                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 06 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



JAMAL YASIN ATALLAH ALFAOURI,                    No. 06-73066

              Petitioner,                        Agency No. A077-305-194

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

              Respondent.



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

                            Submitted October 4, 2010**
                               Pasadena, California

Before: PREGERSON, D.W. NELSON and IKUTA, Circuit Judges.

       Jamal Yasin Atallah Alfaouri, a native and citizen of Jordan, petitions for

review of the Board of Immigration Appeals' ('BIA') order denying his motion to

reopen removal proceedings. We have jurisdiction under 8 U.S.C. y 1252, and we

deny the petition for review.

        *
             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).
      We review the BIA's denial of a motion to reopen for abuse of discretion.

Arrozal v. INS, 159 F.3d 429, 432 (9th Cir. 1998). The BIA was within its

discretion when it denied Alfaouri's motion to reopen to apply for adjustment of

status on the merits, as Alfaouri did not submit clear and convincing evidence

indicating a strong liµelihood that his marriage to a U.S. citizen is bona fide.

8 C.F.R. y 204.2(a)(1)(iii) (establishing regulatory presumption that marriages

entered into during proceedings are fraudulent); 8 C.F.R. y 204.2(a)(1)(iii)(A)-(B)

(procedure for rebutting such presumption); In re Velarde-Pacheco, 23 I. & N.

Dec. 253, 256 (BIA 2002) (setting standard for rebutting such presumption). Most

of Alfaouri's proffered evidence related to the fact of his marriage, not its bona

fide nature, and was thus irrelevant to the BIA's inquiry. Malhi v. INS, 336 F.3d

989, 994 (9th Cir. 2003). Alfaouri's joint tax return was relevant but was not

nearly sufficient to meet the standard set forth in Velarde-Pacheco, and the BIA

was within its discretion to find as much.

      Claims of due process violations in deportation proceedings are reviewed de

novo. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). Alfaouri claims that

the Department of Homeland Security, not the BIA, has exclusive jurisdiction to

determine the bona fide nature of marriages. He is mistaµen. The BIA may deny a

motion to reopen on the ground that, even if the movant were able to satisfy all

threshold inquiries, the movant would nonetheless not be entitled to a discretionary
grant of relief, 8 C.F.R. y 1003.2(a); INS v. Abudu, 485 U.S. 94, 105 (1988), and

the BIA may determine in the first instance the bona fides of a marriage to inform

its exercise of discretion. See Velarde-Pacheco, 23 I. & N. Dec. at 256 (BIA

exercising its jurisdiction to evaluate the bona fides of a marriage). Mr. Alfaouri

was able to reasonably present his case to the body authorized to hear it, Colmenar

v. INS, 210 F.3d 967, 971 (9th Cir. 2000), and his due process claim is therefore

unavailing.

      PETITION FOR REVIEW DENIED.
                                                                             FILED
Alfaouri v. Holder, No. 06-73066                                              JAN 06 2012

                                                                        MOLLY C. DWYER, CLERK
PREGERSON, Circuit Judge, dissenting:                                      U.S . CO U RT OF AP PE A LS




      I respectfully dissent. We have repeatedly held that the BIA abuses its

discretion in denying a motion to reopen 'when it fails to consider and address in

its entirety the evidence submitted by a petitioner . . . .' Franco-Rosendo v.

Gonzales, 454 F.3d 965, 966 (9th Cir. 2006) (internal quotation marµs omitted).

      In its order denying Alfaouri's motion to reopen, the BIA concludes that

Alfaouri has failed to establish a 'bona fide marriage' under 8 C.F.R. y

204.2(a)(1)(iii)(B) because Alfaouri has 'not submitted sufficient documentary

evidence to establish commingling of financial resources or a common residence.'

But the BIA does not discuss or even mention the joint income tax return of

Alfaouri and his American-citizen spouse, which Alfaouri submitted to support his

claim of a bona fide marriage. Such evidence, if considered, could have supported

a finding that Alfaouri and his American-citizen spouse had commingled their

financial resources and had a common residence. In my view, the BIA's failure to

consider this evidence was an abuse of discretion. Accordingly, I would grant

Alfaouri's petition and remand to the BIA for reconsideration of Alfaouri's motion

to reopen.

      My colleagues in the majority conclude that the BIA did not abuse its

discretion in denying the motion to reopen because 'Alfaouri's joint tax return was
. . . not nearly sufficient to meet the standard' for a bona fide marriage under the

BIA's case law. Maj. Op. at 2. That may be so, but it is for the BIA, not our court,

to pass upon the significance of the joint income tax return in the first instance.

'We cannot affirm the BIA or IJ on a ground upon which it did not rely.' Ali v.

Holder, 637 F.3d 1025, 1029 (9th Cir. 2011). Instead, 'we 'must decide whether

to grant or deny the petition for review based on the Board's or IJ's reasoning

rather than our own independent analysis of the record.'' Id. (internal marµs

omitted) (quoting Azanor v. Ashcroft, 364 F.3d 1013, 1021 (9th Cir. 2004)).

      Accordingly, I would remand to the BIA for it to consider the significance of

Alfaouri's joint income tax return in the first instance.




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