Rudolph Ramphal v. U.S. Attorney General ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-10869
Non-Argument Calendar
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Agency No. A088-949-524
RUDOLPH RAMPHAL,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 17, 2015)
Before JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Rudolph Ramphal seeks review of an order of the Board of Immigration
Appeals (“BIA”) denying his motion to remand his removal proceedings to the
Immigration Judge (“IJ”) to address his application for adjustment of status based
on his recent marriage to a United States citizen. The BIA found that Ramphal’s
motion to remand was not supported by sufficient evidence of his prima facie
eligibility for adjustment of status because he presented no evidence showing that
his present marriage was bona fide. Ramphal argues that the BIA abused its
discretion by requiring him to present evidence of his prima facie eligibility and
violated his due process rights by denying the motion to remand without providing
him with additional time and an opportunity to present evidence showing that his
marriage was bona ride. After careful review, we deny the petition.
I.
Ramphal is a native and citizen of Guyana. He was admitted to the United
States as a non-immigrant visitor in 2004 with authorization to remain until March
2005. In August 2004, Ramphal married Gladys Garcia, a Cuban national and
lawful permanent resident who obtained her status through the Cuban Adjustment
Act (“CAA”). Ramphal met Garcia, who lived with Ramphal’s sister in Florida,
six days before they obtained their marriage license on July 29, 2004.
In January 2010, the Department of Homeland Security (“DHS”) served
Ramphal with a Notice to Appear, charging him as removable for having remained
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in the United States without authorization. See Immigration and National Act
(“INA”) § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). In August 2012, while removal
proceedings were ongoing, Ramphal applied for adjustment of status under the
CAA based on his marriage to Garcia.1 The CAA is a note to INA § 245, 8 U.S.C.
§ 1255, the statutory provision governing adjustment-of-status determinations for
permanent residence in general. See Gonzalez v. McNary, 980 F.2d 1418, 1420 n.1
(11th Cir. 1993) (quoting the CAA).
After hearing testimony from Ramphal, Garcia, and Garcia’s daughter, the IJ
denied Ramphal’s application for adjustment of status and ordered him removed to
Guyana. The IJ found that Ramphal’s and Garcia’s testimony in court about each
other and their family members was imprecise, inconsistent, and generally lacking
in information that should be known to persons in a bona fide marriage.
Consequently, the IJ determined that Ramphal did not meet the requirements for
adjustment of status under the Cuban Adjustment Act.
Ramphal appealed the IJ’s decision to the BIA. In December 2013, while
his appeal was pending, Ramphal filed with the BIA a motion to remand to the IJ
for further proceedings, claiming that he was eligible to adjust his status based on
1
This was the second time Ramphal had done so. Ramphal first applied for adjustment
of status based on his marriage to Garcia in 2006, but this application was denied in 2007 after
Ramphal failed to appear for an interview. Then, in June 2010, Ramphal was ordered removed
in absentia for failure to appear at his removal proceedings. An immigration judge later granted
Ramphal’s motion to reopen based on lack of notice. Thereafter, Ramphal again filed for
adjustment of status based on his marriage to Garcia.
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his new marriage to Bibi Ramphal (“Bibi”), a recently naturalized United States
citizen. Ramphal explained that he and Garcia divorced on June 17, 2013, and that
he married Bibi on July 2, 2013. In support of his motion to remand, Ramphal
submitted a copy of his adjustment-of-status package, which, among other
documents, included Ramphal’s application for adjustment of status; the June 17
dissolution decree; the July 2 marriage certificate; Bibi’s I–130 alien relative
petition naming Ramphal as a beneficiary; and Bibi’s naturalization certification
showing that she became a naturalized citizen on July 30, 2013.
In January 2015, the BIA issued a decision dismissing Ramphal’s appeal and
denying his motion to remand. The BIA did not address the IJ’s determination that
Ramphal’s marriage to Garcia was not bona fide, finding that his application for
adjustment of status based on this marriage was no longer viable due to their
divorce. The BIA also denied the motion to remand because the motion was not
supported by prima facie evidence of Ramphal’s eligibility for adjustment of
status. First, the BIA stated, Ramphal did not show that the I–130 alien relative
petition actually was pending with the United States Citizenship and Immigration
Services. Second, even assuming that a visa application was pending, the BIA
explained, Ramphal’s motion to reopen was not supported by sufficient evidence
of his prima facie eligibility because he did not “provide[] any documentation with
his motion regarding the bona fide nature of his marriage.”
