                                                                              FILED
                            NOT FOR PUBLICATION                                JUN 20 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


RICARDO BANUELOS-DELENA,                         No. 10-72431

              Petitioner,                        Agency No. A092-789-794

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                             Submitted June 6, 2014**
                               Pasadena, California

Before: GOULD and N.R. SMITH, Circuit Judges, and KORMAN, Senior District
Judge.***

       In July 1998, the Immigration Naturalization Service initiated removal

proceedings against Ricardo Banuelos-Delena pursuant to the Immigration and

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
       ***
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
Nationality Act (INA), which authorizes the removal of any alien who is convicted of

an “aggravated felony” at any time after admission. 8 U.S.C. § 1227(a)(2)(A)(iii).

At an October 2004 hearing before an Immigration Judge (IJ), Banuelos-Delena

admitted that he had been convicted of various sexual offenses against a minor.

Specifically, he was convicted of statutory rape under California Penal Code sections

288a(b)(2) (oral copulation with another person who is under 16 years of age),

286(b)(2) (sodomy with another person who is under 16 years of age) and 261.5

(unlawful sexual intercourse with a person who is under 18 years of age). The INA

defines the term “aggravated felony” to include the “sexual abuse of a minor.” 8

U.S.C. § 1101(a)(43)(A). Thus, the IJ ruled that Banuelos-Delena was removable

because he had been convicted of an “aggravated felony.”           After subsequent

proceedings before the Board of Immigration Appeals (BIA), which are not relevant

here, the IJ ordered Banuelos-Delena removed to Mexico. Banuelos-Delena then

appealed the final order of removal to the BIA.

      While the appeal was pending, Banuelos-Delena divorced his then-wife on

December 11, 2006, and approximately two weeks later married Olga Felix, who is

a United States citizen. The BIA affirmed the order of removal and dismissed the

appeal. Soon after, Banuelos-Delena filed a motion to reopen his case before the BIA

seeking adjustment of his status under the bona fide marriage exemption. In re


                                         2
Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002), overruled on other grounds by

Matter of Avetisyan, 25 I. & N. Dec. 688 (BIA 2012). In November 2007, the BIA

denied the motion to reopen on the basis that Banuelos-Delena had provided

insufficient evidence to establish the bona fides of his marriage. This petition for

review followed. We review for abuse of discretion and will reverse the denial of a

motion to reopen only if the BIA acted “arbitrarily, irrationally, or contrary to law.”

Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 857 (9th Cir. 2004) (internal quotation

marks omitted).

      Congress has set forth a non-exhaustive list of the types of evidence that serve

as proof of a bona fide marriage, which include documents demonstrating “joint

ownership of property,” a “[l]ease showing joint tenancy of a common residence,”

“[d]ocumentation showing commingling of financial resources,” “[a]ffidavits of third

parties . . . contain[ing] complete information and details explaining how the person

acquired his or her knowledge of the marriage,” and “[a]ny other documentation

which is relevant to establish that the marriage was not entered into in order to evade

the immigration laws of the United States.” 8 C.F.R. § 204.2(a)(1)(iii)(B). In this

case, Banuelos-Delena simply submits the Forms I-130 and I-485, his marriage and

divorce certificates, and the sworn statements that Olga and he made during his

removal proceedings. None of the evidence submitted by Banuelos-Delena falls into


                                          3
any of the categories suggested by 8 C.F.R. § 204.2(a)(1)(iii)(B). More significantly,

Banuelos-Delena testified at the October 2004 removal proceeding that he intended

to marry Olga, whom he had lived with for approximately three years. Banuelos-

Delena did not, however, act on those intentions until after the BIA ordered his

removal in March 2006. Accordingly, the BIA properly concluded that Banuelos-

Delena provided insufficient evidence to establish the bona fide marriage exemption

and we therefore deny his petition. See Sharma v. Holder, 633 F.3d 865, 872-74 (9th

Cir. 2011).

      PETITION FOR REVIEW DENIED.




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