                                                      [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                               OCT 24, 2006
                            No. 05-12570                     THOMAS K. KAHN
                        Non-Argument Calendar                    CLERK
                      ________________________

                        Agency No. A96-021-763

SUBHAS PERSAUD,


                                                                    Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                  Respondent.


                      ________________________

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

                            (October 24, 2006)

Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.

PER CURIAM:
       Petitioner is a native and citizen of Guyana. On January 30, 2003, he

attempted to enter the United States by misrepresenting that he was a returning

lawful resident using the Guyanan passport of the national he was impersonating.

Seven days later, on February 6, 2003, removal proceedings were initiated. He

appeared before an Immigration Judge (“IJ”) on June 13, 2003 and was found

removable as charged (for entering the United States by fraud). He requested

relief in the form of asylum and withholding of removal and protection under the

U.N. Convention against Torture.

       The IJ held a hearing on Petitioner’s request for relief on September 29,

2003. After hearing from Petitioner,1 the IJ denied all relief and ordered him

removed to Guyana. Petitioner appealed the IJ’s decision to the Board of

Immigration Appeals (“BIA”). On November 19, 2004, the BIA affirmed without

opinion. Petitioner chose not to petition this court for review of the BIA’s

decision. Instead, on February 17, 2005, he moved the BIA to reopen, seeking

adjustment of status based on his December 9, 2004 marriage to a United States

citizen. The Government opposed the motion, and Petitioner filed a response. The

BIA denied his motion on April 7, 2005. The BIA held that Petitioner was

ineligible to apply for adjustment of status pursuant to 8 C.F.R. § 245.1(c)(8). The


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         Petitioner presented no documentary evidence. He based his case on his own
testimony.

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BIA denied Petitioner’s motion on an alternative ground as well. It assumed that

he was eligible to apply for adjustment of status, but held that he was not prima

facie eligible for the adjustment. The BIA reasoned that (1) Petitioner did not

submit a detailed affidavit demonstrating that he was prima facie eligible for

adjustment of status, and (2) the documents that he submitted did not amount to

clear and convincing evidence indicating a strong likelihood that the marriage was

bona fide. On May 6, 2005, Petitioner moved the BIA to reconsider its denial of

his motion to reopen, and attached additional documentation to establish that his

marriage was bona fide. The BIA denied his motion on June 6, 2005, finding that

(1) he failed to establish that it had erred in rendering its decision on his motion to

reopen, and (2) it could not consider the additional evidence since its review of a

motion to reconsider is confined to the record as it existed prior to the motion.

Petitioner did petition this court to review the BIA’s June 6 ruling. Instead, he

petitions us to review the BIA’s April 7 denial of his motion to reopen his removal

proceeding.

      In his brief, Petitioner argues that, in denying his motion to reopen his

removal proceedings, the BIA erred by finding that (1) § 245.1(c)(8) was not in

violation of 8 U.S.C. § 1255(a), the adjustment of status statute, and (2) he was not

prima facie eligible for adjustment of status because he did not provide a detailed



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affidavit. With respect to his first argument, he requests that we adopt the First

Circuit’s holding in Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005), which struck

down § 245.1(c)(8) as being in violation of § 1255(a) in circumstances similar to

his. With respect to his second argument, he contends that the BIA acted in an

arbitrary and capricious manner by requiring that he submit a detailed affidavit,

when the regulations provide that a motion to reopen can be supported by either

affidavits or other evidentiary material. He contends that he complied with the

regulations by attaching to his motion “other evidentiary material,” such as the

immigration forms and documents comprising his adjustment of status package.

Additionally, he says that, because he had married just a few months before the

motion was submitted, he did not have enough time to accumulate other evidence

to establish that the marriage was bona fide.

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

Mejia-Rodriguez v. Reno, 178 F.3d 1139, 1145 (11th Cir. 1999). The discretion

afforded the BIA under 8 C.F.R. § 1003.2(a) with respect to granting and denying

motions to reopen is expansive. See Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.

1999) (providing that the regulation gives the BIA discretion to reopen proceedings

“as it sees fit”). Specifically, the provision provides that “[t]he Board has

discretion to deny a motion to reopen even if the party moving has made out a



                                           4
prima facie case for relief.” 8 C.F.R. § 1003.2(a). Judicial review is limited to

determining “whether there has been an exercise of administrative discretion and

whether the matter of exercise has been arbitrary or capricious.” Garcia-Mir v.

Smith, 766 F.2d 1478, 1490 (11th Cir. 1985) (quotation omitted).

      A motion to reoopen must be supported by “affidavits or other evidentiary

material.” 8 C.F.R. § 1003.2(c). The BIA may grant a motion to reopen for

adjustment of status based on a marriage entered after the commencement of

removal proceedings if clear and convincing evidence is presented showing a

strong likelihood that the marriage is bona fide. See 8 C.F.R. § 245.1(c)(8)(iii)(F).

A petitioner may meet his burden by showing evidence of joint ownership of

property, joint tenancy of a common residence, the commingling of financial

resources, birth certificates of children born by the couple, or affidavits of third

parties having personal knowledge that the marriage is bona fide. 8 C.F.R.

§§ 204.2(a)(1)(iii)(B)(1)-(5), 245.1(c)(8)(v)(A)-(F).

      As an initial matter, the BIA erred by denying Petitioner’s motion on the

ground that arriving aliens in removal proceedings are ineligible to apply for

adjustment of status under § 245.1(c)(8). Following the BIA’s denial of the

motion to reopen, we issued a decision contradicting the BIA’s decision. See

Scheerer v. U.S. Atty. Gen, 445 F.3d 1311, 1322 (11th Cir. 2006) (holding invalid



                                            5
8 C.F.R. § 1245.1(c)(8), which was identical to 8 C.F.R. § 245.1(c)(8)). Further,

§ 245.1(c)(8), has since been removed from the Code of Federal Regulations. See

Eligibility of Arriving Aliens in Removal Proceedings to Apply for Adjustment of

Status and Jurisdiction to Adjudicate Applications for Adjustment of Status, 71

Fed.Reg. 27585 (May 12, 2006). However, because the evidence that Petitioner

submitted with his motion did not establish a likelihood that his marriage was bona

fide, the BIA did not abuse its discretion by also denying his motion on the

alternative ground that he failed to establish that he was prima facie eligible for

adjustment of status.

      Next, Petitioner argues that the BIA abused its discretion in denying his

motion to reconsider by not taking administrative notice of the additional evidence

he submitted with his motion, demonstrating that his marriage was bona fide.

      For us to have jurisdiction to review final orders of removal, the petition for

review must be filed within 30 days of the date of the final order of removal. See 8

U.S.C. § 1252(a)(1), (b)(1). The statutory limit for filing a petition for review in

an immigration proceeding is ‘mandatory and jurisdictional,’ and not subject to

equitable tolling. Dakane v. U.S. Attorney Gen., 399 F.3d 1269, 1272 n. 3 (11th

Cir.2005) (citing Stone v. INS, 514 U.S. 386, 405-06, 115 S.Ct. 1537, 1549, 131

L.Ed.2d 465 (1995)).



                                           6
      Upon review of the record and consideration of the parties’ briefs, we

discern no reversible error. We do not have jurisdiction to review the BIA’s

decision denying Petitioner’s motion for reconsideration because the petition for

review only references the BIA’s denial of Petitioner’s motion to reopen, and, as

noted above, he did not file a separate petition for review of the denial of the

motion to reconsider. Accordingly, we deny the petition.

      PETITION DISMISSED IN PART AND DENIED IN PART.




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