The Honorable David A. Katz, United States District Judge for the Northern District of *

Ohio, sitting by designation.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 06a0902n.06

Filed: December 18, 2006

No. 05-3993

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

HASSAN IBRAHIM EL HARAKE,

Petitioner,

v.

ALBERTO R. GONZALES, Attorney

General,

Respondent.

)

)

)

)

)

)

)

)

)

ON PETITION FOR REVIEW FROM THE

BOARD OF IMMIGRATION APPEALS

Before: CLAY and ROGERS, Circuit Judges; and KATZ, District Judge.*

ROGERS, Circuit Judge. Petitioner Hassan Ibrahim El Harake, a Lebanese citizen living

in the United States, married Mirvat Masri Alderawi, a United States citizen, after the United States

government began removal proceedings against him for overstaying his visa. At the removal

proceedings, El Harake moved for a continuance because an I-130 petition filed by his wife on his

behalf was pending. The Immigration Judge (“IJ”) denied this continuance because El Harake

presented no evidence that his marriage was bona fide. El Harake appealed to the Board of

Immigration Appeals (“BIA”), and also filed a motion to remand. The BIA affirmed the IJ’s denial

of El Harake’s motion for continuance and denied El Harake’s motion to remand. El Harake then
No. 05-3993

El Harake v. Gonzales

- 2 -

filed a petition for review with this court arguing a number of due process violations associated with

the removal proceedings. He also argues that the IJ erred by denying his motion for continuance and

that the BIA erred by denying his motion to remand.

We deny the petition for review. El Harake’s due process arguments are without merit

because the IJ gave him an opportunity to be heard and present evidence at the removal proceedings.

In addition, this court does not have jurisdiction to consider El Harake’s argument that he was denied

due process because of ineffective assistance of counsel during the removal proceedings. El Harake

did not raise that argument until a motion to reconsider, and El Harake did not file a petition for

review of the BIA’s decision denying that motion. Finally, the IJ did not abuse her discretion by

denying El Harake’s motion for continuance, and the BIA did not abuse its discretion by denying El

Harake’s motion to remand.

Background

El Harake, a citizen of Lebanon, came to the United States on or about December 7, 1999,

on a nonimmigrant B-2 visa, with permission to remain until June 6, 2000. El Harake remained in

the United States after June 6, 2000, and after receiving a Notice to Appear (“NTA”), appeared

before the IJ for removal proceedings on November 26, 2002. At this hearing, the IJ told El Harake

that he had a right to counsel and continued the hearing until February 27, 2004, so that El Harake

could obtain counsel.

On April 24, 2003, El Harake married Alderawi, a United States citizen. On or about August
No. 05-3993

El Harake v. Gonzales

There are two major steps that must occur before an alien living in the United States can 1

become a lawful permanent resident by reason of his marriage to a U.S. citizen. First, the alien’s

spouse must file an I-130 petition with the Department of Homeland Security (“DHS”). The I-130

petition proves the relationship between the alien and his citizen-spouse. Second, the alien must file

a Form I-485 requesting an adjustment to the alien’s status (i.e., adjustment from alien subject to

removal to lawful permanent resident).

Although El Harake received an NTA prior to the initial hearing held on November 26, 2

2002, the NTA that the IJ referred to during the February 27, 2004, hearing appears to be a second

notice that the DHS filed on January 7, 2003. El Harake, in his brief, states that he was served an

NTA on April 28, 2003, but the record does not support this fact. While this factual disparity would

contradict the IJ’s finding that El Harake married Alderawi after he received the NTA, El Harake

does not argue that he married Alderawi before he received the NTA, and thus it simply appears that

the April 28, 2003 date in El Harake’s brief was an error.

El Harake was subject to removal under § 237(a)(1)(B) of the Immigration and Nationality

3

Act. See 8 U.S.C. § 1227(a)(1)(B).

If an alien marries a U.S. citizen after removal proceedings are brought against him, the 4

Attorney General cannot adjust the alien’s status unless the alien proves, by clear and convincing

evidence, that the marriage was bona fide. See 8 U.S.C. §§ 1255(e); 1154(g).