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Ramphal now brings this petition for review of the BIA’s decision. He
contends that there is no requirement that a petitioner must establish prima facie
eligibility in a motion to remand. Furthermore, he contends, he was arbitrarily
deprived of the opportunity to be heard on whether his new marriage is bona fide,
in violation of his due-process rights, and he should have been given additional
time in which to file materials supporting the bona fide nature of his marriage.
Ramphal also asserts that his prior marriage to Garcia should have been reviewed
by the BIA in support of his motion to remand, even if it was no longer a ground
for adjustment. 2
II.
We review only the BIA’s decision unless the BIA expressly adopts the IJ’s
opinion or reasoning. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).
Here, the BIA issued its own opinion and did not expressly adopt the opinion or
reasoning of the IJ, so we review only the BIA’s decision.
A.
2
In passing, Ramphal also takes issue with the BIA’s decision not to resolve his appeal
from the IJ’s denial of his application for adjustment of status based on his marriage to Garcia.
However, he does not develop any argument on this point, and he acknowledges that his prior
marriage “may have no longer been a ground for adjustment.” Accordingly, we consider any
argument that his prior marriage to Garcia still provided a basis for adjustment of status to be
abandoned. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681-82 (11th Cir. 2014)
(stating that a party can abandon an issue if he makes only, passing conclusory references to the
issue in his opening brief)
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Ramphal first contends that the BIA erred in requiring him to present prima
facie evidence of his eligibility for adjustment of status and in denying his motion
to remand on that basis. We disagree.
In reviewing the denial of a motion to remand, “courts generally look at the
substance of such a motion to determine how it should be scrutinized on appeal.”
Al Najjar, 257 F.3d at 1301. Because Ramphal’s motion to remand is in the nature
of a motion to reopen, in that it requested additional proceedings to present new
evidence regarding his eligibility for adjustment of status based on his marriage to
Bibi, we will analyze it as such on appeal. See Chacku v. U.S. Att’y Gen., 555 F.3d
1281, 1286 (11th Cir. 2008) (“[I]f 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. § 1003.2(c).” (internal quotation marks omitted)). We review the
BIA’s denial of a motion to reopen for an abuse of discretion. Montano Cisneros
v. U.S. Att’y Gen., 514 F.3d 1224, 1226 (11th Cir. 2008).
The BIA may deny a motion to reopen on at least three independent bases:
“1) failure to establish a prima facie case; 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.” Al Najjar, 257 F.3d at 1302. Motions to reopen removal proceedings
are disfavored. Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). As
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a result, the movant bears a “heavy burden, and must present evidence of such a
nature that the BIA is satisfied that if proceedings before the IJ were reopened,
with all attendant delays, the new evidence offered would likely change the result
in the case.” Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006) (brackets
and internal quotation marks omitted; alterations adopted).
An alien is qualified to have his status adjusted to that of a lawful permanent
resident if he (1) “makes an application for such adjustment,” (2) “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.” INA. § 245(a), 8 U.S.C. § 1255(a). An I–130 alien
relative petition filed by a United States citizen on behalf of a spouse, if approved,
“provides the evidentiary basis for the beneficiary’s adjustment of status” to that of
a lawful permanent resident. See Alvarez Acosta v. U.S. Att’y Gen., 524 F.3d 1191,
1194 n.6 (11th Cir. 2008).
Because Ramphal married Bibi during his removal proceedings, he faces a
presumption that his marriage to Bibi was not bona fide. Specifically, as a general
rule, “an alien seeking to receive an immigrant visa on the basis of a marriage
which was entered into during [admissibility or deportation proceedings] may not
have the alien’s status adjusted under [§ 1255(a)].” INA § 245(e)(1)–(2), 8 U.S.C.
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§ 1255(e)(1)–(2). However, pursuant to the “bona fide marriage exception,” this
bar to adjustment of status
shall not apply with respect to a marriage if the alien
establishes by clear and convincing evidence to the
satisfaction of the Attorney General that the marriage
was entered into in good faith and in accordance with the
laws of the place where the marriage took place and the
marriage was not entered into for the purpose of
procuring the alien’s admission as an immigrant. . . .
INA § 245(e)(3), 8 U.S.C. § 1255(e)(3).
In Matter of Velarde-Pacheco, 23 I. & N. Dec. 253, 255-56 (BIA 2002), the
BIA held that a motion to reopen may be granted under certain conditions, in the
exercise of discretion, to enable an alien to pursue adjustment of status based on a
marriage entered into after the commencement of removal proceedings. One of the
required conditions is that “the motion presents clear and convincing evidence
indicating a strong likelihood that the respondent’s marriage is bona fide.”
