H-A

Interim Decision #3394

In re H-A-, Respondent

Decided May 25, 1999

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Matter of Arthur, 20 I&N Dec. 475 (BIA 1992), is not inconsistent with the motions to

reopen regulations at 8 C.F.R. §§ 3.2(c)(2) and 3.23(b)(4)(i) (effective July 1, 1996). Matter

of Arthur, supra, reaffirmed.

John H. Hagopian, Esquire, Englewood Cliffs, New Jersey, for respondent

Before: Board En Banc: DUNNE, Vice Chairman; VACCA, HEILMAN, FILPPU, COLE,

MATHON, JONES, GRANT, and SCIALABBA, Board Members. Dissenting

Opinion: VILLAGELIU, Board Member, joined by SCHMIDT, Chairman;

HOLMES, HURWITZ, ROSENBERG, GUENDELSBERGER, and MOSCATO,

Board Members.

SCIALABBA, Board Member:

This case was last before us on April 17, 1997, when we denied the

respondent’s motion to reopen filed on September 25, 1996, for the purpose

of applying for adjustment of status under section 245(i) of the Immigration

and Nationality Act, 8 U.S.C. § 1255(i) (1994 & Supp. II 1996). The motion

to reopen was denied because the visa petition filed on the respondent’s

behalf had not yet been approved. The respondent has submitted a motion

to reconsider our April 17, 1997, denial of his motion and has also submit-

ted a “Supplement to Motion to Reconsider” based on the fact that the

immediate relative visa petition filed on his behalf was subsequently

approved. We construe the respondent’s May 20, 1998, “supplement” to be

a motion to reopen because he has presented evidence that was previously

unavailable. Such motion is both time and number barred under 8 C.F.R. §

3.2(c)(2) (1999). The respondent’s motion to reconsider our April 17, 1997,

decision will be denied.1

1

We will not be determining whether the respondent is eligible for adjustment of status

in this case. Rather, we will only address the specific issue raised in his motion to reconsid-

er—whether Matter of Arthur, 20 I&N Dec. 475 (BIA 1992), should be modified.

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Interim Decision #3394

I. FACTUAL AND PROCEDURAL BACKGROUND

The respondent is a 37-year-old male native and citizen of Sudan2 who

entered the United States on January 26, 1990, as a nonimmigrant author-

ized to stay for 6 months. He overstayed his visa. The Immigration and

Naturalization Service issued him an Order to Show Cause and Notice of

Hearing (Form I-221) on June 24, 1993. The respondent filed an asylum

application with the Immigration Court, which was denied on January 31,

1994. The Immigration Judge did, however, grant the respondent voluntary

departure until March 7, 1994. The respondent appealed the Immigration

Judge’s decision to deny asylum. While the appeal was pending with this

Board, the respondent married a United States citizen on July 27, 1994.

We dismissed the respondent’s appeal on September 7, 1995, but gave

him 30 days from the date of our order to voluntarily depart the United

States. On September 18, 1996, nearly a year after the respondent’s volun-

tary departure period ended and over 2 years after the couple were married,

the respondent’s spouse filed a Petition for Alien Relative (Form I-130) on

his behalf with the Service. The respondent also filed an application to

adjust his status with the Service on the same day. One week later, on

September 25, 1996, the respondent filed with this Board a motion to

reopen his deportation proceedings so that he could apply for adjustment of

status.3 The Service did not file an opposition to the motion. Because the

visa petition had been filed only a week earlier, the Service had not yet

adjudicated it when the respondent filed his motion to reopen. We denied

the respondent’s motion on April 17, 1997, in accordance with Matter of

Arthur, 20 I&N Dec. 475 (BIA 1992), which requires an approved immedi-

ate relative visa petition before a case may be reopened for adjustment of

status. In Matter of Arthur, supra, we determined that we will not grant

2

We observe that the respondent, as a national of Sudan, could have applied for

Temporary Protected Status (“TPS”) with the Immigration and Naturalization Service sep-

arate and apart from the issues before us relating to the denial of the motion to reconsider;

however, the record contains no evidence that he has done so. See 62 Fed. Reg. 59,737

(1997) (designating Sudan for TPS effective November 4, 1997, until November 3, 1998);

63 Fed. Reg. 59,338 (1998) (extending designation until November 3, 1999).

3

The question arises whether the respondent is barred from reopening his case to apply

for adjustment of status under Matter of Shaar, 21 I&N Dec. 541 (BIA 1996), because he

has failed to voluntarily depart the United States by his departure date in accordance with

our April 17, 1997, order. However, we note that although the Immigration Judge stated dur-

ing the hearing that he was giving the respondent written and oral warnings of the conse-

quences of failing to depart the country as ordered, the record does not contain the written

warnings. See section 242B(e)(2) of the Act, 8 U.S.C. § 1252b(e)(2) (1994). Thus, it is

unclear if the respondent would be ineligible to adjust his status for a period of 5 years under

section 242B of the Act.

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Interim Decision #3394

motions to reopen for the consideration of adjustment applications based

upon unadjudicated visa petitions which fall within the ambit of sections

204(g) and 245(e) of the Act, 8 U.S.C. §§ 1154(g) and 1255(e) (Supp. II

1990), as discussed more fully infra.

On May 16, 1997, the respondent filed a timely motion to reconsider

our April 17, 1997, decision denying his motion to reopen. See 8 C.F.R. §

3.2(b)(2) (1997).4 In the motion to reconsider, the respondent, through

counsel, argues that the Board should revisit its decision in Matter of Arthur,

supra, because it is inconsistent with the new motions regulations, which

permit only one motion to reopen to be filed no later than 90 days after the

final administrative decision. See 8 C.F.R. § 3.2(c)(2) (effective July 1,

1996). The respondent’s motion to reconsider is based on the dissenting

opinion that was part of our April 17, 1997, decision. The respondent con-

tends that we should provide an exception to the Arthur rule because it is

now inconsistent with due process, in light of the motions regulations. He

argues that if we continue to apply Matter of Arthur without exception, we

will be effectively foreclosing adjustment of status to eligible aliens

because the motions regulations do not provide sufficient time for the visa

petition adjudication process to be completed before the deadline for filing

a motion to reopen expires.