- 3 -

10, 2003, Alderawi filed an I-130 Petition for Alien Relative on behalf of El Harake. Alderawi filed 1

a second I-130 Petition on March 17, 2004, purportedly because of a “clerical error” in the first I-130

petition.

On February 27, 2004, the IJ held a removal hearing, at which El Harake was represented by

counsel. At the hearing, El Harake acknowledged that he received an NTA, conceded that he was 2

subject to removal, and requested voluntary departure in lieu of deportation. El Harake’s counsel

3

then requested a continuance because of the pending I-130 petition. The IJ denied the motion for

continuance because El Harake presented only a marriage certificate as evidence that his marriage

to Alderawi was bona fide. The IJ did grant El Harake voluntary departure. 4
No. 05-3993

El Harake v. Gonzales

“AR” refers to the Certified Administrative Record, which this court permitted El Harake 5

to file in lieu of a joint appendix.

- 4 -

El Harake timely appealed the IJ’s order to the BIA. Before the BIA acted on the appeal, El

Harake filed a Motion to Remand with the BIA, asking the BIA to remand the case to the IJ so that

El Harake could present evidence of the bona fides of his marriage to Alderawi. El Harake included

with this motion a copy of the March 17, 2004, I-130 petition, as well as exhibits purporting to show

the bona fides of the marriage (tax returns, utility bills, insurance forms, bank statements, and

photographs). The Government opposed the motion to remand.

On July 8, 2005, the BIA affirmed the IJ’s order and denied El Harake’s motion to remand.

The BIA “adopt[ed] and affirm[ed] the decision of the Immigration Judge finding [El Harake]

subject to removal as charged and denying his request for an open-ended continuance to await a

decision on a Petition for Alien Relative (I-130) filed on his behalf by his United States citizen

spouse.” AR 147. The BIA also denied El Harake’s motion to remand because, “[i]n view of the 5

[DHS’s] opposition to the motion and the absence of an approved visa, [El Harake was] unable to

demonstrate that remanding the record for adjustment of status [was] warranted.” AR 147.

On August 4, 2005, El Harake filed a Motion to Reconsider with the BIA. First, El Harake

argued that the BIA erred by affirming the IJ’s order because the BIA “had in its possession crucial

evidence of the bona fides of Mr. and Mrs. El Harake’s marriage that was not presented to the IJ (due

to ineffective assistance of counsel).” AR 33. Second, El Harake argued that he “was the victim of

the ineffective assistance of his prior counsel . . . because the IJ never had the opportunity to consider
No. 05-3993

El Harake v. Gonzales

- 5 -

the bona fides of his marriage, and the BIA failed to make a finding of fact as to whether Mr. El

Harake established the bona fides of his marriage.” AR 33-34.

On November 1, 2005, the BIA denied El Harake’s motion to reconsider. First, the BIA held

that its July 8, 2005, decision was correct because the IJ “exercised sound discretion in denying” El

Harake’s request for a continuance. AR 3. Specifically, the BIA found that “no purpose other than

an unnecessary delay of the proceedings would have been served by a continuance” because there

was “no indication as to how long it would take to conclude the adjudication of” El Harake’s I-130

petition, and because there was “no certainty” that the petition “would receive approbation.” AR 2-

3. Second, the BIA held that El Harake failed to comply with the procedural requirements of In re

Lozada, 19 I&N Dec. 637, 639 (BIA), aff’d, 857 F.2d 10 (1st Cir. 1988), with respect to his

ineffective-assistance-of-counsel claims. According to the BIA, El Harake was required to give

James Hoare, his former counsel, notice and an opportunity to respond to the allegations before the

allegations were presented to the BIA. Although El Harake wrote a letter to Hoare describing the

allegations on July 28, 2005, theBIA held that El Harake did not give Hoare an adequate opportunity

to respond before filing the motion to reconsider with the BIA on August 4, 2005.

