Cite as 25 I&N Dec. 61 (BIA 2009) Interim Decision #3652
Matter of Jaime Armando LAMUS-Pava, Respondent
File A088 343 886 – San Antonio, Texas
Decided July 24, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
A motion to reopen to apply for adjustment of status based on a marriage entered into after
the commencement of removal proceedings may not be denied under the fifth factor
enumerated in Matter of Velarde, 23 I&N Dec. 253 (BIA 2002), based on the mere fact that
the Government has filed an opposition to the motion, without regard to the merit of that
FOR RESPONDENT: Lance E. Curtright, Esquire, San Antonio, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jane H. Thomson, Assistant
BEFORE: Board Panel: NEAL, Acting Chairman; HOLMES, Board Member; and
CLARK, Temporary Board Member.
HOLMES, Board Member:
In a decision dated July 22, 2008, an Immigration Judge denied the
respondent’s motion to reopen his removal proceedings to pursue
an application for adjustment of status but granted his timely filed request
to withdraw his application for voluntary departure. The respondent has
appealed from that decision. The appeal will be sustained, and the record will
be remanded for further consideration of the respondent’s motion.
I. FACTUAL AND PROCEDURAL HISTORY
Removal proceedings were commenced against the respondent in August
2007 when he was charged with being an overstayed nonimmigrant student.
The respondent did not contest his removability. In a March 24, 2008,
amended decision, the Immigration Judge granted the respondent’s requestCite as 25 I&N Dec. 61 (BIA 2009) Interim Decision #3652
1 The Immigration Judge’s initial decision entered that same day had mistakenly granted the
respondent voluntary departure until September 2, 2008, a period greater than 120 days.
2 In Matter of Arthur, 20 I&N Dec. 475, the Board ruled that a motion to reopen to apply for
adjustment of status based on a marriage entered into after the commencement
of proceedings could not be granted unless the former Immigration and Naturalization
Service, now the DHS, had approved the visa petition.
for voluntary departure on or before July 22, 2008, with an alternative order
of removal to Colombia.1
On June 17, 2008, the respondent filed a timely motion to reopen with the
Immigration Judge seeking the opportunity to pursue an application for
adjustment of status based on a pending visa petition filed on his behalf by his
United States citizen wife. The couple had married on May 1, 2008. The
Department of Homeland Security (“DHS”) opposed the respondent’s motion,
arguing, in part, that he had not presented clear and convincing evidence
of the bona fides of his marriage. Thereafter, on July 16, 2008, the respondent
separately moved to withdraw his request for voluntary departure. See Dada
v. Mukasey, 128 S. Ct. 2307, 2319 (2008).
In his July 22, 2008, decision, the Immigration Judge granted the
respondent’s motion to withdraw his request for voluntary departure but
denied his motion to reopen. In his decision denying the motion to reopen,
the Immigration Judge correctly set forth the factors to be considered
in adjudicating a properly filed motion to reopen to apply for adjustment
of status based on a marriage entered into after the commencement of removal
proceedings, as enumerated by this Board in Matter of Velarde, 23 I&N Dec.
253 (BIA 2002).
In Matter of Velarde, we held that such a motion (hereinafter a “Velarde
motion”) may be granted in the exercise of discretion, notwithstanding the
pendency of an unadjudicated visa petition filed on the alien’s behalf,
where: (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
respondent’s marriage is bona fide; and (5) the Government either does not
oppose the motion or bases its opposition solely on Matter of Arthur, 20 I&N
Dec. 475 (BIA 1992) (hereinafter the “fifth factor”).2
In adjudicating the motion, the Immigration Judge correctly concluded that
the respondent’s motion was not untimely, numerically barred, or barred
by Matter of Shaar. The Immigration Judge noted, however, that the DHS
opposed the motion by contesting the respondent’s evidence of the bona fides
of his marriage and did not base its opposition “solely on Matter of Arthur.”Cite as 25 I&N Dec. 61 (BIA 2009) Interim Decision #3652
Citing Matter of Velarde and Ramchandani v. Gonzales, 434 F.3d 337 (5th
Cir. 2005), the Immigration Judge concluded that he need not further
consider or address the bona fides of the respondent’s marriage “because the
opposition of DHS on a ground unrelated to Matter of Arthur mandates denial
of Respondent’s Motion to Reopen.” Thus, without evaluating either the
respondent’s evidence of the bona fides of his marriage or the merits of the
DHS opposition to the motion, the Immigration Judge denied the respondent’s
motion because it failed to meet the requirements for reopening “as set forth
in Matter of Velarde.”
The respondent appealed the Immigration Judge’s decision, arguing that
he erred in denying the motion solely on the basis of the DHS opposition
without evaluating any of the other factors enumerated in Matter of Velarde.
The respondent maintains that no single Velarde factor is determinative in the
adjudication of a motion to reopen, but that all the factors “are to be weighed
against each other” when evaluating a motion. He avers that the Immigration
Judge impermissibly abdicated his decision-making responsibility by accepting
as dispositive, without further inquiry, the DHS opposition to his motion,
simply because the opposition was not based on Matter of Arthur. The
respondent also has separately moved to remand the record to the Immigration
Judge based on additional evidence. The DHS requests that the Immigration
Judge’s decision be affirmed and that the respondent’s appeal be dismissed.
The issue presented here is whether an otherwise properly filed Velarde
motion should be denied by an Immigration Judge or the Board based solely
on the fact that the DHS has opposed the motion on a ground other than Matter
of Arthur, without consideration of the merits of the DHS opposition or of the
evidence and arguments proffered by the respondent in support of the motion.
