VELARDE

Cite as 23 I&N Dec. 253 (BIA 2002) Interim Decision #3463

In re Mario Eduardo VELARDE-Pacheco, Respondent
File A70 178 696 - San Diego
Decided March 6, 2002
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

A properly filed motion to reopen for adjustment of status based on a marriage entered into
after the commencement of proceedings may be granted in the exercise of discretion,
notwithstanding the pendency of a visa petition filed on the alien’s behalf, where: (1) the
motion to reopen is timely filed; (2) the motion is not numerically barred by the regulations;
(3) the motion is not barred by Matter of Shaar, 21 I&N Dec. 541 (BIA 1996), or on any
other procedural grounds;(4) clear and convincing evidence is presented indicating a strong
likelihood that the marriage is bona fide; and (5) the Immigration and Naturalization Service
does not oppose the motion or bases its opposition solely on Matter of Arthur, 20 I&N Dec.
475 (BIA 1992). Matter of H-A-, Interim Decision 3394 (BIA 1999), and Matter of Arthur,
supra, modified.
FOR RESPONDENT: Manuel Armando Rios, Esquire, San Diego, California
FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Alan S. Rabinowitz,
Deputy District Counsel
BEFORE: Board En Banc: SCHMIDT, VILLAGELIU, GUENDELSBERGER,
MOSCATO, MILLER, BRENNAN, and OSUNA, Board Members. Concurring
Opinions: HOLMES, Board Member, joined by HURWITZ, Board Member;
ROSENBERG, Board Member; ESPENOZA, Board Member. Dissenting
Opinions: GRANT, Board Member; PAULEY, Board Member, joined by
SCIALABBA, Acting Chairman; DUNNE, Vice Chairman; FILPPU, COLE,
OHLSON, and HESS, Board Members.

VILLAGELIU, Board Member:

This case was last before us on June 12, 2001, when we dismissed the
respondent’s appeal from an Immigration Judge’s decision finding him
removable as an alien who was inadmissible at the time of entry and ineligible
for any form of relief. The respondent now seeks to reopen the proceedings,
arguing that he is prima facie eligible for adjustment of status based on his
bona fide marriage to a United States citizen. The motion will be granted and
the record will be remanded to the Immigration Judge for further proceedings.

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I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a 25-year-old native and citizen of Mexico. At a hearing
on October 27, 1997, the Immigration Judge ordered the respondent deported
to Mexico. The respondent filed a timely appeal from that decision.
On February 23, 1999, the respondent married a United States citizen. The
couple’s son was born on July 24, 1999. On April 30, 2001, the respondent’s
wife filed a Petition for Alien Relative (Form I-130) with the Service on the
respondent’s behalf, and he simultaneously filed an Application to Register
Permanent Residence or Adjust Status (Form I-485), pursuant to 8 C.F.R.
§ 245.2(a)(2)(i) (2001), seeking the benefits of section 245(i) of the Act,
8 U.S.C. § 1255(i) (2000).
We dismissed the respondent’s appeal on June 12, 2001. On
September 10, 2001, the respondent filed the present motion to reopen with
supporting documentation that includes a copy of his marriage certificate, a
copy of his son’s birth certificate, and copies of his filing fee receipts. He
has also submitted copies of his adjustment application and supporting
documentation, as required by 8 C.F.R. § 3.2(c)(1) (2001). These materials
include the birth certificate of the couple’s United States citizen son as
evidence of the bona fide nature of their marriage. See 8 C.F.R.
§§ 204.2(a)(1)(iii)(B)(4), 245.1(c)(9)(v)(D) (2001).
The respondent argues that he should be given an opportunity to adjust
his status to that of a lawful permanent resident as a result of his marriage to
a United States citizen, and he urges us to reopen proceedings and remand his
case to the Immigration Judge to allow him to apply for such relief.
In its response to the respondent’s motion, the Immigration and
Naturalization Service argues that we are precluded from reopening this case
by our decisions in Matter of Arthur, 20 I&N Dec. 475 (BIA 1992), and
Matter of H-A-, Interim Decision 3394 (BIA 1999).
II. ISSUE
The issue before us is whether we should modify our policy, stated in
Matter of Arthur, supra, and reaffirmed in Matter of H-A-, supra, to deny a
motion to reopen to apply for adjustment of status that is based on an
unadjudicated visa petition filed by a United States citizen or lawful
permanent resident on behalf of his or her spouse, in light of the Service’s
recently revised procedures regarding the joining of untimely motions to
reopen that are submitted after visa petition approval.
III. ANALYSIS
In Matter of Arthur, supra, the respondent filed a motion to reopen with the
Immigration Judge, claiming eligibility for adjustment of status based on his

