FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARYAM YEPREMYAN,
Petitioner, No. 05-76746
v.
Agency No.
A95-306-655
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 12, 2010*
San Francisco, California
Filed August 10, 2010
Before: Andrew J. Kleinfeld, A. Wallace Tashima, and
Sidney R. Thomas, Circuit Judges.
Per Curiam Opinion
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
11395
11398 YEPREMYAN v. HOLDER
COUNSEL
Asbet A. Issakhanian, Glendale, California, for the petitioner.
Andrew C. MacLachlan, Civil Division, U.S. Department of
Justice, Washington, DC, for the respondent.
OPINION
PER CURIAM:
Petitioner Maryam Yepremyan (“Yepremyan”) seeks
review of the decision of the Board of Immigration Appeals
(“BIA”), denying her motion to reopen for adjustment of sta-
tus. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we
deny the petition for review.
I. BACKGROUND
Yepremyan, a citizen of Armenia, entered the United States
on a visitor visa and, after overstaying her visa, applied for
asylum. An immigration judge denied her application, and
Yepremyan appealed the decision to the BIA. While her
appeal was pending, Yepremyan married a United States citi-
zen. Her husband filed an I-130 immediate relative visa peti-
tion on her behalf, and Yepremyan filed a motion to reopen
for adjustment of status based on her marriage.
YEPREMYAN v. HOLDER 11399
On October 26, 2005, the BIA dismissed Yepremyan’s
appeal and denied her motion to reopen, because Yepremyan
had failed to present clear and convincing evidence that her
marriage was bona fide. Yepremyan petitioned for review on
November 28, 2005, which was the Friday after Thanksgiv-
ing.
II. DISCUSSION
A. Jurisdiction
The government first contends that we lack jurisdiction
over this petition because Yepremyan failed to file her peti-
tion for review within thirty days of the BIA’s decision.
[1] Under 8 U.S.C. § 1252(b)(1), a petition for review
must be filed no later than thirty days following the date of
the final order of removal. This time limit is “ ‘mandatory and
jurisdictional’ ” and “not subject to equitable tolling.” Stone
v. INS, 514 U.S. 386, 405 (1995) (quoting Missouri v. Jen-
kins, 495 U.S. 33, 45 (1990)). The time limit for filing a peti-
tion for review begins to run when the BIA mails its decision,
which is presumed to be the date indicated on the cover letter
to the decision. See Haroutunian v. INS, 87 F.3d 374, 375 (9th
Cir. 1996).
[2] In 2005, when Yepremyan filed her petition for review,
Federal Rule of Appellate Procedure 26(a) stated that, in com-
puting time, the day of the act which begins the period is
excluded, and the last day of the period is included “unless it
is a Saturday, Sunday, legal holiday, or . . . a day on which
the weather or other conditions make the clerk’s office inacces-
sible.”1 In addition to the federal holidays listed in Rule 26(a),
1
Rule 26 was amended in 2009, but that amendment has no bearing on
this petition for review because Yepremyan filed her petition in 2005. All
further references to Rule 26 in this opinion, therefore, refer to the rule as
it existed prior to the 2009 amendment.
11400 YEPREMYAN v. HOLDER
a legal holiday is defined to include any day “declared a holi-
day by . . . the state in which is located . . . the circuit clerk’s
principal office.”2 Fed. R. App. P. 26(a)(4).
[3] In this case, the date indicated on the cover letter of the
BIA’s decision was October 26, 2005. The petition was there-
fore due by Friday, November 25, 2005, unless November 25
was a legal holiday in California. See Fed. R. App. P.
26(a)(4). If November 25 was a legal holiday for purposes of
computing time under Rule 26(a), then the following Saturday
and Sunday, November 26-27, were also excluded, and
Yepremyan’s filing on Monday, November 28, 2005, was
timely.
[4] In California, the holidays are enumerated in California
Government Code § 6700 and do not include the day after
Thanksgiving. The California Code of Civil Procedure, how-
ever, designates the day after Thanksgiving as a “judicial holi-
day.” Cal. Civ. Proc. Code § 135.
[5] In Dwyer v. Duffy (In re Dwyer), 426 F.3d 1041 (9th
Cir. 2005), we held that the day after Thanksgiving is a “legal
holiday” in California for purposes of applying Federal Rule
of Bankruptcy Procedure 9006. Id. at 1044. We stated that
“[o]ur inquiry focuses on those days that the California courts
recognize as ‘holidays’ ” because the purpose of the rule is to
“allow[ ] lawyers and litigants within a state to rely on one
legal calendar in calculating deadlines, regardless of the court
in which the case is filed, thereby preventing procedural pit-
falls for those accustomed to the state-court system.” Id. We
reasoned that judicial holidays and holidays under § 6700
were interchangeable for California courts, and that a judicial
holiday in California was therefore a legal holiday for pur-
poses of Bankruptcy Rule 9006. Id.
