Rosa Ines Neira v. U.S. Attorney General , 286 F. App'x 704 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 21, 2008
No. 07-15974
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
BIA No. A28-305-829
ROSA INES NEIRA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 21, 2008)
Before DUBINA, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Rosa Ines Neira petitions for review of the Board of Immigration Appeals’
decision denying her motion to reopen her removal proceedings to apply for status
adjustment.
I.
Neira, a native and citizen of Colombia, filed an application for asylum,
withholding of removal, and relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. The
Immigration Judge denied Neira’s applications for relief but granted her request for
voluntary departure. Neira appealed to the BIA, which affirmed the IJ’s order and
dismissed her appeal on August 3, 2007. The BIA further ordered that Neira had
sixty days from the date of its order to depart from the United States voluntarily.
On October 1, 2007, just one day before her sixty day period for voluntary
departure was set to expire, Neira filed a motion to reopen her removal proceedings
so that she could apply for status adjustment. That motion indicated that Neira’s
son would soon become a naturalized citizen, which would allow him to then file
an I-130 petition for alien relative status on Neira’s behalf and her to file an I-485
application for adjustment.1 Attached to Neira’s motion to reopen were: (1) a
document indicating that her son’s application for naturalization had been
recommended for approval; (2) an unfiled and undated I-130 alien relative petition;
1
Neira’s son did not become a United States citizen until November 2, 2007, at which
time the motion to reopen was pending.
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and (3) an unfiled and undated I-485 application to adjust status.
The BIA rejected Neira’s motion to reopen on October 3, 2007 because her
attorney had failed to file the required notice of entry. The Board did, however,
instruct Neira that she would be permitted to file a corrected motion within fifteen
days. On October 9, 2007 the BIA received the corrected motion from Neira’s
attorney.
The BIA denied the motion to reopen. The Board initially noted that
“[w]hile the DHS correctly noted that [Neira] would be ineligible for adjustment
for overstaying the period of voluntary departure, the defect was cured within the
time limit set in our notice, and she is consequently not considered ineligible for
her failure to depart within the time granted to her under the voluntary departure
order.” However, the BIA determined that Neira was not “prima facie eligible for
the relief she seeks” because the visa petition that her son was going to reportedly
file on her behalf had “not yet been adjudicated.” Furthermore, although Neira had
relied on the BIA’s holding in In re Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA
2002), the Board distinguished that case as being “limited to cases involving
adjustment based on a marriage.” Neira timely petitioned this Court for review of
the BIA’s order denying her motion to reopen.
II.
“We review the BIA’s denial of a motion to reopen for abuse of discretion.”
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Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1226 (11th Cir. 2008). Our
review is, therefore, “limited to determining whether there has been an exercise of
administrative discretion and whether the matter of exercise has been arbitrary and
capricious.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005)
(internal quotation marks and citation omitted). “[T]he BIA’s failure to follow its
own precedents without providing a reasoned explanation for doing so can
constitute an abuse of discretion.” Montano Cisneros, 514 F.3d at 1226.
The Immigration and Nationality Act provides the Attorney General with 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.” Id. § 1154(a)(1)(A)(i). The term “immediate relative” as used in
that provision includes “children, spouses, and parents of a citizen of the United
States.” Id. § 1151(b)(2)(A)(i).
The INA also provides aliens with ninety days from the date of a final
administrative order to file one motion to reopen, which “shall state the new facts
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that will be proven at a hearing to be held if the motion is granted and shall be
supported by affidavits or other evidentiary material.” Id. § 1229a(c)(7)(B). Such
a motion “shall not be granted unless it appears to the [BIA] that evidence sought
to be offered is material and was not available and could not have been discovered
or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).
We have noted that “[m]otions 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, 430 F.3d at 1149 (quoting INS v. Doherty, 502 U.S. 314, 323, 112
S. Ct. 719, 724–25 (1992)). The movant’s burden is, therefore, a heavy one. Ali v.
U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006). She 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.” Id. (internal quotation marks and citation
omitted) (alterations in original).
The BIA did not abuse its discretion by denying Neira’s motion to reopen.