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marriage to a United States citizen after the commencement of deportation
proceedings. The respondent filed a Form I-485, and a Form I-130 was
submitted on his behalf. The Immigration Judge denied the respondent’s
motion because the I-130 had not yet been adjudicated by the Service. We
affirmed, modifying our holding in Matter of Garcia, 16 I&N Dec. 653 (BIA
1978), which treated pending visa petitions that are prima facie approvable
as already approved for purposes of reopening based on the simultaneous
filing provisions of 8 C.F.R. § 245.2(a)(2)(i). Matter of Arthur, supra, at
477.
In Matter of H-A-, supra, we addressed a situation in which we initially
denied the respondent’s motion to reopen to apply for adjustment of status
under section 245(i) of the Act, in accordance with the policy articulated in
Matter of Arthur, because a Form I-130 filed on the respondent’s behalf had
not yet been approved by the Service. After the visa petition was eventually
approved, we denied a subsequently filed motion to reconsider based on the
time and number limits set forth in 8 C.F.R. § 3.2(c)(2). Matter of H-A-,
supra.
The effect of our policy in Matter of Arthur, supra, coupled with the
regulation limiting respondents to one motion to reopen filed within 90 days
of a final administrative decision and the Service’s inability to adjudicate
many I-130 visa petitions within that time frame, has been to deprive a small
class of respondents, who are otherwise prima facie eligible for adjustment,
of the opportunity to have their adjustment applications reviewed by an
Immigration Judge. See sections 204(g), 245(e) of the Act, 8 U.S.C.
§§ 1154(g), 1255(e) (2000); Immigration Marriage Fraud Amendments of
1986, Pub. L. No. 99-639, § 5, 100 Stat. 3537, 3543; Immigration Act of
1990, Pub. L. No. 101-649, § 702, 104 Stat. 4978, 5086; 8 C.F.R.
§§ 3.2(c)(2), 3.23(b)(3) (2001); see also INS v. Doherty, 502 U.S. 314
(1992); INS v. Abudu, 485 U.S. 94 (1988); Matter of Gutierrez, 21 I&N Dec.
479 (BIA 1996); Matter of Coelho, 20 I&N Dec. 464 (BIA 1992); H.R. Conf.
Rep. No. 101-955, at 128 (1990), reprinted in 1990 U.S.C.C.A.N. 6784,
6793.
The Service recently revised its policy on joining untimely motions to
reopen for adjustment of status. In a memorandum dated July 16, 2001, the
Service’s General Counsel stated that, given changes to the Act, including the
“stop-time rule” of section 240A(d) of the Act, 8 U.S.C. § 1229b(d) (2000),
and repeated amendments to section 245(i) of the Act, an amendment to the
Service’s guidance as it relates to adjustment of status and motions to reopen
was warranted. See Memorandum for Regional Counsel for Distribution to
District and Sector Counsel, Office of the General Counsel (July 16, 2001).
The Service withdrew its “extraordinary and compelling circumstances”
standard for joining such a motion, stating that assistant district counsels may
now join in a motion to reopen for consideration of adjustment of status if that

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relief was not available to the alien at the former hearing, the alien is
statutorily eligible for adjustment, and the alien merits a favorable exercise
of discretion. Id.
We conclude that a properly filed motion to reopen may be granted, in the
exercise of discretion, to provide an alien an opportunity to pursue an
application for adjustment where the following factors are present: (1) the
motion is timely filed; (2) the motion is not numerically barred by the
regulations; (3) the motion is not barred by Matter of Shaar, 21 I&N Dec.
541 (BIA 1996), or on any other procedural grounds; (4) the motion presents
clear and convincing evidence indicating a strong likelihood that the
respondent’s marriage is bona fide; and (5) the Service either does not oppose
the motion or bases its opposition solely on Matter of Arthur, supra.
In the instant case, the respondent filed his first and only motion to reopen
before this Board within 90 days of our decision dismissing his appeal. The
respondent was not granted voluntary departure during proceedings before the
Immigration Judge, and he is therefore not barred from adjustment of status
for overstaying a voluntary departure period. See Matter of Shaar, supra.
We find no other procedural bars to his motion to reopen.
Most importantly, the respondent has submitted clear and convincing
evidence that his marriage is bona fide, based on the evidentiary standard set
forth at 8 C.F.R. § 204.2(a)(1)(iii)(B). The respondent has submitted copies
of his receipt for the I-485 filing fee; his receipt for the I-130 filing fee that
was submitted on his behalf by his wife; his receipt for the additional sum
prescribed by 8 C.F.R. § 245.10(b) (2001); his marriage certificate; and the
birth certificate of his United States citizen son. He has also submitted an
affidavit attesting that he has known his wife since 1995.
The Form I-485 filed by the respondent indicates that he and his wife have
lived together at their current address since June 1999. Submission of such
evidence, in compliance with the standards prescribed by 8 C.F.R.
§ 204.2(a)(1)(iii)(B) for establishing the bona fide nature of a marriage by
clear and convincing evidence, indicates a high probability that the
respondent’s marriage is bona fide. See Matter of Laureano, 19 I&N Dec.
1 (BIA 1983); Matter of Phillis, 15 I&N Dec. 385 (BIA 1975). The
respondent has therefore met the above requirements for reopening of these
proceedings.
We emphasize that we do not endorse granting adjustment of status in
every case in which a respondent makes a prima facie showing of eligibility,
nor do we address motions to reopen filed after the 90-day deadline has
passed. Every application necessarily requires examination of the relevant
factors and a determination of the weight such factors should be accorded in
the exercise of discretion, with respect both to reopening and to the ultimate
determination on the application for relief. Similarly, motions submitted after
the 90-day period prescribed by regulation present additional considerations

