F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

M A S I S T A D E V O S Y

A N , P etitioner
,

v

.

E R I C H. H O L D E R , J R ., Attorney General, Respondent

. N o. 07-75087

Ag ency No. A097-103-077

M A S I S T A D E V O S Y

A N , P etitioner
,

v

.

E R I C H. H O L D E R , J R ., Attorney General, Respondent

. N o. 08-71791

Ag ency No. A097-103-077

M A S I S T A D E V O S Y

A N , P etitioner
,

v

.

E R I C H. H O L D E R , J R ., Attorney General, Respondent

. N o. 08-73437

Ag ency No. A097-103-077

OPI NI ONT A D E V O S Y A N V

. H O L D E R 2

O n Petition for Review of an Order of the

B oard of I

mmig ration Appeals

Arg ued and Submitted F ebruary 6, 2014—Pasadena, California

F iled F ebruary

26, 2014

B e fore: Harry

Preg erson, Michael R. Murphy
, * and Marsha S. B erz on, Circuit J udg es.
Opinion by J udg e B e rz on

SUMMARY * *

Im m igration

T h e p a n e l g ranted Masis Tadevosy a n ’ s petition for r eview of the B oard of I mmig ration Appeals’ denial of his motion to reopen h i s r emoval proceeding s after h e married a United States citiz en and applied for a visa and adjustment of status.

The panel held that the B I A abused its discretion, whether because it based denial pur ely o n the Department o f Homeland Security ’s opposition to the motion to reopen or on the merits of DHS’ contention that Tadevosy an f a i l ed to

* T h e Ho n o rab le Mich ael R. Mu rp h y , Sen io r Circu it J u d g e f o r th e U .S. Co u rt o f A p peals f o r th e T en th

Circu it, sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.T A D E V O S Y A N V

. H O L D E R 3

establish that he was n ot a public c harg e. The panel held that
t he B I A improperly a ccorded controlling weig ht to the fa ct that DHS opposed reopening
, without analy z ing whether the basis o f the o pposition was c orrect. The panel also h e ld that the B I A abused its d iscretion because it f ailed to provide any reasoned ex planation for its decision.

COUNSEL

Cheri Attix (arg

ued), L aw Office of Cheri Attix , San Dieg o, California, for Petitioner.

J esse L loy d B usen (a r gued), Trial Attorney
, Tony W est, Assistant Attorney General
, a n d Erica B

. Miles, Senior L itig ation Counsel, United States Dep a r t ment of J ustice, Office of I mmi g r a

t i o n L i t i g a t i o n , C ivil Division, Washing ton, D.C., for Respondent.

OP INION

B ERZ ON, Circuit J udg e :

After Masis Ta d evosy an was ordered removed from the country for an immig ration violation, he married an American citiz en and a p p lied for a visa and adjustment of status. The B oard of I mmig ration Appeals ( B I A) refused to r e open his removal proceeding s. Our question is whethe r i n d oing so, the B I A improperly relied on the fact of th e Department o f Homeland Security ’s (DHS) opposition to his motion, rather than on t h e m e r i t s o f the motion, o r otherwise a bused its discretion in deciding the motio n

. W e g rant the p etition forT A D E V O S Y A N V

. H O L D E R 4

review of the B I A’s decision and remand for f urther proceeding s. 1

I. Background

Tadevosy an, a native of I r an and c itiz en of Armenia,
ent e r ed the United States in May 2002 on a non-immig rant visa perm i t t i n g h im to remain in the country u ntil later that
y e ar

. After he overstay ed the visa’s ex piration d a te, he was placed in removal proceeding s, a nd an immig r ation ju d ge ordered his removal to Armenia.

Tadevosy an appealed the removal order to the B I A

. W h ile his a

ppeal was pending
, Tadevosy an married L y ubov Smoly any uk, a United States citiz en. Smoly any uk f iled an I

130 petition for a visa for Tadevosy a n.