II. ISSUE

The issue before us is whether to modify our holding in Matter of

Arthur, supra, and permit an alien to file a timely motion to reopen on the

basis of a simultaneously filed adjustment application and an unapproved

immediate relative visa petition that is based upon a marriage entered into

during deportation or removal proceedings.

We conclude that Matter of Arthur should not be modified. The

rationale for the Arthur rule remains because Congress has not modified

the presumption it created in section 5 of the Immigration Marriage

Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537, 3543

(“IMFA”), and the Immigration Act of 1990, Pub. L. No. 101-649, 104

Stat. 4978 (“IMMACT 90”), that a marriage entered into after the insti-

tution of proceedings is fraudulent, unless overcome by a showing of

clear and convincing evidence that it is bona fide. See Matter of Arthur,

supra, at 479. Congress also mandated that the filing of motions be lim-

4

We note that the Service has not filed an opposition to the motion. See 8 C.F.R. §

3.2(g)(3).

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Interim Decision #3394

ited in time and number in order to reach finality in deportation cases.

These motions restrictions will end many cases where eligibility for relief

arises late in the process, not just marriage fraud cases. As a result, the reg-

ulations will effectively require most out-of-time claimants, not just those

with unadjudicated immediate relative visa petitions, to pursue their appli-

cations outside the context of deportation or removal proceedings, and often

to do so outside of the United States. To create an additional exception to

the motions restrictions for aliens falling within sections 204(g) and 245(e)

of the Act would undermine the purpose of such restrictions—finality in

deportation and removal cases. Finally, as we stated in Matter of Arthur, the

suggested modification would “constitute a substantial and unwarranted

intrusion into the district director’s authority” if this Board attempts or,

more particularly, if Immigration Judges attempt to evaluate whether clear

and convincing evidence of a bona fide marriage has been shown. See id. at

479; 8 C.F.R. § 204.2 (1999).

III. MATTER OF ARTHUR

In Matter of Arthur, supra, we modified our decision in Matter of

Garcia, 16 I&N Dec. 653 (BIA 1978), based on Congress’ 1986 enactment

of the IMFA. Congress saw immigration-related marriage fraud as a serious

problem and passed legislation designed to deter fraud by aliens seeking to

acquire lawful permanent residence in the United States through marriage

to a United States citizen or a lawful permanent resident alien. Section 5 of

the IMFA provides, regarding an alien’s right to enter or remain the United

States, that if the alien marries while an administrative or judicial proceed-

ing is pending, he or she may not use that marriage as a basis for adjustment

of status or to gain immediate relative or preference status. See H.R. Rep.

No. 99-906, at 11 (1986), reprinted in 1986 U.S.C.C.A.N. 5978, 5983; see

also sections 204(g), 245(e)(1) of the Act.

In 1990, Congress amended the IMFA by creating a bona fide mar-

riage exception. In section 702 of the IMMACT 90, 104 Stat. at 5086,

Congress enacted a provision that allows an alien to overcome the mar-

riage fraud presumption, but only if he or she is able to demonstrate by

clear and convincing evidence the bona fides of the marriage. This provi-

sion also limits an alien to one administrative review in order to promote

finality. See H.R. Rep. No. 101-723(I), at 51-52 (1990), reprinted in 1990

U.S.C.C.A.N. 6710, 6731-32; H.R. Conf. Rep. No. 101-955, at 128

(1990), reprinted in 1990 U.S.C.C.A.N. 6784, 6793; see also section

245(e)(3) of the Act.

It was within this framework that we issued our decision in Matter of

Arthur, supra. In Matter of Arthur, we stated that the presumption estab-

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Interim Decision #3394

lished in Matter of Garcia, supra,5 was inconsistent and incompatible with

the congressionally mandated presumption that marriages entered into after

the institution of proceedings are fraudulent. Matter of Arthur, supra, at

479. We held that motions to reopen for adjustment of status based upon

unadjudicated visa petitions which fall within the ambit of sections 204(g)

and 245(e) of the Act will not be granted.6

IV. MOTIONS RESTRICTIONS

In section 545(d) of the IMMACT 90, 104 Stat. at 5066, Congress also

addressed the problem of successive and frivolous administrative motions.

See Stone v. INS, 514 U.S. 386, 400 (1995) (“[A] principal purpose of the

1990 amendments to the INA was to . . . redress the related problem of suc-

cessive and frivolous administrative appeals and motions.”). Congress

directed the Attorney General to issue regulations limiting the number of

motions to reopen and the maximum time period during which a motion to

reopen may be submitted. See H.R. Conf. Rep. No. 101-955, at 133 (1990),

5

In Matter of Garcia, we held that, absent clear ineligibility, motions to reopen general-

ly should be granted for adjustment applications supported by simultaneously filed visa peti-

tions with immediate visa availability. See Matter of Garcia, supra, at 657. Thus, a pending

prima facie approvable visa petition was treated as though it were already approved for pur-

poses of reopening. Id.

6

Section 204(g) of the Act states:

[E]xcept as provided in section 245(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 described in section 245(e)(2), until the

alien has resided outside the United States for a 2-year period beginning after the

date of the marriage.

Section 245(e) of the Act states:

(1) Except as provided in paragraph (3), an alien who is seeking to receive an

immigrant visa on the basis of a marriage which was entered into during the peri-

od described in paragraph (2) may not have the alien’s status adjusted under sub-

section (a).

....

(3) Paragraph (1) and section 204(g) shall not apply with respect to a marriage

if the alien establishes by clear and convincing evidence to the satisfaction of the

Attorney General that the marriage was entered into in good faith and . . . the

marriage was not entered into for the purpose of procuring the alien’s entry as an

immigrant and no fee or other consideration was given . . . for the filing of a peti-

tion under section 204(a) or 214(d) with respect to the alien spouse . . . . In accor-

dance with regulations, there shall be only one level of administrative appellate

review for each alien under the previous sentence.

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Interim Decision #3394

reprinted in 1990 U.S.C.C.A.N. 6784, 6798. In fact, the restrictions

Congress had in mind were much more restrictive than those eventually

issued by the Attorney General. “Unless the Attorney General finds reason-

able evidence to the contrary, the regulations should state that such motions

be made within 20 days of the date of the final determination . . . .” Id.