El Harake filed a Petition for Review with this court on August 5, 2005. The petition,

therefore, was filed after the BIA’s initial decision affirming the IJ’s order finding El Harake

removable and denying El Harake’s motion to remand, but before the BIA’s decision denying El

Harake’s motion to reconsider. The petition noted both that the motion to reconsider had been filed

with the BIA and that the motion included a claim of ineffective assistance of counsel. However,
No. 05-3993

El Harake v. Gonzales

- 6 -

El Harake did not file a petition for review after the BIA’s November 1, 2005, decision denying his

motion to reconsider.

Discussion

1. El Harake’s Due Process Claims

El Harake makes three due process arguments on appeal. First, El Harake argues that the IJ

violated his due process rights by denying him an opportunity to present evidence, interrupting his

counsel during the removal proceedings, and denying him an opportunity to create a record for

appeal. Second, El Harake argues that the IJ and BIA violated his due process rights by failing to

comply with statutes and regulations governing how the IJ and BIA should conduct hearings and

appeals. Third, El Harake argues that his due process rights were violated because his counsel at the

removal proceeding was ineffective. Each of these arguments is without merit.

a. Opportunity to Present Evidence

The IJ did not violate El Harake’s due process rights because El Harake had an adequate

opportunity to present evidence at his removal proceeding. An alien in a removal proceeding has

a right to a full and fair hearing. El Harake had such an opportunity, during which his counsel stated

that the only evidence he had of the bona fides of El Harake’s marriage was the marriage certificate

itself. AR 318. Because El Harake did not attempt to offer additional evidence during the hearing,

the IJ did not deny him the opportunity to present evidence. See Gilaj v. Gonzales, 408 F.3d 275,
No. 05-3993

El Harake v. Gonzales

The exchange El Harake complains about was as follows: 6

Q: And all we have is a marriage certificate?

A: That’s all I have at this particular time. I concur with all of those statements, but I think that

the hearing on the I-130, we have to produce whatever documentary evidence we have at that

time.

Q: Well that’s fine, but if you’re seeking a continuance for adjudication of the I-130, you have

to establish that, or there’s prima facie evidence that there’s a good faith marriage.

A: And I’ve attached the only documents that I have at this point –

Q: Then I find that you haven’t established, or (indiscernible) that there is a presumption that

marriage after the inception of proceedings is one for the purpose of obtaining Immigration

benefit. I can give you 120-days voluntary departure today, if the respondent waives appeal.

A: No, I’ll do merit.

Q: All right, then we’ll go to a separate tape for an oral decision.

AR 318.

El Harake’s reliance upon Podio v. INS, 153 F.3d 506 (7th Cir. 1998) is unavailing. In 7

Podio, the Seventh Circuit held that an IJ violated Podio’s due process rights by repeatedly

interrupting Podio, stating that he did not “want to hear anything” about certain topics, and

- 7 -

290 (6th Cir. 2005) (stating that because petitioners did not attempt to make a closing statement

during a hearing, “it is not fair to say that the IJ denied them an opportunity to present one”).

Nor did the IJ violate El Harake’s due process rights by interrupting his counsel during the

proceeding. El Harake argues that the IJ interrupted El Harake’s counsel when his counsel tried to

explain that other evidence existed, but was simply not available at the hearing. This court has 6

recognized that “mere intimidation or interruption by a judge does not render a hearing unfair.”

Ahmed v. Gonzales, 398 F.3d 722, 725 (6th Cir. 2005) (citing Ivezaj v. INS, 84 F.3d 215, 220 (6th

Cir. 1996)). Any interruption by the IJ was minimal, and at no point did the IJ prevent El Harake’s

counsel from advocating on behalf of his client. El Harake essentially argues that by not allowing 7
No. 05-3993

El Harake v. Gonzales

preventing Podio from presenting testimony of witnesses, stating: “I don’t care about them.” Id. at

508. Here, the IJ did not affirmatively denyEl Harake the opportunity to testify or present evidence,

but only interrupted El Harake’s counsel when he sought to explain why evidence was unavailable.