The B I A then affirmed the removal order. Tadevosy an filed a timely motion to r e o pen, a sking the B I A to allow him
to pursue adjustment of status throug h the p ending I -130 petition filed by his wife. Attached to the motion were copies of the I

- 130 petition; a

n I -485 a p p l i cation for adjustment o f status; a nd two I -864 affidavits of s upport, one from Smoly any uk and a second from a joint s p o nsor, N orik

1 T ad ev o s y an in itially also so u g h t rev i ew o f t h e B IA’ s No v em

b er 2 9
, 2 0 0 7 o rd e r a ffirm in g an im m ig ratio n j u d g e’ s d en ial o f h is claim s f or asy lu m , w ith h o ld i n g o f rem o v al, an d relief u n d er th e Co n v en t io n ag ain st T o rtu re, an d of th e B IA ’ s J u l y 8
, 2 0 0 8 d ecisio n d en y i n g h is seco n d m o tio n to reo p en

. He n o lo n g er p u rsu es th o se petitio n s. A cco rd in g ly
, w e dism i ss th o se p etitio n s f

o r rev i ew

.T A D E V O S Y A N V

. H O L D E R 5

Abrahamian. 2 Smoly any uk’s affidavi t represented that she and Tadevosy a

n had no t e a r n e d any income in the p r ior tax y ear; Abrahamian’s attested tha t h i s income in the last tax y ear w as $22,211. Abra h amian attached photocopies of his 2 0 0 6 F ederal a

nd state tax return forms, which showed a n adjusted g ross income of $22,211, and certified under penalty of perjury in the affidavit that the F ederal in c o m e t a x return was a true copy

of the return filed with the I nternal Revenue Service. Abrahamian did n o t include copies of his f ederal W

2 f orms, but d i d s u bmit with his California tax return a “Schedule W

- 2 CG,” which contained the same information as his W

- 2 forms.

DHS opposed Tadevosy an’s motion to reopen. I t a rg u ed that Tadevosy an had not shown that t h e I -130 petition h ad been a pproved and thus that there was a vi s a a vailable for Tadevosy an at this time. D HS further con t e n d e d that T a d e v o s y a

n had not submitted sufficient evidence to establish that he was not a public charg e, b ecause “ t h e joint sponsor has not provided any proof, such as F orms W

- 2s, letters,
pay check stubs, or f

inancial statements, to support the income stated on his 2006 federal income tax return.” ( e r r o r in orig inal). D HS did not address A brahamian’s submission o f the Schedule W -2 CG.

The BI A denied Tadevosy an’s motion to reopen on March 27, 2008, stating
,

2 If th e relat i v e s p o n s o rin g th e v isa ap p l icatio n is u n ab le to m eet th e

m in im u m i n co m e req u irem en t to d em o n strate in co m e su f f icien t to

m ain tain t h e im m ig ran t, t h e im m ig ran t m ay su

bm it an af f id av i t o f su

p p o rt fr o m an o th er in d iv id u al, called a j o in t sp o n so r, w h o is ab le to m eet th at req u irem en t an d w

h o ag rees t o su p p o rt th e im m ig ran t. 8 C .F.R. § § 2 1 3a.2 (c)(2 )(iii)(A )(2 ), (C).T A D E V O S Y A N V

. H O L D E R 6

I n this case, the record reflects that respondent does not have an a

pproved immediate relative visa petition, a

nd the D HS opposes his motion in lig ht of the absence of evidence to establish that he is not inadmissible as a public charg e

. I n this reg ard, as noted by DHS counsel, while the respondent h as provided affida v its o f support [ from] his wife and a join t s p onsor, his wife currently has no income and the joint
sponso r neg lected to submit supporting documentation f

or the r eported income on his income tax r e t u r

n. As such, consistent with Matter of V

e l a r d e , 2 3 I & N Dec. 253 (B I A 20 0 2), the DHS’ opposition is sufficient to require a denial of the respondent’s motion. 3

W h ile the appeals before this Court were pending
, the United States Citiz enship and I mmig ration Service (USCI S) approved th e I

- 130 visa petition Smoly any uk f iled on Tadevosy an’s behalf.

