                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                                NOV 30, 2007
                             No. 07-11099                     THOMAS K. KAHN
                       ________________________                   CLERK


                         Agency No. A79-512-419

CAROLINA ATUESTA,


                                                                     Petitioner,

                                   versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.


                       ________________________

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

                           (November 30, 2007)

Before BLACK, HULL and FAY, Circuit Judges.

PER CURIAM:
        Carolina Atuesta petitions for review of the Board of Immigration Appeals’

(“BIA”) order denying her motion to reopen removal proceedings. After review

and oral argument, we conclude that the BIA did not abuse its discretion in

denying Atuesta’s motion to reopen.

I.      Background

        Atuesta, a citizen of Colombia, arrived in the United States as a

nonimmigrant visitor for pleasure in August 2001. In October 2001, Atuesta filed

an application for asylum and withholding of removal, claiming persecution based

on her political opinion and membership in a social group. Atuesta’s asylum

application indicated that she was unmarried.

        On June 24, 2002, Alejandro Betancur, also a citizen of Colombia, filed his

own application for asylum and withholding of removal, claiming persecution

based on his political opinion and membership in a social group. Betancur’s

application indicated that he was married to petitioner Atuesta and that he wished

to include her in his application. Attached to Betancur’s application was a

marriage certificate stating that Betancur and Atuesta were married on June 17,

2002.

        The Immigration Judge (“IJ”) consolidated petitioner Atuesta’s case with

Betancur’s case, and after a hearing, the IJ found that Atuesta and Betancur were

not credible. The IJ denied their applications and ordered them removed from the
                                            2
United States. On September 1, 2006, the BIA affirmed the IJ’s decision without

opinion.

       On November 24, 2006, Atuesta filed the instant motion to reopen with the

BIA. Atuesta’s motion asked that her removal order be reopened so that she could

then have the opportunity to file an application for adjustment of status based on

her November 15, 2006 new marriage to Ricardo Masis, a United States citizen.

Atuesta’s motion asserted that: (1) she and Betancur divorced in February 2006;

(2) she met Masis in March 2006; (3) after dating for approximately one month,

she and Masis became engaged in May 2006;1 (4) she and Masis married on

November 14, 2006; and (5) the next day, on November 15, 2006, Masis filed a I-

130 petition for an alien relative visa on Atuesta’s behalf.

       The BIA denied Atuesta’s motion to reopen. Citing a five-factor test

established in Matter of Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002), the

BIA determined that Atuesta did not establish two of the five Velarde factors.

       In Velarde, the BIA determined that a properly filed motion to reopen may

be granted, in the exercise of discretion, to provide an alien an opportunity to

pursue an application for adjustment where the following five factors are present:


       1
         Although Atuesta’s motion asserts that she and Masis became engaged in May 2005, the
affidavits of Masis and Atuesta (attached to Atuesta’s motion) state that she and Masis met in
March 2006 and became engaged in May 2006. Because resolution of the issue does not impact
our disposition of this case, we accept the version of the facts more favorable to Atuesta: that she
did not become engaged to Masis until after her divorce from Betancur.
                                                  3
      (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, 21
      I. & N. Dec. 541 (BIA 1996), 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) the
      [Department of Homeland Security] either does not oppose the motion
      or bases its opposition solely on Matter of Arthur, [20 I. & N. Dec.
      475 (BIA 1992)].

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

      The BIA denied Atuesta’s motion to reopen based on the fourth and fifth

Velarde factors. As to the fourth factor, the BIA concluded that Atuesta failed to

present clear and convincing evidence indicating a strong likelihood that her

marriage to Masis was bona fide. As to the fifth factor, the BIA concluded that

Atuesta failed to show that the Department of Homeland Security (“DHS”) did not

oppose her motion, or opposed her motion solely on the basis of Matter of Arthur.

Atuesta timely filed a petition for review of the BIA’s denial of her motion to

reopen.

II.   Standard of Review

      This Court employs “a very deferential abuse of discretion standard in

reviewing the BIA’s decision on a motion to reopen ‘regardless of the underlying

basis of the alien’s request’ for relief.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1302

(11th Cir. 2001) (quoting INS v. Doherty, 502 U.S. 314, 323, 112 S. Ct. 719, 725

(1992)). “‘Our review is limited to determining whether there has been an exercise

                                          4
of administrative discretion and whether the matter of exercise has been arbitrary

or capricious.’” Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006)

(quoting Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005)). As a

general matter, motions to reopen are disfavored, particularly in removal

proceedings. Id.

III.   Discussion

       On appeal, Atuesta challenges the validity of the BIA’s Velarde requirement

that a motion to reopen in order to file an adjustment-of-status application based on

a marriage entered into after the commencement of removal proceedings must not

be opposed by the government, or only opposed by the government on the basis of

Matter of Arthur. See Velarde, 23 I. & N. Dec. at 256. We need not, and do not,

address Atuesta’s argument as to the fifth Velarde factor because the fourth factor

is alone sufficient. As to the fourth factor, we conclude that Atuesta has not shown

that the BIA abused its discretion in determining that she failed to present clear and

convincing evidence indicating a strong likelihood that her marriage to Masis is

bona fide.

       There is a presumption that marriages entered into after the commencement

of removal proceedings are not bona fide, which is why an alien moving to reopen

based on such a marriage must adduce evidence that the marriage is bona fide. See

8 U.S.C. §§ 1154(g), 1255(e); Velarde, 23 I. & N. Dec. at 256. Indeed, where an
                                          5
alien moves to reopen for the purpose of then filing an adjustment-of-status

application based on a marriage entered into after the commencement of removal

proceedings, there must be clear and convincing evidence indicating a strong

likelihood that the marriage is bona fide. Velarde, 23 I. & N. Dec. at 256.

       Atuesta was ordered removed but sought asylum with her first husband.

After the IJ denied their asylum claims, they divorced in February 2006. Atuesta

met Masis in March 2006, the month after her divorce, and was engaged to Masis

by May 2006, just three months after her divorce. Atuesta was married to Masis

for all of ten days when she filed her motion to reopen, and Masis filed an I-130

petition on Atuesta’s behalf just one day after they were married. Given the entire

record, including the timing of Atuesta’s divorce, engagement, second marriage,

and immigration filings, we cannot say that the BIA abused its discretion here.

This is particularly so in light of the “very deferential” abuse of discretion review

of the BIA’s denial of a motion to reopen. See Al Najjar, 257 F.3d at 1302.2

           Thus, we deny Atuesta’s petition.

       PETITION DENIED.




       2
         We reject Atuesta’s argument that the BIA applied the incorrect legal standard in its
bona fide marriage analysis. We examine the BIA’s order as a whole, and the BIA expressly
listed the five Velarde factors, including whether “clear and convincing evidence” was presented
“indicating a strong likelihood that the . . . marriage [was] bona fide.”
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