Subhas Persaud v. U.S. Attorney General , 204 F. App'x 781 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 24, 2006
No. 05-12570 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A96-021-763
SUBHAS PERSAUD,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 24, 2006)
Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.
PER CURIAM:
Petitioner is a native and citizen of Guyana. On January 30, 2003, he
attempted to enter the United States by misrepresenting that he was a returning
lawful resident using the Guyanan passport of the national he was impersonating.
Seven days later, on February 6, 2003, removal proceedings were initiated. He
appeared before an Immigration Judge (“IJ”) on June 13, 2003 and was found
removable as charged (for entering the United States by fraud). He requested
relief in the form of asylum and withholding of removal and protection under the
U.N. Convention against Torture.
The IJ held a hearing on Petitioner’s request for relief on September 29,
2003. After hearing from Petitioner,1 the IJ denied all relief and ordered him
removed to Guyana. Petitioner appealed the IJ’s decision to the Board of
Immigration Appeals (“BIA”). On November 19, 2004, the BIA affirmed without
opinion. Petitioner chose not to petition this court for review of the BIA’s
decision. Instead, on February 17, 2005, he moved the BIA to reopen, seeking
adjustment of status based on his December 9, 2004 marriage to a United States
citizen. The Government opposed the motion, and Petitioner filed a response. The
BIA denied his motion on April 7, 2005. The BIA held that Petitioner was
ineligible to apply for adjustment of status pursuant to 8 C.F.R. § 245.1(c)(8). The
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Petitioner presented no documentary evidence. He based his case on his own
testimony.
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BIA denied Petitioner’s motion on an alternative ground as well. It assumed that
he was eligible to apply for adjustment of status, but held that he was not prima
facie eligible for the adjustment. The BIA reasoned that (1) Petitioner did not
submit a detailed affidavit demonstrating that he was prima facie eligible for
adjustment of status, and (2) the documents that he submitted did not amount to
clear and convincing evidence indicating a strong likelihood that the marriage was
bona fide. On May 6, 2005, Petitioner moved the BIA to reconsider its denial of
his motion to reopen, and attached additional documentation to establish that his
marriage was bona fide. The BIA denied his motion on June 6, 2005, finding that
(1) he failed to establish that it had erred in rendering its decision on his motion to
reopen, and (2) it could not consider the additional evidence since its review of a
motion to reconsider is confined to the record as it existed prior to the motion.
Petitioner did petition this court to review the BIA’s June 6 ruling. Instead, he
petitions us to review the BIA’s April 7 denial of his motion to reopen his removal
proceeding.
In his brief, Petitioner argues that, in denying his motion to reopen his
removal proceedings, the BIA erred by finding that (1) § 245.1(c)(8) was not in
violation of 8 U.S.C. § 1255(a), the adjustment of status statute, and (2) he was not
prima facie eligible for adjustment of status because he did not provide a detailed
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affidavit. With respect to his first argument, he requests that we adopt the First
Circuit’s holding in Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005), which struck
down § 245.1(c)(8) as being in violation of § 1255(a) in circumstances similar to
his. With respect to his second argument, he contends that the BIA acted in an
arbitrary and capricious manner by requiring that he submit a detailed affidavit,
when the regulations provide that a motion to reopen can be supported by either
affidavits or other evidentiary material. He contends that he complied with the
regulations by attaching to his motion “other evidentiary material,” such as the
immigration forms and documents comprising his adjustment of status package.
Additionally, he says that, because he had married just a few months before the
motion was submitted, he did not have enough time to accumulate other evidence
to establish that the marriage was bona fide.
We review the BIA’s denial of a motion to reopen for an abuse of discretion.
Mejia-Rodriguez v. Reno, 178 F.3d 1139, 1145 (11th Cir. 1999). The discretion
afforded the BIA under 8 C.F.R. § 1003.2(a) with respect to granting and denying
motions to reopen is expansive. See Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.
1999) (providing that the regulation gives the BIA discretion to reopen proceedings
“as it sees fit”). Specifically, the provision provides that “[t]he Board has
discretion to deny a motion to reopen even if the party moving has made out a
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prima facie case for relief.” 8 C.F.R. § 1003.2(a). Judicial review is limited to
determining “whether there has been an exercise of administrative discretion and
whether the matter of exercise has been arbitrary or capricious.” Garcia-Mir v.
Smith, 766 F.2d 1478, 1490 (11th Cir. 1985) (quotation omitted).
A motion to reoopen must be supported by “affidavits or other evidentiary
material.” 8 C.F.R. § 1003.2(c). The BIA may grant a motion to reopen for
adjustment of status based on a marriage entered after the commencement of
removal proceedings if clear and convincing evidence is presented showing a
strong likelihood that the marriage is bona fide. See 8 C.F.R. § 245.1(c)(8)(iii)(F).
A petitioner may meet his burden by showing evidence of joint ownership of
property, joint tenancy of a common residence, the commingling of financial
resources, birth certificates of children born by the couple, or affidavits of third
parties having personal knowledge that the marriage is bona fide. 8 C.F.R.
§§ 204.2(a)(1)(iii)(B)(1)-(5), 245.1(c)(8)(v)(A)-(F).
As an initial matter, the BIA erred by denying Petitioner’s motion on the
ground that arriving aliens in removal proceedings are ineligible to apply for
adjustment of status under § 245.1(c)(8). Following the BIA’s denial of the
motion to reopen, we issued a decision contradicting the BIA’s decision. See
Scheerer v. U.S. Atty. Gen, 445 F.3d 1311, 1322 (11th Cir. 2006) (holding invalid
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8 C.F.R. § 1245.1(c)(8), which was identical to 8 C.F.R. § 245.1(c)(8)). Further,
§ 245.1(c)(8), has since been removed from the Code of Federal Regulations. See
Eligibility of Arriving Aliens in Removal Proceedings to Apply for Adjustment of
Status and Jurisdiction to Adjudicate Applications for Adjustment of Status, 71
Fed.Reg. 27585 (May 12, 2006). However, because the evidence that Petitioner
submitted with his motion did not establish a likelihood that his marriage was bona
fide, the BIA did not abuse its discretion by also denying his motion on the
alternative ground that he failed to establish that he was prima facie eligible for
adjustment of status.
Next, Petitioner argues that the BIA abused its discretion in denying his
motion to reconsider by not taking administrative notice of the additional evidence
he submitted with his motion, demonstrating that his marriage was bona fide.
For us to have jurisdiction to review final orders of removal, the petition for
review must be filed within 30 days of the date of the final order of removal. See 8
U.S.C. § 1252(a)(1), (b)(1). The statutory limit for filing a petition for review in
an immigration proceeding is ‘mandatory and jurisdictional,’ and not subject to
equitable tolling. Dakane v. U.S. Attorney Gen., 399 F.3d 1269, 1272 n. 3 (11th
Cir.2005) (citing Stone v. INS, 514 U.S. 386, 405-06, 115 S. Ct. 1537, 1549, 131
L. Ed. 2d 465 (1995)).
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Upon review of the record and consideration of the parties’ briefs, we
discern no reversible error. We do not have jurisdiction to review the BIA’s
decision denying Petitioner’s motion for reconsideration because the petition for
review only references the BIA’s denial of Petitioner’s motion to reopen, and, as
noted above, he did not file a separate petition for review of the denial of the
motion to reconsider. Accordingly, we deny the petition.
PETITION DISMISSED IN PART AND DENIED IN PART.
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