Gordon v. Mukasey

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0249n.06
Filed: May 8, 2008
06-3799
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CARLOS GORDON, )
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE BOARD OF
) IMMIGRATION APPEALS
MICHAEL MUKASEY, United States )
Attorney General, )
)
Respondent. )
Before: RYAN and DAUGHTREY, Circuit Judges; COHN,* District Judge.
PER CURIAM. We have before us a petition for review of a decision of the Board
of Immigration Appeals (BIA) denying petitioner Carlos Gordon’s motion to reopen his case
to permit consideration of his application for adjustment of status by the Department of
Homeland Security. The application would constitute Gordon’s second attempt to avoid
removal from the United States as an illegal alien through adjustment of status based on
marriage to an American citizen.
*
The Hon. Avern Cohn, United States District Judge for the Eastern District of Michigan,
sitting by designation.
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Gordon is a native of Jamaica who entered the United States as a non-immigrant
visitor in April 2000 and overstayed his visa, eventually marrying Nicole Johnson, a U.S.
citizen, on February 14, 2001. The couple separated five months later, and Gordon’s initial
application for adjustment of status was denied in April 2001, as the result of Johnson’s
withdrawal of her I-130 Petition for Alien Relative. An immigration judge ordered Gordon’s
removal in August 2004, denying both withholding of removal and relief under the U.N.
Convention Against Torture. The BIA affirmed that decision on December 1, 2005.
Gordon claims that sometime shortly after the BIA’s decision came down, he and
Johnson reconciled and once again began living together as husband and wife. As a
result, Johnson filed a new I-130 petition on Gordon’s behalf in January 2006, a petition
that is apparently still pending resolution. Approximately one month later, Gordon filed a
timely motion before the BIA, seeking to reopen his case in order to apply for adjustment
of status pending the approval of Nicole’s I-130 visa petition.
The BIA denied the motion to reopen, finding both “the previous withdrawal by
[Johnson] of the original visa petition she filed [on the petitioner’s] behalf to be a significant
factor to be considered” and also “the timing of the [couple’s] reconciliation to be somewhat
suspect.” In its written decision in this matter, the Board furthermore explained:
[W]e find the evidence presented in support of [Gordon’s] motion to be
somewhat scant and limited, and insufficient to demonstrate the bona fides
of the marriage. It consists only of [an apartment] lease, the I-864, the G-
325 forms, and some pictures and cards. [The government] correctly noted
in its Opposition that the first two pages of the I-864 executed by [Johnson]
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are missing . . . . In addition, while the motive for the alteration of the lease
is unclear, it does appear that the page numbers were changed. Examples
of other types of evidence which could have been submitted to demonstrate
the bona fides of the marriage include evidence of a joint bank account to
show commingling of financial resources, joint utility bills, joint insurance
policies, or affidavits of third parties having knowledge of the bona fides of
the marital relationship. None of these was presented.
We have consistently recognized that “a motion to reopen should not be granted
unless the petitioner makes a prima facie showing that the statutory requirements for the
underlying relief have been met.” Yousif v. INS, 794 F.2d 236, 241 (6th Cir. 1986).
Nevertheless, “even if the petitioner meets his burden of showing a prima facie case of
eligibility, the Board may, within its discretion, deny the motion.” Id. Because the decision
of the Board whether to grant or to deny a motion to reopen is thus within the sound
discretion of the BIA, see 8 C.F.R. § 1003.2(a); Haddad v. Gonzales, 437 F.3d 515, 517
(6th Cir. 2006), we will not overturn it unless “the denial of [the] motion to reopen . . . was
made without a rational explanation, inexplicably departed from established policies, or
rested on an impermissible basis such as invidious discrimination against a particular race
or group.” Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005) (citing Balani v. INS,
669 F.2d 1157, 1161 (6th Cir. 1982)).
In this case, the BIA determined that Gordon failed to establish prima facie eligibility
for adjustment of status based upon a marriage to an American citizen. The Board noted
that Gordon’s application to reopen did not contain any of the usual indications of a bona
fide marriage relationship with Nicole Johnson. Most of the exhibits that the petitioner did
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attach to his motion – the couple’s marriage license from 2001, pictures from the wedding
ceremony, undated photographs of the couple, and undated notes written by one or the
other of the couple – are, moreover, wholly irrelevant to a determination of whether the
couple was truly living as husband and wife in 2006.
