Claudia Patricia Potes-Ibanez v. U.S. Atty. Gen. ( 2009 )


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                 IN THE UNITED STATES COURT OF APPEALS
    
                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                No. 08-15300                        JUNE 15, 2009
                            Non-Argument Calendar                 THOMAS K. KAHN
                                                                      CLERK
                          ________________________
    
                            Agency No. A079-474-593
    
    CLAUDIA PATRICIA POTES IBANEZ,
    
    
                                                                         Petitioner,
    
                                      versus
    
    U.S. ATTORNEY GENERAL,
    
                                                                       Respondent.
    
    
                          ________________________
    
                      Petition for Review of a Decision of the
                           Board of Immigration Appeals
                           _________________________
    
                                  (June 15, 2009)
    
    Before BIRCH, CARNES and WILSON, Circuit Judges.
    
    PER CURIAM:
           Claudia Patricia Potes-Ibanez, proceeding pro se, petitions for review of the
    
    Board of Immigration Appeals’ (“BIA”) order denying her counseled motion to
    
    remand her case for adjustment of status based on her marriage to a United States
    
    citizen during removal proceedings. The BIA treated her motion to remand as a
    
    motion to reopen and found that she had failed to present clear and convincing
    
    evidence that her marriage was bona fide. However, the BIA, in its order, failed to
    
    address Potes-Ibanez’s approved I-130 visa petition, which was primary evidence
    
    of eligibility for the bona fide marriage exemption. We therefore GRANT her
    
    petition, VACATE the BIA’s order, and REMAND for further consideration.
    
                                    I. BACKGROUND
    
           In October 2000, Potes-Ibanez, a Colombian citizen, entered the United
    
    States on a non-immigrant student visa, which authorized her to stay in the United
    
    States until 5 July 2004. On 8 July 2004, the Department of Homeland Security
    
    (“DHS”) issued her a notice to appear (“NTA”), in which she was charged with
    
    removability as an alien who remained in the United States for a time longer than
    
    permitted, pursuant to INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). On the same
    
    date, her father and mother were issued NTAs charging them with overstaying
    
    their visas.
    
           Potes-Ibanez’s father filed a counseled application for asylum and
    
    withholding of removal under the Immigration and Naturalization Act (“INA”),
                                              2
    and relief under the United Nations Convention Against Torture and Other Cruel,
    
    Inhuman or Degrading Treatment or Punishment, and included Potes-Ibanez, her
    
    mother, and her sister in the application.1 In July 2006, an immigration judge
    
    (“IJ”), after holding a hearing, denied the application and ordered the family
    
    removed to Colombia. After they timely appealed, the BIA affirmed the IJ’s
    
    decision in February 2008. The family filed a motion requesting that the BIA
    
    reconsider its decision and stay removal, which the DHS opposed.
    
           In May 2007, while the family’s appeal to the BIA was pending, Potes-
    
    Ibanez filed a counseled motion to sever her case from her parents’ case and to
    
    remand to the IJ. In her motion, she asserted that: (1) she had married a United
    
    States citizen, Christopher Freimuth, on 23 September 2006; (2) Freimuth had filed
    
    a Form I-130 Petition for Alien Relative (“I-130”) on her behalf, which the United
    
    States Citizen and Immigration Service approved on 23 March 2007; and (3) she
    
    had submitted an I-485 application to adjust her status to that of a permanent
    
    resident. She submitted several documents in support of her motion, including her
    
    and Freimuth’s marriage certificate, both of their birth certificates, proof of the
    
    dissolution of his former marriage, their G-325A biographical-information forms,
    
    
    
    
           1
              The sister’s case was later severed because she was 21 years old, the spouse of a U.S.
    citizen, and had a pending I-130 visa petition for an alien relative.
                                                      3
    her I-485 application to adjust status, and the notice indicating approval of
    
    Freimuth’s I-130 petition on behalf of Potes-Ibanez.2
    
           The BIA granted Potes-Ibanez’s motion to sever but denied her motion to
    
    remand for consideration of her application for adjustment of status.3 It also noted
    
    that the DHS had not responded to Potes-Ibanez’s motion. The BIA treated her
    
    application as a motion to reopen for adjustment of status based on a marriage
    
    entered into subsequent to the onset of removal proceedings. It listed the evidence
    
