Ly v. Gonzales ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0402n.06
Filed: June 12, 2006
No. 05-3401
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ALIOUNE LY, )
)
Petitioner, ) ON PETITION FOR REVIEW
) OF AN ORDER OF THE
v. ) BOARD OF IMMIGRATION
) APPEALS
ALBERTO R. GONZALES, )
ATTORNEY GENERAL, )
) OPINION
Respondent. )
_______________________________________)
Before: MARTIN, MOORE, and ROGERS, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Petitioner Alioune Ly petitions for review
of the decision of the Board of Immigration Appeals (“BIA” or “Board”) denying his motion to
reopen his removal proceedings. The BIA rejected Ly’s motion to reopen because it concluded that
his evidence was insufficient to establish eligibility for adjustment of status based upon his marriage
to a United States citizen, which occurred during the course of his removal proceedings. The Board
also concluded that Ly did not warrant a favorable exercise of discretion. In his petition for review,
Ly argues that the Board’s refusal to reopen his case was an abuse of discretion and violated his due
process rights. As we conclude that the Board’s decision was neither an abuse of discretion nor
offensive to Ly’s due process rights, we DENY Ly’s petition for review.
I. BACKGROUND
Petitioner Ly, who is a native and citizen of Mauritania, was legally admitted to the United
States on January 17, 2001 as a nonimmigrant student for the purpose of attending the University
of Mississippi. Joint Appendix (“J.A.”) at 156 (Notice to Appear); J.A. at 107 (Oral Decision of
Immigration Judge at 1). When Ly did not attend the University of Mississippi, he was served with
a Notice to Appear in November 2001, which alleged that he was removable for violating the terms
of his student visa. J.A. at 156. At his removal hearing in April 2002 where he was represented by
counsel, Ly conceded removability, but claimed asylum, withholding of removal, and protection
under the Convention Against Torture. J.A. at 119 (Removal Hr’g Tr. at 2). On January 3, 2003,
the Immigration Judge (“IJ”) denied Ly’s requests for relief, and ordered him removed to
Mauritania. J.A. at 114-15 (Oral Decision of IJ at 8-9). On October 22, 2003, Ly married Angela
Robinson (now Angela Ly)1, an American citizen.
On April 7, 2004, the BIA affirmed the decision of the IJ ordering Ly be removed to
Mauritania. J.A. at 91-92 (Decision of BIA). Citing his recent marriage to Ms. Angela Ly, Ly filed
a motion to reopen his removal proceedings with the BIA on July 2, 2004, pursuant to 8 C.F.R.
§ 1003.2. J.A. at 67-70 (Mot. to Reopen). The Department of Homeland Security (“DHS”) opposed
this motion on July 12, 2004, disputing that Ly’s marriage was bona fide because Ly’s addresses did
not match that of his wife, and arguing that Ly had failed to submit the required supporting
documents with his motion to reopen. J.A. at 55-61 (DHS Response to Mot. to Reopen). On August
1
Ms. Ly’s first name is recorded as “Angelia” in some documents in the record, and “Angela”
in others. See J.A. at 68 (Mot. to Reopen at 2) (stating Ly had married Angelia L. Robinson); J.A.
at 35 (Supp. to Mot. to Reopen at 2) (stating Angela Ly was Ly’s wife). We refer to Ms. Ly as
Angela, because that spelling appears most frequently in the record.
2
18, 2004, Ly sent supplemental materials to the BIA for filing in his motion to reopen, J.A. at 33-54
(Supp. to Mot. to Reopen), but our review of the record suggests that the government is correct that
there is no evidence that the supplemental materials were ever received by and filed with the BIA.
Respondent Br. at 16-17 n.7.
The BIA denied Ly’s motion to reopen on March 7, 2005, concluding that the evidence Ly
submitted in support of his marriage “raises questions about the respondent’s prima facie eligibility
for adjustment of status” on the basis of his marriage to an American citizen. J.A. at 32 (BIA Denial
of Mot. to Reopen). The BIA determined that Ly’s evidence was “problematic” in several ways.