Stated otherwise, should the DHS essentially have the unreviewable discretion
to “veto” a Velarde motion?
There are times that the phrasing of an issue in itself indicates its proper
resolution, and this may be such a case.
The respondent argues that the fifth factor set forth in Matter of Velarde
was never intended to be considered dispositive, and he finds some support
for this argument in the language of Velarde stating that the application
of the five factors “necessarily requires examination of the relevant factors and
a determination of the weight such factors should be accorded.” Matter
of Velarde, 23 I&N Dec. at 256. In fact, the United States Court of AppealsCite as 25 I&N Dec. 61 (BIA 2009) Interim Decision #3652
for the Sixth Circuit adopted this reading of Matter of Velarde in response
to the “government’s contention that Velarde gives the government unbridled
discretion amounting to an absolute veto to block consideration of a motion
to reopen.” Sarr v. Gonzales, 485 F.3d 354, 363 (6th Cir. 2007).
However, the fifth factor in Velarde can be read to be dispositive, and it was
so understood by at least some Board Members at the time Matter of Velarde
was decided. See Matter of Velarde, 23 I&N Dec. at 264 (Rosenberg, Board
Member, concurring) (“I see no justification for the degree of deference
extended to the Service under the fifth condition articulated in the majority
opinion. I do not believe that Service opposition is an appropriate ‘condition’
that, as a rule, should result in denial of a motion to reopen.”); id. at 268
(Pauley, Board Member, dissenting) (“As I read the opinion, the Service
is required only to register its opposition to the alien’s motion. The Service
is not required to state the ground(s) for its opposition.”).
Further, we do not fault the Immigration Judge’s understanding of the
fifth factor in this case because it is clear the Board itself has applied the
same reading and accorded controlling weight to the opposition of the DHS
in at least some cases, with mixed reactions from the courts of appeals.
In Melnitsenko v. Mukasey, 517 F.3d 42, 51 (2d Cir. 2008), the Second
Circuit held that the Board “exceeded its allowable discretion in treating the
fifth [Velarde] factor as dispositive and in denying Melnitsenko’s motion
to reopen based solely on the fact that the DHS opposed the motion.” The
Second Circuit opined that there was “no rational explanation for why the fact
of the DHS’s opposition alone is sufficient to deny a motion.” Id. Similarly,
in Ahmed v. Mukasey, 548 F.3d 768, 772 (9th Cir. 2008), the Ninth Circuit
held that the Board “erred in concluding that Ahmed’s original motion
to reopen would have been denied solely on the basis of the government’s
opposition.” The Ninth Circuit noted the regulations at 8 C.F.R.
§ 1003.1(d)(1)(ii) (2009), which direct that Board Members “exercise their
independent judgment and discretion in considering and determining the
cases coming before the Board.”
Both the Third and Fifth Circuits have denied petitions for review of Board
decisions in which the dispositive nature of the Velarde fifth element was
argued by the Government. See Ramchandani v. Gonzales, 434 F.3d 337;
Bhiski v. Ashcroft, 373 F.3d 363 (3d Cir. 2004). In Ramchandani, the Fifth
Circuit, in whose jurisdiction this case arises, reviewed the Board’s denial
of the motion to reopen “‘under a highly deferential abuse-of-discretion
standard.’” 434 F.3d at 340 (quoting Zhao v. Gonzales, 404 F.3d 295, 304 (5th
However, on further consideration, whether as a matter of clarification
or of modification, we now hold that the fifth factor set forth in Matter
of Velarde does not grant the DHS “veto” power over an otherwise approvableCite as 25 I&N Dec. 61 (BIA 2009) Interim Decision #3652
Velarde motion. We are not persuaded that the mere fact of a DHS opposition
to a motion, in and of itself, should be dispositive of the motion without regard
to the merit of that opposition. The DHS’s arguments advanced in opposition
to a motion should be considered in adjudicating a motion, but they should not
preclude the Immigration Judge or the Board from exercising “independent
judgment and discretion” in ruling on the motion. 8 C.F.R. § 1003.1(d)(1)(ii);
see also 8 C.F.R. § 1003.10(b) (2009) (“In deciding the individual cases before
them, and subject to the applicable governing standards, immigration judges
shall exercise their independent judgment and discretion . . . .”). If the DHS’s
arguments are persuasive, they should prevail. If they are not, an otherwise
approvable motion should not be denied simply based on the fact that
an unpersuasive argument was advanced by the Government.
In the case before us, for example, the DHS opposed the motion before the
Immigration Judge based on its argument that the respondent had provided
inadequate evidence of the bona fides of his marriage. In denying the motion
based on the fact of this opposition alone, the Immigration Judge never
considered either the evidence presented by the respondent with his motion
or the merits of the DHS’s arguments regarding its sufficiency. One cannot
conclude that the Immigration Judge exercised his independent judgment and
discretion in denying the motion when—if the DHS opposition had not been
deemed dispositive—the Immigration Judge may have found that the motion,
in fact, presented clear and convincing evidence indicating a strong likelihood
that the respondent’s marriage is bona fide, and he may have concluded that
the contrary arguments advanced by the Government were meritless.
Accordingly, we will vacate the decision of the Immigration Judge and remand
the record for further consideration of the respondent’s motion to reopen. The
matters raised in the respondent’s motion to remand can be addressed before
the Immigration Judge.
ORDER: The appeal is sustained.
FURTHER ORDER: The July 22, 2008, decision of the Immigration
Judge is vacated and the record is remanded for further consideration of the
respondent’s motion to reopen.