Pursuant to the congressional mandate, the Attorney General revised

the reopening regulations, effective July 1, 1996. Subject to certain excep-

tions, a party may file only one motion to reopen and it must be filed with-

in 90 days of the final administrative decision, or on or before September

30, 1996, whichever is later. See 8 C.F.R. §§ 3.2(c)(2), 3.23(b)(4)(i) (1997);

Matter of J-J-, 21 I&N Dec. 976 (BIA 1997) (holding that reopening sua

sponte is limited to exceptional circumstances and is not meant to cure fil-

ing defects or circumvent the regulations to prevent hardship).7

While the Attorney General was in the process of revising the motion

to reopen regulations, Congress codified the motions restrictions in section

304(a)(3) of the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-

593 (“IIRIRA”). This sent a clear message that Congress wanted an end to

successive and frivolous motions to achieve finality in removal cases. See

sections 240(c)(5), (6) of the Act, 8 U.S.C. §§ 1229a(c)(5), (6) (Supp. II

1996); see also Removal of Criminal and Illegal Aliens: Hearing before the

Subcomm. on Immigration and Claims of the House Comm. on the

Judiciary, 104th Cong., 1st Sess. 2 (Mar. 23, 1995) (statement of Hon.

Lamar Smith, Subcomm. Chairman) (aliens “often file . . . dilatory proce-

dural motions . . . in an effort to extend their stay and become eligible for

relief. The time clock should stop when people are put in proceedings, and

we must stop the abuse of this system to delay deportation.”).

V. DISCUSSION

Contrary to the respondent’s contention, we do not find an inconsisten-

cy between our holding in Matter of Arthur, supra, which is based on the

IMFA, and the motions restrictions. The purpose of the IMFA is to deter

immigration-related marriage fraud. The purpose of the motions regulations

is to bring finality to administrative proceedings. These goals are distinct

and separate are in no way inconsistent. After examining Congress’ activi-

ty and inactivity with these two matters, we see no need either to modify the

Arthur rule or to create an exception to the motions regulations for aliens

The regulation at 8 C.F.R. § 3.2(b)(2) also limits the alien to one motion to reconsider

7

submitted within 30 days of the mailing of the Board’s decision.

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with unadjudicated immediate relative visa petitions, for two reasons. First,

within the IMMACT 90, Congress both created the bona fide marriage

exception and mandated that the Attorney General issue motions restric-

tions that include an exception for asylum claims arising from changed

country conditions. In contemporaneously considering these two issues of

marriage fraud and motions restrictions in 1990, Congress chose not to

mandate an additional motions exception for marriage fraud cases.

Second, after we issued our 1992 holding in Matter of Arthur, Congress

codified the motions restrictions in the IIRIRA in 1996. While Congress

specifically included a time limit exception for asylum applicants based on

changed country conditions,8 it did not create an exception for aliens who

fall within the ambit of the Arthur rule and the 90-day motion deadline.

Thus, Congress had two opportunities to amend the marriage fraud pre-

sumption or to create an additional exception to the restrictions for marriage

fraud cases, but it declined to do either in both 1990 and 1996. The Supreme

Court assumes that Congress is aware of existing law when it passes legis-

lation. South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 118 S. Ct. 789,

801 (1998). We can therefore assume that Congress was aware of our hold-

ing in Matter of Arthur when it chose not to modify the marriage fraud pre-

sumption or to create an Arthur exception to the motions restrictions in the

IIRIRA. Based on Congress’ inactivity, we decline to modify the Arthur

rule or to create an additional motions exception.

Furthermore, while there is now statutory authority for motions in removal

cases, the authority for motions to reopen deportation proceedings is derived

solely from regulations promulgated by the Attorney General. INS v. Doherty,

502 U.S. 314, 315 (1992); INS v. Rios-Pineda, 471 U.S. 444, 446 (1985). Any

decision to grant a motion to reopen deportation proceedings is a matter within

the discretion of this Board. See INS v. Rios-Pineda, supra, at 449; INS v.

Phinpathya, 464 U.S. 183, 188 n.6 (1984). It is within this Board’s discretion

to determine that, in light of the marriage fraud presumption, visa petitions

based on marriages entered into during proceedings must be approved before

we will consider a motion to reopen for adjustment on that basis.

The respondent argues that if we do not modify our holding in Matter

of Arthur, supra, we will effectively foreclose adjustment of status in all

cases where motions to reopen are filed after July 1, 1996, the effective date

of the new motions restrictions, because the Service does not have a rea-

sonable opportunity to adjudicate a visa petition within the 90-day period

required to file a motion to reopen.9 The dissent frames a policy argument

See section 240(c)(6)(C)(ii) of the Act (Supp. II 1996); see also 8 C.F.R. § 3.2(c)(3)(ii).

8

This argument is based on the assumption that the marriage takes place on the day the

9

proceedings become final, because it is at that point in time that the respondent has 90 days

in which to file a motion to reopen the proceeding.

734

Interim Decision #3394

against Matter of Arthur, contending that its application will impose an

absolute bar to adjustment of status based on marriages entered into during

the pendency of proceedings. According to the dissent, the Arthur rule vio-

lates Congress’ express intent by negating the statutory exception of section

245(e)(3) of the Act, which permits adjustment where the bona fide nature

of the marriage is established.

We reject these arguments. Contrary to the dissent’s view, no absolute

bar results from Arthur. The result is that an alien must have a visa petition

approved prior to or within 90 days of a final order to take advantage of the

bona fide marriage exception. Despite the dissent’s reference to an alien’s

“statutory right” to apply for adjustment of status, adjustment is a form of

relief from deportation or removal, the grant or denial of which remains

within the exercise of this Board’s discretionary authority. Moreover, we

cannot ignore Congress’ express legislative purpose behind the motions

restrictions—to bring deportation and removal cases to a close. Finally, we

note that the motions restrictions may affect those who find themselves eli-

gible for various forms of relief late in the deportation or removal process.