II. Discussion

T he B I A ’s “ d e n ial of a motion to reopen or reconsider” i s r e v iewed “for abuse of discretion.” Salta v. I.N.S.
, 314 F .3d 107 6, 1078 (9th Cir. 2002) (citing Singh v. I.N.S.
,

3 T ad ev o sy an later f

iled a m o tio n to reco n sid er an d a ren ew ed m o tio n to

reo p en

. A m o n g o th er t h in g s , T ad ev o sy an su b m itted th e co u

p le’ s 2 0 0 7 in co m e tax retu rn s, sh o w in g th at th eir ad j u sted g ro s s i n co m e th en w as $ 1 8 ,9 47

. A f

ter t h e g ov ern m en t o p po sed t h e m o tio n s, th e B IA d en ied th em

.

A s n o ted
, s ee su

p ra n .1
, w e a r e d i sm issin g th e p etitio n ch allen g in g th at d en ial, as T ad ev o sy an h as ab an d o n ed

it.T A D E V O S Y A N V

. H O L D E R 7

2 1 3 F .3d 1050, 1052 (9th Cir. 2000)). “The B I A abuses it s discretion when it acts ‘arbitrarily
, irrationally
, o r contrary to the law,’” and “whe n i t f a ils to provide a reasoned

ex p lanation f

o r its actions.” Movsisian v

. Ashcroft
, 395 F .3d 1095, 1098 ( 9th Cir. 2005) (citations omitted). W e hold that whether we read the B I A’s d ecision as based purely on the DHS ’s opposition or as reaching the merits of the public charg e issue, it abused its discretion in deny ing the motion to reopen.

A.

At th e time that the B I A rejected Tadevosy an’s motion, it was addressing motions to reopen to pursue adjustment of
status applications based on an unadjudicated visa pet i t ion filed by a United States citiz e n

or lawful permanent resident
spouse under the standards set forth in M a t t e r of VelardePacheco
, 23 I

. & N. Dec. 253 (B I A 2002) (en banc). Velarde replaced an earlier policy
, established in Matt e r o f Arthur
, 2 0 I

. & N. D ec. 475 (B I A 1 992), uniformly to deny such motions. Velarde , 23 I . & N. Dec. at 255.

I n Velarde
, the B I A held that, even if an I

- 1 3 0 was still pending
,

a properly f

i l e d motion to reopen may be
g ranted, in t h e ex ercise of discretion, to pr ovide an alien an opportunity to pursue an

a p p l i c a t i o n f

o r a d j u s t m e n t w h e r e t h e following factors are present: (1) th e motion is timely filed; ( 2) the mo t i o n is not numerically barred by the reg ulations; (3) the

m o t ion is not barred by Matter of Sha a r , 21 I & N Dec. 541 (B I A 1996), or on any otherT A D E V O S Y A N V

. H O L D E R 8

procedural grounds; (4) the motion presents clear and convincing evidence indica t i ng a strong likelihood that the resp o n dent’s marriag e is bona fide; and (5) the Service either does not oppose the motion or bases its opposition solely

on Matter of Arthur

. . .

Id. at 256. The B I A noted that this decision did not “require I mmig r a tion J udg es to reopen proceeding s pending adjudication of an I -130 visa petition in every case in which the respondent meets all five of the aforementioned factors,” and that there may be another valid reason for an I mmig r ation J udg e to deny the motion, even if t h e s e five factors a re met. Id. at 257. Only the fifth Velarde factor is at issue here.