Contrary to El Harake’s argument, the Eighth Circuit’s decision in Al Khouri v. Ashcroft,

8

362 F.3d 461 (8th Cir. 2004), is not on point. In Al Khouri, the court held that the IJ violated Al

Khouri’s due process rights by “curtailing Mr. Al Khouri’s testimony and circumscribing his ability

to elaborate on the details of his claim by instructing him only to answer the questions asked and

then concluding that Mr. Al Khouri’s limited responses undermined his credibility.” Id. at 465.

Importantly, the court held that the IJ had an obligation to develop the record because Al Khouri was

not represented by counsel. Id. at 464-65. Here, El Harake was represented by counsel and the IJ

did not prevent him from presenting evidence.

El Harake’s frequent appeal to Congress’s intent “that aliens who marry after proceedings 9

have been initiated, and who seek adjustment of status, should be afforded one opportunity to present

clear and convincing evidence that their marriage is bona fide” is unavailing. See El Harake Br. at

20. The IJ gave El Harake his opportunity to present evidence that the marriage was bona fide, but

- 8 -

him to present evidence at another time, the IJ denied him due process. El Harake provides no

support for this argument that due process required the IJ to provide El Harake an opportunity to be

heard whenever El Harake desired.

The IJ also did not deny El Harake the opportunity to create a record for appeal. El Harake

refers to Ladha v. INS, 215 F.3d 889, 903-04 (9th Cir. 2000), for the proposition that “when an IJ

makes a determination to exclude evidence, or not to consider it at all . . . , she must accept and

identify documents so there is a record on appeal.” El Harake Br. at 22. Here, the IJ did not decide

“not to consider [El Harake’s evidence] at all.” El Harake had no evidence to produce at the time

of the hearing (other than the marriage certificate, which the IJ considered). El Harake once again 8

confuses an IJ’s obligation to permit an alien to present evidence at a hearing, and a decision by an

IJ not to permit an alien the opportunity to present evidence at another time.9
No. 05-3993

El Harake v. Gonzales

El Harake had no evidence to present at that time. El Harake does not point this court to any

authority requiring the IJ or BIA to give him an additional opportunity to present evidence.

El Harake refers to a number of statutes and regulations governing the conduct of a removal 10

hearing. See 8 U.S.C. § 1229a(b)(1) (“The immigration judge shall administer oaths, receive

evidence, and interrogate, examine, and cross-examine the alien and any witnesses.”); 8 U.S.C. §

1229a(b)(4)(B) (“[T]he alien shall have a reasonable opportunity to examine the evidence against

the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented

by the Government.”); 8 U.S.C. § 1229a(b)(4)(C) (“[A] complete record shall be kept of all

testimony and evidence produced at the proceeding.”); 8 C.F.R. § 1240.47 (“The hearing before the

immigration judge, including the testimony, exhibits, applications, proffers, and requests, the

immigration judge’s decision, and all written orders, motions, appeals, briefs, and other papers filed

in the proceedings shall constitute the record in the case.”); 8 C.F.R. § 1240.48(a)(“The immigration

judge shall . . . advise the respondent that he or she will have a reasonable opportunity to examine

and object to the evidence against him or her, to present evidence in his or her own behalf and to

cross-examine witnesses presented by the Government; [and] place the respondent under oath.”); 8

C.F.R. § 1240.48(b) (“If the respondent admits the factual allegations and admits his or her

deportability under the charges and the immigration judge is satisfied that no issues of law or fact

remain, the immigration judge may determine that deportability as charged has been established by

the admissions of the respondent.”).

El Harake states that the IJ “refused to follow her statutory and regulatory mandate to accept 11

sworn testimony from Mr. El Harake, his United States citizen wife, and other witnesses pertaining

to the bona fides of their marriage and allow submission of documentary evidence on the bona fides

of the marriage.” El Harake Br. at 27. El Harake also states that the IJ “failed to allow [El Harake]

to create a record for appeal,” and complains that “the IJ’s interruption of Mr. El Harake’s

representative and refusal to allow a continuance to produce evidence” violated DHS regulations.

