Alfaouri v. Holder , 465 F. App'x 661 ( 2012 )

FILED
NOT FOR PUBLICATION JAN 06 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
JAMAL YASIN ATALLAH ALFAOURI, No. 06-73066
Petitioner, Agency No. A077-305-194
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 4, 2010**
Pasadena, California
Before: PREGERSON, D.W. NELSON and IKUTA, Circuit Judges.
Jamal Yasin Atallah Alfaouri, a native and citizen of Jordan, petitions for
review of the Board of Immigration Appeals' ('BIA') order denying his motion to
reopen removal proceedings. We have jurisdiction under 8 U.S.C. y 1252, and we
deny the petition for review.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review the BIA's denial of a motion to reopen for abuse of discretion.
Arrozal v. INS, 159 F.3d 429, 432 (9th Cir. 1998). The BIA was within its
discretion when it denied Alfaouri's motion to reopen to apply for adjustment of
status on the merits, as Alfaouri did not submit clear and convincing evidence
indicating a strong liµelihood that his marriage to a U.S. citizen is bona fide.
8 C.F.R. y 204.2(a)(1)(iii) (establishing regulatory presumption that marriages
entered into during proceedings are fraudulent); 8 C.F.R. y 204.2(a)(1)(iii)(A)-(B)
(procedure for rebutting such presumption); In re Velarde-Pacheco, 23 I. & N.
Dec. 253, 256 (BIA 2002) (setting standard for rebutting such presumption). Most
of Alfaouri's proffered evidence related to the fact of his marriage, not its bona
fide nature, and was thus irrelevant to the BIA's inquiry. Malhi v. INS, 336 F.3d
989, 994 (9th Cir. 2003). Alfaouri's joint tax return was relevant but was not
nearly sufficient to meet the standard set forth in Velarde-Pacheco, and the BIA
was within its discretion to find as much.
Claims of due process violations in deportation proceedings are reviewed de
novo. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). Alfaouri claims that
the Department of Homeland Security, not the BIA, has exclusive jurisdiction to
determine the bona fide nature of marriages. He is mistaµen. The BIA may deny a
motion to reopen on the ground that, even if the movant were able to satisfy all
threshold inquiries, the movant would nonetheless not be entitled to a discretionary
grant of relief, 8 C.F.R. y 1003.2(a); INS v. Abudu, 485 U.S. 94, 105 (1988), and
the BIA may determine in the first instance the bona fides of a marriage to inform
its exercise of discretion. See Velarde-Pacheco, 23 I. & N. Dec. at 256 (BIA
exercising its jurisdiction to evaluate the bona fides of a marriage). Mr. Alfaouri
was able to reasonably present his case to the body authorized to hear it, Colmenar
v. INS, 210 F.3d 967, 971 (9th Cir. 2000), and his due process claim is therefore
unavailing.
PETITION FOR REVIEW DENIED.
FILED
Alfaouri v. Holder, No. 06-73066 JAN 06 2012
MOLLY C. DWYER, CLERK
PREGERSON, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
I respectfully dissent. We have repeatedly held that the BIA abuses its
discretion in denying a motion to reopen 'when it fails to consider and address in
its entirety the evidence submitted by a petitioner . . . .' Franco-Rosendo v.
Gonzales, 454 F.3d 965, 966 (9th Cir. 2006) (internal quotation marµs omitted).
In its order denying Alfaouri's motion to reopen, the BIA concludes that
Alfaouri has failed to establish a 'bona fide marriage' under 8 C.F.R. y
204.2(a)(1)(iii)(B) because Alfaouri has 'not submitted sufficient documentary
evidence to establish commingling of financial resources or a common residence.'
But the BIA does not discuss or even mention the joint income tax return of
Alfaouri and his American-citizen spouse, which Alfaouri submitted to support his
claim of a bona fide marriage. Such evidence, if considered, could have supported
a finding that Alfaouri and his American-citizen spouse had commingled their
financial resources and had a common residence. In my view, the BIA's failure to
consider this evidence was an abuse of discretion. Accordingly, I would grant
Alfaouri's petition and remand to the BIA for reconsideration of Alfaouri's motion
to reopen.
My colleagues in the majority conclude that the BIA did not abuse its
discretion in denying the motion to reopen because 'Alfaouri's joint tax return was
. . . not nearly sufficient to meet the standard' for a bona fide marriage under the
BIA's case law. Maj. Op. at 2. That may be so, but it is for the BIA, not our court,
to pass upon the significance of the joint income tax return in the first instance.
'We cannot affirm the BIA or IJ on a ground upon which it did not rely.' Ali v.
Holder, 637 F.3d 1025, 1029 (9th Cir. 2011). Instead, 'we 'must decide whether
to grant or deny the petition for review based on the Board's or IJ's reasoning
rather than our own independent analysis of the record.'' Id. (internal marµs
omitted) (quoting Azanor v. Ashcroft, 364 F.3d 1013, 1021 (9th Cir. 2004)).
Accordingly, I would remand to the BIA for it to consider the significance of
Alfaouri's joint income tax return in the first instance.
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