Most of the B I A members who d id not join the majority opinion in Velarde understood its articulation o f the f ifth factor to require denial whenever the S e r vice opposed the motion to r eopen, unless solely based on A r t h u r

. B oard Member Pauley
, in his dissent, joined by six other members of the B oard, stated, “As I read the o p i n i o n , the Service is required only

to reg ister its o pposition to the alien’s motion. The Service is not r equired to stat e t h e ground(s) for its opposition.” Id. at 268. H e observed that, as a result, if DHS “wishes to p r e s e r v e the status quo ante, it n eed only adopt a policy of filing a one-sentence ‘ O p position’ to motions to reopen that would previously have been barred under Matter of Arthur

. . .” Id. at 2 68–69. I n c oncurring with the result o f the majority
, B oard Member Ro s e n b e r g e mphatically rejected “the deg r e e of deference ex t e n ded to [ DHS] under the f ifth condition articulated in the majority opinion.” Id. a t 264. She refused to “believe that [ DHS] oppo sition is an appropriate ‘condition’ that, as a r ule, should result in denial of a motion to reopen,” because the B I A’s “role is to eng ag eT A D E V O S Y A N V

. H O L D E R 9

in impartial and independent adjudications, not to rubberstamp the preferences of [ DH S] .” Id. She noted that the B I A “certainly may consider any substantive o bjections
to reopening offered by the Service,” but “such object i o n s should not c onstitute an insurmountable barrier to g ranting a motion to reopen.” I

d.

The B I A as a whole later recog niz ed that “the fifth factor in Velarde can be read to be dispositive, and it was so

u n d e r stood by at least some B oard Members at the tim e

. ” Ma t t e r of Lamus-Pava
, 25 I

. & N. Dec. 61, 64 (B I A 2 009) (collecting citations). As a result, in apply ing Velarde
, the B I A “accorded controlling weig ht t o the opposition of the DHS in at least some cases.” Id.

I n 2 008, a fter the B I A’s third deci s i o n in this case, the Ninth Circuit rejected the notion that the B I A could properly accord dispositive weig ht to DHS’s opposition to motions to reopen. See Ahmed v

. M

ukasey
, 548 F .3d 7 6 8
, 771–72 (9th Cir. 2008). Ahmed f

ound persuasive the r e a soning of the Second a nd Six th Circuits concluding “that the DHS should
not be able to block unilaterally a m o t i o n t o reopen.” Id. at 772 (citing Melnitsenko v. Mukasey
, 517 F .3d 42, 52 (2d Cir. 2008); Sarr v. Gonzales
, 485 F .3d 354, 363 (6th Cir. 2007)). According ly
, Ahmed held “ t h a t w hen the DHS o pposes a motion to r eopen for adjustment of status, the B I A may consider the objection,” and may deny the moti on based on the merits of the DHS’s objection, “but [it] may not deny the motion based solely on the fact o f the DHS’s o bjection.” Id. (emphasis added); see also Melnitsenko
, 51 7 F .3d at 52. The r e a fter, in 2009, the B I A broug ht its own law into harmony with the Circuit court cases, by c l a r i f y ing that the fifth Velarde factor should “not g rant D HS ‘veto’ power over

an otherwise approvable Velarde motion,” and “the mere factT A D E V O S Y A N V

. H O L D E R 10

of a DHS opposition to a motion, in a nd of itself, should [not] be dispositive of the motion w ithout reg ard to the merit o f that opposition.” Lamus , 25 I . & N. Dec. at 64–65.

As we read the B I A’s dec i s i o n h e r e, it is one of those in which the B I A improperly a ccorded controlling weig ht to the fact that DHS opposed the motion, without reg ard to whether the basis o f that opposition was correct. The B I A recounted, in one senten c e , t he substance of the DHS’s o pposition. I t did n ot an a l y z e at all whether DHS’s position in opposition
to Tadevosy an’s motion held w ater. I nstead, the B I A accorded the fact of the objection d ispositive weig ht in deny ing the motion, stating
, “As such, consistent with Matter of V elarde
, 23 I & N Dec. 2 5 3 ( BI A 2002), the DHS’ opposition is sufficient to require a denial of the respondent’s motion.” (emphasis added). This locution d oes not, as the
g overnment contends, indicate approval of the substance o f DHS’s arg u ments; rather, as the B I A described i t s o wn decision, it concluded that the fact of o p p o s ition, alone, required denial. Had the B I A meant to convey the meaning the g overnment sug g ests, the reference t o V elarde
, and to “the DHS’ opposition” as “sufficient to r e quire a denial” would have been entirely pointless.