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regarding the finality of proceedings, which can best be addressed through the
Service’s recently announced policy on joining such a motion. The Service
is in a better position to ascertain whether additional factors, which may not
be readily apparent, militate against reopening.
In addition, our decision today does not require Immigration Judges to
reopen proceedings pending adjudication of an I-130 visa petition in every
case in which the respondent meets all five of the aforementioned factors.
Immigration Judges may still deny motions to reopen if they determine that
a respondent’s visa petition is frivolous or that adjustment would be denied
in any event, either on statutory grounds or in the exercise of discretion. A
prima facie showing of eligibility merely affords respondents who present
sufficient evidence a single opportunity to have their adjustment applications
adjudicated. Such an opportunity is consistent with Congress’ legislative
intent in amending the marriage fraud provisions: that aliens who marry after
proceedings have been initiated, and who seek adjustment of status, should
be afforded one opportunity to present clear and convincing evidence that
their marriage is bona fide. Compare H.R. Rep. No. 101-723 (I), at 50-52
(1990), reprinted in 1990 U.S.S.C.A.N. 6710, 6730-32, with H.R. Conf. Rep.
No. 101-955, at 128.
At the same time, the Service is also provided an opportunity to fully
investigate a respondent’s claim and present the results of that investigation
to the Immigration Judge, as suggested in the Service’s Operations Instruction
245.2(f) (2001). See generally Matter of Cavazos, 17 I&N Dec. 215 (BIA
1980) (finding the policy manifest in an Immigration and Naturalization
Service Operations Instruction appropriate for consideration by the
Immigration Judge and the Board in the exercise of discretion).
IV. CONCLUSION
Accordingly, we modify our decisions in Matter of H-A-, supra, and
Matter of Arthur, supra, to allow for the granting of a motion to reopen to
apply for adjustment of status, pending approval of the I-130 visa petition by
the Service, in cases where an alien has satisfied the five factors listed above.
The respondent has met the requirements for reopening of the proceedings in
this case. The respondent’s motion to reopen will therefore be granted, and
the record will be remanded to the Immigration Judge for further proceedings.
ORDER: The motion to reopen is granted.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.

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CONCURRING OPINION: David B. Holmes, Board Member, in which
Gerald S. Hurwitz, Board Member, joined
I respectfully concur. In my view, the issue before us is whether those
respondents who can satisfy all of the other rigorous eligibility requirements
for reopening proceedings to pursue an application for adjustment of status
based on a marriage entered into while in proceedings should nonetheless be
subject to an additional, absolute bar to reopening that arises neither from
statute nor regulation, but instead is solely of the Board’s own creation. See
Matter of H-A-, Interim Decision 3394 (BIA 1999); Matter of Arthur, 20 I&N
Dec. 475 (BIA 1992). I find that such a bar is not appropriate given the
development of the law in this area.
In this regard, I am guided by the fact that in 1986 Congress included in
the Immigration and Nationality Act an absolute bar to adjustment for
respondents who entered into marriages during the course of deportation or
exclusion proceedings. See Immigration Marriage Fraud Amendments of
1986, Pub. L. No. 99-639, § 5(b), 100 Stat. 3537, 3543 (codified as amended
at section 245(e) of the Act, 8 U.S.C. § 1255(e) (Supp. IV 1986)). This
preclusion to adjustment was easy for the Service, the Immigration Judges,
and the Board to administer because it was absolute. Moreover, it was
exceedingly effective at screening out suspect marriages because all
marriages entered into during the course of proceedings were included in its
sweep. However, this same broad sweep also excluded from adjustment
many respondents, including those with United States citizen children, whose
marital relationships were bona fide, with obvious resulting hardship to
citizens and lawful permanent residents of this country. In response,
Congress amended the Act in 1990 by exempting from the bar an alien who
could establish “by clear and convincing evidence to the satisfaction of the
Attorney General that the marriage was entered into in good faith and . . . was
not entered into for the purpose of procuring the alien’s entry as an
immigrant.” Immigration Act of 1990, Pub. L. No. 101-649, § 702, 104 Stat.
4978, 5086 (codified as amended at section 245(e)(3) of the Act, 8 U.S.C.
§ 1255(e)(3) (Supp. II 1990)).
This development of the law reflects Congress’ intent to rigorously screen
out fraudulent or suspect marriages from eligibility for adjustment of status,
but to not do so in a manner that unnecessarily includes within its scope
genuine marital relationships. Given Congress’ decision in 1990 to replace
an absolute bar with one that instead imposes a higher standard of proof, it
does not seem appropriate to me for the Board to create an absolute bar to
reopening in circumstances in which the statutory goals can similarly be met
by the imposition of a more rigorous standard of proof. Accordingly, I would
modify the Board’s decisions in Matter of H-A-, supra, and Matter of Arthur,
supra, and apply the standards enunciated by the Board in Matter of Garcia,

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16 I&N Dec. 653 (BIA 1978), to cases such as the respondent’s, with the
additional requirement that the underlying visa petition be prima facie
approvable under the more rigorous “clear and convincing evidence” standard
set forth in section 245(e)(3) of the Act, rather than under the “preponderance
of the evidence” standard that governs other motions within the scope of
Matter of Garcia.
In the present case, but for the Board’s decisions in Matter of H-A-, supra,
and Matter of Arthur, supra, the respondent appears eligible under Matter of
Garcia, supra, to have his proceedings reopened to provide him the
opportunity to pursue an application for adjustment of status. I find a prima
facie showing that the visa petition filed on his behalf is approvable under the
“clear and convincing evidence” standard. See 8 C.F.R. § 204.2(a)(1)(iii)(B)
(2001). Accordingly, I agree with the majority that the motion should be
granted to permit the respondent an opportunity both to establish his
eligibility for adjustment of status and, if eligible, to demonstrate that he
warrants such relief in the exercise of discretion.