2
The principal office of the Clerk of the U.S. Court of Appeals for the
Ninth Circuit is located in San Francisco, California.
YEPREMYAN v. HOLDER 11401
[6] We perceive no reason why the analysis in Dwyer
should not apply equally to Appellate Rule 26(a). Rule 26(a)’s
reference to state holidays indicates an intention to promote
uniformity between state and federal courts with respect to
calculation of time. Thus, we conclude that the day after
Thanksgiving is a legal holiday for purposes of calculating
time under Federal Rule of Appellate Procedure 26(a). Yepre-
myan’s petition for review was therefore timely, and this
court has jurisdiction.
B. Standard of Review
We review the BIA’s denial of a motion to reopen for
abuse of discretion. INS v. Abudu, 485 U.S. 94, 99 (1988).
“[M]otions to reopen are disfavored in deportation proceed-
ings.” Id. at 107. However, this court will reverse the denial
of a motion to reopen if it is “ ‘arbitrary, irrational, or contrary
to law.’ ” Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002)
(quoting Ahwazi v. INS, 751 F.2d 1120, 1122 (9th Cir. 1985)).
C. Analysis
Yepremyan argues that the BIA abused its discretion in
finding that the supporting documents filed with her motion
to reopen for adjustment of status did not constitute clear and
convincing evidence of a bona fide marriage.
[7] Generally, a motion to reopen for adjustment of status
will not be granted on the basis of a marriage entered into dur-
ing deportation proceedings unless the petitioner qualifies for
the bona fide marriage exception. 8 U.S.C. § 1255(e). To
qualify for this exception, the petitioner must “present[ ] clear
and convincing evidence indicating a strong likelihood that
the [petitioner’s] marriage is bona fide.” In re Velarde-
Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002); see also
Malhi v. INS, 336 F.3d 989, 994 (9th Cir. 2003). The bare fact
of getting married is insufficient. A petitioner must offer evi-
dence that “the marriage was not entered into for the purpose
11402 YEPREMYAN v. HOLDER
of procuring the alien’s admission as an immigrant . . . .” 8
U.S.C. § 1255(e)(3); see Malhi, 336 F.3d at 994.
[8] Here, the sole evidence submitted by Yepremyan rele-
vant to showing that her marriage is bona fide includes a cer-
tificate of marriage and two affidavits. The affidavits each
state that Yepremyan and her husband “look like a very happy
and great couple.” However, the affidavits do not “contain
complete information and details explaining how the person
acquired his or her knowledge of the marriage” as required by
8 C.F.R. § 204.2(a)(iii)(B)(5). None of the documents submit-
ted in support of Yepremyan’s motion reveals whether she
married for a reason other than “for the purpose of procuring
[her] admission as an immigrant,” 8 U.S.C. § 1255(e)(3), or
indicates a strong likelihood that her marriage is bona fide.
See Malhi, 336 F.3d at 994; cf. United States v. Tagalicud, 84
F.3d 1180, 1185 (9th Cir. 1996).
[9] In Ahmed v. Mukasey, 548 F.3d 768 (9th Cir. 2008), we
held that a copy of a marriage certificate, a visa application,
photographs of the wedding, and a single joint phone bill
were insufficient to prove, by clear and convincing evidence,
that the petitioner’s marriage was bona fide. Id. at 773. Simi-
larly, here, a copy of a marriage certificate and two vague
affidavits attesting to the observation that the couple looks
“happy” do not constitute clear and convincing evidence that
the marriage is bona fide.
[10] Yepremyan also submitted Form I-485, which claims
an address matching that of her husband. The BIA, in In re
Velarde-Pacheco, found probative the fact that the Form I-
485 filed by the alien indicated that he and his wife had lived
together at their current address for two years. That case is
distinguishable, however, because the couple had not only
shared a mailing address, but also lived together, and had a
son together as was proved by the birth certificate submitted
with their motion. In re Velarde-Pacheco, 23 I. & N. Dec. at
YEPREMYAN v. HOLDER 11403
254. Thus, while the information may be probative, it is insuf-
ficient to carry the day.
[11] Because Yepremyan has not proven her marriage to
be bona fide by clear and convincing evidence, the BIA did
not abuse its discretion in denying her motion to reopen.
Yepremyan contends, in the alternative, that if other docu-
ments were necessary, she should have been given the oppor-
tunity to provide them. She cites no authority for this
proposition. To the contrary, on a motion to reopen, the peti-
tioner must show prima facie eligibility for the underlying
substantive relief requested, Ordonez v. INS, 345 F.3d 777,
785 (9th Cir. 2003), and the motion must be supported by
affidavits or other evidentiary material, 8 U.S.C.
§ 1229a(c)(7)(B). Because Yepremyan did not submit suffi-
cient supporting documentation to show by clear and convinc-
ing evidence that her marriage was bona fide, the BIA did not
abuse its discretion in denying her motion to reopen.
The petition for review is DENIED.