B o lstering our u n derstanding of the B I A decision is the consideration that it was reached during the time period in which the B I A a

pplied such a t runcated approach to some motions to reopen to pursue adjustment of status a pplications. F urther, the BI A d id n ot mention, a nd made no attempt to apply
, the motion to reopen standard, which requi r e s only establishment of “prima facie elig ibility f or the relief soug ht.” See Y oung Sun Shin v. Mukasey
, 547 F .3d 1019, 1025 ( 9 t h Cir. 2008) (citing 8 C.F .R. § 1003.2(c)(1)). That the B I A did
not do so indicates that it did not r egard itself as oblig ed toT A D E V O S Y A N V

. H O L D E R 11

d e cide the motion on its merits, but simply accepted DHS’ s opposition as determinative.

W e therefore conclude that the B I A abused its discretion by improperly relying on a de facto D HS veto as d ispositive of Tadevosy an’s motion to reopen.

B

.

The B I A’s decision on the motion to reopen would fare

no better were we to adopt the go v ernment’s understanding of that decision. Had the B I A ex amined the merits of the motion and applied the correct standard, it c o u l d n o t have denied that motion, and its decision would still have been an abuse of discretion.

“A moti o n t o reopen proceeding s for the purpose o f submitting an application for relief must be accompanied by the a ppropriate application f

o r relief a n d all supporting documentation.” 8 C.F .R. § 1003.2(c)(1). B ut the B I A does “not require[ ] a conclusive showing that, assuming the facts alleg ed to b e true, elig ibility for relief has been established.” Matter of L-O-G- , 21 I . & N. Dec. 413, 418–19 (B I A 1996). I nstead, it is “willing to reopen where the new facts a lleg ed, when coupled with the facts already of record, satisfy us that it would be worthwhile to d evelop the issues f u rther at a plenary hearing on reopening .” Id. (internal quotation marks and c itation omitted). I n other words, a prima facie case for relief is sufficient to justi f y r e opening
, Y

oung Sun Shin
, 547 F .3d at 1025, and a “prima facie case is established when ‘the evidence reveals a r e a s onable likelihood that the statutory requirements for r e lief have been satisfied,’” Garcia

v. Holder
, 621 F .3d 9 0 6
, 9 1 2 (9th Cir. 2010) (quoting Ordonez v. I.N.S. , 345 F .3d 777, 785 (9th Cir. 2003)).T A D E V O S Y A N V

. H O L D E R 12

Apply ing that standard here, we beg in with the statute a nd
reg ulations reg arding adjustment of status. Section 245(a) o f the I mmig ration and Nationality Act (I NA) provides that the Attorney General may adjust t h e status of certain a liens to “la w f u lly admitted for permanent residence if” v arious requirements are met, including that the alien “is admissible
to the U nited States f o r permanent residence.” I N A §§ 245(a), (2). “I n the case of any a lien who has been placed

. . . in rem o v a l p roceeding s

. . . , the immig ration judg e hearing the proc eeding h as ex c lusive jurisdiction to adjudicate any application for adjustment of stat u s t h e alien
may file.” 8 C.F .R. § 1245.2(a)(1 ) ( i )

. I n some circumstance s , however, DHS counsel may ask the immig ration judg e to dis miss the removal p roceeding s a nd allow USCI S, rather than an immig ration judg e, to adjudicate

an adjustment application. See United States I mmig r ation and Customs Enforcement Principal L eg al Advisor W illiam J

. Howard, Memorandum re: E xercise of Prosecutorial Discretion to Dismiss Adjustment Cases (Oct. 5, 2005).