Unlike marriages entered into during proceedings, other forms of relief that

may arise late in deportation or removal proceedings are not subject to a

presumption of fraud. There are no exceptions to the motions restrictions

other than those set forth in the implementing regulation at 8 C.F.R. §

3.2(c)(3). Among the exceptions are a motion to reopen to apply for asylum

based on changed country conditions and a motion to reopen agreed upon

by all parties and jointly filed. See 8 C.F.R. § 3.2(c)(3)(ii)(iii); see also sec-

tion 240(c)(6)(C)(ii) of the Act. Even if a visa petition is not timely

approved, an alien has the possibility of seeking and obtaining the Service’s

acquiescence to a joint motion pursuant to 8 C.F.R. § 3.2(c)(3)(iii). For

these reasons, we find the dissent unpersuasive.

With respect to this particular case, we find that the respondent is not a

victim of the motions regulations as he claims. The respondent was married

for over a year before this Board issued a final order, which granted him 30

days to voluntarily depart the United States. If the respondent’s wife had

filed a visa petition in a timely manner, there is a very good possibility that

the petition would have been adjudicated before this Board issued its final

order. Furthermore, the respondent could have voluntarily departed the

United States and pursued his immigrant visa abroad. However, the respon-

dent chose not to depart the United States, and his spouse did not file a visa

petition on his behalf until September 18, 1996, 2 years after the couple

were married and 1 year after the respondent’s voluntary departure period

ended. One week later, on September 25, 1996, which was shortly before

the September 30, 1996, motion deadline, the respondent filed his motion

to reopen. It is not surprising that, when the respondent filed his motion 7

days after he filed the visa petition, the petition remained unadjudicated.

This is the type of delay and dilatory tactics that Congress sought to halt in

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1990 and again in 1996, in codifying the motions restrictions in section

304(a)(3) of the IIRIRA.

The respondent suggests that we examine the evidence that he has sub-

mitted in support of his motion, in order to judge whether he has shown

clear and convincing evidence of a bona fide marriage under 8 C.F.R. §

204.2(a)(1)(iii)(E) (1997). In Matter of Arthur, supra, however, we noted

the jurisdictional problem involved if we or, more particularly, Immigration

Judges inquire into whether the evidence submitted in support of a visa peti-

tion is sufficient. We stated that “in light of the heavy burden imposed on

the petitioner, to demonstrate prima facie eligibility for the preference

sought,” such an inquiry on our part or that of Immigration Judges “would

necessarily involve an in-depth examination into the merits of the petition.

Such examination would, in our view, constitute a substantial and unwar-

ranted intrusion into the district director’s authority over the initial adjudi-

cation of visa petitions.” Id. at 479. Because this issue remains a concern

today, particularly with respect to Immigration Judges,10 we shall decline to

preadjudicate, issue an advisory opinion on, or second-guess the outcome

of visa petitions based on marriages entered into during proceedings that

are within the jurisdiction of the district director.

VI. CONCLUSION

We do not find that Matter of Arthur, supra, should be modified in light

of the motions restrictions. Our decision in Matter of Arthur stems from the

IMFA, federal legislation designed to end marriage fraud. Congress has also

clearly indicated its intent to end the practice of filing numerous dilatory

motions and to bring immigration cases to a close. Because Congress has

not amended the marriage fraud presumption and because we cannot ignore

its mandate to bring closure to cases through the use of motions restrictions,

we find that our decision in Matter of Arthur should not be modified.

Eligible aliens can continue to seek adjustment of status based on a mar-

riage entered into during proceedings. However, they will be required to

comply with the requirements set out in Matter of Arthur. Aliens who marry

late in the removal process, or who have petitions filed for them at a late

stage, will obviously run the risk of having to complete the immigration

process from outside the country.

10

We note that jurisdiction to determine whether an alien is eligible for family-based

immigrant visas lies initially with the district director and is subject to our appellate review.

See 8 C.F.R. §§ 3.1(b)(5), 204.2 (1999). Immigration Judges do not have original jurisdiction

or direct review over such visa petitions.

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ORDER: The motion to reconsider is denied.

FURTHER ORDER: The Board’s grant of a stay of deportation

pending adjudication of the motion is vacated.

DISSENTING OPINION: Gustavo D. Villageliu, Board Member, in which

Paul W. Schmidt, Chairman; David B. Holmes, Gerald S. Hurwitz, Lory D.

Rosenberg, John Guendelsberger, and Anthony C. Moscato, Board

Members, joined

I respectfully dissent from the denial of the respondent’s motion to

reconsider our denial of his motion to reopen seeking adjustment of status.

The respondent is the husband and father of United States citizens and the

beneficiary of an approved immediate relative visa petition. We should not

as a matter of policy deprive him of his statutory right to apply for adjust-

ment of status.

The majority inappropriately links legislation designed to end marriage

fraud with general congressional intent to bring immigration cases to a

close in order to preclude aliens eligible to adjust their status from the

opportunity to do so. In so doing, the majority recognizes that certain aliens

“will obviously run the risk of having to complete the immigration process

from outside the country.” Matter of H-A-, 22 I&N Dec. 3394, at 11 (BIA

1999). The majority reaffirms its 1992 policy of denying reopening to

adjustment of status applicants with pending immediate relative visa peti-

tions despite the fact that the 90-day period now prescribed for seeking

reopening is often too short for the Immigration and Naturalization Service

to adjudicate the visa petition. It compounds this mistaken policy by refus-

ing to reconsider it or reopen when the Service finally approved the respon-

dent’s visa petition after we denied the original motion.

This harsh policy does not accomplish the congressional goal of

bringing immigration cases properly to a close and does nothing to end

marriage fraud. Instead, as a matter of course, the immigration of quali-

fied spouses of United States citizens will be unduly delayed; the consular

offices outside of the United States will be encumbered with applications

more easily adjudicated in the United States; and this delay will cause

needless hardship to the United States citizens whose bona fide marriages

and families may disintegrate because their spouses will be deported and,

as the majority dictates, be required to “complete the immigration process

from outside the country.”1 Id. The majority’s policy is neither legally

correct nor justified, as discussed below.

