United States Court of Appeals,

Fifth Circuit.

No. 92-5043

Summary Calendar.

Lang Fong PRITCHETT, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

June 14, 1993.

Petition for Review of an Order of the Immigration & Naturalization Service.

Before KING, DAVIS and WIENER, Circuit Judges.

PER CURIAM:

Lang Fong Prit chet t has brought this petition for review to challenge the Board of

Immigration Appeals' denial of her mo t io n t o reopen her administrative proceedings and stay her

deportati on. Pritchett based this motion on her husband's pending petition for an immediate relative

visa and her concurrent application for an adjustment of status. Finding that the BIA did not abuse

its discretion in denying Pritchett's motion to reopen, we affirm.

I. BACKGROUND

Lang Fong Pritchett, a native and citizen of Malaysia, was admitted to enter the United States

in 1980 on a non-immigrant visa. Pritchett was given this visa so that she could attend the University

of Southwestern Louisiana, where she pursued undergraduate and graduate degrees in computer

science.

On October 13, 1983, Pritchett married Aremnie Royer, a United States citizen, in Lafayette,

Louisian a. Ro yer t hen filed an immediate relative visa petition on Pritchett's behalf, and Pritchett

submitted an application for adjustment of status in which she alleged that she and Royer were living

as husband and wife. The Immigration and Naturalization Service (INS) approved Royer's visa

petition and, in January 1984, adjusted Pritchett's status to lawful permanent resident alien.

Pritchett filed for divorce from Royer in June 1985, and she completed her masters degree1 For deportation proceedings commenced on or after March 1, 1991, the Immigration Act of

1990, Pub.L. No. 101-649, 104 Stat. 4978, revised and renumbered the deportation and

admissibility provisions. The anti-fraud provisions under which Pritchett was charged now appear

as INA section 241(a)(3)(B). See 8 U.S.C. § 1251(a)(3)(B); compare 8 U.S.C. § 1251(a)(5)

(1988) (pre-amendment version). Because proceedings against Pritchett commenced in

September 1986, the deportation aspect of her case remains governed by the earlier provisions.

See Pub.L. No. 101-649.

2 This section, codified at 8 U.S.C. § 1253(a), provides in pertinent part that:

The deportation of an alien in the United States provided for in this chapter, or any in computer science in May 1986. In June 1986, Pritchett was charged in a three-count indictment

with violating 18 U.S.C. §§ 371 ("Conspiracy to commit offense or to defraud United States"), 1546

("Fraud and misuse of visas, permits, and other entry documents"). Specifically, the indictment

alleged that, in applying for immigration benefits as husband and wife, Pritchett and Royer conspired

to defraud the United States and to conceal and make a false statement with respect to material facts

within the jurisdiction of the INS. This indict ment resulted from an investigation into a marriage

f raud co nspiracy, which revealed that Pritchett's marriage to Royer was fraudulent and had been

arranged by two other conspirators. Upon being questioned, Royer made a sworn statement that he

had been paid $1,100 to marry Pritchett and that he had never resided with or had sexual relations

with her.

Pritchett was granted a divorce from Royer in September 1986. The following week, she pled

guilty to violating 18 U.S.C. § 1546 and was sentenced to a three-year period of probation. On that

same day, the INS issued an order to show cause charging Pritchett with deportability pursuant to

INA section 241(a)(5) 1 for having violated section 1546. In December 1986, Pritchett met Roland

Pritchett, w ho m she married in May 1987. In July 1987, Roland filed a petition to obtain an

immediate relative visa for Pritchett.

In September 1987, the court denied Pritchett's motion for a continuance of her immigration

proceedi ngs t o await t he adjudication of her husband's visa petition. A hearing on the merits of

Pritchett's case was held in February 1988, during which Pritchett admitted her alienage and

Malaysian citizenship but contested her deportability for violating 18 U.S.C. § 1546. Pritchett was

found deportable, and she t hen exercised her statutory right under INA § 243(a) 2 to directother Act or treaty, shall be directed by the Attorney General to a country

promptly designated by the alien if that country is willing to accept him into its

territory, unless the Attorney General, in his discretion, concludes that deportation

to such country would be prejudicial to the interests of the United States.

3 Roland did not seek judicial review of the BIA's denial of his original visa petition, and his

second visa petition has also been denied. Nevertheless, Roland has appealed from the denial of

his second visa petition, and the matter is now pending before the BIA. deportati on to the country of her choice, designating Honduras. The immigration judge, refusing to

honor Pritchett's designation, ordered her deported to Malaysia.

Pritchett appealed her deportati on order to the BIA. The INS opposed Pri tchett's appeal

,

no t ing t hat on May 29, 1989, the BIA had sustained the collateral denial of her husband's visa

petition; Roland subsequently filed another petition to obtain an immediate relative visa for Pritchett. 3

Although the BIA fou nd Pritchett deportable and dismissed her appeal, the BIA agreed that the

immigration judge erred in refusing to honor Pritchett's country designation. Accordingly, the BIA

ordere d Prit chet t deported to Honduras. Rather than appealing the BIA's decision regarding her

deportability to this court, Pritchett filed a motion wi t h the BIA to reopen her deportati on

proceedings, urging that her case be reopened so that she might apply for lawful permanent resident

status on the basis of her marriage to Roland. The BIA denied Pritchett's motion, and she appeals.