An alien is inadmissible if “at the time of application for admission or adjustment of status, [ the alien] is likely at any time to become a public charg e.” I NA § 21 2 (a)(4)(A). T o establish that they are not i nadmissible as public charg es, most f amily -sponsored immig r ants are required to submit an I

- 8 6 4 affidavit of support b y their visa p etitioner a nd, if t h e visa petitioner is unable to meet the income requirement, b y “a joint sponsor,” who does meet that requirement and ag rees to support the immig rant. See I NA §§ 212(a)(4)(C), 213A(f); 8 C.F .R. §§ 213a.2(c)(2)(iii)(A)(2), (C). The I-864 affidavit consists of a “ leg ally enfo r ce a b l e” contract “in which the
sponsor ag rees to provide support to maintain the sponsored alien a t an annual income that is not less than 125 percent o f the F ederal poverty line

. . .” I NA §§ 213A(a)(1)(A), ( B)

.T A D E V O S Y A N V

. H O L D E R 13

The I NA mandates that
, t o demonstrate their means to maintain income, sponsors must ordinarily submit with their affidav i t o f support a “certified copy ” of their most recent F ederal income tax return , but does not define what a “certified copy ” is. See I N A §§ 2 13A(f)(6)(A)(i), (B ); see also 8 C.F .R. § 213a.2(c)(2)(i)(A) (specify ing that either “a photocopy or an I nternal Revenue Service-issued transcript”
may be submitted). 4

The r eg ulations elaborate on this requirement, specify ing th a t i f
, a s Abrahamian did here, “ the sponsor submits a photocopy
, rather than an I RS transcript of the tax return(s),”

“ t h e sponsor must also submit as initial evidence

. . . all F orms W -2 (if the sponsor relies o n income from employ ment) and F or m s 1099 (if the sponsor r e lies on income from sources documented on F o rms 1099).” 8 C.F .R. § 213a.2(c)(2)(i)(A) (emphasis ad ded). “The sponsor may

a l s o include as initial evidence: L etter(s) evidencing his or her current employ

ment a nd income, pay check stub(s) (showing earning s for the most recent six months[ ) ]
, financial statements, or other evidence of the s p o n sor’s anticipated ho u sehold income for the” relevant y ear. Id. (emphasis added).

The g ove r n m ent does not dispute that Abrahamian’s income level, a s shown in his d eclaration and tax return, was sufficient to support Tadevosy an at 125 percent of the F ederal

4 A t ax retu rn tran scrip t i s a d o cu m en t issu ed b y th e In tern al Rev en u e Serv ice t h at sh o w s m o s t in f

o rm atio n o n an in d iv id u al’ s tax retu rn as it w as

o rig in ally f

iled
, in clu d in g an y acco m pan y in g f

o rm s a n d sch ed

u les. S e e I n t e r n a l R e v e n u e S e r v i c e , T a x R e t u r n T

r a n s c r i p t s h ttp ://w w w .irs.g o v /u ac/ T a x

- Retu

rn

- T ran scrip ts (last v isited Feb

. 1 2
, 2 0 1 4 ).T A D E V O S Y A N V

. H O L D E R 14

poverty line. I nstead, it contends her e , a s i t did before the B I A, that Tadevosy an failed to offer sufficient evidence that he was not inadmissible as a public charg e, because Abrahamian did n ot submit enoug h documentation to support the income he reported on his tax e s.

This arg ument f

ails for a number of r easons. F irst, Abrahamian swore under p enalty of perjury in his a ffidavit that his income was $22,211, an amount that indisputably is sufficient t o support Tadevosy an at the required level. A s Tadevosy an points out, the “fa c t s presented in affidavits supporting a motion to reopen must b e accepted as true unless inherently unbelievable.” Bhasin v. Gonzales
, 423 F .3d 977, 987 (9th Cir

. 2005) ( citing Limsico v. I.N.S.
, 951 F .2d 210, 213 ( 9th Cir. 1991)). No finding was made that any thi n g in Abrahamian’s affidavit w as inherently unbelievable. I ndeed,
at oral arg u ment, the g overnment could articulat e n o reason that Abrahamian would h a v e inflated his income—and
t h e r e fore his tax liability

—when he filed his tax returns, let alone any reason apparent in his affidavit or a ny other documen t in the record to disbelieve that the document submitted was a true copy of Abrahamian’s tax return. Thus, the sworn statements in Abrahamian’s affidavit abou t h i s income level, corroborated by the F ederal tax returns, which he attested under penalty of perjury were true copies, made a sufficient prima facie showing t o d e m onstrate that f urther proceeding s to develop th e relevant facts—including

su b m i s s i o n o f a d ditional corroborating documents, should the immig ration judg e so require—would be worthwhile.

