NOT RECOMMENDED FOR FULL
- TEXT PUBLICATION File Name: 15a0784n.06

Case No. 15

- 3239
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

ANATOLY VLADIMIROVICH GUTS , Petitioner ,

v.
L ORETTA E. L YNCH , U.S. Attorney General Respondent

. ) ) ) ) ) ) ) ) ) ) ) ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

BEFORE: NORRIS, CLAY, and COOK , Circuit Judges. COOK, Circuit Judge. Anatoly Vladimirovich Guts seeks review of the Board of Immigrat ion Appeal ’ s (BIA) denial of his motion to reopen

. The BIA issued a brief opinion concluding that Guts had not demonstrate d prima facie eligibility for adjustment of status

. Guts
contends the BIA abused its discretion by failing to adequately explain i ts reason ing

. W e grant the petition for review and remand to the BIA.
I

. Gu ts , a Russian citizen admitted to the United States as a nonimmigrant exchange visitor , overstayed his visa

. In 2012, the Department of Homeland Security commenced remov al proceedings. At the hearing, Guts requested, and the Immigration Judge granted, a continuance
for him to explore avenues of possible relief.Case No. 15

- 3239

Guts v. Lynch

- 2

- When the continuance expired, Guts informed the Immigration Judge that he was engaged to marry Jana Emiraliyeva , who had a naturalization interview scheduled

. Guts th us sought a second continuance, contending that he would soon be eligible to seek adjustment of status through his fiancé e filing a Form I

- 130, Petition for Alien Relative

. The Immigration Judge denied the continuance , opining that Guts was not currently eligible to begin the Form I

130 process and had not applied for any other for m of relief

. The IJ ordered Guts removed from
the United States.
Guts appealed to the BIA and moved to remand

. In its opinion, the BIA observed that while the appeal was pend ing , not only had Jana become a naturalized citizen , but also she and
Guts had married and Jana filed a n I

- 130 petition on Guts ’s behalf

. A database for the United States Citizenship and Immigration Services (USCIS) showed , however , that USCIS denied
Jana’s I

- 130 petition

. The BIA thus dismissed Guts ’s appeal and denied remand

. One month later, Guts moved the BIA to reopen his case to allow him to apply for adj ustment of status

. Guts explained that USCIS ’ deni al of Jana ’s I

- 130 petition stemmed from
record evidence of marriage fraud involving Guts and his first wife, Rachel Ertel. Guts urged reopening to permit him to show that USCIS erred in denying Jana’s I

- 130 petition because: ( 1) the record did not contain substantial and probative evidence that he married Rac hel for the purpose of evading immigration laws , and ( 2) the appeal of that denial was still pend ing

. Guts ’s motion to reopen incorporated Jana’s I

- 130 appeal, in which she submitted joint residential, financial, and insurance records as well as affidavits from friends and family members to support the legitimacy of Guts ’s earlier marriage to Rachel

. The Department of Homeland Security opposed reopening.Case No. 15

- 3239

Guts v. Lynch

- 3

- T he BIA denied reopening in a four

- sentence opinion

. It opined that Guts failed to show “prima facie eligibility for the relief from removal” as he was “not the beneficiary of an approved visa petition insofar as the petition filed on his behalf

. . . was denied on February 13,
2014. ” Guts petitions for review.
II

. “The decision to grant or deny a motion to reopen . . . is within the discretion of the [BIA]

. ” 8 C.F.R. § 1003.2(a)

. Guts contends that the BIA abused its discretion by failing to explain adequately its reasons for denying his motion. We review accordi ngly

. See I.N.S. v.
Abudu , 485 U.S. 94, 107

– 08 (1988).
T he regulation governing motions to reopen is couched in negative terms , listing certain
circumstances under which the BIA “shall not” reopen a case , but not circumstances under which
it is required to do so

. See 8 C.F.R. § 1003.2 ; see also Abudu , 485 U.S. at 104

– 05 (interpreting the predecessor to 8 C.F.R. § 1003.2 , 8 C.F.R. § 3.2 ). T he BIA abuse s its broad discretion , however, when a denial is “ made without a rational explanation

. ” Allabani v. Gonzales,
402 F.3d 668, 675 (6th Cir. 2005) (quoting Balani v. I.N.S. , 669 F.2d 1157, 1161 (6th Cir. 1982))

. Though it need not “write an exegesis on every contention,” it must “consider the issues raised, and announce its decision in terms su fficient to enable [appellate review] . . . .”
Scorteanu v. I.N.S. , 339 F.3d 407, 412 (6th Cir. 2003) ( quoting Osuchukwu v. I.N.S. , 744 F.2d 1136, 1142

– 43 (5th Cir. 1984) ).
In deter mining whether th is BIA d e cision amounts to an abuse of discretion, we loo k only at “the basis articulated in the decision and . . . may not assume the [BIA] considered factors that it failed to mention in its opinion.” Daneshvar v. Ashcroft , 355 F.3d 615, 626 (6th Cir. 2004) (citations omitted)

. Here, t he BIA ’s opinion consist s of the following paragraph:Case No. 15

- 3239

Guts v. Lynch

- 4

- By a timely motion, the respondent seeks to have the proceedings reopened in order to seek adjustment of status. The motion does not reflect prima facie eligibility for the relief f ro m removal sought. The respondent i s not the beneficiary of an approved visa petition insofar as the petition filed on his behalf, on the basis of which he seeks the reopening of these proceedings, was denied on February 13, 2014. Accordingly, t here being no basis to w arrant the reopening of the proc eedings, the motion to reopen is denied.
Want of prima facie eligibility for relief is a legitimate basis for denial, see 8 C.F.R. § 1003.2 , but the BIA must provide analysis beyond “ [ c ] ursory, summary, or conclusory statements .”
Daneshvar , 355 F.3d at 626

. T hough the opinion note s the initial denial of Jana’s I

- 130 petition,
it fails to explore the record in any manner

. It ignores Guts ’s arguments and overlooks the more than fifty pages of evidence he submitted supporting his motion to reope n
. Because the opinion mentions none of these factors, w e must conclude that the BIA failed to consider them in reaching its conclusion . This failure amount s to an abuse of discretion. The government u rg es the court to assume that USCIS’ marriage

- fraud determination prompted the denial. It directs our attention to Foythong v. Holder , in which we described the relevant regulation, 8 U.S.C. § 1154(c) , as a “one

- strike rule , meaning that, after one prior finding of a sham marriage, the immigration authorities must reject all future efforts at an adjustment of status based on marital status .” 743 F.3d 1051, 1053 (6th Cir. 2014)

. But in that

case, the petition er submitted no evidence on the bona fide s of his purportedly fraudulent marriage , and the BIA “denied the motion on the ground that [the petitioner] had little probability of success in view of his prior sham marriage. ” Id

. Guts ’s case is different.
N ot only did the BIA not reference or consider any circumstances concerning Guts ’s marriage s , it also bypassed assessing his likelihood of success

. Though perhaps the BIA d enied Guts ’s
motion to reopen on the basis suggested by the government, its opinion never mentions it, and

we may not assume a rationale

. Daneshvar , 355 F. 3d at 626

.Case No. 15

- 3239

Guts v. Lynch

- 5

- Concluding that the BIA abused its discretion , we grant the petition for review and
remand to the BIA for further consideration.