2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

1-6-2011 

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P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 09-3126

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w . v i l l a no v a . e du/thir dc ir c uit_2011/2008NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 0 9

- 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. A

0 28

- 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

(F iled : January 6, 2011 )

___________ OPINION OF THE COURT

___________ PER CURIAM

.

Petitioner Ea

rl Simmonds is a native and citizen of N evis who seeks review of the Board of Immigration Appeals‟ (“BIA”) order den ying his motion to reopen h is removal proceedings. For the following reasons, we will deny the petition for review.2

Simmonds entered the United States as a visitor in June 1986. He thereafter adjusted to a c onditional permanent resident on November 19, 1987, based on h is marriage to Ruth Bryant , a United States citizen

. Simmonds subsequently filed several
Form I

- 751 petition s to remove the conditions to his residency , with the l ast 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 con ditions 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 bee n 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 N otice to Appear , charging him with removabili ty due to the term ination 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 a nd for cancellation
of removal. The IJ determined that Simmonds failed to prove that he had any qualifying relative to establish a statutory eligibility f or cancellation of removal under INA § 240A(b)(1). T he IJ further concluded that Simmonds had not been a credible and3

persuasive witness as to the bona fides of his marriage. Based upon the totality of the evidence, the IJ found that Simmonds failed to m eet his burden to show that his marriage
to his ex

- wife had been en tered 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‟ ap peal 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 cancellati on 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

. T he 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, t hrough 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. 200 6 ). 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 (3 d Cir. 2008) ( internal quotations and citation omitted)

. Simmonds‟ sole argument is that the BIA abuse d 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 wil l 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, Bre nda 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
discr etion 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 c ertificate. E ven 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 su bmitted no objective evidence whatsoever that his5

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 m otion to reopen ... requires the applicant to produce objective evidence showing a „reasonable likelihood‟ that he can establish that he [merits relief unde r 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 eq uate 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.