                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-15-2008

Baig v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1073




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IMG-192                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 08-1073


                                MIRZA TALIB BAIG,
                                                Petitioner
                                       v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                     Respondent


                         On a Petition For Review of an Order
                         of the Board of Immigration Appeals
                               Agency No. A79-732-469
                        Immigration Judge: Rosalind K. Malloy


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   October 15, 2008

          Before: SLOVITER, STAPLETON AND COWEN, Circuit Judges

                           (Opinion filed: October 15, 2008)


                                       OPINION



PER CURIAM

      Petitioner Mirza Talib Baig, a native of Iraq and citizen of Pakistan, seeks review

of an order by the Board of Immigration Appeals, dismissing his appeal of the

Immigration Judge’s order denying his motion to reopen. Finding no error, we will deny
the petition for review.

       Baig was admitted into the United States at Anchorage, Alaska on or about April

27, 2002 as a nonimmigrant visitor (B-2) with authorization to remain until October 20,

2002. He overstayed and admittedly is removable, at a minimum, under Immigration and

Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), because he remained

in the United States for a time longer than permitted.1 Baig initially requested asylum,

withholding of removal and relief under the Convention Against Torture; however, he

subsequently withdrew those applications and was granted voluntary departure on August

18, 2006. An alternate order of removal was entered. On November 16, 2006, Baig filed

a motion to reopen with the Immigration Court, requesting that his case be reopened for

the purpose of applying for adjustment of status based on his marriage to a United States

citizen, who had filed a Petition for Alien Relative (Form I-130) on his behalf.

       The Department of Homeland Security (“DHS”) opposed the motion on or about

December 4, 2006 on the ground that a previous wife had also filed a relative petition on

Baig’s behalf. The prior relative petition had been denied, on July 29, 2004, based upon a

finding by Citizenship and Immigration Services (“USCIS”) that the marriage was

entered into fraudulently and solely to obtain immigration benefits. Based on Baig’s

marital history, DHS contended that it was highly unlikely that his new Form I-130 would

be approved, see 8 U.S.C. § 1154(c) (“[N]o petition shall be approved if (1) the alien has


   1
    Baig was placed in removal proceedings by a Notice to Appear which was served on
him on September 8, 2003.
                                             2
previously ... sought to be accorded an immediate relative or preference status as the

spouse of a citizen of the United States ... by reason of a marriage determined by the

Attorney General to have been entered into for the purpose of evading the immigration

laws”). The USCIS decision and written explanation was submitted as evidence by DHS.

A.R. 201-02.

       On December 8, 2006, the Immigration Judge denied Baig’s motion to reopen

without explanation. Baig timely appealed to the Board of Immigration Appeals, and

DHS opposed the appeal. On December 14, 2007, the Board dismissed the appeal,

concluding that DHS’ opposition to the motion mandated denial, and, further, Baig had

failed to present a prima facie case establishing a bona fide marriage as required by 8

C.F.R. § 204.2(a)(1)(iii)(B) and In re: Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002).

This timely petition for review followed.

       We will deny the petition for review. We have jurisdiction to review the Board’s

decision under 8 U.S.C. § 1252(a). Where, as here, the Board issues a decision on the

merits, we review the Board’s, and not the IJ’s, decision. Lie v. Ashcroft, 396 F.3d 530,

534 n.3 (3d Cir. 2005); Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir. 2001). When

a motion to reopen is denied on the ground that the alien failed to demonstrate prima facie

eligibility for the substantive relief sought, we review for abuse of discretion. See, e.g.,

Immigration & Naturalization Serv. v. Doherty, 502 U.S. 314, 323 (1992). Under this

standard, we will reverse the Board’s decision only if it is arbitrary, irrational, or contrary

to law. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). The prima facie standard

                                               3
for a motion to reopen requires the applicant to produce objective evidence showing a

reasonable likelihood that he can establish that he is entitled to relief. See Sevoian v.

Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002).