1

The alternative of obtaining an immigrant visa through the consular process is imprac-

tical and inconsistent with congressional intent. Although the respondent could apply for an

immigrant visa at a consular post abroad, his or her deportation would render him excludable

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I. FACTUAL AND PROCEDURAL BACKGROUND

The respondent is a native and citizen of Sudan who came to the United

States seeking asylum from his country, which has been designated for

Temporary Protected Status due to its dangerous civil war and brutal

regime. See 62 Fed. Reg. 59,737 (1997); cf. 63 Fed. Reg. 59,337 (1998)

(extension of Temporary Protected Status); 1 Committees on Foreign

Relations and International Relations, 106th Cong., lst Sess., Country

Reports on Human Rights Practices for 1998 392 (Joint Comm. Print

1999). His appeal from a denial of asylum was dismissed on September 7,

o Register Permanent Residence or Adjust Status (Form I-485) in accor-

dance with C.F.R. § 245.2(a)(2)(i) (1996).

On September 25, 1996, the respondent submitted a motion to reopen

seeking adjustment of status. The motion was accompanied by the July 27,

1994, certificate of marriage; the couple’s birth certificates; a copy of an

immediate relative visa petition on Form I-130 (Petition for Alien Relative),

filed on the respondent’s behalf by his United States citizen spouse; their

United States citizen child’s birth certificate; and documents similarly evi-

dencing the bona fides of the marriage, such as joint income tax returns,

bank statements, a residential lease, a telephone bill, and a cable television

bill. Finally, the motion included the application for adjustment of status,

Biographic Information Sheets (Form G-325A), a fingerprint chart, and the

fee receipt, as required by 8 C.F.R. § 3.2(c)(1) (1997). The Service did not

oppose the motion. See 8 C.F.R. § 3.2(g)(3).

However, the Service had not adjudicated the underlying immediate

relative visa petition prior to the September 30, 1996, deadline for filing

such a motion. Accordingly, on April 17, 1997, we denied the motion under

the policy set forth in Matter of Arthur, 20 I&N Dec. 475 (BIA 1992), mod-

ifying Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), which requires prior

Service approval of marital visa petitions before reopening for adjustment

of status cases subject to the marriage fraud provisions of sections 204(g)

and 245(e) of the Immigration and Nationality Act, 8 U.S.C. §§ 1154(g) and

1255(e) (1994 & Supp. II 1996).

On May 16, 1997, the respondent filed a timely motion to reconsider our

April 17, 1997, decision, also unopposed by the Service, arguing that we

should reconsider Matter of Arthur, supra, because it is inconsistent with the

from the United States. See section 212(a)(9) of the Immigration and Nationality Act, 8

U.S.C. § 1182(a)(9) (Supp. II 1996). Further, Congress has recently made clear its preference

for the adjustment of status process for aliens already in the United States whose visa peti-

tions had been filed before January 14, 1998. See, e.g., sections 212(o), 245(i) of the Act, 8

U.S.C. §§ 1182(o) and 1255(i) (1994 & Supp. II 1996). Finally, we have no diplomatic rela-

tions with the respondent’s native Sudan.

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new motions regulations, effective July 1, 1996, which permit only one

motion to reopen to be filed and imposes a 90-day time limit to do so. See 8

C.F.R. § 3.2(c)(2) (1999). On January 13, 1998, the Service approved the

respondent’s visa petition as an immediate relative of a United States citizen.

II. QUESTIONS PRESENTED

The question before the Board is how to treat an unopposed motion to

reopen seeking adjustment of status with a simultaneously filed, but still

pending, immediate relative visa petition, based upon a marriage entered

into during deportation proceedings in view of the new regulations. A sub-

sidiary question is what we should do when the Service approves the pend-

ing visa petition after we denied a motion under the Arthur rule.

The majority will neither grant reopening nor reconsider its prior deci-

sion denying the motion to reopen in such circumstances. In so doing, it

reaffirms Matter of Arthur, supra, requiring prior approval of the underly-

ing visa petition before granting a motion to reopen for adjustment of sta-

tus despite the fact that there is now only a 90-day period of time when an

alien can submit a motion to reopen under 8 C.F.R. § 3.2(c)(2).

I believe that by refusing to reconsider or grant the motion, the major-

ity, in effect, turns the rebuttable presumption that the marriage of an alien

in proceedings is fraudulent into an irrebuttable presumption inconsistent

with the 1990 congressional directive to provide the spouse of a United

States citizen with an administrative process by which he can seek adjust-

ment of status if he proves that this marriage is bona fide when the Service

does not adjudicate the visa petition within 90 days.

III. POLICY ARGUMENT AGAINST THE ARTHUR RULE

Retaining the rule prescribed in Matter of Arthur precludes the respon-

dent’s statutory right to apply for permanent residence in the United States

through adjustment of status when the Service eventually approved his

immediate relative visa petition. See section 245 of the Act, 8 U.S.C. § 1255

(1994 & Supp. II 1996). In order to qualify for adjustment of status under

section 245 of the Act, an alien in deportation or removal proceedings must

apply for adjustment of status only in those proceedings. See 8 C.F.R. §

245.2(a)(1) (1999). If we persist in applying Matter of Arthur, we will

effectively foreclose adjustment of status in all cases where timely motions

to reopen for such relief are filed simultaneously with visa petitions in

accordance with 8 C.F.R. §§ 3.2(c)(2) and 245.2(a)(2)(i) (1999). The statu-

tory exception to the restriction on adjustment of status where bona fide

marriages are entered into during proceedings will be negated by creating

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an absolute bar to the adjustment of status based upon such marriages. See

section 245(e)(3) of the Act. Contrary to the outcome accomplished by the

majority, no absolute bar to adjustment of status is contained in the statute.

See also 8 C.F.R. § 204.2(a)(iii)(B)-(E) (1999).

The majority’s analysis confuses the district director’s ultimate deter-

mination in adjudicating visa petitions that a marriage is bona fide for pur-

poses of adjustment of status with the preliminary determination by the

Board and the Immigration Judge that the marriage is prima facie bona fide

and that a hearing should be allowed to consider the merits of the applica-

tion. There is no conflict between our concluding that a marriage appears

bona fide for purposes of granting a hearing and the district director’s ulti-

mate determination of the visa petition.