Id. The Board noted that the biographic information forms submitted by Ly and his wife did not list
them living at the same address since their marriage in October 2003. Id. In addition, the Board
noted that there was no clear record that Ms. Ly had actually filed an I-130 Petition for Alien
Relative form on Ly’s behalf with the United States Citizenship and Immigration Service
(“USCIS”). Finally, the Board concluded that a favorable exercise of discretion was not appropriate
in Ly’s case because he had failed to appear for an interview with the United States Bureau of
Immigration and Customs Enforcement (“ICE”) in April 2004. Id.; J.A. at 62 (ICE Notification
Letter). Ly filed a petition for review with our court on April 6, 2005, asking us to review the March
7, 2005 decision of the BIA denying his motion to reopen. Ly also filed a motion for
reconsideration with the BIA on April 6, 2005, and the BIA denied that motion on April 29, 2005.
J.A. at 9 (Mot. for Reconsideration); J.A. at 6 (BIA Denial of Mot. for Reconsideration). Ly did not
file a petition for review of the denial of his motion for reconsideration, and thus we only consider
the BIA’s March 7, 2005 denial of Ly’s motion to reopen.
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II. ANALYSIS
A. The BIA’s Denial of Ly’s Motion to Reopen Was Not an Abuse of Discretion
Ly’s first argument in his petition for review is that the BIA abused its discretion when it
denied his motion to reopen. “We have jurisdiction to review the denial of a motion to reopen”
pursuant to 8 U.S.C. § 1252(a). Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir. 2006). We review
the denial of a motion to reopen a removal order for an abuse of discretion. Denko v. INS, 351 F.3d
717, 723 (6th Cir. 2003). “An abuse of discretion can be shown when the IJ or Board offers no
‘rational explanation, inexplicably depart[s] from established policies, or rest[s] on an impermissible
basis such as invidious discrimination against a particular race or group.’” Id. (quoting Balani v.
INS, 669 F.2d 1157, 1161 (6th Cir. 1982)) (alteration in original).
In Ly’s motion to reopen, Ly argued that his October 2003 marriage to an American citizen
entitled him to an adjustment of status. Pursuant to 8 U.S.C. § 1255(a), the Attorney General has
the discretion to adjust an alien’s status “to that of an alien lawfully admitted for permanent
residence” if certain conditions are met. Section 1255(e)(1)-(2), however, excepts aliens like Ly
who seek an adjustment of status based upon a marriage if that marriage occurred in “the period
during which administrative or judicial proceedings are pending regarding the alien’s right to be
admitted or remain in the United States.” As Ly’s marriage occurred between the IJ’s rejection of
his claims for relief from removal and the BIA’s affirmance of the IJ’s decision, there is no dispute
that the § 1255(e)(2) exception applies to Ly. There is a bona-fide-marriage exemption to this
§ 1255(e)(2) exception, which states that the exception:
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
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procuring the alien’s admission as an immigrant and no fee or other consideration
was given . . .
8 U.S.C. § 1255(e)(3); see also 8 C.F.R. § 245.1(c)(9)(iii)(F). A request for the bona-fide-marriage
exemption “must be made in writing and submitted with the Form I-485.” 8 C.F.R.
§ 245.1(c)(9)(iv). “The request must state the basis for requesting consideration for the exemption
and must be supported by documentary evidence establishing eligibility for the exemption.” Id.
Even if an alien establishes a prima facie case that the bona-fide-marriage exemption enables the
alien to be considered for an adjustment of status as the basis of a motion to reopen, the BIA still
has the discretion to deny the motion to reopen. See 8 C.F.R. § 1003.2(a).
Although Ly did not expressly rely upon 8 U.S.C. § 1255(e)(3) or 8 C.F.R.