CONCURRING OPINION: Lory Diana Rosenberg, Board Member
I respectfully concur in the majority’s decision to grant the respondent’s
motion to reopen, as I am in complete agreement that reconsideration of our
opinions in Matter of Arthur, 20 I&N Dec. 475 (BIA 1992), and Matter of
H-A-, Interim Decision 3394 (BIA 1999), is warranted. Upon reconsideration
of those decisions, I also agree with the majority that it is within our
discretion to grant a timely motion to reopen seeking a remand to apply for
adjustment of status based on a showing of “clear and convincing evidence
. . . indicating a strong likelihood that the respondent’s marriage is bona fide.”
Matter of Velarde, 23 I&N Dec. 253, 256 (BIA 2002).
However, I would not find it necessary to restrict our discretion by
imposing the additional condition that “the Service does not oppose the
motion or bases its opposition to the motion to reopen solely on our decision
in Matter of Arthur, supra.” Matter of Velarde, supra, at 256. Such a
restriction is not warranted by sections 204(g) and 245(e) of the Immigration
and Nationality Act, 8 U.S.C. §§ 1154(g) and 1255(e) (2000), which
prompted our prior decision in Matter of Arthur, supra.
First, the respondent’s motion to reopen is timely, as it was filed within
90 days of our ruling on the respondent’s timely appeal from the October 27,
1997, decision of the Immigration Judge. See 8 C.F.R. § 3.2(c) (2001). It is
a reasonable assumption that the considerations underlying the Immigration
and Naturalization Service’s current policy of joining meritorious, untimely
motions to enable a respondent to apply for adjustment of status also would
extend to meritorious, timely motions. See Memorandum for Regional
Counsel for Distribution to District and Sector Counsel, Office of the

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General Counsel (July 16, 2001) (authorizing the Service to join a motion to
reopen seeking adjustment of status if adjustment was not previously
available, and the respondent is eligible and merits a favorable exercise of
discretion). Indeed, all things being equal, it is difficult to imagine a rational
reason why the Service would acquiesce in an untimely motion to facilitate
the consideration of an adjustment of status application, but object to a timely
filed one.
Second, at the time we dismissed the respondent’s appeal on June 12,
2001, the respondent had been married to a United States citizen for over
2 years, and the couple had a son who was 2 years old. In addition, the
respondent had filed an application for adjustment of status with the
Immigration Judge under section 245(i) of the Act. See 8 C.F.R.
§ 245.2(a)(1) (2001) (requiring that once an alien is in proceedings, the
adjustment application shall be made and be considered only in such
proceedings). His application had been properly filed originally in
conjunction with his wife’s immediate relative petition seeking an exemption
of the prohibition on approval of such petitions. See 8 C.F.R. § 245.2(a)(2)(i)
(instructing that adjustment applications filed simultaneously with immediate
relative visa petitions are to be retained when approval of the visa petition
would make a visa immediately available at the time of filing the adjustment
application).
Although section 204(g) of the Act restricts the approval of a marriage-
based visa petition when the marriage is entered into during the period that
administrative or judicial proceedings are pending, section 245(e)(3) provides
an explicit exception to that restriction. Specifically, when a respondent
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 jurisdiction in which it took place, and that
it was not entered into for the purpose of procuring the alien’s admission as
an immigrant, the restrictions in section 204(g) of the Act and the prohibition
on adjustment of status under section 245(e)(1) of the Act do not apply.
Section 245(e)(3) of the Act; see also 8 C.F.R. § 204.2(a)(1)(iii)(B) (2001)
(listing evidence to be relied upon to meet the bona fide marriage exemption
to the marriage fraud provisions in sections 204(g) and 245(e) of the Act).
Accordingly, when a respondent supports a motion to reopen with
documentation that contains clear and convincing evidence indicating the
strong likelihood that his marriage is bona fide, he has made a prima facie
showing of eligibility consistent with the exception provided in section
245(e)(3) of the Act. Although 8 C.F.R. § 204.1(e)(1) (2001) provides that
jurisdiction lies with the Service office having jurisdiction over the
petitioner’s residence, and 8 C.F.R. § 204.2(a)(1)(iii)(C) allocates the
ultimate authority to approve the visa petition to the Service director, the
Service’s authority is not exclusive. See Matter of Obaigbena, 19 I&N Dec.

