                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 08a0249n.06
                             Filed: May 8, 2008

                                           06-3799

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


CARLOS GORDON,                                 )
                                               )
       Petitioner,                             )
                                               )   ON PETITION FOR REVIEW
v.                                             )   FROM THE BOARD OF
                                               )   IMMIGRATION APPEALS
MICHAEL MUKASEY, United States                 )
Attorney General,                              )
                                               )
       Respondent.                             )




       Before: RYAN and DAUGHTREY, Circuit Judges; COHN,* District Judge.


       PER CURIAM. We have before us a petition for review of a decision of the Board

of Immigration Appeals (BIA) denying petitioner Carlos Gordon’s motion to reopen his case

to permit consideration of his application for adjustment of status by the Department of

Homeland Security. The application would constitute Gordon’s second attempt to avoid

removal from the United States as an illegal alien through adjustment of status based on

marriage to an American citizen.




       *
         The Hon. Avern Cohn, United States District Judge for the Eastern District of Michigan,
sitting by designation.
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Gordon v. Mukasey

       Gordon is a native of Jamaica who entered the United States as a non-immigrant

visitor in April 2000 and overstayed his visa, eventually marrying Nicole Johnson, a U.S.

citizen, on February 14, 2001. The couple separated five months later, and Gordon’s initial

application for adjustment of status was denied in April 2001, as the result of Johnson’s

withdrawal of her I-130 Petition for Alien Relative. An immigration judge ordered Gordon’s

removal in August 2004, denying both withholding of removal and relief under the U.N.

Convention Against Torture. The BIA affirmed that decision on December 1, 2005.


       Gordon claims that sometime shortly after the BIA’s decision came down, he and

Johnson reconciled and once again began living together as husband and wife. As a

result, Johnson filed a new I-130 petition on Gordon’s behalf in January 2006, a petition

that is apparently still pending resolution. Approximately one month later, Gordon filed a

timely motion before the BIA, seeking to reopen his case in order to apply for adjustment

of status pending the approval of Nicole’s I-130 visa petition.


       The BIA denied the motion to reopen, finding both “the previous withdrawal by

[Johnson] of the original visa petition she filed [on the petitioner’s] behalf to be a significant

factor to be considered” and also “the timing of the [couple’s] reconciliation to be somewhat

suspect.” In its written decision in this matter, the Board furthermore explained:


       [W]e find the evidence presented in support of [Gordon’s] motion to be
       somewhat scant and limited, and insufficient to demonstrate the bona fides
       of the marriage. It consists only of [an apartment] lease, the I-864, the G-
       325 forms, and some pictures and cards. [The government] correctly noted
       in its Opposition that the first two pages of the I-864 executed by [Johnson]

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Gordon v. Mukasey

       are missing . . . . In addition, while the motive for the alteration of the lease
       is unclear, it does appear that the page numbers were changed. Examples
       of other types of evidence which could have been submitted to demonstrate
       the bona fides of the marriage include evidence of a joint bank account to
       show commingling of financial resources, joint utility bills, joint insurance
       policies, or affidavits of third parties having knowledge of the bona fides of
       the marital relationship. None of these was presented.


       We have consistently recognized that “a motion to reopen should not be granted

unless the petitioner makes a prima facie showing that the statutory requirements for the

underlying relief have been met.” Yousif v. INS, 794 F.2d 236, 241 (6th Cir. 1986).

Nevertheless, “even if the petitioner meets his burden of showing a prima facie case of

eligibility, the Board may, within its discretion, deny the motion.” Id. Because the decision

of the Board whether to grant or to deny a motion to reopen is thus within the sound

discretion of the BIA, see 8 C.F.R. § 1003.2(a); Haddad v. Gonzales, 437 F.3d 515, 517

(6th Cir. 2006), we will not overturn it unless “the denial of [the] motion to reopen . . . was

made without a rational explanation, inexplicably departed from established policies, or

rested on an impermissible basis such as invidious discrimination against a particular race

or group.” Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005) (citing Balani v. INS,

669 F.2d 1157, 1161 (6th Cir. 1982)).


       In this case, the BIA determined that Gordon failed to establish prima facie eligibility

for adjustment of status based upon a marriage to an American citizen. The Board noted

that Gordon’s application to reopen did not contain any of the usual indications of a bona

fide marriage relationship with Nicole Johnson. Most of the exhibits that the petitioner did


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Gordon v. Mukasey

attach to his motion – the couple’s marriage license from 2001, pictures from the wedding

ceremony, undated photographs of the couple, and undated notes written by one or the

other of the couple – are, moreover, wholly irrelevant to a determination of whether the

couple was truly living as husband and wife in 2006.


