United States Court of Appeals
For the First Circuit
No. 05-2248
EFRÁIN PALMA-MAZARIEGOS,
Petitioner,
v.
PETER D. KEISLER,* ACTING ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Selya, Senior Circuit Judge,
and Schwarzer,** Senior District Judge.
Stephen A. Lagana and Lagana & Associates on brief for
petitioner.
Siu P. Wong, Office of Immigration Litigation, Department of
Justice, Civil Division, Peter D. Keisler, Assistant Attorney
General, and Terri J. Scadron, Assistant Director, on brief for
respondent.
October 2, 2007
*
Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General
Peter D. Keisler is substituted for former Attorney General Alberto
R. Gonzales as respondent.
**
Of the Northern District of California, sitting by
designation.
Per Curiam. Efrain Palma-Mazariegos, a Guatemalan
national, entered the United States without permission in December
1991, and filed for asylum shortly after. "Nothing happened" until
the INS initiated removal proceedings some eight years later.
Palma-Mazariegos v. Gonzales, 428 F.3d 30, 32 (1st Cir. 2005). On
October 6, 2003, an immigration judge rejected Palma's applications
for asylum, withholding of removal, and relief under the United
Nations Convention Against Torture, but granted voluntary
departure. The Board of Immigration Appeals ("BIA") affirmed on
February 28, 2005, and this court denied a petition for review.
Id.
On May 26, 2005, while his original petition for review
was pending in this court, Palma filed with the BIA a timely motion
to reopen proceedings; his wife had just become an American citizen
in April 2005. Palma had married her in November 2000 (a few
months after his removal proceedings began), at which point she was
a permanent resident. Soon thereafter, on April 16, 2001, she
filed an I-130 visa petition on his behalf.
As the spouse of a United States citizen, Palma was now
an "immediate relative," 8 U.S.C. § 1151(b)(2)(A)(i) (2000), and
thus exempt from the worldwide and numerical limitations imposed by
8 U.S.C. § 1151(a) on immigrant visas. Id. § 1151(b). Palma
therefore sought a remand by the Board, so that he could apply for
an adjustment of status under 8 U.S.C. § 1255(i), which allows
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aliens physically present in the country to apply for permanent
residence if (among other requirements) immigrant visas are
"immediately available" to them.
The BIA denied on two grounds the motion to reopen.
First, it found that Palma had not provided "clear and convincing"
evidence that the marriage was bona fide, as is required under its
decision in In re Velarde, 23 I. & N. Dec. 253, 256 (BIA 2002).
Second, Palma did not submit with his motion a completed I-485
application to adjust status, as the regulations require. 8 C.F.R.
§ 1003.2(c).
Palma petitioned this court for review of the BIA's
denial of his motion to reopen. He also filed with the BIA a
motion to reconsider its decision. There was some confusion as to
whether the latter motion was timely; the BIA initially denied the
motion as time-barred but later, after sorting out the confusion,
it appeared that negligence by the mail carrier was involved and
the Board reconsidered the matter sua sponte and denied
reconsideration on the merits.
In his brief in this court, Palma challenges both the
denial of his motion to reopen, and the denial of his motion to
reconsider, which he claims the BIA failed to adjudicate on the
merits. But he appealed only the former order, and so we lack
jurisdiction to consider the latter. Each denial constitutes a
final BIA order that must be appealed independently. DaCosta v.
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Gonzales, 449 F.3d 45, 50 n.4 (1st Cir. 2006); cf. Ven v. Ashcroft,
386 F.3d 357, 359 (1st Cir. 2004). Anyway, the BIA did consider--
and reject on the merits--Palma's motion for reconsideration once
it realized that "his failure timely to file [that motion] was due
to the mail carrier's negligence."
Turning to the motion to reopen, we review for abuse of
discretion, reversing only if the BIA's denial rested on an error
of law or constituted arbitrary or capricious decision-making.
Falae v. Gonzales, 411 F.3d 11, 14 (1st Cir. 2005).
Until recently, a motion to reopen to seek adjustment of
status could only be granted if the visa petition on which the
alien intended to base his status adjustment application had
already been approved. Velarde, 23 I. & N. Dec. at 255. The BIA
changed that policy, recognizing the unfairness caused by slow
processing of visa petitions combined with strict filing deadlines
for motions to reopen. Such motions may now be granted even on the
basis of unadjudicated visa petitions if the alien meets a series
of requirements, including the presentation of "clear and
convincing evidence indicating a strong likelihood that the
[alien's] marriage is bona fide." Id. at 256.
The requirement of clear and convincing evidence--which
is important to this petition for review--is directed at the same
purpose as the old requirement that the visa petition be approved
in advance--to ensure that the motion reflects a genuine
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entitlement to relief and is not merely a delay tactic. Because
the marriage occurred after removal proceedings had begun, the same
requirement would appear to apply--the rationale is different but
obvious--even if the application had been filed before the removal
order was issued by the immigration judge and Board. 8 C.F.R. §
245.1(c)(8)(iii)(F).
The BIA found that Palma had not presented "clear and
convincing" evidence that his marriage was bona fide. As evidence,
he submitted affidavits from himself and his wife, a joint lease,
a utility bill in his name, a phone bill in his wife's name, his
wife's car insurance policy, several joint tax returns, and some
photos. The BIA found the bills and the insurance policy
unconvincing since neither included the names of both Palma and his
wife; it also noted the lack of evidence that assets or liability
had been co-mingled during the marriage.
The Board's explanation is debatable. The fairly recent
bills do suggest that Palma and his wife were residing at the same
address, as does the lease (which dates back to 1999). Palma did
not submit evidence of any joint bank accounts (at least not at
this stage) but the couple did file joint taxes and his wife's
affidavit indicates that she is unemployed and supported by Palma.1
1
On appeal Palma attempts to explain why he was not listed on
the insurance policy (he cannot drive due to medical problems), but
that explanation offered for the first time on appeal comes too
late.
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In sum, there was no clear flaw or obvious discrepancy in the
evidence. At the same time the clear and convincing evidence
requirement is stiff and the Board did weigh the relevant factors
and seems ultimately to have decided that the high threshold simply
had not been crossed.
We need not resolve the matter because the BIA's second
ground is more straightforward and is independently sufficient to
justify the denial. The regulations explicitly mandate that a
"motion to reopen proceedings for the purpose of submitting an
application for relief must be accompanied by the appropriate
application for relief and all supporting documentation." 8 C.F.R.
§ 1003.2(c). Palma's motion to reopen was for the purpose of
acting on an application for relief--to adjust status--yet was not
accompanied by that application.
Although the BIA has on occasion granted motions
notwithstanding the absence of a completed application for relief,
that practice has been limited to situations where the government
joins the motion and thus provides "a sufficient cure for the
[alien's] procedural failure to submit a Form I-485." In re
Yewondwosen, 21 I. & N. Dec. 1025, 1026 (BIA 1997). The BIA's
willingness to overlook procedural default in those unique
circumstances does not render an abuse of discretion its
unwillingness to do so here.
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The result appears harsh--Palma did submit his I-485 a
few weeks later with his motion for reconsideration--but the
requirement for the completed application was straightforward. The
Board is already overwhelmed and, lest its proceedings be further
delayed, is entitled to insist that the required documents be
supplied at the outset. Even immigration proceedings must at some
point come to an end.
The petition is denied.
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