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533 (BIA 1988); accord Matter of Soriano, 19 I&N Dec. 764 (BIA 1988).
But see Dodig v. INS, 9 F.3d 1418 (9th Cir. 1993) (holding that the district
director is charged exclusively with ultimately approving a visa petition).
The exception to adjustment preclusion in section 245(e)(3) of the Act,
and the regulatory provisions that permit simultaneous filings and mandate
that an adjustment application be filed with the Immigration Judge after an
alien is in proceedings, indicate that the Immigration Judge and the Board
share some of the authority delegated to the Attorney General under section
245(e)(3) of the Act. See 8 C.F.R. §§ 245.2(a)(1), (2)(i). As the Service
explained in interim rules issued on July 23, 1997, there is no requirement
that an adjustment applicant be the beneficiary of an approved, valid, and
unexpired visa petition in order to file an application for adjustment of status.
Adjustment of Status to That of Person Admitted for Permanent Residence;
Temporary Removal of Certain Restrictions of Eligibility, 62 Fed. Reg.
39,417, 39,419 (1997). Obviously, if the visa petition is filed simultaneously
with the adjustment application in accordance with 8 C.F.R. § 245.2(a)(2)(i),
the visa petition could not be already approved.
The submission of a pending visa petition accompanied by sufficient
documentary evidence under 8 C.F.R. § 204.2(a)(1)(iii)(B) with a motion to
reopen should suffice to establish prima facie evidence of a bona fide
marriage for purposes of reopening. Looking to such a prima facie showing
to determine whether to grant reopening under 8 C.F.R. § 3.2(c) is consistent
with the statutory language in section 245(e)(3) of the Act, reflecting
Congress’ express intent that an affected alien have an opportunity to provide
clear and convincing evidence of a bona fide marriage. Id.
In Matter of Arthur, supra, we insisted on prior Service approval of a
marriage-based visa petition before we would grant reopening for adjustment
of status in cases subject to the marriage fraud provisions. Id. at 479
(holding that we would “hereafter decline to grant motions to reopen” until the
Service approved the visa petition filed on the alien’s behalf). We found that,
for purposes of reopening, a presumption that a marriage claimed on an
unadjudicated visa petition was bona fide in the absence of clear ineligibility
conflicted with the terms of the marriage fraud amendments. Id. (modifying
Matter of Garcia, 16 I&N Dec. 653 (BIA 1978)).
With due respect, our reasoning in Matter of Arthur confuses the district
director’s ultimate authority to approve a visa petition with the authority of
the Immigration Judge or the Board to determine that a hearing to consider the
merits of an adjustment application is warranted based on preliminary
assessment that a respondent has made a prima facie showing that his
marriage is bona fide. Matter of Arthur, supra, at 479. In Arthur, we
reasoned that given the respondent’s burden of providing by clear and
convincing evidence that his marriage is bona fide, a preliminary evaluation
to determine prima facie eligibility was untenable and would amount to a

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substantial and unwarranted intrusion into the district director’s authority. Id.
at 478-79 (finding that the “clear and convincing evidence” standard is, of
course, more stringent than the “preponderance of the evidence” standard
ordinarily required to establish a claimed relationship between a petitioner
and a beneficiary).
In addition, our conclusion in Arthur that “[a]n inquiry into whether the
evidence submitted in support of a visa petition is sufficient, in light of the
heavy burden imposed on the petitioner, to demonstrate prima facie eligibility
. . . would necessarily involve an in-depth examination into the merits of the
petition” is erroneous. Id. at 479 (emphasis added). In my view, it distorts
what is meant by “prima facie” eligibility.
Black’s Law Dictionary defines “prima facie” as “[a]t first sight; on first
appearance but subject to further evidence or information.” Black’s Law
Dictionary (7th ed. 1999). “Prima facie case” is defined as “1. The
establishment of a legally required rebuttable presumption” or “2. A party’s
production of enough evidence to allow the fact-trier to infer the fact at issue
and rule in the party’s favor.” Id. Therefore, a prima facie showing is made
when the facts asserted, if later proven in a full hearing, would establish
eligibility under the statutory standard. Matter of Coelho, 20 I&N Dec. 464,
473 (BIA 1992) (tying prima facie eligibility to statutory eligibility).
The prima facie eligibility standard does not vary according to the
particular substantive burden of proof that is applicable. Rather, it is
demonstrated when facts sufficient to sustain the respondent’s burden after
a hearing are presented in his motion to reopen. In this case, the regulations
specify quite clearly the kinds of facts necessary to sustain the respondent’s
burden of producing clear and convincing evidence of a bona fide marriage
and trigger the exception allowing adjustment of status under section
245(e)(3) of the Act. There is no dispute that the respondent not only
asserted such facts, but provided proof of them in connection with his motion
to reopen.
We have ruled that reopening is warranted under the prima facie eligibility
standard. See Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996). There is no
question that we may determine prima facie eligibility under a clear and
convincing evidence standard without ruling on the petition itself. Id. at
418-19 (recognizing that “the Board historically has not required a conclusive
showing that, assuming the facts alleged to be true, eligibility for relief has
been established”). By finding prima facie eligibility, we are deciding only
that there is a reasonable likelihood that the statutory requirements for the
relief sought will be satisfied. See M.A. v. United States INS, 899 F.2d 304
(4th Cir. 1990); Marcello v. INS, 694 F.2d 1033 (5th Cir.), cert. denied,
462 U.S. 1132 (1983).
Consequently, I must question the Board’s unsupported conclusion in
Matter of Arthur, supra, that a prima facie eligibility test cannot be used

