Lasprilla v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 03-1557

JHON JAIRO LASPRILLA,

Petitioner,

v.

JOHN ASHCROFT, Attorney General,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Circuit Judge,
John R. Gibson, Senior Circuit Judge,*
and Lynch, Circuit Judge.

Anthony Drago, Jr. for petitioner.

Thankful T. Vanderstar, Attorney, Office of Immigration
Litigation, with whom Peter D. Keisler, Assistant Attorney General,
Civil Division, and Linda S. Wernery, Senior Litigation Counsel,
Office of Immigration Litigation, were on brief, for respondent.

April 22, 2004

______________________

* Of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
 LYNCH, Circuit Judge. Jhon Jairo Lasprilla, a native and

citizen of Colombia, seeks review of the Board of Immigration

Appeals' denial of his motion to reconsider the denial of his

earlier motion to reopen. Lasprilla sought to reopen in order to

apply for an adjustment of status based on his marriage to a United

States citizen. Finding no abuse of discretion in the BIA's denial

of the motion to reconsider, we affirm.

I.

Lasprilla entered the United States without inspection on

July 3, 1994. On September 22, 1995, the INS issued him an order

to show cause as a deportable alien. An immigration judge heard

his application for asylum and withholding of deportation and

denied the application on October 15, 1997. His appeal from that

decision was denied by the BIA without opinion on August 6, 2002.

On August 26, 2002, Lasprilla filed a motion with the BIA to reopen

his case to allow him to apply for an adjustment of status. The

BIA denied the motion to reopen on November 12, 2002, finding that

Lasprilla had not made a prima facie showing of eligibility for

adjustment under a "grandfathering" provision, § 245(i), of the

Immigration and Nationality Act (INA).

Lasprilla filed a second motion, to reconsider and to

reopen, which was denied by the BIA on March 26, 2003. That denial

is the subject of this appeal. The BIA found that Lasprilla could

not rely on his former wife's visa application on his behalf for

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grandfathering purposes because he was not a "beneficiary" of a

visa application filed before April 30, 2001.

The background facts are these. Lasprilla had married a

United States citizen in September 1996, while his deportation

proceedings were pending. In March 1997, his wife filed a visa

petition on his behalf. However, she did not reply to INS requests

for more information about their marriage, and the petition was

denied on July 23, 1997. Lasprilla divorced his wife in May 2001,

while his appeal to the BIA was pending, and married his current

wife in August 2001. His new wife filed a visa petition for him on

February 19, 2002, and that petition was approved on May 31, 2002.

II.

This court's standard of review on a denial of a motion

to reconsider an earlier denial of a motion to reopen is quite

constrained. Our review is for abuse of discretion, see Zhang v.

INS, 348 F.3d 289, 293 (1st Cir. 2003); Nascimento v. INS, 274 F.3d

26, 28 (1st Cir. 2001), and we find none here.

In his initial motion to reopen in August 2002, Lasprilla

could have presented evidence in support of his argument that he

was entitled to an adjustment of status. However, he made only a

bare-bones filing that did not even include his first wife's visa

petition. Ably represented by new counsel, petitioner later filed

the motion to reconsider. That motion argued that he was eligible

to adjust his status by virtue of the visa application filed by his

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first wife, an American citizen, under the grandfathering provision

of § 245(i) of the INA. Ordinarily, aliens who enter the United

States without inspection, as Lasprilla did, cannot apply for an

adjustment of status. 8 C.F.R. § 245.1(b)(3); see 8 U.S.C. §

1255(a). But under the grandfathering provision, an alien who

entered the United States without inspection may apply for an

adjustment if he was the beneficiary of a visa petition under 8

U.S.C. § 1154 that was filed on or before April 30, 2001 and that

was "approvable when filed." 8 C.F.R. § 245.10; see 8 U.S.C. §

1255(i).

We bypass several issues to get to the essential dispute.