       But, the petitioner also submitted for the BIA’s consideration two I-864 sponsorship

forms and two G-325A forms, one filed by the petitioner and one offered by Nicole

Johnson, each claiming under potentially “severe penalties . . . for knowingly and willfully

falsifying or concealing a material fact,” that the couple were husband and wife and both

lived at 1658 Bryn Mawr Road in Cleveland, Ohio. The petitioner further proffered as an

exhibit to his motion a copy of the Bryn Mawr apartment lease signed by Gordon and by

Johnson on December 15, 2005, exactly two weeks after the Board’s decision upholding

the immigration judge’s ruling denying Gordon withholding of removal and relief under the

Convention Against Torture.


       The BIA apparently gave little weight to the fact that the couple had signed an

apartment lease, however, commenting that “while the motive for the alteration of the lease

is unclear, it does appear that the page numbers were changed.” In fact, the pages of the

lease do show that the notations “Page 1 of 5,” Page 2 of 5,” Page 3 of 5,” Page 4 of 5,”

and Page 5 of 5" at the bottom of the respective pages include a handwritten “5" in each

instance. Nevertheless, our review indicates that rather than manifesting some devious

intent, the handwritten numerals appear to be merely overwrites of information that did not


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Gordon v. Mukasey

copy as thoroughly as other printing on the pages. Indeed, the five pages of the lease

appear to contain the entire agreement between the landlord and tenants and end

appropriately with the signatures of the parties to the contract. In short, nothing in the

exhibit gives pause as to the legitimacy of the document itself.


       In Matter of Garcia, 16 I&N Dec. 653, 654 (BIA 1978), the Board re-examined its

policy regarding the disposition of motions to reopen “based upon as yet unadjudicated

visa petitions.” After doing so, the BIA determined that it would “generally reopen the

deportation proceedings in such cases unless clear ineligibility is apparent in the record.”

Id. (emphasis added). The Board recognized:


       It clearly would not be an abuse of discretion for the immigration judge to
       summarily deny a request for a continuance or a motion to reopen upon his
       determination that the visa petition is frivolous or that the adjustment
       application would be denied on statutory grounds or in the exercise of
       discretion notwithstanding the approval of the petition.


Id. at 657. However, the BIA expressed its clear belief that discretion should, nevertheless,

“be favorably exercised where a prima facie approvable visa petition and adjustment

application have been submitted in the course of a deportation hearing or upon a motion

to reopen.” Id.


       Rather than adhere to the precepts of Matter of Garcia, however, the BIA in this

matter evaluated Gordon’s motion to reopen – filed during the pendency of an I-130

proceeding – not to determine whether the petitioner established a prima facie case of


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eligibility for relief, but rather on the merits of the I-130 petition itself. The Board thus

imposed an unduly onerous burden upon Gordon and failed to accord his evidentiary

exhibits the weight they deserved at a preliminary stage of the decision-making process.

Given the fact that the BIA denied the motion to reopen because it felt that a prima facie

case had not been established, yet imposed an evidentiary burden far heavier than that

ordinarily required for such a showing, it is impossible to determine whether the Board

would choose to deny the motion if it decided that Gordon had at least met the minimal,

initial showing required. Under such circumstances, a remand to the BIA for further

consideration of the matter under the proper legal standard is required.


                                      CONCLUSION


       Given the BIA’s decision applying a burden of proof more applicable to a final

decision on the request for a change in an alien relative’s immigration status than to the

“colorable showing” of entitlement to relief applicable at the motion to reopen stage, we

conclude that the BIA abused its discretion in denying Gordon’s motion. We therefore

GRANT the petition for review and REMAND this matter to the BIA for such further

proceedings as are appropriate.




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Gordon v. Mukasey

       RYAN, Circuit Judge, dissenting.            After a careful reading of Matter of Garcia,

16 I & N Dec. 653 (BIA 1978), I am satisfied that the “colorable showing” mentioned in the

agency’s opinion and relied upon by my colleagues, is not a statement of a new standard

for eligibility to seek reopening of a Board of Immigration decision. Rather, it is a mere

dictum that does not control our decision.


       As I read Garcia, the BIA did not depart from the prima facie standard as stated in

§ 1003.2(c), nor has any subsequent decision lowered the burden to a “colorable showing”

in lieu of the prima facie standard. Moreover, the BIA enjoys broad discretion to deny

motions to reopen, even where the applicant makes out a prima facie case. 8 C.F.R. §

1003.2(a); Yousif v. INS, 794 F.2d 236, 241 (6th Cir. 1986). I believe we decided this issue

correctly the first time this case was presented to us, and I see no reason to revisit it.


       I respectfully dissent.




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