    Potes-Ibanez had submitted, including her marriage certificate, certificate of
    
    dissolution of her spouse’s former marriage, her and Freimuth’s birth certificates,
    
    her I-485 application, evidence showing that she was admitted into the United
    
    States in 2000, and copies of her passport and I-94 form. The BIA’s discussion,
    
    however, contains no reference to her approved I-130 application. The BIA found
    
    that Potes-Ibanez had not provided the kind of “clear and convincing evidence”
    
    required under 8 C.F.R. § 204.2(a)(1)(iii)(B) for eligibility for the bona fide
    
    marriage exemption.4 Administrative Record (“AR”) at 3. Since she had not met
    
    
           2
            Their G-325A biographical-information forms showed identical current addresses since
    October 2006, which matched the address listed on Potes-Ibanez’s I-485 application.
           3
             As part of the same order, the BIA denied her family’s motion to reconsider and stay
    the proceedings. That portion of the order is not relevant to this appeal.
           4
             As examples of what evidence she could have presented, the BIA mentioned
    “documentation showing joint ownership of property, a lease showing joint tenancy of a
    common residence, documentation showing commingling of financial resources, or affidavits of
    third parties having knowledge of the bona fides of the marital relationship.” AR at 3.
                                                    4
    this requirement, the BIA denied her motion. Potes-Ibanez petitions us for review
    
    of this decision.
    
                                          II. DISCUSSION
    
           On appeal, Potes-Ibanez asserts that the BIA should have granted her motion
    
    to reopen because the evidence she submitted with her motion established that her
    
    marriage was bona fide. She asserts that the approval notice for an I-130 petition
    
    filed on her behalf by Freimuth, their marriage certificate, and the I-485
    
    adjustment-of-status application provide the “clear and convincing evidence”
    
    necessary for the bona fide marriage exemption. Additionally, Potes-Ibanez
    
    maintains that we should not remand her case to the BIA because the “rare
    
    circumstances” exception is applicable.5
    
           We review only the BIA’s decision unless it expressly adopts the opinion of
    
    the IJ. See Al Najjar v. Ashcroft, 
    257 F.3d 1262
    , 1284 (11th Cir. 2001). Since the
    
    BIA issued its own opinion and did not adopt the opinion or reasoning of the IJ, we
    
    review only the BIA’s decision. See id. Courts generally look at the substance of
    
    a motion to remand to determine how it should be treated on appeal. See id. at
    
    1301. If the motion reiterates the remedy requested in the original appeal, it is
    
    
           5
             Her statement of issues references a due process violation with respect to the BIA’s
    dismissal. However, she offers no argument on this issue and therefore has abandoned it. See
    Bayro v. Reno, 
    142 F.3d 1377
    , 1379 (11th Cir. 1998) (per curiam) (finding a party to have
    abandoned an issue when they listed it “as an issue for appellate review but [did] not discuss that
    question in their argument”).
                                                     5
    considered part of that appeal. See id. However, “if a motion to remand seeks to
    
    introduce evidence that has not previously been presented, it is generally treated as
    
    a motion to reopen under 8 C.F.R. § 3.2(c).” Id. Because Potes-Ibanez’s motion to
    
    remand introduced evidence that had not been presented previously, we treat it as a
    
    motion to reopen.
    
          “We review the BIA’s denial of a motion to reopen for abuse of discretion.”
    
    Montano Cisneros v. U.S. Att’y Gen., 
    514 F.3d 1224
    , 1226 (11th Cir. 2008)
    
    (citation omitted). Our review of such a denial “is limited to determining whether
    
    there has been an exercise of administrative discretion and whether the matter of
    
    exercise has been arbitrary and capricious.” Id. (quotation marks and citation
    
    omitted).
    
          An alien’s motion to reopen removal proceedings must state new facts that
    
    the alien would prove at a removal hearing and must be “supported by affidavits or
    
    other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c).
    
    “Motions to reopen are disfavored, especially in a removal proceeding, where, as a
    
    general matter, every delay works to the advantage of the deportable alien who
    
    wishes merely to remain in the United States.” Abdi v. U.S. Att’y Gen., 
    430 F.3d 1148
    , 1149 (11th Cir. 2005) (per curiam) (quotation marks and citation omitted).
    
    As a result, the BIA has broad discretion to grant or deny such a motion. See Al
    
    Najjar, 257 F.3d at 1302. We have identified at least three bases upon which the
                                              6
    BIA could deny a motion to reopen: “(1) failure to establish a prima facie case [of
    
    eligibility for adjustment of status]; (2) failure to introduce evidence that was
    
    material and previously unavailable; and (3) a determination that despite the alien’s
    
    statutory eligibility for relief, he or she is not entitled to a favorable exercise of
    
    discretion.” Id. The BIA has held that it has the discretion to grant a properly filed
    
    motion to reopen where the following five 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 [petitioner’s] marriage is bona fide; and (5) [DHS]
           either does not oppose the motion or bases its opposition solely on
           Matter of Arthur, [20 I.&N. Dec. 475 (BIA 1992)].
    
