                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 09-3171
                                  ___________

                   JOHN DOE a/k/a MOHAMMED SHAHID;
                    JOHN DOE a/k/a MOHAMMED BILAL,
                                          Petitioners
                                    v.

              ATTORNEY GENERAL OF THE UNITED STATES,
                                        Respondent

                              __________________

     On a Petition For Review of an Order of the Board of Immigration Appeals
                    Agency Nos. A079-211-398 & A079-211-399
                    Immigration Judge: Margaret R. Reichenberg

                   ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  June 2, 2010
               Before: SCIRICA, SMITH and WEIS, Circuit Judges

                           Opinion filed: June 03, 2010
                                 ____________

                                    OPINION

                                  ___________

PER CURIAM.

           Petitioners Mohammad Shahid and Mohammad Bilal, father and son, and



                                        1
natives and citizens of Pakistan, illegally entered the United States in November of 2000.

In December of 2000, the former Immigration and Naturalization Service issued each of

them a Notice to Appear, charging that they were removable under Immigration &

Nationality Act (“INA”) § 212(a)(6)(A)(I), 8 U.S.C. § 1182(a)(6)(A)(I), as aliens who

were present in the United States without having been admitted or paroled.

              On April 20, 2001, Shahid married Lakeysha Y. Thomas, a United States

citizen. A.R. 439. On April 30, 2001, a day before the LIFE Act deadline, Thomas filed

immediate relative visa petitions, Form I-130, see 8 U.S.C. § 1151(b)(2)(A)(I), for Shahid

as her spouse, and Bilal as her unmarried child. A.R. 437-38.1 On November 2, 2001,

Thomas was notified of the approval of the visa petitions. See id. On April 22, 2002, the

State of New Jersey granted Shahid a divorce from Thomas.

              On April 25, 2002, three days after his divorce from Thomas, Shahid

married Balbir Kaur, a lawful permanent resident of the United States. A.R. 50. Three

months later, on July 25, 2002, Kaur filed two immediate relative visa petitions, A.R.




   1
     On December 21, 2000, Congress enacted the Legal Immigration Family Equity
(“LIFE”) Act Amendments, which amended a prior law benefitting certain individuals
who were otherwise ineligible to adjust their status in the United States because they were
present without having been admitted or paroled. It replaced the original cut-off date
with the new date of April 30, 2001. See generally Khan v. Att’y Gen. of U.S., 448 F.3d
226, 229 (3d Cir. 2006). The LIFE Act amendments provided, in pertinent part, that a
beneficiary of a petition for an immigrant visa filed on or before April 30, 2001, who was
physically present in the United States on the date of enactment and paid the $1,000 fee,
could adjust status under INA section 245(i). See INA § 245(i)(1)(B), 8 U.S.C. §
1255(i)(1)(B).

                                             2
435-36 – one for Shahid as her spouse, and one for Bilal as her unmarried child, see 8

U.S.C. § 1153(a)(2)(A).

              On April 12, 2006, Shahid submitted an application for asylum and

withholding of removal, Form I-589, claiming changed circumstances and a fear of

returning to Pakistan. A.R. 271-79. About two weeks later, Shahid and Bilal appeared

before the Immigration Judge. They conceded that they were removable as charged and

proceeded solely on the basis of Shahid’s request for asylum. Shahid testified at his

merits hearing and claimed to fear persecution in Pakistan from “Shia people” over

religious differences. At the conclusion of Shahid’s testimony, the Immigration Judge

denied his request for relief and protection, thereby also denying Bilal asylum as a

derivative of Shahid’s application. Shahid and Bilal appealed the IJ’s decision to the

Board of Immigration Appeals, which affirmed on October 9, 2007.

              On November 16, 2007, Shahid and Bilal filed a motion to reopen with the

Board, claiming that they had approved immediate relative visa petitions filed by Balbir

Kaur, and the priority dates for their visas were current. They requested that the Board

grant them adjustment of status. Attached to the motion to reopen were the following: the

Approval Notice, Form I-797C, for Bilal relating to the visa petition filed by Ms. Kaur,

A.R. 79, and a copy of the Department of State Visa Bulletin for October, 2007. On April

25, 2008, the Board denied the motion to reopen on procedural and substantive grounds.

First, Shahid and Bilal had failed to file an application to adjust status, Form I-485, along



                                              3
with their motion, as required by 8 C.F.R. § 1003.2(c)(1) (requiring that all applications

for relief be appended to motions to reopen). Second, Shahid and Bilal failed to establish

prima facie eligibility for adjustment of status, because, as aliens who had entered the

United States without being admitted or paroled, they were ineligible to adjust their status

under INA § 245(a), 8 U.S.C. § 1255(a), and they did not submit evidence that they

qualified under INA § 245(I), 8 U.S.C. § 1255(I), either.