       The Board did not abuse its discretion in concluding that Baig failed to present in

his motion a prima facie case establishing that his second marriage to a United States

citizen was bona fide. Under Board precedent, a properly filed motion to reopen for

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

proceedings may be granted, notwithstanding the pendency of visa petition, if:

              (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 . . . 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) [DHS] either does not oppose the motion or bases its
              opposition solely on Matter of Arthur.

Velarde-Pacheco, 23 I. & N. Dec. at 256.

       Baig had an opportunity to present evidence that his second marriage was bona

fide, and he failed to do so. The materials he submitted, including a copy of his marriage

certificate, copies of his and his wife’s passports, copies of their birth certificates, a copy

of his divorce decree, and a letter confirming his employment establish only the existence

of a marriage. This evidence is not probative of the motivation for the marriage, and it is

thus not probative of the bona fides of the marriage. See Malhi v. Immigration &

Naturalization Serv., 336 F.3d 989, 994 (9th Cir. 2003).2 Baig submitted no evidence

   2
    Materials which may demonstrate that a marriage is bona fide include: (1)
documentation showing joint ownership of property; (2) a lease showing joint tenancy of
                                               4
whatever that his second marriage to a United States citizen was bona fide, let alone

“clear and convincing evidence,” as required by Velarde-Pacheco, 23 I. & N. Dec. at 256.

Furthermore, we reject his assertion on appeal that the Board impermissibly engaged in

fact finding.3 The Board properly considered the materials in the record in assessing

whether the evidence submitted by Baig with his motion to reopen complied with the

standards set forth in Velarde-Pacheco for motions seeking adjustment of status based on

a recent marriage to a United States citizen.

       The Board also did not abuse its discretion in denying Baig’s motion to reopen on

the ground that it was opposed by DHS on substantive grounds (that is, on the ground that

his first marriage was found to have been entered into for the purpose of evading the

immigration laws of the United States, 8 U.S.C. § 1154(c)). Under Velarde-Pacheco, a

motion to reopen based on a marriage entered into after the commencement of removal

proceedings cannot be granted if it is opposed by DHS. See Bhiski v. Ashcroft, 373 F.3d

363, 371-72 (3d Cir. 2004) (“As long as [DHS] opposes the motion on non- Matter of

Arthur grounds, the alien does not fall within the exception carved out by Matter of



a common residence; (3) evidence of commingling of financial resources; (4) birth
certificates of children born to the petitioner and beneficiary; (5) affidavits of third parties
having knowledge of the bona fides of the marital relationship; and (6) any 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)(i)(B).
   3
    Except for taking administrative notice of commonly known facts, the Board may not
engage in fact finding in the course of deciding appeals. 8 C.F.R. §1003.1(d)(3)(iv).
Findings of fact made by an Immigration Judges are reviewed only for clear error. Id. at
§ 1003.1(d)(3)(i).
                                                5
Velarde-Pacheco”). Here, DHS objected to the motion on non-Arthur grounds. We will

not consider Baig’s contention that DHS’ opposition to his motion was untimely by as

much as a week (and thus his motion should be deemed unopposed), because he did not

raise this contention concerning a failure to comply with the Immigration Court’s local

rules either with the IJ or the Board. See 8 U.S.C. § 1252(d)(1) (alien must exhaust

administrative remedies available as of right).

       Baig’s final argument is similarly unavailing. He contends that he should have

been provided with an opportunity to challenge in Immigration Court the July 2004

USCIS finding that his first marriage was fraudulently entered into, but the IJ had no

authority to entertain a collateral challenge to the District Director’s determination. 8

U.S.C. § 1154; 8 C.F.R. § 204.1(e)(1); see also Matter of Aurelio, 19 I. & N. Dec. 458,

460 (BIA 1987) (immigration judges have no jurisdiction to decide visa petition as this

matter is solely within authority of district director); cf. Bhiski, 373 F.3d at 371 (courts do

not have jurisdiction to investigate good faith validity of DHS’ opposition to motion to

reopen brought under Velarde-Pacheco). Baig’s first United States citizen wife did not

appeal the denial of the Form I-130 visa petition she filed on his behalf, and the IJ could

not reconsider the merits of that petition at Baig’s request.

       For the foregoing reasons, we will deny the petition for review.




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