Velarde-Pacheco, 23 I. & N. Dec. at 256.
Because Ramphal’s motion to remand was in substance a motion to reopen,
the BIA did not err in denying his motion on the basis of his failure to present
evidence of his prima facie eligibility for adjustment of status pursuant to the
“bona fide marriage exception.” See Al Najjar, 257 F.3d at 1302; INA § 245(e)(3),
8 U.S.C. § 1255(e)(3). Under Velarde-Pacheco, Ramphal needed to support his
motion to remand with “clear and convincing evidence indicating a strong
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likelihood that the respondent’s marriage is bona fide.” Velarde-Pacheco, 23 I. &
N. Dec. at 256; see also Ali, 443 F.3d at 813 (stating that a motion to reopen must
be supported by evidence showing a likelihood of a different result if removal
proceedings were reopened). In other words, it was Ramphal’s burden to show the
BIA that on remand to the IJ he could have established by clear and convincing
evidence that his marriage to Bibi was bona fide. See INA § 245(e)(3), 8 U.S.C.
§ 1255(e)(3).
We agree with the BIA that Ramphal did not submit any documentation
showing that the marriage was entered into in good faith. See, e.g., 8 C.F.R.
§ 204.2(a)(iii)(2)(B) (listing various forms of documentation a petitioner may
submit to establish a bona fide marriage, such as a lease showing the joint tenancy
of a common residence or affidavits of third parties having knowledge of the
marital relationship); Velarde-Pacheco, 23 I. & N. Dec. at 256 (finding that the
petitioner’s submission of the birth certificate of his United States citizen son, in
addition to other evidence, “indicate[d] a high probability that the [petitioner’s]
marriage is bona fide”). Nor does Ramphal contend that he presented evidence of
that his marriage to Bibi was bona fide. Thus, the BIA did not abuse its discretion
in denying Ramphal’s motion to remand.
B.
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Ramphal also contends that his due-process rights were violated when the
BIA denied his motion to remand without giving him notice and more time to
present clear and convincing evidence regarding the bona fide nature of his
marriage to Bibi. We disagree.
We review due-process challenges de novo. Lonyem v. U.S. Att’y Gen., 352
F.3d 1338, 1341 (11th Cir. 2003). Due process requires that aliens receive notice
and an opportunity to be heard in their removal proceedings. Lapaix v. U.S. Att’y
Gen., 605 F.3d 1138, 1143 (11th Cir. 2010). To establish a due-process violation,
a petitioner must show that he was deprived of liberty without due process of law,
and that the asserted errors caused him substantial prejudice. Id. The prejudice
prong requires a showing that, “in the absence of the alleged violations, the
outcome of the proceeding would have been different.” Id.
Initially, because Ramphal has no constitutionally protected liberty interest
in either adjustment of status or the reopening of his removal proceedings, which
are forms of discretionary relief, he cannot establish a due-process violation based
on the BIA’s decisions. Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th
Cir. 2008); see also Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir.
1999) (“[T]he failure to receive relief that is purely discretionary in nature does not
amount to a deprivation of a liberty interest.”).
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In any case, we are satisfied that Ramphal was not denied an opportunity to
present his case on the bona fide nature of his new marriage. See Lapaix, 605 F.3d
at 1143-44. Given the applicable law recounted above, Ramphal had ample notice
of his burden to present evidence with his motion to remand showing that his
marriage to Bibi was bona fide and that remand was warranted despite the bar to
adjustment of status in INA § 245(e)(1), 8 U.S.C. § 1255(e)(1). Further, there is no
evidence that the BIA refused to accept or review any documentation Ramphal did
submit in support of his motion.
Ramphal also has not shown prejudice. While his marriage was relatively
recent, still, over five months had passed between the date of the marriage and the
filing of the motion to remand. His contention that this period was too short to
establish the bona fide nature of a marriage is unconvincing. Ramphal also has not
explained what evidence, if given additional time, he would have presented to the
BIA that would have indicated that his marriage to Bibi was bona fide.
C.
Finally, the BIA did not err in failing to address Ramphal’s prior marriage to
Garcia as a factor in determining whether to grant a motion to remand. Ramphal
does not explain the relevance of this prior marriage to the present issues, nor is it
apparent how Ramphal’s prior marriage to Garcia, which an IJ found to be not
bona fide, could be evidence of the bona fide nature of his marriage to Bibi.
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III.
In sum, Ramphal’s petition for review is DENIED.
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