LAMUS

Cite as 25 I&N Dec. 61 (BIA 2009) Interim Decision #3652

Matter of Jaime Armando LAMUS-Pava, Respondent

File A088 343 886 - San Antonio, Texas

Decided July 24, 2009

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

A motion to reopen to apply for adjustment of status based on a marriage entered into after

the commencement of removal proceedings may not be denied under the fifth factor

enumerated in Matter of Velarde, 23 I&N Dec. 253 (BIA 2002), based on the mere fact that

the Government has filed an opposition to the motion, without regard to the merit of that

opposition.

FOR RESPONDENT: Lance E. Curtright, Esquire, San Antonio, Texas

FOR THE DEPARTMENT OF HOMELAND SECURITY: Jane H. Thomson, Assistant

Chief Counsel

BEFORE: Board Panel: NEAL, Acting Chairman; HOLMES, Board Member; and

CLARK, Temporary Board Member.

HOLMES, Board Member:

In a decision dated July 22, 2008, an Immigration Judge denied the

respondent’s motion to reopen his removal proceedings to pursue

an application for adjustment of status but granted his timely filed request

to withdraw his application for voluntary departure. The respondent has

appealed from that decision. The appeal will be sustained, and the record will

be remanded for further consideration of the respondent’s motion.

I. FACTUAL AND PROCEDURAL HISTORY

Removal proceedings were commenced against the respondent in August

2007 when he was charged with being an overstayed nonimmigrant student.

The respondent did not contest his removability. In a March 24, 2008,

amended decision, the Immigration Judge granted the respondent’s request

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for voluntary departure on or before July 22, 2008, with an alternative order

of removal to Colombia.1

On June 17, 2008, the respondent filed a timely motion to reopen with the

Immigration Judge seeking the opportunity to pursue an application for

adjustment of status based on a pending visa petition filed on his behalf by his

United States citizen wife. The couple had married on May 1, 2008. The

Department of Homeland Security (“DHS”) opposed the respondent’s motion,

arguing, in part, that he had not presented clear and convincing evidence

of the bona fides of his marriage. Thereafter, on July 16, 2008, the respondent

separately moved to withdraw his request for voluntary departure. See Dada

v. Mukasey, 128 S. Ct. 2307, 2319 (2008).

In his July 22, 2008, decision, the Immigration Judge granted the

respondent’s motion to withdraw his request for voluntary departure but

denied his motion to reopen. In his decision denying the motion to reopen,

the Immigration Judge correctly set forth the factors to be considered

in adjudicating a properly filed motion to reopen to apply for adjustment

of status based on a marriage entered into after the commencement of removal

proceedings, as enumerated by this Board in Matter of Velarde, 23 I&N Dec.

253 (BIA 2002).

In Matter of Velarde, we held that such a motion (hereinafter a “Velarde

motion”) may be granted in the exercise of discretion, notwithstanding the

pendency of an unadjudicated visa petition filed on the alien’s behalf,

where: (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 Government either does not

oppose the motion or bases its opposition solely on Matter of Arthur, 20 I&N

Dec. 475 (BIA 1992) (hereinafter the “fifth factor”).2

In adjudicating the motion, the Immigration Judge correctly concluded that

the respondent’s motion was not untimely, numerically barred, or barred

by Matter of Shaar. The Immigration Judge noted, however, that the DHS

opposed the motion by contesting the respondent’s evidence of the bona fides

of his marriage and did not base its opposition “solely on Matter of Arthur.”

1

The Immigration Judge’s initial decision entered that same day had mistakenly granted the

respondent voluntary departure until September 2, 2008, a period greater than 120 days.

2

In Matter of Arthur, 20 I&N Dec. 475, the Board ruled that a motion to reopen to apply for

adjustment of status based on a marriage entered into after the commencement

of proceedings could not be granted unless the former Immigration and Naturalization

Service, now the DHS, had approved the visa petition.

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Citing Matter of Velarde and Ramchandani v. Gonzales, 434 F.3d 337 (5th

Cir. 2005), the Immigration Judge concluded that he need not further

consider or address the bona fides of the respondent’s marriage “because the

opposition of DHS on a ground unrelated to Matter of Arthur mandates denial

of Respondent’s Motion to Reopen.” Thus, without evaluating either the

respondent’s evidence of the bona fides of his marriage or the merits of the

DHS opposition to the motion, the Immigration Judge denied the respondent’s

motion because it failed to meet the requirements for reopening “as set forth

in Matter of Velarde.”

The respondent appealed the Immigration Judge’s decision, arguing that

he erred in denying the motion solely on the basis of the DHS opposition

without evaluating any of the other factors enumerated in Matter of Velarde.

The respondent maintains that no single Velarde factor is determinative in the

adjudication of a motion to reopen, but that all the factors “are to be weighed

against each other” when evaluating a motion. He avers that the Immigration

Judge impermissibly abdicated his decision-making responsibility by accepting

as dispositive, without further inquiry, the DHS opposition to his motion,

simply because the opposition was not based on Matter of Arthur. The

respondent also has separately moved to remand the record to the Immigration

Judge based on additional evidence. The DHS requests that the Immigration

Judge’s decision be affirmed and that the respondent’s appeal be dismissed.