§ 245.1(c)(9)(iii)(F) in his motion to reopen, this bona-fide-marriage exemption appears to have
been the basis for Ly’s request for an adjustment of status. J.A. at 68 (Mot. to Reopen at ¶¶ 4, 7)
(stating that Ly married Ms. Robinson, an American citizen, and that Ly will therefore be eligible
for adjustment of status to a permanent resident as an immediate relative of his wife). The Board
denied Ly’s motion to reopen on the basis of his marriage in a short order that explained that
Board’s reason for the denial. First, the Board concluded that Ly had not established a prima facie
case for the bona-fide-marriage exemption. The Board determined that the fact that Ly had listed
different addresses from that of his wife on his biographic forms suggested that the marriage was
not bona fide. The Board also noted that Ly had not presented evidence that his wife had actually
filed an I-130 Petition for Alien Relative on his behalf. Second, the Board explained that Ly did not
warrant a favorable exercise of discretion because he had failed to appear for a required removal
interview in April 2004. Upon review of these reasons, we cannot conclude that the Board lacked
a rational explanation for its decision or that it inexplicably departed from its established policies,
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Denko, 351 F.3d at 723, and therefore the Board did not abuse its discretion in denying Ly’s motion
to reopen.
In his brief before our court, Ly disputes the BIA’s explanations for its decision to deny his
motion to reopen. First, Ly argues that the discrepancy about his and Ms. Ly’s address was a
clerical error stemming from the fact that Ly was bound by a lease at his premarriage address
through the end of January 2004. Petitioner Br. at 12. Ly explains that he therefore listed that
address because he thought it was his legal address. Id. Unfortunately for Ly, however, he first
proffered this explanation with a copy of his lease in his motion for reconsideration filed April 6,
2005, and therefore this evidence was not before the Board when it adjudicated his motion to reopen.
We agree with the government that 8 U.S.C. § 1252(b)(4)(A) prevents us from considering this
evidence because it was not part of the administrative record that was before the Board at the time
of its decision on the motion to reopen. Ly had the opportunity to file a petition for review of the
denial of his April 2005 motion for reconsideration, which might have allowed him to refute the
BIA’s conclusion about the disparate addresses, but there is no evidence before us that he filed such
a petition.
Moreover, as the government points out, even if we could consider Ly’s explanation for the
address disparity in this petition for review, serious doubts remain about whether Ly was residing
with his wife. For instance, on a change of address form that Ly filed with the BIA on March 25,
2004, Ly listed a new address in Memphis, Tennessee, which is not the address that Ms. Ly listed
as her residence for that same time. J.A. 63 (Ly Change of Address); J.A. at 77 (Angela Ly
Biographic Info Form) (listing Ms. Ly’s address from September 2003 through the date of the form
in July 2004 as in West Memphis, Arkansas). Although we do not view an alien’s failure to reside
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with his or her spouse to be absolutely determinative of whether or not the marriage is bona fide,
we have on several occasions viewed evidence of an alien’s living separately from his or her spouse
as support for the conclusion that the marriage is not bona fide. See Bangura v. Hansen, 434 F.3d
487, 503 (6th Cir. 2006) (listing the fact that the alien and his wife did not live together as part of
“substantial and probative evidence” supporting the INS’s conclusion that marriage was fraudulent);
United States v. Kone, 307 F.3d 430, 434 (6th Cir. 2002) (agreeing that evidence that spouses never
lived together suggested a sham marriage). We therefore cannot conclude that the fact that Ly’s
address did not match his wife’s was an irrational explanation for the BIA’s conclusion that Ly had
failed to make a prima facie showing that his marriage was bona fide.
Similarly, we are unpersuaded by Ly’s claim that the BIA’s other two reasons for denying
his motion to reopen were irrational. From our review of the record, we agree that Ly had not
submitted any evidence to the Board as of the time of its decision on his motion to reopen that
verified that Ms. Ly had actually filed an I-130 Petition for Alien Relative on his behalf with the
USCIS. Ly only submitted a copy of the I-130 form that appears to have been signed by Ms. Ly on
July 2, 2004. We recognize that July 2, 2004 is the same date on which Ly filed his motion to
reopen, and that it would therefore have been impossible for Ly to submit evidence with his motion
to reopen verifying that Ms. Ly’s I-130 form had already been received by the USCIS.2 Thus we
do not give this factor significant weight in our review. While we do not view this factor as
negatively as did the BIA, we cannot conclude that it was an abuse of discretion for the BIA to
2
Ly submitted a document from the USCIS stating that it had received Ms. Ly’s I-130
Petition for Alien Relative on Ly’s behalf on August 25, 2004 as an exhibit to his motion for
reconsideration. J.A. at 28 (USCIS Notice of Action). This evidence was not part of the record on
his motion to reopen and therefore was not before the BIA when it decided his motion to reopen, and
so it is not properly before us.