- 9 -

b. Failure to Follow Procedures

The IJ and BIA did not violate El Harake’s due process rights by failing to comply with their

own rules and regulations, see United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954),

because the IJ and BIA did not violate any statutes or regulations while considering El Harake’s

case. El Harake’s argument is mostly a rehashing of his denial-of-the-opportunity-to-present- 10

evidence due process claim, which is foreclosed by the analysis above concluding that the IJ did 11
No. 05-3993

El Harake v. Gonzales

El Harake Br. at 27. Finally, El Harake states that “[p]erhaps the most damaging error committed

by the IJ was her refusal to allow [El Harake] the opportunity to present evidence to support the

validity of his marriage.” El Harake Br. at 27.

El Harake does make one argument for how the IJ failed to comply with DHS regulations 12

that is different from his previous due process arguments, but it too is unpersuasive. Referring to

In re A-P-, 22 I&N Dec. 468 (BIA 1999), El Harake argues that an IJ is prohibited from entering a

“summary decision . . . where further fact-finding or analysis is necessary to resolve an issue that

remains after the respondent has admitted to the factual allegations and charges of removability.”

El Harake Br. at 28. In re A-P- is a decision based on a regulation no longer in force that governed

“summary decisions”—i.e., “abbreviated” decisions that the IJ may issue in “limited circumstances.”

In re A-P-, 22 I&N at 470-71. Here, the IJ did not issue a “summary decision” but issued an oral

decision explaining in detail why El Harake was subject to removal. See AR 292-96.

 El Harake also argues that the IJ’s denial of his motion for continuance was a denial of due

process. The Supreme Court has held that “[t]he requirements of procedural due process apply only

to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and

property.” Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). This court has held that “[t]he failure

to be granted discretionary relief does not amount to a deprivation of a liberty interest.”

Huicochea-Gomez v. INS, 237 F.3d 696, 700 (6th Cir. 2001). Therefore, the IJ’s denial of

discretionary relief to El Harake did not amount to a denial of due process. Abu-Khaliel v. Gonzales,

436 F.3d 627, 635 (6th Cir. 2006) (holding that denial of continuance is not a denial of due process

because grant of continuance is discretionary). Furthermore, the facts that the IJ’s denial of El

Harake’s motion for continuance was not an abuse of discretion and that El Harke had an opportunity

to present evidence at the hearing foreclose El Harake’s argument that the IJ’s denial of the motion

was a violation of due process. See infra Part 2.a.

Additionally, El Harake’s argument that the IJ violated his due process rights by deciding his

case even though the IJ “realized that additional evidence existed” is without merit for the same

reason stated above—the IJ is not required to permit an alien to produce evidence not available at

the hearing.

- 10 -

not deny El Harake an opportunity to present evidence because El Harake had no evidence to

present.12

c. Ineffective Assistance of Counsel

This court does not have jurisdiction to review El Harake’s claims of ineffective assistance
No. 05-3993

El Harake v. Gonzales

El Harake does not argue that the IJ abused her discretion by failing to grant a continuance, 13

but instead that the BIA erred by not finding that El Harake had shown “good cause.” “Good cause”

- 11 -

of counsel because El Harake failed to file a petition for review of the BIA’s decision denying his

motion to reconsider. Under 8 U.S.C. § 1252(b)(1), a petition for review of a removal order must

be filed with the court of appeals within 30 days. Here, El Harake failed to file a petition for review

of the BIA’s decision denying his motion to reconsider. Therefore, this court does not have

jurisdiction to review that decision. See, e.g., Prekaj v. INS, 384 F.3d 265, 267-68 (6th Cir. 2004);

see also Stone v. INS, 514 U.S. 386, 394-95, 403 (1995) (noting that an earlier version of 8 U.S.C.

§ 1252(b)(6), which required consolidation of review of an order under 8 U.S.C. § 1252 with review

of a motion to reconsider, contemplates the filing of two petitions for review where a motion to

reconsider leads to a second BIA decision).

