FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 15, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-15300

Non-Argument Calendar

________________________

Agency No. A079-474-593

CLAUDIA PATRICIA POTES IBANEZ,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(June 15, 2009)

Before BIRCH, CARNES and WILSON, Circuit Judges.

PER CURIAM:
Claudia Patricia Potes-Ibanez, proceeding pro se, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order denying her counseled motion to

remand her case for adjustment of status based on her marriage to a United States

citizen during removal proceedings. The BIA treated her motion to remand as a

motion to reopen and found that she had failed to present clear and convincing

evidence that her marriage was bona fide. However, the BIA, in its order, failed to

address Potes-Ibanez’s approved I-130 visa petition, which was primary evidence

of eligibility for the bona fide marriage exemption. We therefore GRANT her

petition, VACATE the BIA’s order, and REMAND for further consideration.

I. BACKGROUND

In October 2000, Potes-Ibanez, a Colombian citizen, entered the United

States on a non-immigrant student visa, which authorized her to stay in the United

States until 5 July 2004. On 8 July 2004, the Department of Homeland Security

(“DHS”) issued her a notice to appear (“NTA”), in which she was charged with

removability as an alien who remained in the United States for a time longer than

permitted, pursuant to INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). On the same

date, her father and mother were issued NTAs charging them with overstaying

their visas.

Potes-Ibanez’s father filed a counseled application for asylum and

withholding of removal under the Immigration and Naturalization Act (“INA”),

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and relief under the United Nations Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment, and included Potes-Ibanez, her

mother, and her sister in the application. In July 2006, an immigration judge

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(“IJ”), after holding a hearing, denied the application and ordered the family

removed to Colombia. After they timely appealed, the BIA affirmed the IJ’s

decision in February 2008. The family filed a motion requesting that the BIA

reconsider its decision and stay removal, which the DHS opposed.

In May 2007, while the family’s appeal to the BIA was pending, PotesIbanez filed a counseled motion to sever her case from her parents’ case and to

remand to the IJ. In her motion, she asserted that: (1) she had married a United

States citizen, Christopher Freimuth, on 23 September 2006; (2) Freimuth had filed

a Form I-130 Petition for Alien Relative (“I-130”) on her behalf, which the United

States Citizen and Immigration Service approved on 23 March 2007; and (3) she

had submitted an I-485 application to adjust her status to that of a permanent

resident. She submitted several documents in support of her motion, including her

and Freimuth’s marriage certificate, both of their birth certificates, proof of the

dissolution of his former marriage, their G-325A biographical-information forms,

 The sister’s case was later severed because she was 21 years old, the spouse of a U.S. 1

citizen, and had a pending I-130 visa petition for an alien relative.

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her I-485 application to adjust status, and the notice indicating approval of

Freimuth’s I-130 petition on behalf of Potes-Ibanez.

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The BIA granted Potes-Ibanez’s motion to sever but denied her motion to

remand for consideration of her application for adjustment of status. It also noted

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that the DHS had not responded to Potes-Ibanez’s motion. The BIA treated her

application as a motion to reopen for adjustment of status based on a marriage

entered into subsequent to the onset of removal proceedings. It listed the evidence

Potes-Ibanez had submitted, including her marriage certificate, certificate of

dissolution of her spouse’s former marriage, her and Freimuth’s birth certificates,

her I-485 application, evidence showing that she was admitted into the United

States in 2000, and copies of her passport and I-94 form. The BIA’s discussion,

however, contains no reference to her approved I-130 application. The BIA found

that Potes-Ibanez had not provided the kind of “clear and convincing evidence”

required under 8 C.F.R. § 204.2(a)(1)(iii)(B) for eligibility for the bona fide

marriage exemption. Administrative Record (“AR”) at 3. Since she had not met

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 Their G-325A biographical-information forms showed identical current addresses since 2

October 2006, which matched the address listed on Potes-Ibanez’s I-485 application.