II. ISSUE

The issue presented here is whether an otherwise properly filed Velarde

motion should be denied by an Immigration Judge or the Board based solely

on the fact that the DHS has opposed the motion on a ground other than Matter

of Arthur, without consideration of the merits of the DHS opposition or of the

evidence and arguments proffered by the respondent in support of the motion.

Stated otherwise, should the DHS essentially have the unreviewable discretion

to “veto” a Velarde motion?

III. ANALYSIS

There are times that the phrasing of an issue in itself indicates its proper

resolution, and this may be such a case.

The respondent argues that the fifth factor set forth in Matter of Velarde

was never intended to be considered dispositive, and he finds some support

for this argument in the language of Velarde stating that the application

of the five factors “necessarily requires examination of the relevant factors and

a determination of the weight such factors should be accorded.” Matter

of Velarde, 23 I&N Dec. at 256. In fact, the United States Court of Appeals

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for the Sixth Circuit adopted this reading of Matter of Velarde in response

to the “government’s contention that Velarde gives the government unbridled

discretion amounting to an absolute veto to block consideration of a motion

to reopen.” Sarr v. Gonzales, 485 F.3d 354, 363 (6th Cir. 2007).

However, the fifth factor in Velarde can be read to be dispositive, and it was

so understood by at least some Board Members at the time Matter of Velarde

was decided. See Matter of Velarde, 23 I&N Dec. at 264 (Rosenberg, Board

Member, concurring) (“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.”); id. at 268

(Pauley, Board Member, dissenting) (“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.”).

Further, we do not fault the Immigration Judge’s understanding of the

fifth factor in this case because it is clear the Board itself has applied the

same reading and accorded controlling weight to the opposition of the DHS

in at least some cases, with mixed reactions from the courts of appeals.

In Melnitsenko v. Mukasey, 517 F.3d 42, 51 (2d Cir. 2008), the Second

Circuit held that the Board “exceeded its allowable discretion in treating the

fifth [Velarde] factor as dispositive and in denying Melnitsenko’s motion

to reopen based solely on the fact that the DHS opposed the motion.” The

Second Circuit opined that there was “no rational explanation for why the fact

of the DHS’s opposition alone is sufficient to deny a motion.” Id. Similarly,

in Ahmed v. Mukasey, 548 F.3d 768, 772 (9th Cir. 2008), the Ninth Circuit

held that the Board “erred in concluding that Ahmed’s original motion

to reopen would have been denied solely on the basis of the government’s

opposition.” The Ninth Circuit noted the regulations at 8 C.F.R.

§ 1003.1(d)(1)(ii) (2009), which direct that Board Members “exercise their

independent judgment and discretion in considering and determining the

cases coming before the Board.”

Both the Third and Fifth Circuits have denied petitions for review of Board

decisions in which the dispositive nature of the Velarde fifth element was

argued by the Government. See Ramchandani v. Gonzales, 434 F.3d 337;

Bhiski v. Ashcroft, 373 F.3d 363 (3d Cir. 2004). In Ramchandani, the Fifth

Circuit, in whose jurisdiction this case arises, reviewed the Board’s denial

of the motion to reopen “‘under a highly deferential abuse-of-discretion

standard.’” 434 F.3d at 340 (quoting Zhao v. Gonzales, 404 F.3d 295, 304 (5th

Cir. 2005)).

However, on further consideration, whether as a matter of clarification

or of modification, we now hold that the fifth factor set forth in Matter

of Velarde does not grant the DHS “veto” power over an otherwise approvable

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Velarde motion. We are not persuaded that the mere fact of a DHS opposition

to a motion, in and of itself, should be dispositive of the motion without regard

to the merit of that opposition. The DHS’s arguments advanced in opposition

to a motion should be considered in adjudicating a motion, but they should not

preclude the Immigration Judge or the Board from exercising “independent

judgment and discretion” in ruling on the motion. 8 C.F.R. § 1003.1(d)(1)(ii);

see also 8 C.F.R. § 1003.10(b) (2009) (“In deciding the individual cases before

them, and subject to the applicable governing standards, immigration judges

shall exercise their independent judgment and discretion . . . .”). If the DHS’s

arguments are persuasive, they should prevail. If they are not, an otherwise

approvable motion should not be denied simply based on the fact that

an unpersuasive argument was advanced by the Government.

In the case before us, for example, the DHS opposed the motion before the

Immigration Judge based on its argument that the respondent had provided

inadequate evidence of the bona fides of his marriage. In denying the motion

based on the fact of this opposition alone, the Immigration Judge never

considered either the evidence presented by the respondent with his motion

or the merits of the DHS’s arguments regarding its sufficiency. One cannot

conclude that the Immigration Judge exercised his independent judgment and

discretion in denying the motion when—if the DHS opposition had not been

deemed dispositive—the Immigration Judge may have found that the motion,

in fact, presented clear and convincing evidence indicating a strong likelihood

that the respondent’s marriage is bona fide, and he may have concluded that

the contrary arguments advanced by the Government were meritless.

Accordingly, we will vacate the decision of the Immigration Judge and remand

the record for further consideration of the respondent’s motion to reopen. The

matters raised in the respondent’s motion to remand can be addressed before

the Immigration Judge.

ORDER: The appeal is sustained.

FURTHER ORDER: The July 22, 2008, decision of the Immigration

Judge is vacated and the record is remanded for further consideration of the

respondent’s motion to reopen.

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