II. STANDARD OF REVIEW

As recently stated by the Supreme Court, "[t]here is no statutory provision for reopening of

a deportati on proceeding, and the authority for such mot io ns derive[s] solely from regulations

promulgated by the Attorney General." I NS v. Doherty,

--- U.S.

----, ---- - ----, 112 S.Ct. 719, 724-

25, 116 L.Ed.2d 823 (1992). Although 8 C.F.R. §§ 3.2, 3.8(a) (1993) authorizes the BIA to reopen

deportati on proceedings under certain circumstances, these regulations do not affirmat ively require

the BIA to reopen the proceedings. "The granting of a motion to reopen is thus discretionary, and

the Attorney General has "broad discretion' to grant or deny such motions." I d. at ----, 112 S.Ct. at

724 (citations o mitted). Accordingly, we generally review the BIA's denial of a motion to reopen

only for abuse of discretion. Doherty, --- U.S. at ---- - ----, 112 S.Ct. at 724-25 (stating that when

the BIA denies a motion to reopen based upon a failure to establish a prima facie case for the relief4 See also INS v. Abudu, 485 U.S. 94, 110-12, 108 S.Ct. 904, 914-15, 99 L.Ed.2d 90 (1988)

("INS officials must exercise especially sensitive political functions ... and therefore the reasons

for giving deference to agency decisions on petitions for reopening ... apply with even greater

force in the INS context.") (footnote omitted); INS v. Rios-Pineda, 471 U.S. 444, 446, 105 S.Ct.

2098, 2100, 85 L.Ed.2d 452 (1985) ("In this government of separation of powers, it is not for the

judiciary to usury Congress' grant of authority to the Attorney General by applying what

approximates de novo appellate review.") (citations omitted). sought or a failure to introduce previously unavailable, material evidence, abuse of discretion is the

proper standard of review). 4 As for actually applying the abuse of discretion standard to a BIA's

denial of a motion to reopen, this court has explained that

[t]he standard is whether the Board has acted wit hin the bounds of an abundant discretion

granted it by Congress. It is our duty to allow [the] decision to be made by the Attorney

Gen eral's delegate, even a decision that we deem in error, so long as it is not capricious,

racially invidious, utterly without foundation in the evidence, or otherwise so aberrational that

it is arbitrary rather than the result of any perceptible rational approach.

Osuchukw u v. INS, 744 F.2d 1136, 1141-42 (5th Cir.1984).

III. DISCUSSION

A motion to reopen deportat io n proceedings to consider a newly-acquired claim of relief

from deportati on will generally be denied where the moving party fails to make a prima facie showing

of eligibilit

y for the relief sought. S ee Doherty,

--- U.S. at

---- - ----, 112 S.Ct. at 724-25. However,

in In re Garcia, 16 Interim Dec. 653 (BIA 1978), the BIA recognized an exception to this general

rule for cases such as the one before us—a case in which a party has moved to reopen her deportati on

proceedings in order to consider an application for adjustment of status based upon an unadjudicated

visa petition which was filed simultaneously. Specifically, in Garcia, the BIA determined that, for

the purposes of ruling on a motion to reopen, a pending visa petition which is prima facie approvable

should be treated as if it were already approved. S ee id. at 654; see also In re Guiragossian, 17

Interim Dec. 161, 164 n. 5 (BIA 1979).

The BIA issued Garcia in 197 8, and Co ngress has subsequently enacted legislation which

bears on the exception recognized in that case. Specifically, Congress enacted the Immigration

Marriage Fraud Amendments of 1986, Pub.L. No. 99-639, 100 Stat. 3537 (the 1986 Amendments),

and later t he Immigration Act of 1990, Pub.L. No. 101-649, 104 Stat. 4978 (the 1990 Act). The

1 986 Amendments were enacted to deter fraud by aliens seeking to acquire lawf ul permanentresidence in the United States through marriage to a United States citiz en o r lawful permanent

resident alien. For example, pursuant to the 1986 Amendments, an alien may not adjust his or her

status based upon a marriage entered into during deportati on proceedings unl ess he or she first

resides abroad for two full years following that marriage. 100 Stat. at 3543, c odified at 8 U.S.C. §§

1154(h), 1255(e). A limited exception to this two-year foreign-residency requirement was enacted

through the passage of the 1990 Act, which provides that the requirement may be waived

if the alien establishes by

clear and convincing evidence to the satisfaction of the Attorney

General that the marriage was entered into in good faith and in accordance with the laws of

the place where the marriage took place a nd t he marriage was not entered into for the

purpose of procuring the alien's entry as an immigrant and no fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparation of

a lawful petition) for the filing of a petition under section 1154(a) of this title....

