Tadevosyan v. Holder

• Decision Date: 26 February 2014
• Docket Number: Nos. 07–75087,08–71791,08–73437.,s. 07–75087
• Citation: 743 F.3d 1250
• Parties: Masis TADEVOSYAN, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. Masis Tadevosyan, Petitioner, v. Eric H. Holder, Jr., Attorney General, Respondent. Masis Tadevosyan, Petitioner, v. Eric H. Holder, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

743 F.3d 1250

Masis TADEVOSYAN, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

Masis Tadevosyan, Petitioner,

v.Eric H. Holder, Jr., Attorney General, Respondent.

Masis Tadevosyan, Petitioner,

v.Eric H. Holder, Jr., Attorney General, Respondent.

Nos. 07–75087, 08–71791, 08–73437.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 6, 2014.

Filed Feb. 26, 2014.

Cheri Attix (argued), Law Office of Cheri Attix, San Diego, CA, for Petitioner.

Jesse Lloyd Busen (argued), Trial Attorney, Tony West, Assistant Attorney General, and Erica B. Miles, Senior Litigation Counsel, United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A097–103–077.

Before: HARRY PREGERSON, MICHAEL R. MURPHY,^* and MARSHA S. BERZON, Circuit Judges.

OPINION

BERZON, Circuit Judge:

After Masis Tadevosyan was ordered removed from the country for an immigration violation, he married an American citizen and applied for a visa and adjustment of status. The Board of Immigration Appeals (BIA) refused to reopen his removal proceedings. Our question is whether in doing so, the BIA improperly relied on the fact of the Department of Homeland Security's (DHS) opposition to his motion, rather than on the merits of the motion, or otherwise abused its discretion in deciding the motion. We grant the petition for review of the BIA's decision and remand for further proceedings.¹

I. Background

Tadevosyan, a native of Iran and citizen of Armenia, entered the United States in May 2002 on a non-immigrant visa permitting him to remain in the country until later that year. After he overstayed the visa's expiration date, he was placed in removal proceedings, and an immigration judge ordered his removal to Armenia.

Tadevosyan appealed the removal order to the BIA. While his appeal was pending, Tadevosyan married Lyubov Smolyanyuk, a United States citizen. Smolyanyuk filed an I–130 petition for a visa for Tadevosyan.

The BIA then affirmed the removal order. Tadevosyan filed a timely motion to reopen, asking the BIA to allow him to pursue adjustment of status through the pending I–130 petition filed by his wife. Attached to the motion were copies of the I–130 petition; an I–485 application for adjustment of status; and two I–864 affidavits of support, one from Smolyanyuk and a second from a joint sponsor, Norik Abrahamian.² Smolyanyuk's affidavit represented that she and Tadevosyan had not earned any income in the prior tax year; Abrahamian's attested that his income in the last tax year was $22,211. Abrahamian attached photocopies of his 2006 Federal and state tax return forms, which showed an adjusted gross income of $22,211, and certified under penalty of perjury in the affidavit that the Federal income tax return was a true copy of the return filed with the Internal Revenue Service. Abrahamian did not include copies of his federal W2 forms, but did submit with his California tax return a “Schedule W–2 CG,” which contained the same information as his W–2 forms.

DHS opposed Tadevosyan's motion to reopen. It argued that Tadevosyan had not shown that the I–130 petition had been approved and thus that there was a visa available for Tadevosyan at this time. DHS further contended that Tadevosyan had not submitted sufficient evidence to establish that he was not a public charge, because “the joint sponsor has not provided any proof, such as Forms W–2s, letters, paycheck stubs, or financial statements, to support the income stated on his 2006 federal income tax return.” (error in original). DHS did not address Abrahamian's submission of the Schedule W–2 CG.

The BIA denied Tadevosyan's motion to reopen on March 27, 2008, stating,

In this case, the record reflects that respondent does not have an approved immediate relative visa petition, and the DHS opposes his motion in light of the absence of evidence to establish that he is not inadmissible as a public charge. In this regard, as noted by DHS counsel, while the respondent has provided affidavits of support [from] his wife and a joint sponsor, his wife currently has no income and the joint sponsor neglected to submit supporting documentation for the reported income on his income tax return. As such, consistent with Matter of Velarde, 23 I & N Dec. 253 (BIA 2002), the DHS' opposition is sufficient to require a denial of the respondent's motion. ³

While the appeals before this Court were pending, the United States Citizenship and Immigration Service (USCIS) approved the I–130 visa petition Smolyanyuk filed on Tadevosyan's behalf.