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merely because the standard the petitioner must satisfy in order for the
respondent to be eligible to adjust his status to that of a lawful immigrant is
greater than a preponderance of the evidence. Id. at 478-79. Moreover,
instead of requiring prima facie evidence to support the motion to reopen, the
Board in Arthur required conclusive evidence of eligibility: an approved visa
petition. See 8 C.F.R. § 3.2(c). Such a conclusive showing for reopening is
an inappropriate basis on which to deny a motion to reopen.
By contrast, the test proposed by the majority—clear and convincing
evidence indicating the strong likelihood that the respondent’s marriage is
bona fide—is within the authority of the Board to apply. The applicability
of such a test in adjudicating a motion to reopen comports with our use of a
prima facie eligibility standard to decide motions to reopen generally. See
8 C.F.R. § 3.2(c); Matter of L-O-G-, supra.
Furthermore, 8 C.F.R. § 204.2(a)(1)(iii)(B), specifying the type of
evidence that can meet the bona fide marriage exemption to the marriage
fraud provisions in sections 204(g) and 245(e) of the Act, was promulgated
in conformity with our interpretation of the standard in Matter of Laureano,
19 I&N Dec. 1 (BIA 1983). See Petition to Classify Alien as Immediate
Relative of a United States Citizen or as a Preference Immigrant, 57 Fed. Reg.
41,053, 41,058 (1992). In Matter of Laureano, supra, at 3, issued after
Arthur, we ruled that “[t]he conduct of the parties after the marriage is
relevant to their intent at the time of marriage,” and specified that “[e]vidence
to establish intent may take many forms, including, but not limited to, proof
that the beneficiary has been listed as the petitioner’s spouse on insurance
policies, property leases, income tax forms, or bank accounts, and testimony
or other evidence regarding courtship, wedding ceremony, shared residence,
and experiences.” Our participation in such an assessment at the appellate
level is clearly contemplated, as 8 C.F.R. § 204.2(a)(1)(iii)(E) specifies that
the Board decision constitutes the single level of appellate review of bona
fide visa petition denials provided in section 245(e)(3) of the Act. See
8 C.F.R. § 3.1(b)(5) (2001).
A prima facie showing consistent with our decision in Matter of Laureano
provides a better guideline than the Arthur rule for purposes of reopening
under 8 C.F.R. § 3.2. As 8 C.F.R. § 245.2(a)(1) requires that after an alien
is in deportation or removal proceedings the adjustment application shall be
made and be considered only in such proceedings, the Arthur rule denying
reopening unreasonably encumbers the respondent’s statutory right to apply
for residency in the United States through the adjustment of status process.1
1
Although one might argue that a respondent may obtain his immigrant visa through the
consular process, this alternative is not a realistic one, as deportation or removal renders an
alien inadmissible to the United States. See section 212(a)(9) of the Act, 8 U.S.C.
§ 1182(a)(9) (2000); see also section 212(a)(9)(A)(iii) of the Act (providing an exception if the
(continued...)

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See sections 201(b)(2)(A)(i), 212(a)(9),(o), 245(a), (i) of the Act, 8 U.S.C.
§§ 1151(b)(2)(A)(i), 1182(a)(9), (o), 1255(a), (i).
Contrary to our prior rulings, there is no conflict between our concluding
that a marriage appears bona fide for purposes of granting such a hearing and
the district director’s ultimate determination of the visa petition. See Matter
of Arthur, supra, at 478-79. Furthermore, the determination whether to grant
a motion to reopen is essentially a discretionary one. Although the
regulations provide certain requirements, such as time and number limitations,
those limits are not at issue here. See 8 C.F.R. § 3.2.
Thus, I see no justification for the degree of deference extended to the
Service under the fifth condition articulated in the majority opinion. I do not
believe that Service opposition is an appropriate “condition” that, as a rule,
should result in denial of a motion to reopen. Our role is to engage in
impartial and independent adjudications, not to rubberstamp the preferences
of the Service. See 8 C.F.R. § 3.1(d) (2001) (providing that the Board shall
exercise such authority as is necessary and appropriate for the disposition of
the case). In the exercise of discretion in adjudicating such a motion in the
absence of visa petition approval, we certainly may consider any substantive
objections to reopening offered by the Service. In particular, objections
challenging the bona fides of the marriage may be entitled to considerable
weight. However, such objections should not constitute an insurmountable
barrier to granting a motion to reopen.
If the Service has serious concerns about the merits of the visa petition,
the best way to defeat a motion to reopen is to adjudicate the visa petition
and deny it. Even if that cannot be accomplished during the time that the
motion is pending, the Service still could present evidence that would
undermine the respondent’s prima facie case. And, even if the Service is
unable to defeat a prima facie showing of eligibility before the motion to
reopen is granted, the Service can adjudicate the petition and issue a denial
that would ultimately defeat the application for adjustment of status before
it is adjudicated on its merits in a hearing before the Immigration Judge.
I conclude that, in view of section 245(e)(3) of the Act, as implemented
by 8 C.F.R. §§ 204.2(a)(1)(iii)(B), 245.2(a)(1), and 245.2(a)(2)(i), a
respondent’s motion to reopen seeking an opportunity to apply for adjustment
of status in a case in which the marriage was entered after proceedings began
should be granted when the motion is supported by prima facie evidence, i.e.,
clear and convincing evidence indicating the strong likelihood that the
respondent’s marriage is bona fide. Therefore, I concur in the majority
opinion.
1
(...continued)
Attorney General permits an application for readmission). But see Matter of Tin, 14 I&N Dec.
371 (R.C. 1973) (conditioning such discretionary permission in large part on the length of time
spent outside the United States).

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CONCURRING OPINION: Cecelia M. Espenoza, Board Member
I respectfully concur in the result reached by the majority for the reasons
stated herein.
A fundamental interest in our immigration laws is the preservation of the
rights of United States citizens to process immigration visas for designated
members of their families.1 The spouse of a United States citizen is a
member of such a class. It is our duty to ensure that the competing interests
of immigration enforcement and rights of citizens be recognized. The rule
advanced today sets forth a reasonable, limited remedy.
I recognize that the right to petition for a spouse is not absolute, as it is
balanced against the interests of the government to process and remove aliens
who would fraudulently enter into marriages to evade immigration laws. See
Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639,
§ 5(b), 100 Stat. 3537, 3543 (“IMFA”); see also H.R. Rep. No. 99-906
(1986) (on H.R. 3737), reprinted in part in 1986 U.S.C.C.A.N. 5978-86;
S. Rep. No. 99-491 (1986) (on S. 2270). However, the issue presented here
is whether the respondent is an individual who meets the exception to the rule
because he has a bona fide marriage. See 8 C.F.R. §§ 204.2(a)(1)(iii)(B),
245.1(c)(9)(v) (2001) (setting forth the bona fide marriage exception and
standards). In determining that this individual is entitled to relief, I agree with
the analysis of Board Member Rosenberg regarding the error of our prior
holding in Matter of Arthur, 20 I&N Dec. 475 (BIA 1992).
Consistent with the position of the majority, I believe that the evidence
advanced by the respondent warrants reopening. The dissent essentially
argues that the IMFA presumption justifies our prior holdings and can only
be overcome if a visa petition is approved within 90 days of the issuance of
our decision. If this were the law, there would be no need to set forth
alternative evidence to demonstrate the bona fides of a marriage. See
8 C.F.R. §§ 204.2(a)(1)(iii)(B), 245.1(c)(9)(v). 2