8 U.S.C. §§ 1154(g), 1255(e)(3).

In light of the 1986 Amendments and 1990 Act, the BIA recently revisited Garcia in In re

Arthur, Interim Dec. 3173, 1992 WL 195807 (BIA). In Arthur, the BIA determined that, through

its enactment of the 1986 Amendments and 1990 Act,

Congress rather clearly created a presumption that marriages contracted after the institution

of exclusion or deportati on proceedings are fraudulent.... M atter of Garcia, supra, on the

other hand, established a contrary presumption: that is, for the purposes of reopening, the

relationship claimed on the visa petition supporting the application for adjustment of status

is presumed to be bona fide unless clear ineligibilit y is apparent in the record.... We find that

the rule of Garcia is inconsistent and incompatible with Congress' intent as expressed in the

1986 Amendments and the 1990 Act.

1992 WL at *4. The BIA then went on to conclude that it would make little sense to grant reopening

under Garcia 's relaxed "clearly ineligible" test when the alien would then have to overcome the "clear

and convincing evidence" test prescribed under section 1255(e)(3). I d. Accordingly, the BIA stated

in Arthur that it will no longer grant moti ons to reopen deportati on proceedi ngs to consi

der an

adjustment application based upon an unadjudicated visa petition resulting from a marriage entered

into during the course of deportation proceedings. Id.

Pritchett asserts that the district court abused its discretion in denying her motion to reopen

her deportati on proceedings to consider her application for an adjustment of status—an application

based upon her husband's unadjudicated petition for an immediate relative visa. Pritchett does not

dispute the fact that t he case before us fits squarely within all fours of A rthur. Rather, she boldly5 We note, however, that the general policy under section 245.2(a)(2)(i) is to retain an

application for adjustment of status for processing where it is filed simultaneously with an

immediate relative visa petition. asserts that this court should overturn Arthur.

Although Pritchett has presented us with some substantive policy concerns arising from the

rule established in Arthur, she has presented these concerns to the wrong forum. A rthur is the BIA's

int erpretation of a legislative scheme in an area where the BIA carries expertise and has been

bestowed with broad discretion. S ee Yahkpua v. INS, 770 F.2d 1317, 1321 (5th Cir.1985) ("We lack

the power, even if we thought it kindly, to substitute our vi ews for those of the Board.").

Accordingly, we approach the BIA 's det ermination with deference and review it only for

reasonableness. R ivera v. INS, 81 0 F.2d 540, 540 (5th Cir.1987) (applying the reasonableness

standard to the BIA's interpretation of the Immigration and Naturalization Act), citing Udal l v.

Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965) ("When faced with a problem

of statutory construction, this Court shows great deference to the interpretation given the statute by

the officers or agency charged with its administration.").

Congress enacted the 1986 Amendments and the 1990 Act to deter fraud by aliens seeking

t o acquire lawful permanent residence in the United States by marrying a United States citizen o r

lawful permanent resident alien. S ee generally 8 U.S.C. §§ 1154(h), 1255(e). Pritchett pled guilty

to committing such fraud. Although Pritchett has subsequently married another United States citizen

and Congress has carved an exception into its two-year foreign residency requirement for marriages

entered int o during the course of deportation proceedings, this exception is a narrow one. S ee 8

U.S.C. § 1255(e). Not only must an alien attempting to squeeze into the exception establish by "clear

and convincing evidence" that his or her marriage was entered into in good faith, he or she must make

such a showing "to the satisfaction of the Attorney General...." Id. Moreover, the rule established

in Arthur is limit

ed to instances where aliens have not yet obtained immigrant visas, and, without such

visas, aliens are ineligible for an adjustment of status. S ee 8 C.F.R. §§ 245.1(a), 245.2(a)(2)(i)

(1992). 5 Accordingly, we find that the BIA's interpretation of the 1986 Amendments and 1990 Act,

as it is articulated in Arthur, is not unreasonable. Specifically, we find that it was not unreasonablefor the BIA to determine that motions to reopen should not be granted where they are based wholly

upon an unadjudicated visa petition resulting from a marriage entered i nto duri ng the course of

deportati on proceedings. As recognized in A rthur, e ven if such a petition were granted, the alien

benefiting from such a peti t ion still could not obtain an adjustment of status without sat isfying the

two-year foreign-residency requirement unless he or she were able to meet the exacting "clear and

convincing" standard set forth in section 1255(e), and to meet that standard to the Attorney General's

satisfaction.

Although Pritchett's current husband may still be trying to obtain an immediate relative visa

for her, she is presently without one. Accordingly, she remains ineligible for an adjustment of status.

See 8 C.F.R. §§ 245.1(a), 245.2(a)(2)(i) (1993). Moreover, we have found that the rule established

by the BIA in Arthur

—motions to reopen deportati on proceedings will be d enied where they are

based w ho lly upon unadjudicated visa petitions such as the one in the case before us—is not

unreasonable. We conclude, therefore, that the BIA's decision to deny Pritchett's motion to reopen

on the grounds set forth in Arthur "is not capricious, racially invidious, utterly without foundation in

the evidence, or otherwise so aberrational that it is arbitrary rather than the result of any perceptible

rational approach." Osuchukwu, 744 F.2d at 1141-42.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the BIA's denial of Pritchett's motion to reopen her

deportation proceedings.