              On January 7, 2009, Shahid and Bilal, now represented by different counsel,

filed a second motion to reopen with the Board. In it they claimed that they were the

victims of ineffective assistance of counsel by their previous attorney, Dominick S.

Cardinale, who assisted them in filing their first motion to reopen. Attached to the

motion to reopen and offered in support of it were the following: a copy of the Receipt

Notice from July 18, 2001 for Lakeysha Thomas’s immediate relative visa petition for

Shahid; a copy of the Approval Notice from November 2, 2001 for Ms. Thomas’s

immediate relative visa petition for Bilal; copies of the Receipt Notices from July 25,

2002 for Balbir Kaur’s immediate relative visa petitions for Bilal and Shahid; a copy of

the Approval Notice, Form I-797C, from April 20, 2005 for Ms. Kaur’s immediate

relative visa petition for Bilal; various documents regarding attorney Cardinale; an

affidavit from Shahid; Shahid’s application to adjust status, Form I-485, with Supplement

A relating to INA § 245(I), 8 U.S.C. § 1255(I); biographic information sheets, Form G-

325 and G-325A, completed by Ms. Kaur and Shahid; Shahid and Ms. Kaur’s marriage



                                             4
certificate; photographs; documents regarding Shahid’s previous marriage to and divorce

from Ms. Thomas; documents regarding both Ms. Kaur’s birth, and her marriage to and

divorce from Harjit Singh; and documents regarding Shahid’s previous marriage to and

divorce from Bilal’s biological mother in Pakistan. A.R. 22-66.

              On July 17, 2009, the Board denied Shahid’s and Bilal’s second motion to

reopen. The Board concluded that it was both untimely, as it was filed more than 90 days

after the Board’s final decision, and number-barred. The Board noted that Shahid and

Bilal claimed to have suffered ineffective assistance of counsel, but irrespective of that,

the second motion to reopen did not include any evidence that the immediate relative visa

petition filed by Ms. Kaur on behalf of Shahid had been approved. A Form I-797C had

been submitted with the motion to reopen indicating that Ms. Kaur’s I-130 petition had

been approved for 13 year-old Bilal, but there was no proof submitted that her visa

petition had been approved for the lead respondent, Shahid, based on their marriage.

Moreover, the Board observed, as the motion itself admitted, there was little evidence

submitted of the bona fides of Shahid’s marriage to Ms. Kaur. Accordingly, there was no

showing that Shahid was prima facie eligible for discretionary relief in the form of

adjustment of status.2 This timely petition for review followed.



   2
      We note that the immediate relative visa petitions filed by Ms. Kaur for Shahid as
her spouse and Bilal as her unmarried child, A.R. 435-36, were not filed by the LIFE
Act’s April 30, 2001 deadline. The Board, however, did not base its “no prima facie
eligibility” determination under INA § 245(i), 8 U.S.C. § 1255(i), on this fact. Our
disposition of the petition for review does not require us to reach the issue whether

                                              5
              We will deny the petition for review. We have jurisdiction under 8 U.S.C.

§ 1252(a)(1) and (b)(1) to review a final order of removal. We review the denial of a

motion to reopen for an abuse of discretion. Immigration & Naturalization Serv. v.

Doherty, 502 U.S. 314, 323 (1992). The Supreme Court has stated that “[m]otions for

reopening of immigration proceedings are disfavored,” noting that “as a general matter,

every delay works to the advantage of the deportable alien who wishes merely to remain

in the United States.” Id. We will not disturb the Board’s discretionary decision unless it

was arbitrary, irrational or contrary to law. See, e.g., Sevoian v. Ashcroft, 290 F.3d 166,

174 (3d Cir. 2002). The agency’s factual determinations are upheld if they are supported

by reasonable, substantial, and probative evidence on the record considered as a whole.

Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

              “An alien may file one motion to reopen proceedings,” and such a motion

“shall state the new facts that will be proven at a hearing to be held if the motion is

granted, and shall be supported by affidavits or other evidentiary material.” 8 U.S.C. §

1229a(c)(7)(A),(B). Ordinarily, “[t]he motion to reopen shall be filed within 90 days of

the date of entry of a final administrative order of removal.” 8 U.S.C. §

1229a(c)(7)(C)(I); 8 C.F.R. § 1003.2(c)(2). Shahid and Bilal’s second motion to reopen

was a year late. Because the second motion to reopen was untimely, and none of the




Shahid and Bilal were “grandfathered in” with respect to their eligibility under INA §
245(i) by the immediate relative visa petitions filed by Ms. Thomas by the deadline.

                                              6
exceptions apply,3 the Board did not abuse its discretion in denying it. Doherty, 502 U.S.

at 323; Sevoian, 290 F.3d at 174.

