013) (quoting 8 C.F.R. § 1003.2(b)(1)). We review for abuse of discretion the Board's decision to deny a motion to reconsider the denial of a motion to reopen. Id. Indeed, because the Board has broad discretion to deny motions to reopen, see 8 C.F.R. § 1003.2(a) (providing that the Board "has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief"), a party seeking reconsideration of a denial of a motion to reopen bears a particularly heavy burden. Alizoti v. Gonzales, 477 F.3d 448, 451 (6th Cir. 2007).

The Board denied Synedzhuk's motion to reconsider because—according to the Board—the motion did not specify what, if any, error the Board committed in determining that the evidence originally submitted by Synedzhuk was insufficient to establish the bona fides of his marriage. The Board noted that Synedzhuk merely reiterated arguments that were previously raised by Synedzhuk and rejected by the Board. The Board did not consider the "new" bona fides evidence that Synedzhuk attached to his motion to reconsider.

Before this Court, Synedzhuk argues that the Board abused its discretion by refusing to consider the "new" evidence, evidence, he says, that "clarified the original evidence presented," amply satisfying his burden of proof regarding the bona fides of his marriage. Such argument is meritless, however, because the Board was neither required nor permitted to consider "new" evidence on a motion to reconsider. See id. at 453 (explaining that "consideration of new evidence . . . is not allowed as part of a motion to reconsider").

Indeed, when new evidence is submitted as part of a motion to reconsider, the Board construes the motion as a motion to reopen. Id. at 452. In this case, the Board construed Synedzhuk's motion as both a motion to reconsider and as a second motion to reopen. Treated as a second motion to reopen, the motion was denied by the Board because it was both untimely and number barred. See 8 C.F.R. § 1003.2(c)(2) (providing that a party may file only one motion to reopen, which must be filed no later than 90 days after the final administrative decision).² Synedzhuk does not contest this decision by the Board.

Treated as a motion to reconsider, the motion was denied because, in the Board's words, Synedzhuk failed to establish "any error in our previous determination that the evidence...