                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                         No. 11-3058
                                        ____________

                            ANIBAL ROLANDO ARROBO,
                                              Petitioner

                                             v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                        Respondent
                     __________________________________

                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                              (Agency No. A075-449-130)
                           Immigration Judge: Mirlande Tadal
                        __________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 25, 2012

          Before: SCIRICA, CHAGARES and GREENBERG, Circuit Judges

                                (Filed: January 27, 2012)
                                     ____________

                               OPINION OF THE COURT
                                    ____________

PER CURIAM.

       Anibal Arrobo (“Arrobo”) petitions for review of the Board of Immigration

Appeals’ decision denying his motion for reconsideration. For the reasons that follow,

we will deny the petition for review.
       Arrobo, a native and citizen of Ecuador, is removable under Immigration &

Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien

present in the United States without being admitted or paroled. On January 7, 2009, the

Immigration Judge granted his application for voluntary departure, and gave him until

March 9, 2009 to depart; alternatively, the IJ ordered his removal to Ecuador.

       On January 24, 2009, Arrobo married a United States citizen, Sofia Fajardo, and

she later filed a Form I-130 visa petition on his behalf. On or about February 23, 2009,

Arrobo filed a timely motion to reopen removal proceedings in Immigration Court, 8

C.F.R. 1003.23(b), in order to pursue adjustment of status based on this marriage. He

requested that the period of voluntary departure be stayed, and he attached to his motion

an application for adjustment of status, Fajardo’s recently filed immediate relative

petition, and other documents supporting the validity of the marriage. In an affidavit in

support, Arrobo indicated his intention to apply for adjustment of status under INA §

245(i), and he stated that he was the beneficiary of an immediate relative petition filed by

his former United States citizen spouse Helen Resto (Arrobo) prior to the sunset of INA §

245(i). The Department of Homeland Security opposed the motion.

       On March 13, 2009, the Immigration Judge denied the motion to reopen. The IJ

reasoned, in pertinent part, that Arrobo had not shown that he was eligible to adjust his

status under INA § 245(i) because he had not shown that he was not the beneficiary of a

“grandfathered” visa petition; that is, he was not the beneficiary of a labor certification or

visa petition filed on or before April 30, 2001. Arrobo appealed to the Board of

Immigration Appeals, contending, among other things, that he is the beneficiary of a

                                              2
grandfathered application for adjustment of status, that the record “contains, or should

contain” a copy of a petition filed by his former wife, Helen Resto (Arrobo), A.R. 36, and

he attached, for the first time, a visa petition bearing the signature “Helen Resto,”

purportedly made on January 24, 1997, A.R. 41.

       On December 9, 2010, the Board dismissed the appeal, concluding that the motion

to reopen was properly denied because Arrobo failed to establish prima facie eligibility

for adjustment of status, see 8 C.F.R. § 1003.23(b)(3). Specifically, the Board concluded

that Arrobo failed to meet his burden of proof to show that he was the beneficiary of a

visa petition filed before April 30, 2001, as required by INA § 245(i)(1)(B)(i). The Board

noted that Arrobo had submitted on appeal a Form I-130 visa petition, purportedly signed

by his former spouse in 1997, but the Board declined to treat the new evidence as a basis

for a remand because there was no indication whatever that the petition was properly

filed, or approvable when filed, 8 C.F.R. § 1245.10(a)(1)(i)(A) (“Grandfathered alien

means an alien who is the beneficiary . . . of [a] petition . . . which was properly filed

with the Attorney General on or before April 30, 2001, and which was approvable when

filed.”). Last, the Board held that the IJ did not err under Dada v. Mukasey, 554 U.S. 1

(2008), in declining to stay the period of voluntary departure.

       On January 10, 2011, Arrobo filed a short motion for reconsideration of the

Board’s decision, claiming again that he is the beneficiary of a grandfathered application

for adjustment of status and is thus eligible to adjust his status, and that he had a visa

petition pending that was approvable. He also contested the Board’s reference in its

December 9, 2010 decision to facts concerning an earlier date of entry into the United

                                               3
States in 1994, and an earlier grant of voluntary departure in 2000, that were not a part of

the record. 1

       On July 1, 2011, the Board found no material errors in its previous decision, but

nonetheless chose to reconsider the decision sua sponte and deny relief. The Board

decided that its statements regarding Arrobo’s arrival and a previous of grant of voluntary

departure should be deleted from the prior decision; the statements were dicta in that they

did not concern Arrobo’s failure to show prima facie eligibility for adjustment of status

under INA § 245(i). In all other respects, the Board concluded that there were no errors

in its prior decision that Arrobo did not establish that a visa petition was filed on his

behalf on or before April 30, 2001, and that any such petition was approvable when filed.

