Silvita Pierre v. U.S. Attorney General , 300 F. App'x 870 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-10345 ELEVENTH CIRCUIT
Non-Argument Calendar NOVEMBER 28, 2008
________________________ THOMAS K. KAHN
CLERK
Agency No. A97-934-845
SILVITA PIERRE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 28, 2008)
Before TJOFLAT, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Silvita Pierre, a native and citizen of Haiti, petitions for review of the Board
of Immigration Appeals’s (BIA) denial of her motion to reopen removal
proceedings. Her motion was based on what she believed to be her eligibility for an
adjustment of status. She asserts error in the BIA’s determination that the approval
of her mother’s I-130 petition on her behalf was automatically revoked when she
chose to marry. She further argues that if the approval of the I-130 petition was
revoked, she should be permitted to file a new petition that recaptures the priority
date of the original petition.
I.
We review the BIA’s denial of a motion to reopen for abuse of discretion,
Scheerer v. U.S. Attorney Gen., 513 F.3d 1244, 1252 (11th Cir. 2008), which is
limited to determining whether the BIA exercised its discretion in an arbitrary or
capricious manner. Garcia-Mir v. Smith, 766 F.2d 1478, 1490 (11th Cir. 1985) (per
curiam). When the BIA’s denial is based on a finding that the alien is statutorily
ineligible for an adjustment of status, we review the decision for errors of law.
Chan v. INS, 634 F.2d 248, 252 (5th Cir. Jan. 1981); see Scheerer, 513 F.3d at
1249, 1252. We review questions of law de novo, but we will defer to the BIA’s
interpretation of a statute if that interpretation is reasonable. Bahar v. Ashcroft,
264 F.3d 1309, 1311 (11th Cir. 2001) (per curiam); see Chevron U.S.A., Inc., v.
Natural Resources Defense Council, 467 U.S. 837, 843-44 (1984).
A motion to reopen “shall state the new facts that would be proven at a
[new] hearing,” but “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
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been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).
Motions to reopen are disfavored, especially in removal proceedings, as “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 (1992). The BIA may
deny a motion to reopen on at least three independent grounds, one of which is the
movant’s failure to establish a prima facie case of eligibility for relief. Al Najjar v.
Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001). The moving party “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. Attorney
Gen., 443 F.3d 804, 813 (11th Cir. 2006) (per curiam) (quoting In re Coelho, 20 I.
& N. Dec. 464, 473 (BIA 1992)) (alterations omitted).
The Attorney General may adjust an alien’s status to that of a lawful
permanent resident if the alien (1) applies for adjustment of status, (2) is eligible
for a visa and admissible for permanent residence, and (3) has an immigrant visa
immediately available to her at the time she files the application. 8 U.S.C.
§ 1255(a). An immigrant visa is considered immediately available when the alien
has an approved visa petition that places the alien in a preference category, such as
unmarried children of permanent residents, and a waiting list priority date that is
earlier than the date in the State Department’s most recent Visa Bulletin. See 8
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C.F.R. § 1245.1(g)(1).
The Secretary of Homeland Security “may, at any time, for what he deems
to be good and sufficient cause, revoke the approval of any petition approved by
him under [8 U.S.C. §] 1154.” 8 U.S.C. § 1155. Pursuant to this statute, the
Department of Homeland Security (DHS) has promulgated enacting regulations
that provide for both automatic revocations, see 8 C.F.R. § 205.1, and discretionary
“revocations on notice,” see id. § 205.2. Approval of an I-130 petition for the
unmarried adult child of a lawful permanent resident is automatically revoked upon
the marriage of that child, id. § 205.1(a)(3)(i)(I), if the marriage occurs after the
approval is issued and “before the decision on [the beneficiary’s] adjustment
application becomes final,” id. § 205.1(a)(3). The regulation is silent as to the
consequences of a later dissolution of such marriage.
Pierre’s mother, a lawful permanent resident, filed an I-130 petition on
Pierre’s behalf in 1997 and received notice of its approval in 2001. Pierre
attempted to show that she was prima facie eligible for relief by offering the notice
of approval as evidence that she had a visa immediately available to her. However,
she also presented the BIA with her divorce judgment, which indicated she had
married in 2005 and divorced in 2007. The BIA correctly concluded that her
marriage had served to automatically revoke the I-130 petition. Because the
regulations are silent as to the effect of divorce on this type of revocation, the BIA
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did not act unreasonably when it concluded that Pierre’s divorce effectively
terminated her petition. The BIA therefore did not abuse its discretion in denying
the motion to reopen on grounds that Pierre had failed to establish prima facie
eligibility for adjustment of status.
II.
Pierre did not raise with the BIA the issue of whether her mother can file a
new I-130 petition that recaptures the priority date of the original. Thus, we do not
address it. There is nothing precluding the filing of a new I-130 petition with the
Attorney General or the Department of Homeland Security. See 8 U.S.C. § 1154.
For the foregoing reasons, we deny Pierre’s petition for review with respect
to the motion to reopen, and dismiss the petition with respect to the future I-130
filing.1
PETITION DENIED IN PART AND DISMISSED IN PART.
1
Pierre also requests that we instruct the BIA on remand to rule on her “motion to change
venue.” Pierre implied, via a request in her motion to reopen, that venue should be changed, but
she does not appear to have formally moved the BIA to that effect. Regardless, because we deny
her petition for review, the request is moot.
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