                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-20-2008

Tsionaras v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2412




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                                                               NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                      No. 07-2412


                               CHRISTOS TSIONARAS,
                                             Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES


                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                               (Agency No. A44-164-880)
                      Immigration Judge: Honorable Henry S. Dogin


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    MAY 7, 2008

            Before:     BARRY, SMITH AND HARDIMAN, Circuit Judges

                                 (filed: May 20, 2008 )
                                      ___________

                                      OPINION
                                     ___________

PER CURIAM

      Christos Tsionaras petitions for review of an order by the Board of Immigration

Appeals (“BIA”). For the following reasons, we will deny the petition.

      Tsionaras, a native and citizen of Greece, entered the United States in March 1988
without inspection. In February 1993, Tsionaras married a U.S. citizen, Kimberly Kirby,

and as a result became a conditional lawful permanent resident. After they separated,

Tsionaras filed a Petition to Remove Conditions on Residence, I-751, and sought a waiver

of the joint filing requirement under INA § 216 based on the pending divorce. The

couple’s divorce became final in 1997, and in August 1998, the United States Citizenship

and Immigration Services (“USCIS”) denied Tsionaras’ petition and waiver because

Tsionaras had not proved that the marriage was bona fide since there was no

documentation of any combined financial assets or liabilities.

       Tsionaras was placed into removal proceedings and charged with removability

because his conditional permanent resident status had been terminated. Tsionaras again

sought to have the joint filing requirement waived. A hearing was convened before an

Immigration Judge (“IJ”) in April 1999. After Tsionaras testified about his marriage to

Kirby at the hearing, he then withdrew his petition for a waiver and instead sought, and

was granted, voluntary departure. Shortly before that hearing, Tsionaras had married

another U.S. citizen, Theresa Miller, and he decided to file a motion to reopen

proceedings and a motion to stay removal based upon the second marriage. The IJ

ultimately granted the motion to reopen to allow Tsionaras to seek adjustment of status.

The second marriage to Miller ended in February 2001 and USCIS determined that his I-

130 petition had automatically been revoked upon divorce. It denied his adjustment of

status petition.



                                             2
       In 2005, USCIS moved to reopen removal proceedings against Tsionaras.

Tsionaras once again petitioned to remove his conditional residence status. After another

hearing on February 10, 2006, regarding Tsionaras’ first marriage, the IJ denied the

request under I-751 and further concluded that the marriage was fraudulent, entered

“solely to obtain a green card.” A single member of the BIA dismissed the appeal and

denied Tsionaras’ motion to remand his case so he could apply for an adjustment of status

based on a third marriage to a U.S. citizen and for cancellation of removal.

       In his brief in support of his petition for review, Tsionaras maintains that he is not

seeking review of the denial of his I-751. Rather, he claims that he only wants the denial

of his motion to remand reviewed because the BIA found that he entered a marriage for

the purpose of evading immigration laws, in violation of INA § 204(c). That section

provides:

       Notwithstanding the provisions of subsection (b) of this section no petition
       shall be approved if (1) the alien has previously been accorded, or has
       sought to be accorded, an immediate relative or preference status as the
       spouse of a citizen of the United States or the spouse of an alien lawfully
       admitted for permanent residence, by reason of a marriage determined by
       the Attorney General to have been entered into for the purpose of evading
       the immigration laws, or (2) the Attorney General has determined that the
       alien has attempted or conspired to enter into a marriage for the purpose of
       evading the immigration laws.

8 U.S.C. § 1154. Tsionaras argues that the BIA should have made more explicit findings

that his actions had purposefully “evad[ed] the immigration laws,” and that in any event

the statutory bar does not apply to him.



                                              3
       At the outset, the government argues that we lack jurisdiction to review the denial

of Tsionaras’ motion to remand because he is essentially seeking review of the Attorney

General’s discretionary decision to deny his application for a waiver under INA §

216(c)(4) [8 U.S.C. § 1186a(c)(4)] . To the extent that Tsionaras seeks to go behind the

denial of the waiver and examine the evidence presented to the IJ on the denial of the

waiver, we cannot do so. We have previously stated that we lack jurisdiction to review

such discretionary decisions under INA § 216(c)(4) involving what evidence is credible

and the weight to be given that evidence. See Urena-Tavarez v. Ashcroft, 367 F.3d 154,

160 (3d Cir. 2004). Where we lack jurisdiction over the BIA’s denial of the waiver, we

would also lack jurisdiction to review the BIA’s denial of his motion to remand to the IJ.