The majority’s assertion, that since Congress is presumed to be aware

of the Arthur rule its inaction means its approval, is a fallacy. In fact,

Congress had already acted by prescribing in 1990 that the presumption was

rebuttable, and the marriage fraud regulations, as explained below, specifi-

cally prescribe an administrative determination in the adjustment of status

process. What Congress could not anticipate is that the majority would

interpret its regulations to preclude the adjustment of status forum for eli-

gible applicants. In any event, the recent congressional extension of the

availability of section 245(i) relief to beneficiaries of visa petitions filed

before January 14, 1998, suggests that Congress prefers that we adjudicate

the respondent’s prima facie approvable application.

It is the Board and the Immigration Judges that bear the responsibility

to determine whether an alien in deportation proceedings may pursue an

application for adjustment of status based on a bona fide marriage. See sec-

tion 245(e)(3) of the Act; 8 C.F.R. §§ 204.2(a)(1)(iii)(D), 245.1(c)(9)(vii)

(1999). We must determine the applicant’s prima facie eligibility for adjust-

ment of status under a clear and convincing evidence standard in accor-

dance with 8 C.F.R. § 245.1(c)(9)(iii)(F), as we consider the only motion to

reopen allowed by regulation. See 8 C.F.R. § 3.2(c)(2).

We need only decide that there is a reasonable likelihood that the

statutory requirements for the relief sought will be satisfied. INS v. Abudu,

485 U.S. 94 (1988); INS v. Jong Ha Wong, 450 U.S. 139 (1981) (per curi-

am); Matter of Coelho, 20 I&N Dec. 464 (BIA 1992). Regulations issued

subsequent to the Board’s decision in Matter of Arthur provide an ade-

quate framework to consider the respondent’s assertion that his marriage

is a bona fide marriage. See 8 C.F.R. § 204.2(a)(1)(iii)(B) (listing evi-

dence 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); see

also 8 C.F.R. § 245.2(a)(2)(i) (instructing that adjustment applications are

to be retained when filed simultaneously with immediate relative visa

petitions).

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IV. LEGAL ARGUMENT AGAINST THE ARTHUR RULE

A review of the legal background relating to the Arthur rule shows that

it is no longer justified. A motion to reopen for adjustment of status requires

a prima facie showing of eligibility for such relief, including immediate

visa availability. See INS v. Doherty, supra; INS v. Abudu, supra; Matter of

Gutierrez, 21 I&N Dec. 479 (BIA 1996); Matter of Coelho, supra. As a

result of a 1976 amendment to section 245 of the Act, the regulations per-

mit filing an adjustment application simultaneously with a visa petition,

where the approval of the petition would make an immigrant visa immedi-

ately available. See 8 C.F.R. § 245.2(a)(2) (1978); Matter of Garcia, supra,

at 654-55.

Prior to the 1976 amendment to section 245, visa availability was only

required when the application for adjustment of status was approved.2

However, effective January 1, 1977, visa availability was required when the

adjustment application was filed. Consequently, 8 C.F.R. § 245.2(a)(2) was

amended to require immediate visa availability upon filing. See 41 Fed.

Reg. 49,994 (1976). As a result, the Board issued two precedent decisions

addressing these changes. Matter of Garcia, supra; and Matter of Kotte, 16

I&N Dec. 449 (BIA 1978).

Matter of Garcia, supra, addressed adjustment applications simultane-

ously filed with the marital visa petition because there was immediate visa

availability. Matter of Kotte, supra, in contrast, addressed applications for

adjustment of status that could not be simultaneously filed because to file

for third-preference status required prior approval by the United States

Department of Labor of a labor certification. We ruled that 8 C.F.R. §

245.2(a)(2) did not require holding in abeyance pending deportation pro-

ceedings until the employment preference visa petition was adjudicated. Id.

at 452; accord Matter of Ficalora, 11 I&N Dec. 592 (BIA 1966) (sixth pref-

erence); Matter of M-, 5 I&N Dec. 622 (BIA 1954) (ineligible nonimmi-

2

Prior to October 20, 1976, section 245(a) of the Act, 8 U.S.C. § 1255(a) (1970) pro-

vided:

The status of an alien, other than an alien crewman, who was inspected and

admitted or paroled into the United States may be adjusted by the Attorney

General, in his discretion and under such regulations as he may prescribe, to that

of an alien lawfully admitted for permanent residence if (1) the alien makes an

application for such adjustment, (2) the alien is eligible to receive an immigrant

visa and is admissible to the United States for permanent residence, and (3) an

immigrant visa is immediately available at the time his application is approved.

See also Matter of Kotte, 16 I&N Dec. 449, 452 n.2 (BIA 1978).

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grant seaman overstay). Whether an alien qualified for third-preference sta-

tus was solely within the exclusive jurisdiction of the district director, and

an appeal from a denial was solely before the Service’s Regional

Commissioner under 8 C.F.R. §§ 103.1(m)(2) and (n) (1978), and specifi-

cally outside our appellate jurisdiction pursuant to 8 C.F.R. § 3.1(b)(5)

(1978). Matter of Kotte, supra, at 452; cf. 8 C.F.R. § 3.1(b)(5) (Board appel-

late jurisdiction over most familial visa petitions). The remedy was to move

to reopen once the third-preference visa petition was approved. Matter of

Kotte, supra, at 452, and cases cited therein. The recently promulgated one-

time and 90-day limits upon motions to reopen prescribed by 8 C.F.R. §

3.2(c)(2) no longer allow this remedy.

Matter of Garcia, supra, addressed, instead, applications simultaneous-

ly filed with immediate relative visa petitions. See Matter of Guiragossian,

17 I&N Dec. 161, 164 n.5 (BIA 1979); Matter of Yodying, 17 I&N Dec. 155

(BIA 1979). If the visa petition is subsequently approved, the adjustment

application is deemed to have been properly filed with the accompanying

petition. Matter of Garcia, supra, at 654-55. Since the date an adjustment

application is filed determines whether a visa is immediately available, and

the regulation allows a qualified applicant to preserve immediate visa avail-

ability, we decided that absent clear ineligibility, a motion to reopen should

generally be granted for adjustment applications supported by simultane-

ously filed visa petitions with immediate visa availability. Id. at 657. A

pending prima facie approvable visa petition would be treated as though it

were already approved for purposes of reopening.