Lasprilla says that the BIA made an error of law when it denied

reconsideration of its denial of reopening on the ground that he

was not a "beneficiary" for purposes of the grandfathering

provision. The BIA considered Lasprilla's argument that the visa

petition filed for him by his first wife should be eligible for

grandfathering because it was filed before the April 30, 2001

deadline. The BIA determined that Lasprilla could not rely on that

filing for grandfathering eligibility because he was not a

"beneficiary."

It would have been helpful to have received from the BIA

a fuller explanation of why Lasprilla was not a "beneficiary." The

respondent's brief claims to provide the reasoning behind the BIA

decision, and the reasoning in the brief may well be the BIA's

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actual reasoning, but it is difficult to tell. Under other

circumstances, this court might remand to the BIA to explain its

reasoning, as it is not self-evident what the BIA meant. Normally

this court would not affirm based on reasoning not relied upon by

an agency. See SEC v. Chenery Corp., 332 U.S. 194, 196-97 (1947);

Albathani v. INS, 318 F.3d 365, 378 (1st Cir. 2003); El Moraghy v.

Ashcroft, 331 F.3d 195, 206 (1st Cir. 2003). Here, though, we are

mindful that the petitioner comes before us on a denial of a motion

to reconsider a denial of a motion to reopen and the agency has

broad discretion. We have found nothing in the regulations that

requires the BIA to explain its reasons when deciding a motion to

reconsider.

We turn to the supplemental explanation in the

respondent's brief. The reasoning provided in the respondent's

brief is that Lasprilla was not a beneficiary because the visa

petition was not "approvable when filed." This is a term of art.

8 C.F.R. § 245.10(a)(3) ("Approvable when filed means that, as of

the date of the filing . . . the qualifying immigrant visa petition

under [8 U.S.C. § 1154] . . . was properly filed, meritorious in

fact, and non-frivolous . . . ."); 66 Fed. Reg. 16,383, 16,385

(Mar. 26, 2001). The petition filed by Lasprilla's first wife on

his behalf could not have been approved under the requirements of

8 U.S.C. § 1154, unless some exception applied. Section 1154(g)

provides that,

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 except as provided in [8 U.S.C. § 1255(e)(3)], a petition
may not be approved to grant an alien immediate relative
status or preference status by reason of a marriage which
was entered into during [the period in which
administrative or judicial proceedings were pending
regarding the alien's right to be in the United States],
until the alien has resided outside the United States for
a 2-year period beginning after the date of the marriage.

The exception in § 1255(e)(3) provides that a petition based upon

a marriage entered into during the pendency of deportation

proceedings may be approved "if the alien establishes by clear and

convincing evidence . . . that the marriage was entered into in

good faith and . . . not entered into for the purpose of procuring

the alien's admission as an immigrant . . . ." Lasprilla agrees

that this is the standard.

There is no dispute that Lasprilla's first marriage was

entered into during the pendency of the deportation proceedings.

As a result, the visa petition filed for Lasprilla by his first

wife could only have been "approvable when filed" if Lasprilla had

met his burden of offering evidence to show that he was eligible

for the § 1255(e)(3) exception to § 1154(g). Lasprilla did not

offer any such evidence to the BIA in connection with the motion to

reconsider; he did not show that the marriage to his first wife was

bona fide and not entered into for purposes of fraud. The fact

that he now raises a question about whether his first wife ever

received a notice from the INS indicating that further evidence was

required does not make the BIA's latest decision not to reopen an

abuse of discretion. Lasprilla had two opportunities -- in his

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motion to reopen and in his motion to reconsider -- to present a

sufficient showing that he was within the exception and thus that

the visa application was "approvable when filed." But he failed to

do so, and there can be no claim that he lacked access to evidence

showing his first marriage was not fraudulent.

For these reasons, we find petitioner has not met his

burden to show an abuse of discretion in the BIA's denial of the

motion to reconsider. That denial is affirmed. We dissolve the

stay of deportation that this court entered earlier. So ordered.

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