    In Re Velarde-Pacheco, 23 I.&N. Dec. 253, 256 (BIA 2002).
    
           Under the INA, the Attorney General has the discretion to adjust the status
    
    of an alien to that of a lawful permanent resident if: “(1) the alien makes an
    
    application for such adjustment, (2) the alien is eligible to receive an immigrant
    
    visa and is admissible to the United States for permanent residence, and (3) an
    
    immigrant visa is immediately available to him at the time his application is filed.”
    
    8 U.S.C. § 1255(a). The INA further provides that “any citizen of the United
    
    States claiming that an alien is entitled . . . to an immediate relative status . . . may
    
    file a petition with the Attorney General for such classification.” 8 U.S.C.
    
    § 1154(a)(1)(A)(i). The term “immediate relative” as used in that provision
                                                 7
    includes “children, spouses, and parents of a citizen of the United States.” 8
    
    U.S.C. § 1151(b)(2)(A)(i). When an alien marries a U.S. citizen, the citizen spouse
    
    may file a I-130 petition to establish the existence of a legal relationship between
    
    the spouse and the alien. See Alvarez Acosta v. U.S. Att’y Gen., 
    524 F.3d 1191
    ,
    
    1194 n.6 (11th Cir. 2008). “If the beneficiary is the spouse of an United States
    
    citizen, as here, then the approved I-130 provides the evidentiary basis for the
    
    beneficiary’s adjustment of status via Form I-485, Application to Register
    
    Permanent Residence or Adjust Status.” Id.
    
           An alien seeking an immigrant visa based on a marriage entered into during
    
    the pendency of “administrative or judicial proceedings . . . regarding the alien’s
    
    right to be admitted or remain in the United States” generally is not eligible for a
    
    status adjustment under 8 U.S.C. § 1255(a). 8 U.S.C. § 1255(e)(1)–(2). However,
    
    the statute exempts from this bar any alien who can “establish[] by clear and
    
    convincing evidence to the satisfaction of the Attorney General” that her marriage
    
    was bona fide and not entered into solely “for the purpose of procuring the alien’s
    
    admission as an immigrant.” 8 U.S.C. § 1255(e)(3). An approved I-130 petition
    
    based upon the marriage in question “will be considered primary evidence of
    
    eligibility for the bona fide marriage exemption.”6 8 C.F.R. § 1245.1(c)(8)(v)
    
           6
              This regulation involves the adjustment of status for aliens already residing in the
    United States. See id. We held a prior version of § 1245.1(c)(8), which addressed the unrelated
    issue of the adjustment of status for arriving aliens, invalid. See Scheerer v. U.S. Att’y Gen.,
                                                       8
    (2008). An applicant who submits an approved petition would need to provide
    
    additional evidence to establish that her marriage was bona fide only if the district
    
    director found such evidence necessary and ordered her to provide it. See id.
    
           When addressing an appeal from a decision in which the BIA did not
    
    address a particular issue that a petitioner raised before it, “the proper course,
    
    except in rare circumstances, is to remand to the [BIA] for additional investigation
    
    or explanation.” See Calle v. U.S. Att’y Gen., 
    504 F.3d 1324
    , 1329 (11th Cir.
    
    2007) (quotation marks and citation omitted). We have found this “rare
    
    circumstances” exception to apply when the relevant issue involves a question of
    
    procedure rather than fact because the usual deference to the BIA’s expertise on
    
    matters of fact would not be relevant to that issue. See id. at 1330.
    
           Because Potes-Ibanez submitted a copy of the approved I-130 visa petition
    
    to the BIA, she provided “primary evidence” of her eligibility for the bona fide
    
    marriage exemption as contemplated under the relevant regulations. 8 C.F.R.
    
    § 1245.1(c)(8)(v). Nevertheless, the BIA found that she had not provided the kind
    
    of documentation necessary to make out a prima facie case of eligibility for the
    
    bona fide marriage exemption. Though the BIA listed a number of possible
    
    documents that it would have found to be clear and convincing evidence, it did not
    
    
    
    
    513 F.3d 1244
    , 1248 (11th Cir. 2008); see also Vakker v. Att’y Gen., 
    519 F.3d 143
    , 145 n.1 (3d
    Cir. 2008) (noting that this prior version had been replaced by an unrelated regulation).
                                                      9
    mention the approved I-130 petition nor did it make an effort to discuss the
    
    evidentiary standards provided in § 1245.1(c)(8)(v).7
    
           The government maintains that since § 1245.1(c)(8)(v) treats an approved I-
    
    130 petition as “primary evidence” of the bona fides of a marriage but does not
    
    specify that it would be “clear and convincing evidence” of the same, the BIA
    
    acted within its discretion in finding that the petition here did not meet the latter
    
    standard. See Velarde-Pacheco, 23 I.&N. Dec. at 256 (noting that the BIA has
    
    discretion to reopen only when there is “clear and convincing evidence indicating a
    
    strong likelihood that the [petitioner’s] marriage is bona fide”); 8 C.F.R.
    