       Arrobo has timely petitioned for review of the Board’s July 1, 2011 decision only.

He argues in his brief that the agency erred in concluding that he did not establish prima

facie eligibility for adjustment of status, erred in disregarding the visa petition executed

by his former spouse, and erred in denying him voluntary departure. 2

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

1252(a)(1) and (b)(1) over the Board’s decision denying Arrobo’s motion for

reconsideration. Arrobo did not file a timely petition for review of the Board’s decision

of December 9, 2010. See Stone v. Immigration & Naturalization Serv., 514 U.S. 386,

405 (1995).

1
 The Notice to Appear charged that Arrobo arrived in the United States in July, 2001.
2
 Although Arrobo cites Matter of Velarde, 23 I. & N. Dec. 253 (BIA 2002), in his brief,
the issue before the agency, and here, concerns Arrobo’s eligibility for adjustment of
status under INA § 245(i), and not whether his post-order of removal marriage to Fajardo
is bona fide.
                                               4
       We review the Board’s denial of a motion for reconsideration for abuse of

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

Under this deferential standard of review, we will not disturb the Board’s decision unless

it is arbitrary, irrational, or contrary to the law. See Guo v. Ashcroft, 386 F. 3d 556, 562

(3d Cir. 2004). Motions to reconsider must demonstrate that the earlier Board decision

suffered from a material error of fact or law. 8 C.F.R. § 1003.2(b)(1); 8 U.S.C. §

1229a(c)(6)(C). The Board does not abuse its discretion when it denies a motion for

reconsideration on the ground that its original decision denying a motion to reopen was

correct in all material respects. See id.

       As the Board noted, the agency may deny a motion to reopen where a prima facie

case for the relief sought has not been established. See Sevoian v. Ashcroft, 290 F.3d

166, 170-71 (3d Cir. 2002); Matter of Coelho, 20 I. & N. Dec. 464 (BIA 1992). Arrobo

sought to reopen proceedings so that he could apply for adjustment of status under INA §

245(i). To be eligible for this form of relief, the applicant, who has entered the United

States without being admitted or paroled, must demonstrate, among other things, that he

is the recipient of relative or labor petition filed on or before April 30, 2001, and that the

petition was approvable when filed. 8 U.S.C. § 1255(i); 8 C.F.R. § 1245.10. Arrobo did

not make this showing. The Form I-130 signed by his former wife, Helen, which was

dated January 24, 1997, AR 41-42, and which was submitted for the first time on appeal

to the Board, was Arrobo’s attempt to comply with this requirement of INA § 245(i), but,

as the Board noted, this petition is not a part of the administrative record, and there is

nothing in the administrative record to establish when, or if, this petition was ever filed.

                                               5
The item submitted by Arrobo bears no evidence, like a date stamp, of filing in 1997 or at

any other time.

       It is insufficient for Arrobo to assert, without more, that the record “should” have

contained this petition when he has provided insufficient detail concerning the alleged

filing of this petition by his former spouse. We note that he had ample opportunity to do

so. Contrary to Arrobo’s assertion, see Petitioner’s Brief, at 13, under the circumstances

presented here, where removal proceedings were not initiated until July, 2001, it is his

burden, and not the government’s, to provide documentary evidence to establish

compliance with the requirements of INA § 245(i). See Luevano v. Holder, 660 F.3d

1207, 1214 (10th Cir. 2011) (alien has burden to establish his adjustment eligibility).

Moreover, the government plainly opposed both his motion to reopen and his motion for

reconsideration.

       Accordingly, as the Board concluded, Arrobo did not supply persuasive evidence

that he is the beneficiary of a family-based petition that was filed before the sunset of

INA § 245(i). Insofar as there were no material errors in the Board’s original decision

dismissing Arrobo’s appeal from the IJ’s denial of his motion to reopen, 8 C.F.R. §

1003.2(b)(1); 8 U.S.C. § 1229a(c)(6)(C), its decision with respect to Arrobo’s motion for

reconsideration was not arbitrary, irrational, or contrary to law.

       Last, pursuant to a regulation which went into effect on January 20, 2009 and thus

before Arrobo filed his motion to reopen, his grant of voluntary departure automatically

terminated when he filed the motion. 8 C.F.R. § 1240.26(e)(1) (“The filing of a motion

to reopen or reconsider prior to the expiration of the period allowed for voluntary

                                              6
departure has the effect of automatically terminating the grant of voluntary departure, and

accordingly does not toll, stay, or extend the period allowed for voluntary departure.”)

We note that Arrobo has not challenged the validity of this regulation. Moreover, as

Arrobo himself notes, see Petitioner’s Brief, at 14, Dada, 554 U.S. 1, holds only that an

alien may withdraw a voluntary departure request as long as the request is made within

the voluntary departure period.

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




                                             7