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determine that Ly’s failure to present any evidence that Ms. Ly had actually filed the I-130 on his
behalf undermined his claim that his marriage was bona fide.
We are also unconvinced by Ly’s argument that he failed to respond to the ICE’s April 17,
2004 request that he appear before the ICE on April 28, 2004 because he intended subsequently to
file a motion to reopen. The government is correct that Ly “had a duty to cooperate with
immigration authorities and report for deportation absent [the grant of] a stay or other qualifying
reason.” Respondent Br. at 20 n.9; see also 8 C.F.R § 241.6 (stating that neither an alien’s request
for a stay of removal nor failure to receive disposition of a request for a stay of removal “shall delay
removal or relieve the alien from strict compliance with any outstanding notice to surrender for
deportation or removal.”) Even if Ly’s motion to reopen was a valid explanation for failing to
appear before the ICE, Ly had never offered the BIA as of the time of the adjudication of his motion
to reopen this or any other explanation for his failure to appear. In light of Ly’s unexplained failure
to comply with the ICE’s request to appear, we cannot conclude that the Board’s conclusion that Ly
did not warrant a favorable exercise of discretion “inexplicably depart[s] from established policies.”
Denko v. INS, 351 F.3d at 723. As BIA did not abuse its discretion in denying Ly’s motion to
reopen, we deny Ly’s petition for review on this basis.
B. The BIA’s Denial of Ly’s Motion to Reopen Did Not Deprive Ly of Due Process
Ly’s final argument is that the BIA’s denial of his motion to reopen violated his due process
rights. Ly argues that the BIA’s rejection of his motion to reopen “has denied Mr. Ly the ability to
convince an examiner with the USCIS that his marriage is legitimate.” Petitioner Br. at 16-17. Ly
also argues that he has a “vested right” to apply for adjustment of status “that can only be taken from
him after some semblance of a hearing, similar to the interview conducted by the USCIS pending
8
its adjudication of an I-130 or a hearing before the Immigration Judge upon the filing of an I-485.”
Id. at 19. The Fifth Amendment protects aliens “from deprivation of life, liberty, or property
without due process of law.” Mathews v. Diaz, 426 U.S. 67, 77 (1976). “We review de novo claims
of due-process violations in deportation proceedings.” Denko, 351 F.3d at 726.
Ly’s due process argument is without merit, however, because the relief he seeks in his
motion to reopen is discretionary. The Attorney General’s adjustment of status is a discretionary
decision pursuant to 8 U.S.C. § 1255(a). “The requirements of procedural due process apply only
to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and
property.” Bd. of Regents of State Coll. v. Roth, 408 U.S. 564, 569 (1972). Ly does not have a
constitutionally protected liberty or property interest in obtaining discretionary relief. See
Huicochea-Gomez v. INS, 237 F.3d 696, 700 (6th Cir. 2001) (“The failure to be granted
discretionary relief does not amount to a deprivation of a liberty interest.”); Hanna v. Gonzales, 128
F.App’x 478, 480-81 (6th Cir. 2005) (unpublished opinion). “If an official has unconstrained
discretion to deny the benefit, a prospective recipient of that benefit can establish no more than a
‘unilateral expectation’ to it.” Med. Corp., Inc. v. City of Lima, 296 F.3d 404, 409-410 (6th Cir.
2002) (quoting Roth, 408 U.S. at 577). The BIA’s refusal to reopen Ly’s removal proceedings did
not violate his Fifth Amendment rights.
III. CONCLUSION
Because the BIA’s denial of Ly’s motion to reopen was neither an abuse of discretion nor
a violation of due process, we DENY Ly’s petition for review.
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