F urther, to the ex tent the go v e rnment contends that Abrahamian should have submitted “letters, pay check stubs,

or financial statemen t s ” evidencing his income, such materials may be submitted but are not manda t o r y

. SeeT A D E V O S Y A N V

. H O L D E R 15

8 C.F .R. § 213a.2(c) ( 2)(i)(A); see also USCI S, F orm I -864 I nstructions 5 (rev. March 22, 2013) (specifically instructing
, in bold, “ You are n o t required to submit this evidence, however, unless specifica l l y instructed to do so by a Government official”).

That Abrahamian submitted a copy of his tax return rather than a transcript and d id not submit copies of his actual W

- 2 forms with his affidavit did n ot defeat the pri ma facie showing that Tadevosy an w a s n o t a p ublic charg e. The
reg ulations require that a m o tion to reopen “ must be accompanied by the appropriate application for relief and all supporting d ocumentation,” 8 C.F

. R. § 1 0 0 3

. 2 ( c ) ( 1)), and that the sponsor’ s W -2 forms be submitted to support an

a p p l i c a t i o n f

o r a d j u s t m e n t o f s t a t u s , 8 C

. F

. R

. § 213a.2(c)(2)(i). B ut submission o f W -2 forms are not a statutory requirement and may be waived by the adjudicator.

USCI S’s adjudicators specifically are gr a nted discretion
to e x cuse the failure to file these forms, and need not request that the missing forms be submitted: USCI S’s F ield Manual for its adjudicators states,

USCI S may also d ecide that a request for evidence i s not necessary in a case in which the sp o n s o r f

iled a p hotocopy
, instead of a transcript, but f

org ot to submit I nter n al Revenue Service F orms W -2 or 1099. A decisio n n ot to request additional evidence will b e proper if U SCI S c oncludes that the evidence of record, taken as a whole, makes it reasonable to infer that the information on the
tax return is true.T A D E V O S Y A N V

. H O L D E R 16

U S C I S
, A d

j u d i c a t o r ’ s F i e l d M a n u a l
, § 2 0

. 5 ( e )
, http://www.uscis.g ov/laws/afm; see also USCI S Acting D ir. for Domestic Ope r ations Michael Ay tes, Memorandum re: Consolidation of Policy Regarding USCIS F orm I-864, Affidavit o

f Support 12 (J u ne 27, 2 006) (repeating the same i n s t ruction and directing that, when deciding w hether to request additional evidence, the adjudicator sh ould consider that “the sponsor’s statements about his or her em ploy ment and anticipated income are made u nder penalty of perjury
, ” and “[ t] hus, these statements o n the F orm I

- 864 a re themselves evid e n c e ”). W e can conceive of no r eason why an immig ration judg e would not have the same flex ibility a s the USCI S adjudicators a s to the required documentation. So, if reopening were g ranted, and the removal proceeding s were not terminated to allow U SCI S to adjudicate t h e adjustment
ap p l i c a t ion, an immig ration judg e would have the opportunity either to accept further evidence a nd hear testimony
, or, alternatively
, to conc l u d e t h a t t h e i n f o rmation in Abrahamian’s tax return as already submitted was adequate, because A brahamian’s s w o rn declaration provided a sufficient basis to ex c use the fact that he did not i n c l ude his W