2. Denial of Motion for Continuance and Motion to Remand

This court reviews both a denial of a motion for continuance and a denial of a motion to

remand for an abuse of discretion. Abu-Khaliel, 436 F.3d at 634. There is an abuse of discretion

if “the denial . . . was made without a rational explanation, inexplicably departed from established

policies, or rested on an impermissible basis such as invidious discrimination.” Id.

a. Motion for Continuance

The BIA did not err with respect to El Harake’s motion for continuance because the IJ did

not abuse her discretion by denying the motion. El Harake requested a continuance from the IJ to 13
No. 05-3993

El Harake v. Gonzales

is the standard that the IJ uses to determine whether to grant a continuance, see 8 C.F.R. § 1003.29,

whereas this court reviews the IJ’s denial of a continuance for abuse of discretion. Thus, El Harake

is arguing the wrong standard of review before this court.

The IJ explained during the hearing that “if you’re seeking a continuance for adjudication 14

of the I-130, you have to establish that, or there’s a prima facie evidence that there’s a good faith

marriage.” AR 318. In her oral decision, the IJ stated the following:

The respondent has submitted solely a marriage certificate on the issue of a request

for a continuance under the Board decision in Matter of Velarde. The Court finds

that there is no indicia to overcome the presumption of a fraudulent marriage based

solely upon a marriage certificate, indeed, there is no evidence that the respondent

would have immediately available [an] immigrant visa assuming arguendo that the

I-130 would be filed.

AR 294.

- 12 -

allow time for the DHS to adjudicate the separate I-130 petition. See AR 317-18. The IJ denied the

motion for continuance because El Harake did not submit evidence in addition to the marriage

certificate showing that the marriage was bona fide. AR 294. The BIA affirmed the IJ’s denial of 14

El Harake’s “request for an open-ended continuance to await a decision on a Petition for Alien

Relative (I-130) filed on his behalf by his United States spouse.” AR 147. The IJ’s denial of the

motion for continuance because El Harake presented no evidence to show that the I-130 petition

would be successful was not irrational. Cf. Zafar v. United States Att’y Gen., 461 F.3d 1357, 1364

(11th Cir. 2006) (holding that denial of motions for continuance was not an abuse of discretion

“[g]iven that petitioners had filed only labor certificate applications with the DOL, were not yet

statutorily eligible for adjustment of status under § 1255(i), and had not filed I-485 applications for
No. 05-3993

El Harake v. Gonzales

Two Seventh Circuit cases holding that an IJ’s denial of a continuance was an abuse of 15

discretion are distinguishable. In Subhan v. Ashcroft, 383 F.3d 591, 593 (7th Cir. 2004), an alien

requested a continuance from the IJ so that he could obtain labor certificates which would have

permitted him to remain in the United States. The IJ denied the continuance “saying that while

Subhan ‘may be able to eventually acquire lawful permanent resident status by virtue of

employment,’ not having done so as yet he was ‘not eligible for this form of relief at this time.’” Id.

The Seventh Circuit held that the IJ’s denial of the continuance was an abuse of discretion because

the IJ’s statement “was not a reason for denying the motion for a . . . continuance, but merely a

statement of the obvious: that the labor departments hadn’t yet acted.” Id. at 595 (emphasis in

original). In Benslimane v. Gonzales, 430 F.3d 828, 830 (7th Cir. 2005), an alien sought a

continuance so that his wife’s I-130 petition and his I-485 adjustment-of-status petition could be

adjudicated. The IJ denied the continuance because the alien’s attorney failed to submit a copy of

the I-485 petition as the IJ had requested. Id. at 831. The Seventh Circuit held that this was an abuse

of discretion because “the circumstances of this case [were] similar to those in Subhan” and the IJ

“arbitrarily den[ied]” the continuance.” Id. at 832.