    § 1245.1(c)(8)(v). We disagree. Section 1245.1(c)(8)(v) indicates that an
    
    approved I-130 petition would be sufficient to trigger the bona fide marriage
    
    exemption except when the district director, who is in charge of approving the
    
    petition, determines that supporting information is needed. See 8 C.F.R.
    
    § 1245.1(c)(8)(v). Only when the director makes this finding would the alien need
    
    to produce “evidence which clearly and convincingly establishes that the marriage
    
    was entered into in good faith.” Id. The regulation therefore implicitly assumes
    
    that an approved I-130 petition on its own would be “clear and convincing
    
    
    
           7
              Furthermore, the BIA’s discussion of potentially corroborating documents would not
    fall under the portion of 8 C.F.R. § 1245.1(c)(8)(v) addressing the finding that an alien needed to
    submit additional documentation, since that language refers only to determinations made by the
    district director. See 8 C.F.R. § 1245.1(c)(8)(v).
                                                     10
    evidence” of eligibility for the bona fide marriage exemption, apart from those
    
    instances in which the director required the alien to submit additional evidence.
    
    See Patel v. Ashcroft, 
    375 F.3d 693
    , 696 (8th Cir. 2004) (noting that “the approved
    
    visa petition normally suffices to qualify for the [bona fide marriage] exemption”).
    
          The government also cites language from a number of cases indicating that
    
    “approval of the I-130 petition does not automatically entitle the alien to
    
    adjustment of status as an immediate relative of a United States citizen.” Agyeman
    
    v. INS, 
    296 F.3d 871
    , 879 (9th Cir. 2002) (citing INS v. Chadha, 
    462 U.S. 919
    ,
    
    937, 
    103 S. Ct. 2764
    , 2777 (1983)). It maintains that, based on this rule, the BIA
    
    has the discretion to decide what evidence is sufficient to establish eligibility for
    
    the exemption. However, that principle “refers to the IJ’s ultimate discretionary
    
    decision to accord or deny the status after examining the merits of an eligible
    
    alien’s application,” rather than the issue of whether an alien has met her
    
    evidentiary burden for eligibility for the exemption. Patel, 375 F.3d at 697; see
    
    also Agyeman, 296 F.3d at 879 (noting that although an approved I-130 would
    
    “establish[] eligibility for status, the Attorney General — or in the context of
    
    deportation proceedings, the IJ — must still decide to accord the status”). Since
    
    here the BIA addressed solely the issue of Potes-Ibanez’s eligibility for adjustment
    
    of status, which would not implicate this discretionary principle, those cases do not
    
    support the government’s argument. Only the IJ therefore has the authority to
                                               11
    adjust Potes-Ibanez’s status. The BIA’s role is limited to determining whether she
    
    met the eligibility requirements for a status adjustment, in this case by looking at
    
    her eligibility for the bona fide marriage exemption, a finding it must base solely
    
    on the applicable regulatory standards.
    
          Because Potes-Ibanez submitted notice of approval of her I-130 petition as
    
    part of her motion to reopen and the regulations would consider this “clear and
    
    convincing evidence” of eligibility for the bona fide marriage exemption, the BIA
    
    had to address this document in examining her eligibility for a status adjustment.
    
    We therefore find that the BIA abused its discretion when it determined that Potes-
    
    Ibanez had not made out a prima facie case for eligibility for the bona fide
    
    marriage exemption without discussing her approved I-130 petition. In this case,
    
    we deem it appropriate to vacate the BIA’s order and remand to the BIA, since it
    
    has not had the opportunity to consider the effect of this petition on her motion to
    
    reopen for adjustment of status. See Calle, 504 F.3d at 1329.
    
                                    III. CONCLUSION
    
          Potes-Ibanez petitions us for review of the BIA’s denial of her motion to
    
    remand or reopen her case for adjustment of status. We conclude that the BIA
    
    abused its discretion in denying her motion without considering her submission of
    
    the notice of approval of her I-130 application, even though such a notice is
    
    considered primary evidence of eligibility for the bona fide marriage exemption to
                                              12
    the bar on status adjustments. Accordingly, we GRANT her petition for review,
    
    VACATE the BIA’s order, and REMAND for further consideration.
    
          PETITION GRANTED; VACATED AND REMANDED.
    
    
    
    
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