1
In fiscal year 2000, 69% of all legal immigrants were family sponsored immigrants. See
Annual Report: Legal Immigration, Fiscal Year 2000, issued by the Office of Policy and
Planning, Immigration and Naturalization Service, a v a i l a b l e a t
http://www.ins.gov/graphics/aboutins/statistics/Immigs.htm (“Legal Immigration”).
Furthermore, in Boddie v. Connecticut, 401 U.S. 371, 376 (1971), the United States Supreme
Court recognized that “marriage involves interests of basic importance in our society.”
2
The regulation setting forth these alternatives was issued subsequent to our ruling in Matter
of Arthur, supra, and was promulgated to specify the evidence that can meet the bona fide
marriage exemption to the marriage fraud provisions in sections 204(g) and 245(e) of the
Immigration and Nationality Act, 8 U.S.C. §§ 1154(g) and 1255(e) (2000). See Petition to
Classify Alien as Immediate Relative of a United States Citizen or as a Preference Immigrant,
57 Fed. Reg. 41,053, 41,058 (1992).

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In my view, the fundamental question we are faced with is whether
sufficient facts exist to warrant a finding of a bona fide marriage in this case.
The burden of the respondent is to demonstrate by “clear and convincing
evidence . . . a strong likelihood that the respondent’s marriage is bona fide.”
Matter of Velarde, 23 I&N Dec. 253, 256 (BIA 2002). This finding is
required to insure that the marriage was not entered into for the purpose of
evading the immigration laws. The respondent’s marriage prior to the birth
of his child demonstrates an intent to legitimate the child, which undermines
the notion that he entered into this marriage for immigration purposes. In fact,
as a matter of law under the Immigration and Nationality Act, his marriage
establishes that this is his child.3 Furthermore, if the respondent’s intent were
to evade the immigration laws, it is far more likely that his wife would have
filed a Petition for Alien Relative (Form I-130) with the Immigration and
Naturalization Service prior to April 30, 2001, or subsequent to our decision
on June 12, 2001. As the application was filed independent of either of these
dates, I conclude that the evidence meets the clear and convincing evidence
standard required by the regulations. 8 C.F.R. § 245.1(c)(9)(v).
The respondent’s timely filing within 90 days of our final decision
provides us with this opportunity to reevaluate Matter of Arthur, supra, and
Matter of H-A-, Interim Decision 3394 (BIA 1999). Contrary to the
speculation of the dissent, the facts demonstrate that neither this respondent
nor individuals similarly situated to him have the visa petitions that are filed
on their behalf adjudicated in a timely manner. In addition, there is no
indication that resources or a procedure for that purpose exist. 4 Therefore,
I concur in the majority opinion.

DISSENTING OPINION: Edward R. Grant, Board Member
I respectfully dissent without opinion.

DISSENTING OPINION: Roger A. Pauley, Board Member, in which
Lori L. Scialabba, Acting Chairman; Mary Maguire Dunne, Vice
Chairman; Lauri Steven Filppu, Patricia A. Cole, Kevin A. Ohlson, and
Frederick D. Hess, Board Members, joined
The operative, though never expressly stated, reason for the majority’s
retreat from Matter of Arthur, 20 I&N Dec. 475 (BIA 1992), and Matter of
H-A-, Interim Decision 3394 (BIA 1999), is its belief that the Immigration and
3
The Immigration and Nationality Act sets forth who is a “child,” which, for purposes of the
Act, is “a child born in wedlock.” Section 101(b)(1)(A) of the Act, 8 U.S.C. § 1101(b)(1)(A)
(2000). Thus, paternity is established.
4
There were 1 million adjustment of status applications pending at the end of fiscal year
2000. See Legal Immigration, supra.