But, the petitioner also submitted for the BIA’s consideration two I-864 sponsorship
forms and two G-325A forms, one filed by the petitioner and one offered by Nicole
Johnson, each claiming under potentially “severe penalties . . . for knowingly and willfully
falsifying or concealing a material fact,” that the couple were husband and wife and both
lived at 1658 Bryn Mawr Road in Cleveland, Ohio. The petitioner further proffered as an
exhibit to his motion a copy of the Bryn Mawr apartment lease signed by Gordon and by
Johnson on December 15, 2005, exactly two weeks after the Board’s decision upholding
the immigration judge’s ruling denying Gordon withholding of removal and relief under the
Convention Against Torture.
The BIA apparently gave little weight to the fact that the couple had signed an
apartment lease, however, commenting that “while the motive for the alteration of the lease
is unclear, it does appear that the page numbers were changed.” In fact, the pages of the
lease do show that the notations “Page 1 of 5,” Page 2 of 5,” Page 3 of 5,” Page 4 of 5,”
and Page 5 of 5" at the bottom of the respective pages include a handwritten “5" in each
instance. Nevertheless, our review indicates that rather than manifesting some devious
intent, the handwritten numerals appear to be merely overwrites of information that did not
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Gordon v. Mukasey
copy as thoroughly as other printing on the pages. Indeed, the five pages of the lease
appear to contain the entire agreement between the landlord and tenants and end
appropriately with the signatures of the parties to the contract. In short, nothing in the
exhibit gives pause as to the legitimacy of the document itself.
In Matter of Garcia, 16 I&N Dec. 653, 654 (BIA 1978), the Board re-examined its
policy regarding the disposition of motions to reopen “based upon as yet unadjudicated
visa petitions.” After doing so, the BIA determined that it would “generally reopen the
deportation proceedings in such cases unless clear ineligibility is apparent in the record.”
Id. (emphasis added). The Board recognized:
It clearly would not be an abuse of discretion for the immigration judge to
summarily deny a request for a continuance or a motion to reopen upon his
determination that the visa petition is frivolous or that the adjustment
application would be denied on statutory grounds or in the exercise of
discretion notwithstanding the approval of the petition.
Id. at 657. However, the BIA expressed its clear belief that discretion should, nevertheless,
“be favorably exercised where a prima facie approvable visa petition and adjustment
application have been submitted in the course of a deportation hearing or upon a motion
to reopen.” Id.
Rather than adhere to the precepts of Matter of Garcia, however, the BIA in this
matter evaluated Gordon’s motion to reopen – filed during the pendency of an I-130
proceeding – not to determine whether the petitioner established a prima facie case of
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eligibility for relief, but rather on the merits of the I-130 petition itself. The Board thus
imposed an unduly onerous burden upon Gordon and failed to accord his evidentiary
exhibits the weight they deserved at a preliminary stage of the decision-making process.
Given the fact that the BIA denied the motion to reopen because it felt that a prima facie
case had not been established, yet imposed an evidentiary burden far heavier than that
ordinarily required for such a showing, it is impossible to determine whether the Board
would choose to deny the motion if it decided that Gordon had at least met the minimal,
initial showing required. Under such circumstances, a remand to the BIA for further
consideration of the matter under the proper legal standard is required.
CONCLUSION
Given the BIA’s decision applying a burden of proof more applicable to a final
decision on the request for a change in an alien relative’s immigration status than to the
“colorable showing” of entitlement to relief applicable at the motion to reopen stage, we
conclude that the BIA abused its discretion in denying Gordon’s motion. We therefore
GRANT the petition for review and REMAND this matter to the BIA for such further
proceedings as are appropriate.
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RYAN, Circuit Judge, dissenting. After a careful reading of Matter of Garcia,
16 I & N Dec. 653 (BIA 1978), I am satisfied that the “colorable showing” mentioned in the
agency’s opinion and relied upon by my colleagues, is not a statement of a new standard
for eligibility to seek reopening of a Board of Immigration decision. Rather, it is a mere
dictum that does not control our decision.
As I read Garcia, the BIA did not depart from the prima facie standard as stated in
§ 1003.2(c), nor has any subsequent decision lowered the burden to a “colorable showing”
in lieu of the prima facie standard. Moreover, the BIA enjoys broad discretion to deny
motions to reopen, even where the applicant makes out a prima facie case. 8 C.F.R. §
1003.2(a); Yousif v. INS, 794 F.2d 236, 241 (6th Cir. 1986). I believe we decided this issue
correctly the first time this case was presented to us, and I see no reason to revisit it.
I respectfully dissent.
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