 As part of the same order, the BIA denied her family’s motion to reconsider and stay 3

the proceedings. That portion of the order is not relevant to this appeal.

 As examples of what evidence she could have presented, the BIA mentioned 4

“documentation showing joint ownership of property, a lease showing joint tenancy of a

common residence, documentation showing commingling of financial resources, or affidavits of

third parties having knowledge of the bona fides of the marital relationship.” AR at 3.

4
this requirement, the BIA denied her motion. Potes-Ibanez petitions us for review

of this decision.

II. DISCUSSION

On appeal, Potes-Ibanez asserts that the BIA should have granted her motion

to reopen because the evidence she submitted with her motion established that her

marriage was bona fide. She asserts that the approval notice for an I-130 petition

filed on her behalf by Freimuth, their marriage certificate, and the I-485

adjustment-of-status application provide the “clear and convincing evidence”

necessary for the bona fide marriage exemption. Additionally, Potes-Ibanez

maintains that we should not remand her case to the BIA because the “rare

circumstances” exception is applicable.

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We review only the BIA’s decision unless it expressly adopts the opinion of

the IJ. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Since the

BIA issued its own opinion and did not adopt the opinion or reasoning of the IJ, we

review only the BIA’s decision. See id. Courts generally look at the substance of

a motion to remand to determine how it should be treated on appeal. See id. at

1301. If the motion reiterates the remedy requested in the original appeal, it is

 Her statement of issues references a due process violation with respect to the BIA’s 5

dismissal. However, she offers no argument on this issue and therefore has abandoned it. See

Bayro v. Reno, 142 F.3d 1377, 1379 (11th Cir. 1998) (per curiam) (finding a party to have

abandoned an issue when they listed it “as an issue for appellate review but [did] not discuss that

question in their argument”).

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considered part of that appeal. See id. However, “if a motion to remand seeks to

introduce evidence that has not previously been presented, it is generally treated as

a motion to reopen under 8 C.F.R. § 3.2(c).” Id. Because Potes-Ibanez’s motion to

remand introduced evidence that had not been presented previously, we treat it as a

motion to reopen.

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

Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1226 (11th Cir. 2008)

(citation omitted). Our review of such a denial “is limited to determining whether

there has been an exercise of administrative discretion and whether the matter of

exercise has been arbitrary and capricious.” Id. (quotation marks and citation

omitted).

An alien’s motion to reopen removal proceedings must state new facts that

the alien would prove at a removal hearing and must be “supported by affidavits or

other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c).

“Motions to reopen are disfavored, especially in a removal proceeding, where, as a

general matter, every delay works to the advantage of the deportable alien who

wishes merely to remain in the United States.” Abdi v. U.S. Att’y Gen., 430 F.3d

1148, 1149 (11th Cir. 2005) (per curiam) (quotation marks and citation omitted).

As a result, the BIA has broad discretion to grant or deny such a motion. See Al

Najjar, 257 F.3d at 1302. We have identified at least three bases upon which the

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BIA could deny a motion to reopen: “(1) failure to establish a prima facie case [of

eligibility for adjustment of status]; (2) failure to introduce evidence that was

material and previously unavailable; and (3) a determination that despite the alien’s

statutory eligibility for relief, he or she is not entitled to a favorable exercise of

discretion.” Id. The BIA has held that it has the discretion to grant a properly filed

motion to reopen where the following five factors are present:

(1) the motion is timely filed; (2) the motion is not numerically barred

by the regulations; (3) the motion is not barred by Matter of 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 [petitioner’s] marriage is bona fide; and (5) [DHS]

either does not oppose the motion or bases its opposition solely on

Matter of Arthur, [20 I.&N. Dec. 475 (BIA 1992)].

In Re Velarde-Pacheco, 23 I.&N. Dec. 253, 256 (BIA 2002).

Under the INA, the Attorney General has the discretion to adjust the status

of an alien to that of a lawful permanent resident if: “(1) the alien makes an

application for such adjustment, (2) the alien is eligible to receive an immigrant

visa and is admissible to the United States for permanent residence, and (3) an

immigrant visa is immediately available to him at the time his application is filed.”