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Naturalization Service frequently fails to adjudicate visa petitions based on
marriage to a United States citizen in a timely fashion, causing a “small class
of respondents, who are otherwise prima facie eligible for adjustment,” to
lose their opportunity to have their adjustment applications reviewed by an
Immigration Judge. Matter of Velarde, 23 I&N Dec. 253, 255 (BIA 2002).
In order to remedy this perceived injustice, the majority has determined to
modify the above decisions to permit Immigration Judges to reopen removal
proceedings to adjudicate adjustment of status applications based on visa
petitions filed by spouses whose marriages were entered into during the
pendency of removal proceedings, where, inter alia, the alien spouse submits
clear and convincing evidence of the bona fide nature of the marriage and the
Service does not oppose the motion.
Accepting the majority’s implicit premise that the Service often acts with
insufficient celerity on this species of visa petition, I would nevertheless not
modify the above decisions, which essentially require that, before reopening
can be granted, an alien must present the Immigration Judge with an approved
visa petition. The majority does not gainsay the validity of a principal
underlying rationale of Matter of Arthur, supra, and Matter of H-A-, supra,
that an “inquiry into whether the evidence submitted in support of a visa
petition is sufficient . . . to demonstrate prima facie eligibility for the
preference sought would necessarily involve an in-depth examination into the
merits of the petition [that] would . . . constitute a substantial . . . intrusion
into the district director’s authority over the adjudication” of such petitions.
Matter of Arthur, supra, at 479. The majority evidently deems the intrusion
justified by the fact that the Arthur/H-A- rule causes some applicants to lose
their opportunity.
But changing otherwise salutary procedures because of resource
constraints or allocations is of dubious merit. The Attorney General could
tomorrow direct the Service to decide the pertinent class of visa petitions
more speedily and provide additional resources to accomplish this task,
whereupon the reason for today’s decision would vanish, leaving its burdens
(discussed below) in place without any corresponding benefits. It is not for
the Board, I submit, to alter its procedures (and arguably furnish a
disincentive to the investment of additional resources in this area) based on
its implicit speculation that such a change in executive policy is not likely to
be forthcoming.
Moreover, nothing else suggests the wisdom of revisiting Arthur and H-A-.
Those cases were grounded on the need to enforce the policy enacted by
Congress in the Immigration Marriage Fraud Amendments of 1986, Pub. L.
No. 99-639, 100 Stat. 3537, as amended in 1990, specifically finding that
marriages entered into during deportation proceedings were suspect and
presumptively fraudulent. See sections 204(g), 245(e) of the Immigration and
Nationality Act, 8 U.S.C. §§ 1154(g), 1255(e) (2000). The majority cites as

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a reason for reexamining Matter of Arthur and Matter of H-A- that the
Service has recently revised and ameliorated its policy regarding joining
untimely motions to reopen submitted after visa petitions are approved. But
since the majority opinion is expressly limited to instances in which the
motion is timely, this asserted justification is transparently insufficient.
Accordingly, established principles of stare decisis dictate that the invitation
to reconsider the Board’s decisions should be rejected. See generally Neal
v. United States, 516 U.S. 284 (1996) (indicating that stare decisis principles
apply with utmost force to issues of statutory construction, because the
legislature remains free to amend the statute); Hilton v. South Carolina Pub.
Ry. Comm’n, 502 U.S. 197 (1991) (same). Notably, in the decade since
Matter of Arthur, supra, was decided, neither the Congress through
legislation nor an Attorney General through regulation has sought to amend
the procedures established by that decision, notwithstanding numerous
statutory and regulatory changes promulgated during that period.
Furthermore, the “modification” announced by the majority is not without
its own costs. In addition to the problem identified in the quotation from
Matter of Arthur, supra, the new doctrine will inevitably lead to
disagreements among Immigration Judges, and panel disagreements within the
Board itself, producing a lack of consistency in the determination of whether
“clear and convincing” evidence of a strong likelihood of a bona fide
marriage has been shown. 1 And relaxing the standard for consideration of
motions to adjust status based on presumptively fraudulent marriages entered
into during the pendency of removal proceedings will likely cause an increase
in this type of fraud and a consequent increase in the workload of the Service,
the Immigration Judges, and this Board.
Even if one were to conclude that the balance of interests lay with some
modification of the Matter of Arthur and Matter of H-A- rule, the majority
opinion would not attract my vote since it fails to assure the objective it
seeks. As I read the opinion, the Service is required only to register its
opposition to the alien’s motion. The Service is not required to state the
ground(s) for its opposition. Thus, if the Service wishes to preserve the
status quo ante, it need only adopt a policy of filing a one-sentence
1
Moreover, I predict that, in future cases, Immigration Judges and the Board will have
considerable difficulty in applying the cumbersome test laid down by the majority: “clear and
convincing evidence . . . indicating a strong likelihood that the respondent’s marriage is bona
fide.” Matter of Velarde, supra, at 256. It is not clear whether this standard is meant to be
equivalent to, or more rigorous than, the normal standard of prima facie eligibility applicable
to motions to reopen. If it is intended to be more rigorous, then the majority opinion has failed
to provide relief for the entire class of aliens sought to be benefitted—namely the “small class
. . . who are otherwise prima facie eligible for adjustment.” Id. at 255. Moreover, if it is more
rigorous than prima facie eligibility, by what quantum? On the other hand, if no more rigorous
test than prima facie eligibility is contemplated, then why use a formulation that is less than
pellucid and will give rise to problems in application?

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“Opposition” to motions to reopen that previously would have been barred
under Matter of Arthur and Matter of H-A- in all cases in which the Service
had not yet completed its investigation of the bona fides of the alien’s
marriage. The majority decision, far from remedying the perceived injustice
on which it is predicated, may therefore prove to be nothing more than a
source of useless additional paperwork.
Finally, the majority opinion appears to confer on Mr. Velarde-Pacheco
an undeserved benefit. The logical outcome of the majority’s opinion should
be a remand to permit the Service at least 13 days to determine whether or
not to oppose the motion. See 8 C.F.R. § 3.2(g)(3) (2001). In this case, the
Service reasonably relied solely on governing precedent (i.e., the Arthur and
H-A- decisions of the Board) to oppose the respondent’s motion. It could not
reasonably anticipate the “modification” of those decisions announced in
today’s ruling. Hence, there seems no reason, under the majority opinion, not
to allow the Service to indicate whether or not it opposes the motion to
reopen on some other basis, as will occur with all future cases under the new
procedures. Granting the respondent’s motion to reopen without affording the
Service this opportunity is an unmerited windfall to this alien.
For all the above reasons, I respectfully dissent.

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