               In their brief, Shahid and Bilal claim that the Board erred because, but for

the alleged ineffective assistance of their prior attorney in his filing of their first motion to

reopen, they would have been able to demonstrate prima facie eligibility for adjustment of

status. We have held that attorney conduct can provide a basis for equitable tolling of the

ninety-day deadline, see Mahmood v. Gonzales, 427 F.3d 248, 250-53 (3d Cir.2005), but,

regardless of Shahid’s and Bilal’s claim of ineffective assistance of counsel, their second

motion to reopen also failed to provide the necessary evidence to demonstrate their prima

facie eligibility for adjustment of status.4

               To be eligible for a discretionary grant of adjustment of status, the applicant

must be eligible to receive an immigrant visa, be admissible for permanent residency, and

demonstrate that an immigrant visa is immediately available to him when the application

is filed. See INA § 245(a), 8 U.S.C. § 1255(a). Aliens, such as Shahid and Bilal, who are

otherwise ineligible to adjust their status because of an illegal entry, may take advantage

of INA § 245(I) if they are the beneficiaries of a visa petition filed prior to April 30,

2001, and the visa petition was approvable when filed. See 8 U.S.C. § 1255(i)(1)(B)(i).


   3
     There are exceptions to the ninety day deadline which are not applicable here. 8
C.F.R. § 1003.2(c)(3).
   4
      Bilal did not advance a claim to the Board, nor do Shahid and Bilal argue in their
brief, that Bilal is independently eligible for adjustment of status on the basis of the
approved petition filed by Ms. Kaur, who is not his biological mother.

                                                7
In addition, an alien like Shahid, who marries after removal proceedings have begun, is

statutorily ineligible for adjustment of status unless he establishes that his marriage is

bona fide. See 8 C.F.R. §§ 1245.1(c)(8), 1245.1(c)(8)(iii)(F); 8 U.S.C. § 1255(e)(1), (3).

              Shahid and Bilal thus bore the burden of demonstrating a prima facie case

that they were the beneficiaries of approved I-130 immediate relative petitions, with

priority dates for currently available visas, that they were not ineligible to adjust status,

and that Shahid’s marriage to Kaur was bona fide. See Sevoian, 290 F.3d at 175 (prima

facie standard for motion to reopen requires applicant to produce objective evidence

showing reasonable likelihood that he can establish he is entitled to relief). As the Board

properly observed, Shahid and Bilal had evidentiary failures in their second motion to

reopen in that they failed to demonstrate that Shahid was the beneficiary of an approved

immediate relative visa petition. This failure alone supports the Board’s denial of the

motion to reopen because the Board could not adjust Shahid’s status without evidence of

an approved and immediately available visa. Shahid and Bilal concede this evidentiary

failure in a footnote in their brief, stating, “Petitioner’s second motion to reopen ...

erroneously stated that Petitioner is the beneficiary of an approved I-130 visa petition....

In actuality, Petitioner Mohammed Shahid (father) has only a pending I-130 petition,

while Petitioner Mohammed Bilal (son) is the beneficiary of an approved I-130 visa

petition.” See Petitioner’s Brief, at 11 n.1.




                                                8
              Nevertheless, Shahid and Bilal argue that a pending immediate relative visa

petition is sufficient under the reasoning of Matter of Velarde-Pachecho, 23 I. & N. Dec.

253 (BIA 2002). See Petitioner’s Brief, at 23-25. We do not agree. Matter of Velarde

held that a motion to reopen seeking adjustment of status based on a marriage entered into

after removal proceedings began may be granted notwithstanding the pendency of a visa

petition filed on the alien’s behalf if certain conditions are met. One of those conditions

is that the motion be timely filed. 23 I. & N. Dec. at 256. The Board did not address

motions to reopen filed after the 90-day deadline has passed, and pointedly explained that

motions submitted after the 90-day period “present additional considerations regarding

the finality of proceedings.” Id. at 256-57. Shahid’s and Bilal’s second motion to reopen

was not timely filed and thus Matter of Velarde does not apply. Accordingly, the Board’s

denial of the second motion to reopen on the ground that Shahid and Bilal could not show

prima facie eligibility for adjustment of status without evidence of an approved visa

petition for Shahid was not an abuse of discretion.

              Regarding the bona fides of Shahid’s marriage, 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 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



                                             9
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). As the Board noted, Shahid submitted

little evidence with his second motion to reopen that his marriage to Kaur is bona fide,

and certainly not clear and convincing evidence. What evidence he did submit did not fit

into any of the suggested categories, and thus was insufficient. See Malhi v. Immigration

& Naturalization Serv., 336 F.3d 989, 994 (9th Cir. 2003). Given this failure, the Board

acted within its discretion in denying the second motion to reopen.

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




                                          10