Although Neira submitted evidence of her son’s impending naturalization in
connection with her motion to reopen, she provided no evidence that a relative visa
petition had been filed on her behalf. Instead, she offered only an undated and
unfiled I-130 petition along with an undated and unfiled I-485 application for
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status adjustment. Under these circumstances, it was not an abuse of discretion for
the BIA to conclude that Neira was not prima facie eligible for status adjustment
because she failed to submit evidence that “an immigrant visa [was] immediately
available to [her].” See 8 U.S.C. § 1255(a).
Nor does, as Neira contends, In re Velarde-Pacheco compel the conclusion
that the BIA abused its discretion. In that case, the petitioner married a United
States citizen after his deportation had already been ordered. Velarde-Pacheco, 23
I. & N. Dec. at 254. As a result, the petitioner’s wife filed an I-130 petition on his
behalf and he simultaneously filed an I-485 application for status adjustment. Id.
The petitioner additionally filed a motion to reopen his removal proceedings,
submitting copies of the adjustment application and supporting documentation. Id.
The BIA’s former policy with respect to such motions was to deny them where
they had not yet been adjudicated by the Service. See id. at 255. However, the
Board noted that the effect of that policy coupled with the limitation that
respondents may file only one motion to reopen within ninety days of a final
administrative order and the Service’s inability to adjudicate many I-130 petitions
within that time period, “has been to deprive a small class of respondents, who are
otherwise prima facie eligible for adjustment, of the opportunity to have their
adjustment applications reviewed by an Immigration Judge.” Id.
In Velarde-Pacheco, therefore, the Board concluded that:
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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 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. However, the Board went on to “emphasize that [it] was not endors[ing]
granting adjustment of status in every case in which a respondent makes a prima
facie showing of eligibility” and that its 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.”
Id. at 256–57.
Velarde-Pacheco involved only status adjustments based on marriage. The
BIA provided a reasoned explanation for declining to apply that precedent in this
distinguishable setting. See Montano Cisneros, 514 F.3d at 1226. Specifically, in
denying Neira’s motion to reopen the BIA explained that it did not find the holding
of Velarde-Pacheco relevant because “it was limited to cases involving adjustment
based on marriage,” which Congress had expressed a desire to treat differently than
petitions from other family members. See also Velarde-Pacheco, 23 I. & N. Dec.
at 257 (reasoning that its holding was “consistent with Congress’ legislative intent
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in amending the marriage fraud provisions”). Because the BIA provided a
reasoned explanation for declining to extend its own precedent, we cannot say that
it acted arbitrarily or capriciously in denying Neira’s motion to reopen.
Furthermore, even if the BIA had concluded that Velarde-Pacheco was
applicable to cases such as this one where an application for status adjustment is
based on a parental relationship, that case only held that motions to reopen “may
be granted, in the exercise of discretion” but need not be granted “in every case in
which the respondent meets all five of the aforementioned factors.” Id. at 256. It
was, therefore, within the discretion of the BIA to deny Neira’s petition even if it
had determined that Velarde-Pacheco applied and she satisfied all five factors.2
AFFIRMED.
2
Although the parties have not addressed the issue, we note that the BIA relied upon our
decision in Ugokwe v. U.S. Attorney General, 453 F.3d 1325 (11th Cir. 2006), in rejecting the
government’s argument that Neira was ineligible for status adjustment because she failed to
voluntarily depart within the time granted to her. In Ugokwe, this Court held that “the timely
filing of a motion to reopen tolls the period of voluntary departure pending the resolution of the
motion to reopen.” Id. at 1331.
Since the BIA’s decision, however, the Supreme Court has rejected the notion of
“automatic tolling of the voluntary departure period during the pendency of the motion to
reopen.” See Dada v. Mukasey, U.S. , , 128 S. Ct. 2307, 2318–19 (2008). In Dada,
the Supreme Court held that, “to safeguard the right to pursue a motion to reopen for voluntary
departure recipients, the alien must be permitted to withdraw, unilaterally, a voluntary departure
request before expiration of the departure period, without regard to the underlying merits of the
motion to reopen.” Id. at , 128 S. Ct. at 2319. Because we have already concluded that the
BIA did not abuse its discretion by denying Neira’s motion on the basis explained above, we
need not decide what effect, if any, the Dada decision would have on this case or address the
timeliness of Neira’s filing of her motion to reopen.
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