- 2 forms. 5

5 W e n o te th at , b ecau s e o f t h e am o u n t of tim e th at h as passed sin ce A b rah am ian

ex ecu ted th e af

f id av it o f su p p o rt, to p ro cess th e ap p licatio n f o r ad j u stm en t of statu s n o w , an i m m i g r a t i o n j u d g e m ay req u ire

su b m issio n o f a d d i tio n al ev id en ce reg ard in g h is p resen t in co m e l ev el, in clu d in g a co p y o f h is tax r e t u r n fo r t h e m o st recen t y ear, reg ard less of

w h e t h er th e o rig i n al su

b m issio n w as ad eq u ate at th e tim e it w as m ad e

. S ee 8 C.F.R. § 2 1 3 a.2 (a)(1 )(v ) ( B ) (p ro v i d i n g th at an im m ig ratio n j u dg e

m ay , b ased o n th e f

acts o f a p articu lar case an d “i n t he e x ercise of d iscretio n ,” req u i re th e su b m issio n o f su ch ad d itio n al ev id en ce “ [i]f m ore th an o n e y ear p asses b etw een th e f ilin g o f th e af

f id av it o f su

p p o rt

. . . an d th e h earin g

. . . co n cern in g th e in ten din g im m ig ran t’ s ap p licatio n

f or . . . ad j u stm en t o f statu s”). If su ch ad d itio n al ev id en ce w ere req u ired
, th e

su f f icien cy o f th e af

f id av it o f su pp o rt w o u ld b e d eterm in ed b ased o n th eT A D E V O S Y A N V

. H O L D E R 17

The latter possibility h as mu c h t o c ommend it here, a s Abrahamian in fact did submit some r e l e v ant supporting evidence here. H is California Schedule W -2 CG, a copy o f which was attached to the state tax r eturn copy , r eproduced in full the information from his W-2 forms. DHS did not discuss this document in its opposition before the B I A or its answering

brief here. 6

According ly
, Abra h a mian’s affidavit was sufficient to

ma k e the prima facie showing r equired when the B I A considers a mot i o n t o r eopen. Had the B I A addressed the issue o n t h e merits—which, as w e have ex plained, it did not—it would have been an abuse of discretion to deny the motion.

C.

W e note, finally
, that g iven the fairly ex tensive statutory , reg ulatory
, a

nd case law material we have just analy z e d with
reg ard to the merits of the motion to r eop e n, if the B I A h ad indeed meant to address those merits, it did not fulfill its oblig ation to “ provide a reasoned ex planation for its actions.” Movsisian
, 395 F .3d at 1098. “ Due process and this court’s precedent require a minimum d eg r ee o f c larity in d ispositive reasoning and in the treatment o f a properly raised a rg ument.” Su Hwa She v. Holder
, 629 F .3d 958, 963 (9th Cir. 2010). I n Rodriguez-Lariz v. I.N.S.
, for ex ample, where “th e B I A merely repeated petitioners’ c laims and summarily dismissed

ev id en ce su

b m i tted in resp o n s e to th e req u est f o r ad d itio n al ev i d en ce, an d

n o t o n th e o rig in al su

b m issio n

. Id

.

6 T h e g ov ern m en t stated at o ral arg u m en t th at DHS h ad n o t n o ticed th is d o cu m en t p rev i o u sly

.T A D E V O S Y A N V

. H O L D E R 18

them without e ven p u r

porting to eng ag e in any substantive

a n a l y sis or articulating any reasons for its decision,” w e gr a nted the petition and remanded for further proceedin gs

. 282 F .3d 1218, 1227 (9th Cir. 2002). The B I A opinion h ere, if read as addressing the merits of the motion to reopen, does

no bett e r

. The B I A therefore w ould h a ve abused its d i s c r e t i o n f

o r a t h i r d r e a s o n

— l a c k o f r e a s o n e d decisionmaking

. More telling ly
, the failure to provide any reasoned ex p l a nation confirms that the ag ency denied the motion because DHS objected, n ot becau s e i t considered DHS’s objection on the merits and ag reed with its reasoning

.

III. Conclusion

F or the r easons set f

orth a bove, Tadevosy an’s petition for review of the B I A’s March 27, 2 0 08 order deny ing his motion to reopen is g ranted. We r emand to the B I A for further proceeding s in lig ht of this decision.

P ETITION NO. 08-71 7 9 1 IS G RANTED AND REMANDED. P ETITION N O S

. 0 7-75087 AND 0 8-73437 ARE DISMISSED.