II. Discussion

The BIA's “denial of a motion to reopen or reconsider” is reviewed “for abuse of discretion.” Salta v. I.N.S., 314 F.3d 1076, 1078 (9th Cir.2002) (citing Singh v. I.N.S., 213 F.3d 1050, 1052 (9th Cir.2000)). “The BIA abuses its discretion when it acts ‘arbitrarily, irrationally, or contrary to the law,’ ” and “when it fails to provide a reasoned explanation for its actions.” Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005) (citations omitted). We hold that whether we read the BIA's decision as based purely on the DHS's opposition or as reaching the merits of the public charge issue, it abused its discretion in denying the motion to reopen.

A.

At the time that the BIA rejected Tadevosyan's motion, it was addressing motions to reopen to pursue adjustment of status applications based on an unadjudicated visa petition filed by a United States citizen or lawful permanent resident spouse under the standards set forth in Matter of Velarde–Pacheco, 23 I. & N. Dec. 253 (BIA 2002) (en banc). Velarde replaced an earlier policy, established in Matter of Arthur, 20 I. & N. Dec. 475 (BIA 1992), uniformly to deny such motions. Velarde,23 I. & N. Dec. at 255.

In Velarde, the BIA held that, even if an I–130 was still pending,

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 ...

Id. at 256. The BIA noted that this decision did not “require Immigration Judges to reopen proceedings pending adjudication of an I–130 visa petition in every case in which the respondent meets all five of the aforementioned factors,” and that there may be another valid reason for an Immigration Judge to deny the motion, even if these five factors are met. Id. at 257. Only the fifth Velarde factor is at issue here.

Most of the BIA members who did not join the majority opinion in Velarde understood its articulation of the fifth factor to require denial whenever the Service opposed the motion to reopen, unless solely based on Arthur. Board Member Pauley, in his dissent, joined by six other members of the Board, stated, “As I read the opinion, the Service is required only to register its opposition to the alien's motion. The Service is not required to state the ground(s) for its opposition.” Id. at 268. He observed that, as a result, if DHS “wishes to preserve the status quo ante, it need only adopt a policy of filing a one-sentence ‘Opposition’ to motions to reopen that would previously have been barred under Matter of Arthur ...” Id. at 268–69. In concurring with the result of the majority, Board Member Rosenberg emphatically rejected “the degree of deference extended to [DHS] under the fifth condition articulated in the majority opinion.” Id. at 264. She refused to “believe that [DHS] opposition is an appropriate ‘condition’ that, as a rule, should result in denial of a motion to reopen,” because the BIA's “role is to engage in impartial and independent adjudications, not to rubberstamp the preferences of [DHS].” Id. She noted that the BIA “certainly may consider any substantive objections to reopening offered by the Service,” but “such objections should not constitute an insurmountable barrier to granting a motion to reopen.” Id.

The BIA as a whole later recognized that “the fifth factor in Velarde can be read to be dispositive, and it was so understood by at least some Board Members at the time.” Matter of Lamus–Pava, 25 I. & N. Dec. 61, 64 (BIA 2009) (collecting citations). As a result, in applying Velarde, the BIA “accorded controlling weight to the opposition of the DHS in at least some cases.” Id.

In 2008, after the BIA's third decision in this case, the Ninth Circuit rejected the notion that the BIA could properly accord dispositive weight to DHS's opposition to motions to reopen. See Ahmed v. Mukasey, 548 F.3d 768, 771–72 (9th Cir.2008). Ahmed found persuasive the reasoning of the Second and Sixth Circuits concluding “that the DHS should not be able to block unilaterally a motion to reopen.” Id. at 772 (citing Melnitsenko v. Mukasey, 517 F.3d 42, 52 (2d Cir.2008); Sarr v. Gonzales, 485 F.3d 354, 363 (6th Cir.2007)). Accordingly, Ahmed held “that when the DHS opposes a motion to reopen for adjustment of status, the BIA may consider the objection,” and may deny the motion based on the merits of the DHS's objection, “but [it] may not deny the motion based solely on the fact of the DHS's objection.” Id. (emphasis added); see also Melnitsenko, 517 F.3d at 52. Thereafter, in 2009, the BIA brought its own law into harmony with the Circuit court cases, by clarifying that the fifth Velarde factor should “not grant DHS ‘veto’ power over an otherwise approvable Velarde motion,” and “the mere fact of a DHS opposition to a motion, in and of itself,...