8 U.S.C. § 1255(a). The INA further provides that “any citizen of the United

States claiming that an alien is entitled . . . to an immediate relative status . . . may

file a petition with the Attorney General for such classification.” 8 U.S.C.

§ 1154(a)(1)(A)(i). The term “immediate relative” as used in that provision

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includes “children, spouses, and parents of a citizen of the United States.” 8

U.S.C. § 1151(b)(2)(A)(i). When an alien marries a U.S. citizen, the citizen spouse

may file a I-130 petition to establish the existence of a legal relationship between

the spouse and the alien. See Alvarez Acosta v. U.S. Att’y Gen., 524 F.3d 1191,

1194 n.6 (11th Cir. 2008). “If the beneficiary is the spouse of an United States

citizen, as here, then the approved I-130 provides the evidentiary basis for the

beneficiary’s adjustment of status via Form I-485, Application to Register

Permanent Residence or Adjust Status.” Id.

An alien seeking an immigrant visa based on a marriage entered into during

the pendency of “administrative or judicial proceedings . . . regarding the alien’s

right to be admitted or remain in the United States” generally is not eligible for a

status adjustment under 8 U.S.C. § 1255(a). 8 U.S.C. § 1255(e)(1)–(2). However,

the statute exempts from this bar any alien who can “establish[] by clear and

convincing evidence to the satisfaction of the Attorney General” that her marriage

was bona fide and not entered into solely “for the purpose of procuring the alien’s

admission as an immigrant.” 8 U.S.C. § 1255(e)(3). An approved I-130 petition

based upon the marriage in question “will be considered primary evidence of

eligibility for the bona fide marriage exemption.” 8 C.F.R. § 1245.1(c)(8)(v)

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 This regulation involves the adjustment of status for aliens already residing in the 6

United States. See id. We held a prior version of § 1245.1(c)(8), which addressed the unrelated

issue of the adjustment of status for arriving aliens, invalid. See Scheerer v. U.S. Att’y Gen.,

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(2008). An applicant who submits an approved petition would need to provide

additional evidence to establish that her marriage was bona fide only if the district

director found such evidence necessary and ordered her to provide it. See id.

When addressing an appeal from a decision in which the BIA did not

address a particular issue that a petitioner raised before it, “the proper course,

except in rare circumstances, is to remand to the [BIA] for additional investigation

or explanation.” See Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1329 (11th Cir.

2007) (quotation marks and citation omitted). We have found this “rare

circumstances” exception to apply when the relevant issue involves a question of

procedure rather than fact because the usual deference to the BIA’s expertise on

matters of fact would not be relevant to that issue. See id. at 1330.

Because Potes-Ibanez submitted a copy of the approved I-130 visa petition

to the BIA, she provided “primary evidence” of her eligibility for the bona fide

marriage exemption as contemplated under the relevant regulations. 8 C.F.R.

§ 1245.1(c)(8)(v). Nevertheless, the BIA found that she had not provided the kind

of documentation necessary to make out a prima facie case of eligibility for the

bona fide marriage exemption. Though the BIA listed a number of possible

documents that it would have found to be clear and convincing evidence, it did not

513 F.3d 1244, 1248 (11th Cir. 2008); see also Vakker v. Att’y Gen., 519 F.3d 143, 145 n.1 (3d

Cir. 2008) (noting that this prior version had been replaced by an unrelated regulation).

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mention the approved I-130 petition nor did it make an effort to discuss the

evidentiary standards provided in § 1245.1(c)(8)(v).

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The government maintains that since § 1245.1(c)(8)(v) treats an approved I130 petition as “primary evidence” of the bona fides of a marriage but does not

specify that it would be “clear and convincing evidence” of the same, the BIA

acted within its discretion in finding that the petition here did not meet the latter

standard. See Velarde-Pacheco, 23 I.&N. Dec. at 256 (noting that the BIA has

discretion to reopen only when there is “clear and convincing evidence indicating a

strong likelihood that the [petitioner’s] marriage is bona fide”); 8 C.F.R.

