Freddy Guzman Velasco v. U.S. Atty. Gen. , 183 F. App'x 838 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 26, 2006
No. 05-16547 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A95-896-825
FREDDY GUZMAN VELASCO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 26, 2006)
Before DUBINA, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Freddy Guzman Velasco (Guzman) petitions for review of the decision of
the Board of Immigration Appeals to deny his second motion to reconsider and
reopen his removal proceedings on the basis of his application for adjustment of
status. We deny his petition.
Guzman, a citizen of Colombia, was admitted to the United States as a non-
immigrant on September 19, 1999, for a period not to exceed one year. Guzman
remained in the United States beyond that one year and, on September 12, 2002,
was charged with removability. 8 U.S.C. § 1227(a)(1)(B). Guzman conceded
removability but requested withholding of removal, asylum, and protection under
the Convention Against Torture. On February 13, 2004, the Immigration Judge
denied the application for asylum on the ground that it was untimely and the
applications for withholding of removal and protection under the CAT on the
ground that Guzman had not established eligibility.
Guzman appealed, pro se, to the Board of Immigration Appeals, which
affirmed the decision of the IJ on June 23, 2005. On July 15, 2005, Guzman filed a
motion for reconsideration of the decision of the BIA. On August 12, 2005, the
BIA denied the motion for reconsideration. On September 2, 2005, Guzman filed a
second motion for reconsideration in which he requested that the BIA reconsider
its decision of August 12, 2005, based on an alleged error in the decision of the IJ.
Guzman also stated in his motion that he had married a U.S. citizen on August 12,
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2005, and that he and his wife had filed a Form I-130, petition for alien relative, on
August 26, 2005. Guzman requested further time to file the Form I-485 for
adjustment of status.
On October 27, 2005, the BIA denied the motion to reconsider on the ground
that it was numerically barred. The BIA also construed Guzman’s motion broadly
as a motion to reopen to apply for adjustment of status, and the BIA denied the
motion to reopen on the ground that Guzman had not submitted the required Form
I-485. The BIA also concluded that Guzman had failed to present sufficient
evidence that his marriage was bona fide. Guzman retained counsel to file this
appeal.
We review the denial of a motion to reconsider by the BIA for abuse of
discretion. Assa’ad v. United States Att’y Gen., 332 F.3d 1321, 1341 (11th Cir.
2003). We review the denial of a motion to reopen by the BIA for abuse of
discretion. Mejia-Rodriguez v. Reno, 178 F.3d 1139, 1145 (11th Cir. 1999).
First, the BIA did not abuse its discretion when it denied Guzman’s second
motion for reconsideration. “A party may file only one motion to reconsider any
given decision [of the BIA] and may not seek reconsideration of a decision
denying a previous motion to reconsider.” 8 C.F.R. § 1003.2(b)(2). The motion
Guzman filed on September 2, 2005, requested that the BIA reconsider its decision
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of August 12, 2005, which involved the denial of Guzman’s first motion to
reconsider. Guzman’s second motion to reconsider was numerically barred.
Second, the BIA did not abuse its discretion when it denied Guzman’s
motion to reopen. A motion to reopen to submit an application for relief must be
accompanied by the application for relief and all supporting documentation. 8
C.F.R. § 1003.2(c)(1). Guzman failed to comply with the regulation because he
did not submit a Form I-485 for adjustment of status.
The BIA also did not abuse its discretion when it determined that Guzman
had failed to satisfy his burden of establishing a prima facie case of eligibility for
adjustment. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001).
When an alien moves to reopen for an adjustment of status based on a marriage
entered after the commencement of removal proceedings, the alien must present to
the BIA clear and convincing evidence of a strong likelihood the marriage is bona
fide. In re Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002). The only evidence
Guzman submitted was the Form I-130, his wife’s birth certificate, and a marriage
license. This evidence related to whether a marriage took place, but it was not
corroborated by evidence of a strong likelihood that the marriage was bona fide.
Evidence that a marriage is bona fide includes documentary evidence of
joint ownership of property, joint tenancy, and commingling of assets, birth
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certificates of children born of the couple, and affidavits from persons with
personal knowledge of the bona fides of the marriage. 8 C.F.R. §
204.2(a)(1)(iii)(B). Guzman provided no such documentation. Guzman’s
argument that his pro se motion to reopen should be exempt from the requirements
to file the proper forms and provide evidence of a bona fide marriage has no
support in case law. Proceeding pro se does not exempt a litigant from the
procedural and substantive requirements of the law. See, e.g., Faretta v. California,
422 U.S. 806, 834 n.46, 95 S. Ct. 2525, 2541 n.46 (1975).
PETITION DENIED.
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