The Immigration Marriage Fraud Amendments of 1986, Pub. L. No.

99-639, 100 Stat. 3537, prohibited approval of visa petitions and adjustment

applications based on marriages entered into while an alien was in pro-

ceedings. Thus, the rules prescribed in our decision in Matter of Garcia,

supra, for purposes of reopening by beneficiaries of pending marital visa

petitions, had no consequence after the 1986 Marriage Fraud Amendments

were enacted. However, when Congress again amended the statute in 1990

to allow approval of such visa petitions and adjustment applications if the

alien established by clear and convincing evidence that the marriage was

bona fide, we had to devise a new policy regarding motions to reopen with

visa petitions based on bona fide marriages entered into while in expulsion

proceedings. We did not have to then consider the effect of the one-time and

90-day limitations which became effective 6 years later.

Under the amended statute, a marriage entered into while an alien was

in proceedings was deemed presumptively fraudulent, the presumption was

rebuttable by a showing of clear and convincing evidence that the marriage

was entered into in good faith, and Congress expressed a legislative intent

that aliens marrying after proceedings are initiated should be given an

opportunity to present for administrative review such clear and convincing

evidence that their marriage was bona fide. See H.R. Conf. Rep. No. 101-

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955, at 128 (1990), reprinted in 1990 U.S.C.C.A.N. 6784, 6793. Because

we perceived potential jurisdictional problems with the district director’s

primary role of adjudicating visa petitions, we held as a matter of policy

that we would “hereafter decline to grant motions to reopen” where the

alien married a United States citizen or lawful permanent resident while the

alien’s proceedings were pending until the Service approved the marital

visa petition filed on the alien’s behalf. Matter of Arthur, supra, at 479.

The subsequently enacted regulations prescribing procedures for bona

fide marriage adjudications avoid such jurisdictional problems, and require

that we provide a forum for adjustment applicants with bona fide marriages.

The regulations at 8 C.F.R. §§ 245.1(c)(9)(iii)(F) and (iv) confer jurisdic-

tion on the Immigration Court to at least consider prima facie evidence of a

bona fide marriage for purposes of reopening. The regulation at 8 C.F.R. §

245.1(c)(9)(iii)(F) specifically states that the prohibition against adjustment

of status on the basis of a marriage while in deportation proceedings does

not apply if the alien establishes that the marriage is bona fide by providing

clear and convincing evidence that the marriage was entered into in good

faith. The regulation at 8 C.F.R. § 245.2(a)(2) permits simultaneous filing

of the visa petition and adjustment application, and under 8 C.F.R. §

245.2(a)(1) the Immigration Court has sole jurisdiction over adjustment

applications after an alien is placed in deportation proceedings.

Since the Immigration Court has sole authority to entertain a bona fide

marriage exemption request for adjustment relief under 8 C.F.R. §

245.1(c)(9)(iii)(F), it follows that the Immigration Court can also make a pre-

liminary assessment of evidence presented in connection with the exemption

request for purposes of reopening. The regulation at 8 C.F.R. § 245.1(c)(9)(iv)

specifies that the request for the bona fide exemption must be “submitted with

the Form I-485, Application for Permanent Residence.” Consequently, it is

logical that the official who has sole authority to consider the application can

also consider the accompanying bona fide marriage exemption request for

purposes of reopening as part of the application.

After making this preliminary assessment, we may reopen, pending adjudi-

cation of the visa petition by the district director. Once the Service approves the

visa petition, the Immigration Judge may rule on the application, consistent with

the district director’s authority to adjudicate visa petitions. Otherwise the Service

could preclude adjustment of status simply by holding the visa petition without

adjudicating it for more than 90 days since 8 C.F.R. § 3.2(c)(2) allows only one

motion. Assuming arguendo that the Service could as a matter of discretion delay

its adjudication such an intent should not be presumed when in fact the visa peti-

tion was approved and the Service did not oppose either motion in this case.

V. CONCLUSION

Subsequent legislation and recent amendments to the federal regula-

tions require that we revisit Matter of Arthur, supra, in order to preserve the

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one opportunity for administrative review prescribed for adjustment appli-

cants meeting the bona fide marriage exception, at least in cases where the

Service does not oppose reopening. The fact that the 1996 regulations were

enacted as a result of the same 1990 statute3 requiring us to provide an

administrative review of the bona fides of marriages in adjustment applica-

tions requires that we interpret the regulations in pari materia to comple-

ment rather than counter each other by the Arthur rule, which in effect

deprives an alien of the sole forum prescribed by 8 C.F.R. §§

245.1(c)(9)(iii)(F) and (iv), and 8 C.F.R. § 245.2(a)(1).

To deny reopening because the Service has not completed its adjudica-

tion of the visa petition, as the majority insists must be done, and then deny

reconsideration of the denial after the Service approves the visa petition

defeats the purpose of the regulations that allow for a United States citizen

to file a simultaneous visa petition on behalf of a spouse. The record reflects

that the Service did not oppose the motion to reopen and has not opposed

the respondent’s motion to reconsider. Why conclusively presume other-

wise? The majority also disregards the authority of this Board and of the

Immigration Judges to adjudicate whether a respondent is a party to a bona

fide marriage under the regulations. No legitimate governmental interest is

furthered by effectively precluding a forum to spouses of United States cit-

izens who submit a visa petition within the strict limits prescribed by the

regulations. It is only that result that is accomplished by the majority’s dis-

position of this matter.

Finally, although the majority has declined to reconsider its denial of

the motion, I note that in Matter of J-J-, 21 I&N Dec. 976 (BIA 1997), we

held that we would reopen or reconsider cases sua sponte in exceptional cir-

cumstances. On December 23, 1997, the Service issued instructions con-

taining guidance as to when the Service may consent to reopening because

of exceptional and compelling circumstances a case that is otherwise barred

from such reopening by the 8 C.F.R. §§ 3.2(c)(2) and 3.23(b)(1) one-time

and 90-day limitations. See 8 C.F.R. § 3.2(c)(3)(iii). These guidelines

describe the following factors, all of which are present in the respondent’s

3

Congress had also amended the Act to address the problem of dilatory motions. See

Stone v. INS, 514 U.S. 386, 400 (1995). Section 545(d) of the Immigration Act of 1990, Pub.