These cases are distinguishable. Whereas in Subhan, the IJ gave no reason for denying the

continuance, and in Benslimane, the IJ gave an arbitrary reason, here, the IJ gave a rational reason:

El Harake did not provide any evidence that suggested that he had any likelihood of success in

adjudicating his I-485 petition. It cannot be the case that anytime an alien files an I-485 petition or

has an I-130 petition filed on his behalf, the IJ is required to grant a continuance. Such a view would

conflict with the discretion that the regulations explicitly provide to the IJ. See 8 C.F.R. § 1003.29

(“The Immigration Judge may grant a motion for continuance for good cause shown.” (emphasis

added)). As discussed supra, an IJ’s denial of a continuance should be upheld so long as it is not

irrational. Here, the IJ’s requirement that El Harake make at least some showing of a likelihood of

success before granting a continuance is not irrational.

A “motion to remand” is generally treated the same as a “motion to reopen.” See Pilica v. 16

Ashcroft, 388 F.3d 941, 945 n.3 (6th Cir. 2004).

- 13 -

adjustment-of-status relief under § 1255(i)”). Therefore, the IJ did not abuse her discretion. 15

b. Motion to Remand

The BIA did not abuse its discretion by denying El Harake’s motion to remand. The BIA has

discretion to grant a motion to reopen —in the absence of a previously issued visa—where “(1) the 16

motion is timely filed; (2) the motion is not numerically barred by the regulations; (3) the motion is
No. 05-3993

El Harake v. Gonzales

The BIA’s test for determining whether to grant a motion to reopen in In re Velarde- 17

Pacheco was premised on a desire to provide aliens “who are otherwise prima facie eligible for

adjustment [with] the opportunity to have their adjustment applications reviewed by an Immigration

Judge.” 23 I&N Dec. at 255. Previously, in In re Arthur, the BIA had held that its policy of

regularly granting motions to reopen whenever there was an unadjudicated visa petition pending

conflicted with the Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat.

3537, and the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, which created a

presumption that marriages entered into after the government initiates deportation proceedings are

fraudulent. In re Arthur, 20 I&N Dec. at 477-79. In In re Velarde-Pacheco, the BIA simply softened

the rule adopted in In re Arthur—that IJs should deny motionsto reopen based on unadjudicated visa

petitions—because the BIA recognized that I-130 visa petitions are not adjudicated quickly enough

to permit the granting of a motion to reopen only after the INS has approved an I-130 visa petition.

In re Velarde-Pacheco, 23 I&N Dec. at 255.

Here, the Government opposed El Harake’s motion to remand on non-In re Arthur grounds.

18

For example, the Government opposed the motion because El Harake “has failed to submit any

evidence that is newly discovered or previously unavailable.” AR 150. The Government’s

opposition was consistent with DHS regulations. 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen

proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is

material and was not available and could not have been discovered or presented at the former

hearing.” (emphasis added)).

- 14 -

not barred by [In re] 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 Service either does not oppose the motion or bases

its opposition solely on [In re Arthur, 20 I&N Dec. 475 (BIA 1992)].” In re Velarde-Pacheco, 23 17

I&N Dec. 253, 256 (BIA 2002). The BIA denied El Harake’s motion to remand because the DHS

opposed the motion and because of “the absence of an approved visa.” AR 147. Because El Harake

did not satisfy the test from In re Velarde-Pacheco, the BIA did not abuse its discretion by denying 18

his motion to remand. Bhiski v. Ashcroft, 373 F.3d 363, 371-72 (3d Cir. 2004); see also Badr v.

Ashcroft, No. 01-71326, 56 Fed. Appx. 786, 788 (9th Cir. 2003) (holding that the BIA did not abuse
No. 05-3993

El Harake v. Gonzales

- 15 -

its discretion where the alien “failed to submit evidence that his visa was immediately available” and

the requirements of In re Velarde-Pacheco were not met); cf. Desoguste v. U.S. Att’y Gen., No. 04-

15973, 135 Fed. Appx. 247, 249-50 (11th Cir. 2005) (holding that the BIA did not abuse its

discretion when it denied a motion to reopen because evidence submitted with the motion to reopen

could have been presented to the IJ).

Conclusion

For the foregoing reasons, we DENY the petition for review.