                                                                            [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________              FILED
                                                                U.S. COURT OF APPEALS
                                             No. 11-13021         ELEVENTH CIRCUIT
                                         Non-Argument Calendar         FEB 9, 2012
                                       ________________________        JOHN LEY
                                                                         CLERK
                                           Agency No. A095-891-563

JESUS ALBERTO GUTIERREZ,

llllllllllllllllllllllllllllllllllll                                 llll           Petitioner,

                                                   versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll                                          Respondent.

                                       ________________________

                               Petition for Review of a Decision of the
                                    Board of Immigration Appeals
                                    ________________________

                                              (February 9, 2012)

Before HULL, MARCUS and BLACK, Circuit Judges.

PER CURIAM:

         Jesus Gutierrez, a native and citizen of Venezuela, has filed a petition for

review of the Board of Immigration Appeals’s (“BIA”) denial of his motion to
reconsider its decision denying his motion to remand to seek derivative asylum

benefits based on his status as the spouse of an asylee. After an Immigration Judge

denied his application for asylum, but before the BIA had issued a decision on his

appeal, Gutierrez married his third wife, who subsequently was granted asylum. On

the same day the BIA denied his appeal, Gutierrez filed a motion to remand based on

his marriage to an asylee, but the BIA denied his motion. He then filed a motion to

reconsider and submitted additional evidence to support his claim of a bona fide

marriage, but the BIA also denied this motion. On appeal, he argues that: (1) the

correct standard to prove that a person is an eligible spouse is by a preponderance of

the evidence, but the BIA applied the clear-and-convincing standard when it denied

his motion to remand; and (2) when the BIA denied his motion to reconsider, it

incorrectly applied 8 C.F.R. § 208.21(f), which specifies the documents that a

beneficiary must submit and when a higher standard is required. After careful review,

we deny the petition.

      We review the BIA’s denial of a motion to reconsider for abuse of discretion.

Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328 (11th Cir. 2007). An alien may file a

motion to reconsider before the BIA within 30 days of the entry of a BIA decision.

See 8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R. § 1003.2(b)(2). “A motion to reconsider

shall state the reasons for the motion by specifying the errors of fact or law in the

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prior [BIA] decision and shall be supported by pertinent authority.” 8 C.F.R. §

1003.2(b)(1). When reviewing the denial of discretionary relief, we consider whether

the exercise of discretion was “arbitrary or capricious.” Garcia-Mir v. Smith, 766

F.2d 1478, 1490 (11th Cir. 1985) (quotation omitted).

       A motion to remand that seeks to introduce evidence that has not previously

been presented is generally treated as a motion to reopen. Chacku v. U.S. Att’y Gen.,

555 F.3d 1281, 1286 (11th Cir. 2008). The BIA does not abuse its discretion in

denying a motion to reopen when there is (1) a failure to establish prima facie

eligibility for relief; (2) a failure to introduce previously unavailable and material

evidence; and (3) a determination that, despite an eligibility for relief, the alien is not

entitled to a favorable exercise of discretion. Id.

       The spouse of an alien who has been granted asylum may be granted the same

status. 8 U.S.C. § 1158(b)(3)(A). The aliens must have been married before the

principal alien’s asylum application was approved. 8 C.F.R. § 208.21(b) (2010).

When the spouse was not included in the principal alien’s asylum application, a Form

I-730 must be submitted with supporting evidence. Id. § 208.21(c). In order to

establish a spousal relationship, “evidence must be submitted with the request as set

forth in part 204 of this chapter.” Id. § 208.21(f). In relevant part, the evidence

should consist when possible of the documents specified in § 204.2(a)(1)(iii)(B) and

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(a)(2). Id. The principal alien must establish by a preponderance of the evidence that

the beneficiary is an eligible spouse. Id.

      When a marriage is entered into while the beneficiary is in deportation or

removal proceedings, evidence must be submitted to establish that the marriage was

entered into in good faith. 8 C.F.R. § 204.2(a)(1)(iii)(A)-(B); see also 8 C.F.R. §

208.21(f) (referencing § 204.2(a)(1)(iii)(B)).       This evidence can include (1)

documents showing joint ownership of property, (2) a lease showing joint tenancy of

a common residence, (3) documents showing commingling of financial resources, (4)

birth certificates of any children born to the petitioner and beneficiary, (5) affidavits

from third parties who have knowledge of the bona fides of the marriage, and (6) any

other relevant documents. Id. § 204.2(a)(1)(iii)(B). In addition, the petitioner and

beneficiary must submit a certificate of marriage and proof of termination of all prior

marriages. Id. § 204.2(a)(2).

      First, we reject Gutierrez’s argument that the BIA improperly placed a higher

burden on him to prove his eligibility for reopening by clear and convincing evidence.

As the record shows, the statement regarding the “clear and convincing” evidence

standard in the BIA’s underlying decision on the motion to remand was not the basis

for denying that motion. Rather, the BIA used the statement to demonstrate that a

marriage entered into during removal proceedings was suspect under the immigration

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statute. The BIA clearly stated that it was denying his motion to reopen because he

failed to establish his prima facie eligibility for relief, and, as part of its analysis,

noted that Gutierrez’s suspect third marriage undermined his claim that he was prima

facie eligible for the relief. Because the BIA may deny a motion to reopen if the

respondent fails to establish a prima facie case for relief, Gutierrez failed to present

any new facts or law that would warrant reconsideration. Chacku, 555 F.3d at 1286.

      Nor are we persuaded by Gutierrez’s argument that the BIA applied a

heightened standard in its denial of his motion to reconsider. First, the BIA does not

mention the clear-and-convincing standard in its opinion denying Gutierrez’s motion

to reconsider. Instead, the BIA said that Gutierrez failed to establish his prima facie

eligibility, which is the correct standard. Second, the BIA did not cite to 8 C.F.R. part

204 in order to impose a clear-and-convincing standard, but rather was citing the

portions of part 204 that specify the documents that are needed to demonstrate a bona

fide marriage. Therefore, Gutierrez’s argument that the BIA again improperly applied

a higher standard on reconsideration is incorrect.

      Finally, Gutierrez does not challenge the BIA’s determination that the new

evidence he offered with his motion for reconsideration failed to establish his prima

facie eligibility for relief. Therefore, Gutierrez has abandoned any argument as to this




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issue. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005)

(noting that a petitioner abandons an issue, if she offers no challenge or argument).

      Because Gutierrez presented no error of fact or law in the BIA’s decision, the

BIA did not abuse its discretion in denying his motion to reconsider. Accordingly,

we deny Gutierrez’s petition for review.

      PETITION DENIED.




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