2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-6-2011

Earl Simmonds v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3126

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-3126

___________

EARL SIMMONDS,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(BIA No. A028-421-405 )

U.S. Immigration Judge: Honorable Margaret R. Reichenberg

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 3, 2011

Before: SCIRICA, FISHER and ALDISERT, Circuit Judges

(Filed: January 6, 2011)

___________

OPINION OF THE COURT

___________

PER CURIAM.

Petitioner Earl Simmonds is a native and citizen of Nevis who seeks review 

of the Board of Immigration Appeals‟ (“BIA”) order denying his motion to reopen his

removal proceedings. For the following reasons, we will deny the petition for review.
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Simmonds entered the United States as a visitor in June 1986. He thereafter 

adjusted to a conditional permanent resident on November 19, 1987, based on his

marriage to Ruth Bryant, a United States citizen. Simmonds subsequently filed several 

Form I-751 petitions to remove the conditions to his residency, with the last such petition 

being filed on September 12, 2005. A.R. 309. Given his divorce from Bryant in June 

1990, Simmonds also sought a waiver under INA § 216(c)(4)(B) of the statutory 

requirement that he and his citizen wife jointly petition to remove the conditions on his 

permanent residency. A.R. 315. Simmonds‟ conditional resident status was terminated 

on October 4, 2006, after the District Director of the Citizenship and Immigration Service 

determined that he failed to establish that his marriage had been entered into in good faith 

and not merely to procure his entry into the United States as an immigrant. A.R. 309. 

The Department of Homeland Security (“DHS”) thereafter issued petitioner a Notice to 

Appear, charging him with removability due to the termination of his conditional 

permanent residency status. See INA § 237(a)(1)(D)(i), 8 U.S.C. § 1227(a)(1)(D)(i). 

A.R. 563.

On April 21, 2008, the Immigration Judge (“IJ”) found Simmonds removable as 

charged. The IJ also denied Simmonds‟ applications for a § 216(c)(4)(B) waiver of the 

joint petition requirement to remove the conditions on his residency and for cancellation 

of removal. The IJ determined that Simmonds failed to prove that he had any qualifying 

relative to establish a statutory eligibility for cancellation of removal under INA § 

240A(b)(1). The IJ further concluded that Simmonds had not been a credible and 
3

persuasive witness as to the bona fides of his marriage. Based upon the totality of the 

evidence, the IJ found that Simmonds failed to meet his burden to show that his marriage 

to his ex-wife had been entered into in good faith. Simmonds‟ waiver request under INA 

§ 216(c)(4)(B) was therefore denied, and he was ordered removed. The BIA affirmed the 

IJ‟s decision and dismissed Simmonds‟ appeal in an order issued on December 8, 2008. 

Simmonds did not seek judicial review of that decision.

The following month, Simmonds filed a timely motion with the BIA seeking to 

reopen proceedings to reapply for cancellation of removal under INA § 240A(b)(1), 

based on his marriage on January 5, 2009, to longtime fiancée, Brenda Bartlette. He also 

requested that the BIA stay his removal from the United States. Simmonds‟ motion fared 

no better than his appeal. In an order issued on June 26, 2009, the BIA denied his reopen 

motion and found that his request for a stay had been rendered moot. The BIA concluded 

that Simmonds failed to make a prima facie showing of eligibility for cancellation of 

removal. In particular, the BIA noted that, other than counsel‟s statements (which are not 

evidence), Simmonds presented no evidence that his spouse -- who also appears to be 

from Nevis, see A.R. 17 -- is, in fact, a lawful permanent resident, and thus a qualifying 

relative. The BIA determined that Simmonds likewise failed to present any evidence in 

support of a prima facie showing that his removal to Nevis would result in the 

exceptional and extremely unusual hardship to his wife as required by INA § 

240A(b)(1)(D).

Simmonds, through counsel, seeks review of the BIA‟s final order of removal.
4

We exercise jurisdiction over a petition for review pursuant to 8 U.S.C. § 

1252(a)(1), and review the denial of a motion to reopen for an abuse of discretion. Filja

v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006). We must affirm the BIA‟s denial of a 

motion to reopen unless its decision was “arbitrary, irrational, or contrary to law.” Rranci 

v. Att‟y Gen., 540 F.3d 165, 171 (3d Cir. 2008)(internal quotations and citation omitted). 

Simmonds‟ sole argument is that the BIA abused its discretion in denying his 

motion to reopen without considering all of the record evidence, including statements and 

documents attached to the motion. As set forth in 8 U.S.C. § 1229a(c)(7)(B), “[a] motion 

to reopen shall state the new facts that will be proven at a hearing to be held if the motion 

is granted, and shall be supported by affidavits or other evidentiary material.” See also 8 

C.F.R. § 1003.2(c)(1). According to Simmonds, he introduced sufficient facts and 

evidence that his new wife, Brenda Bartlette, would suffer extreme and unusual hardship 

such that a reopening of his immigration proceedings was justified.

From our review of the record, however, we are compelled to find no abuse of 

discretion on the part of the BIA in concluding that Simmonds failed to demonstrate 

prima facie eligibility for cancellation of removal. The only evidence submitted with the 

reopen motion was a four-sentence affidavit by petitioner noting his marriage to Brenda 

Bartlett and a copy of the couple‟s marriage certificate. Even assuming arguendo that a 

simple marriage certificate could be deemed sufficient evidence for the purpose of 

establishing that Simmonds‟ new wife was a qualifying relative -- a contention that is far 

from clear in the instant case -- he submitted no objective evidence whatsoever that his 
5

wife would suffer exceptional and extremely unusual hardship if he were removed from 

the United States. See Fadiga v. Att‟y Gen., 488 F.3d 142, 160 (3d Cir. 2007) (“[T]he 

prima facie case standard for a motion to reopen ... requires the applicant to produce 

objective evidence showing a „reasonable likelihood‟ that he can establish that he [merits 

relief under the applicable standard].”) (quoting Sevoian v. Ashcroft, 290 F.3d 166, 175 

(3d Cir. 2002)). While Simmonds correctly notes that “[f]acts presented in the motion to 

reopen are accepted as true unless inherently unbelievable,” see Shardar v. Att‟y Gen.,

503 F.3d 308, 313 (3d Cir. 2007), the mere recitation of the applicable statutory language 

does not equate to a prima facie showing of eligibility for cancellation of removal in the 

absence of any objective evidence whatsoever.

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