See Martinez-Maldonado v. Gonzales, 437 F.3d 679, 683 (7th Cir. 2006) (“[W]e lack

jurisdiction over motions to reopen and reconsider in cases where we lack jurisdiction to

review the underlying order”); Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004) (if

court lacks authority to review direct petition, court lacks jurisdiction to review BIA’s

denial of motion to reopen).

       However, it also appears that Tsionaras seeks our review of the BIA’s denial of his

motion to remand on the ground that the BIA should not have applied the statutory bar

under INA § 204(c) to him. In other words, he has raised a question of law whether the

BIA applied the correct legal standard in adjudicating his claim. See Ng v. Attorney

General of the United States, 436 F.3d 392, 394-95 (3d Cir. 2006) (under the REAL ID



                                              4
Act, courts retain jurisdiction to review “constitutional claims or questions of law” under

8 U.S.C. § 1252(a)(2)(D)). To the extent that Tsionaras raises this narrow and discrete

claim, we will review it but hold that the BIA correctly applied the statutory bar under

INA § 204(c).

       For standard of review purposes, a motion to remand is treated as a motion to

reopen where the motion has been filed while the appeal is pending. See Korytnyuk v.

Ashcroft, 396 F.3d 272, 281 (3d Cir. 2005). The BIA may deny a motion to reopen where

the petitioner has failed to establish a prima facie case for the relief sought. Id. at 282-83

(citing Sevoian v. Ashcroft, 290 F.3d 166, 169-70 (3d Cir. 2002)). Here, although it

never explicitly said so, the BIA appears to have denied the motion on this ground. We

consider whether the findings of fact are supported by substantial evidence and review the

ultimate denial of the motion for an abuse of discretion. See Sevoian, 290 F.3d at 174.

Under the substantial evidence standard, we uphold factual findings if they are “supported

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

Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003). We will uphold the denial of

the motion unless it is arbitrary, irrational, or contrary to law. See Guo v. Ashcroft, 386

F.3d 556, 562 (3d Cir. 2004).

       The BIA reviewed the record and concluded that Tsionaras had not established the

bona fides of his first marriage. In particular, it found the record did not show an intent to

establish a life together, including joint property leases, income tax forms, bank accounts,



                                              5
a period of courtship, testimony of mutual experiences, and a shared life. Indeed, the IJ

had found the lack of documentation of shared experiences very significant as reflecting

the intent of the parties who had entered into the marriage. Tsionaras argues that this lack

of documentation is not sufficient to support a finding of fraud. But that is not all that the

IJ considered in making that finding; the IJ also considered Tsionaras’ credibility

problems. Tsionaras’ testimony concerning where he lived at certain times contradicted

his answers in a previously filed green card application; he provided inconsistent dates to

the immigration authorities on exactly when his marriage problems began; he admitted

that he did not know his wife had a second job; and he was unfamiliar with how his

wife’s son was cared for when she worked all night. The finding that Tsionaras had

entered the marriage to obtain a green card is supported by reasonable, substantial and

probative evidence. See Tarrawally, 338 F.3d at 184. No reasonable fact finder would be

compelled to disturb the finding that the marriage was not entered into in good faith.

See INA § 242(b)(4)(B) [8 U.S.C. § 1252(b)(4)(B)].

       Accordingly, Tsionaras’ I-130 petition was not prima facie approvable because

INA § 204(c) prohibits approvals of petitions by foreign nationals who have been

determined by the Attorney General to have entered into a marriage for the purpose of

evading the immigration laws. Considering the above lack of documentation and

Tsionaras’ own testimony, Tsionaras was not eligible as a beneficiary of his third wife’s

I-130 because he entered into his first marriage to evade immigration laws. See also 8



                                              6
C.F.R. § 204.2(a)(1)(ii) (Director will deny a petition filed on behalf of any alien for

whom there is substantial and probative evidence of an attempt or conspiracy to enter into

a marriage to evade immigration laws). The BIA did not abuse its discretion in denying

the motion to remand since Tsionaras’ I-130 was not approvable.

       We will deny the petition for review.