§ 1245.1(c)(8)(v). We disagree. Section 1245.1(c)(8)(v) indicates that an

approved I-130 petition would be sufficient to trigger the bona fide marriage

exemption except when the district director, who is in charge of approving the

petition, determines that supporting information is needed. See 8 C.F.R.

§ 1245.1(c)(8)(v). Only when the director makes this finding would the alien need

to produce “evidence which clearly and convincingly establishes that the marriage

was entered into in good faith.” Id. The regulation therefore implicitly assumes

that an approved I-130 petition on its own would be “clear and convincing

 Furthermore, the BIA’s discussion of potentially corroborating documents would not 7

fall under the portion of 8 C.F.R. § 1245.1(c)(8)(v) addressing the finding that an alien needed to

submit additional documentation, since that language refers only to determinations made by the

district director. See 8 C.F.R. § 1245.1(c)(8)(v).

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evidence” of eligibility for the bona fide marriage exemption, apart from those

instances in which the director required the alien to submit additional evidence.

See Patel v. Ashcroft, 375 F.3d 693, 696 (8th Cir. 2004) (noting that “the approved

visa petition normally suffices to qualify for the [bona fide marriage] exemption”).

The government also cites language from a number of cases indicating that

“approval of the I-130 petition does not automatically entitle the alien to

adjustment of status as an immediate relative of a United States citizen.” Agyeman

v. INS, 296 F.3d 871, 879 (9th Cir. 2002) (citing INS v. Chadha, 462 U.S. 919,

937, 103 S. Ct. 2764, 2777 (1983)). It maintains that, based on this rule, the BIA

has the discretion to decide what evidence is sufficient to establish eligibility for

the exemption. However, that principle “refers to the IJ’s ultimate discretionary

decision to accord or deny the status after examining the merits of an eligible

alien’s application,” rather than the issue of whether an alien has met her

evidentiary burden for eligibility for the exemption. Patel, 375 F.3d at 697; see

also Agyeman, 296 F.3d at 879 (noting that although an approved I-130 would

“establish[] eligibility for status, the Attorney General — or in the context of

deportation proceedings, the IJ — must still decide to accord the status”). Since

here the BIA addressed solely the issue of Potes-Ibanez’s eligibility for adjustment

of status, which would not implicate this discretionary principle, those cases do not

support the government’s argument. Only the IJ therefore has the authority to

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adjust Potes-Ibanez’s status. The BIA’s role is limited to determining whether she

met the eligibility requirements for a status adjustment, in this case by looking at

her eligibility for the bona fide marriage exemption, a finding it must base solely

on the applicable regulatory standards.

Because Potes-Ibanez submitted notice of approval of her I-130 petition as

part of her motion to reopen and the regulations would consider this “clear and

convincing evidence” of eligibility for the bona fide marriage exemption, the BIA

had to address this document in examining her eligibility for a status adjustment.

We therefore find that the BIA abused its discretion when it determined that PotesIbanez had not made out a prima facie case for eligibility for the bona fide

marriage exemption without discussing her approved I-130 petition. In this case,

we deem it appropriate to vacate the BIA’s order and remand to the BIA, since it

has not had the opportunity to consider the effect of this petition on her motion to

reopen for adjustment of status. See Calle, 504 F.3d at 1329.

III. CONCLUSION

Potes-Ibanez petitions us for review of the BIA’s denial of her motion to

remand or reopen her case for adjustment of status. We conclude that the BIA

abused its discretion in denying her motion without considering her submission of

the notice of approval of her I-130 application, even though such a notice is

considered primary evidence of eligibility for the bona fide marriage exemption to

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the bar on status adjustments. Accordingly, we GRANT her petition for review,

VACATE the BIA’s order, and REMAND for further consideration.

PETITION GRANTED; VACATED AND REMANDED.

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