Julian Hernando Ariza v. U.S. Atty. General , 190 F. App'x 829 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14935 JULY 21, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
BIA No. A95-899-891
JULIAN HERNANDO ARIZA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 21, 2006)
Before ANDERSON, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Julian Hernando Ariza, through counsel, petitions for review of the BIA’s
denial of his motion to reopen his removal proceedings. On appeal, Ariza argues
(1) the Board of Immigration Appeals (“BIA”) abused its discretion in denying his
motion to reopen, as he has presented clear and convincing evidence that his post-
removal order marriage was bona fide, and (2) the BIA violated his due process
rights by denying his motion to reopen without explaining why the evidence
proffered was insufficient to meet the clear and convincing standard.
I. Abuse of Discretion
We review the BIA’s denial of a motion to reopen for an abuse of discretion.
See 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 the regulation gives the BIA discretion to reopen
proceedings “as it sees fit”). Specifically, the provision provides “[t]he Board has
discretion to deny a motion to reopen even if the party moving has made out a
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). The BIA abuses
its discretion when its decision “provides no rational explanation, inexplicably
departs from established policies, is devoid of any reasoning, or contains only
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summary or conclusory statements.” Mickeviciute v. INS, 327 F.3d 1159, 1162
(10th Cir. 2003) (quotations omitted); Zhao v. United States Department of Justice,
265 F.3d 83, 93 (2nd Cir. 2001). 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.” INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 724-25, 116 L.Ed.2d
823 (1992).
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 Verlarde-Pacheco, 23 I & N Dec. 253 (BIA 2002). 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). This list is not exhaustive. See id. A petitioner may
also provide any other document that is relevant to establish his marriage was not
entered for the purpose of evading the United States immigration laws.
8 C.F.R. § 204.2(a)(1)(iii)(B)(6).
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The BIA abused its discretion when it failed to explain why it found the
evidence submitted by Ariza to be insufficient to meet the clear and convincing
standard. Because the BIA never gave any indication as to why the evidence
proffered was not clear and convincing, we cannot provide any meaningful review
in determining whether the BIA acted reasonably or arbitrarily. Accordingly, we
grant this petition in part, and remand it to the BIA for a statement of reasons.
II. Due Process
Review of constitutional challenges is de novo. Lonyem v. United States
Attorney General, 352 F.3d 1338, 1341 (11th Cir. 2003). Due process requires that
aliens be given notice and an opportunity to be heard in their removal proceedings.
See, e.g., Fernandez-Bernal v. Attorney General, 257 F.3d 1304, 1310 n.8 (11th
Cir. 2001). “To establish due process violations in removal proceedings, aliens
must show that they were deprived of liberty without due process of law, and that
the asserted errors caused them substantial prejudice.” Lonyem, 352 F.3d at 1341-
42.
As previously noted, the BIA has broad discretion to grant or deny a motion
to reopen. 8 C.F.R. § 1003.2 (a); Anin, 188 F.3d at 1279. Additionally, the INA
provides that the Attorney General has discretion to adjust the status of an alien.
INA § 245(a), 8 U.S.C. § 1255(a). We have held that an alien has no liberty
interest in being eligible for a form of relief that is purely discretionary. Mejia
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Rodriguez, 178 F.3d at 1146.
Ariza’s argument that the BIA denied him due process by denying his
application without providing a sufficient explanation is without merit. The
decisions to grant a motion to reopen and to grant an application for adjustment of
status are discretionary. Hence, Ariza had no liberty interest in either being
entitled to a grant of his motion or being eligible for adjustment of status, and,
therefore, could not establish a deprivation of due process.
Based on the foregoing, we dismiss Ariza’s petition in part and grant in part,
and remand to the BIA for further proceedings.
PETITION DISMISSED IN PART, GRANTED IN PART, AND
REMANDED
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