L. No. 101-649, 104 Stat. 4978, 5066 (“IMMACT 90”), directed the Attorney General to issue

regulations limiting the number of motions to reopen seeking relief from deportation and the

maximum time period during which such a motion may be submitted. See also H.R. Conf.

Rep. No. 101-955, at 133 (1990), reprinted in 1990 U.S.C.C.A.N. 6784, 6798. Congress also

enacted then section 242B(e)(2) of the Act, 8 U.S.C. § 1252b(e)(2) (1994), another provision

designed to limit dilatory court tactics. See Stone v. INS, supra. Subsequently, additional

restrictions on dilatory acts and eligibility for relief from deportation were prescribed by the

enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,

Division C of Pub. L. No. 104-208, 110 Stat. 3009-546.

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case:

(1) whether the alien has presented new evidence that is material and was not avail-

able and could not reasonably have been discovered or presented at the former hear-

ing; (2) whether the alien is statutorily eligible for the relief sought; (3) whether the

alien merits a favorable exercise of discretion; (4) the hardship to the alien and/or his

USC or LPR family members if the alien were required to procure a visa through con-

sular processing (including the potential applicability of section 212(a)(9) should the

alien depart the United States; (5) the alien’s criminal history, if any; (6) the number

and severity of the alien’s immigration violations; (7) whether the alien has cooperat-

ed with, or his continued presence in the United States is desired for, a criminal or civil

investigation or prosecution conducted by a federal, state or local law enforcement

agency; and whether the alien’s removal is consistent with INS objectives.

Memorandum from Office of the General Counsel to Regional and District

Counsels, Motions to Reopen Policy (Dec. 23, 1997), reprinted in 75

Interpreter Releases, No. 7, February 23, 1998, app. III, at 275-76.

In this case, the visa petition was timely submitted but approved long

after we denied the respondent’s motion to reopen. The respondent appears

prima facie eligible for relief and worthy of discretion. His United States

citizen wife and child will undoubtedly suffer if he is forced to be deport-

ed, as section 212(a)(9) of the Act, 8 U.S.C. § 1182(a)(9) (Supp. II 1996),

would render him inadmissible, and there appear to be no criminal or other

violations present in the record before us. Moreover, as noted above, his

country has been designated for Temporary Protected Status. Consequently,

reopening these proceedings in order to adjudicate the respondent’s appli-

cation appears to be consistent with the Service’s objectives.

On July 23, 1997, while promulgating regulations to implement section

245 of the Act, the Service recognized that the adjustment of status process

is the preferred method of obtaining immigrant status for eligible aliens

presently in the United States, and found that “Congress, having thus invit-

ed such applications, [could not have] intended to create the futile situation

in which most entrants without inspection would be admissible solely for

the purpose of filing an adjustment application, but would be precluded

from ever being able to adjust status based on the same application.” 62

Fed. Reg. 39,417, 39,422 (1997). Similarly, properly filed motions to

reopen for adjustment of status in which a prima facie showing of a bona

fide marital relationship is established should be granted. The goals of pro-

moting family unity and efficiently resolving cases through the adjustment

of status mechanism is better served by providing a forum to consider an

adjustment application submitted by a qualifying spouse who has demon-

strated a prima facie showing of a bona fide marriage. See Matter of

Cavazos, 17 I&N Dec. 215 (BIA 1980); cf. Matter of Ibrahim, 18 I&N Dec.

55 (BIA 1981). See generally INS v. Errico, 385 U.S. 214 (1966) (congres-

sional purpose to forestall deportation where it breaks up family of United

States citizen); Matter of Da Lomba, 16 I&N Dec. 616 (BIA 1978).

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Interim Decision #3394

Absent individual adverse factors we can not invoke discretion to

deprive a class of eligible applicants of the sole forum prescribed by the reg-

ulations and section 245(e)(3) of the Act for consideration of their bona fide

marriages. See 8 C.F.R. §§ 245.1(c)(9)(iii)(F), (iv); 245.2(a)(1), (2). It is

well settled that the Attorney General from whom we derive our authority

can not disregard the procedure prescribed by the regulations as they have

the force of law. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260

(1954); Matter of Ponce de Leon, 21 I&N Dec. 154 (BIA 1996; A.G., BIA

1997). In determining whether to exercise our delegated power under 8

C.F.R. § 3.2(a)(2), we should apply the test prescribed in Mathews v.

Eldridge, 424 U.S. 319, 335 (1976), which takes into account three factors:

the interest at stake for the individual; the risk of erroneous deprivation of

that interest; and the Government’s administrative burden. See Padilla-

Agustin v. INS, 21 F.3d 970 (9th Cir. 1994); Hernandez v. Cremer, 913 F.2d

230 (5th Cir. 1990); Haitian Refugee Center, Inc. v. Nelson, 872 F.2d 1555

(11th Cir. 1989), aff’d sub nom. McNary v. Haitian Refugee Center, Inc.,

498 U.S. 479 (1991). Here the fundamental nature of the marital relation-

ship being threatened by our failure to provide a forum, and the reduced

administrative burden entailed in proceedings likely to result in the prompt

and fair resolution of the respondent’s status favor reopening.

The fundamental role of marriage in our society requires access to our

courts without creating an effectively irrebuttable presumption for purpos-

es of adjustment of status, that the marriage is mala fide. Granting this time-

ly filed motion to reopen would be consistent with the due process right to

be heard at a meaningful time and in a meaningful manner in view of the

90-day and one-time limitations imposed by 8 C.F.R. § 3.2(c)(2) (1997).

See Mathews v. Eldridge, supra; Bell v. Burson, 402 U.S. 535 (1971);

Armstrong v. Manzo, 380 U.S. 545 (1965). Under these circumstances the

Service should consider joining in the respondent’s motions pursuant to its

December 23, 1997, guidelines.

746