BIA: Motion to Reopen to Apply for Adjustment Based on Marriage Occurring after Proceedings Commenced May Be Granted Prior to Visa Petition Approval in Some Circumstances (Matter of Velarde-Pacheco)

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BIA: MOTION TO REOPEN TO APPLY FOR ADJUSTMENT BASED ON MARRIAGE OCCURRING AFTER PROCEEDINGS COMMENCED MAY BE GRANTED PRIOR TO VISA PETITION APPROVAL IN SOME CIRCUMSTANCES (MATTER OF VELARDE-PACHECO)
Immigrants' Rights Update, Vol. 16, No. 2, April 12, 2002

The Board of Immigration Appeals has issued an en banc decision granting a motion to reopen to apply for adjustment filed by a respondent who married a U.S. citizen after the Immigration and Naturalization Service had commenced deportation proceedings against the respondent. The decision modifies the BIA's previous rulings in Matter of Arthur, 20 I. & N. Dec. 475 (BIA 1992), and Matter of H-A-, Int. Dec. 3394 (BIA 1999), which held that a motion to reopen to apply for adjustment based on a marriage entered after the commencement of proceedings could not be granted unless the INS had previously approved the visa petition. The new decision specifies a narrow set of circumstances in which such motions may be granted.

Under 8 C.F.R. section 242.2(a)(ii), an adjustment application can be filed simultaneously with a visa petition if a visa would be "immediately available" once the petition was approved (thus, for example, immediate relative petitions can be filed concurrently with adjustment applications, but petitions for visas in backlogged preferences cannot). Because of this provision, in Matter of Garcia, 16 I. & N. Dec. 653 (BIA 1976), the BIA adopted a rule treating pending visa petitions as "prima facie approvable" for purposes of adjudicating a motion to reopen deportation proceedings to apply for adjustment of status. Under this rule, motions to reopen for adjustment generally should be granted "unless clear ineligibility is apparent on the record."

However, in Arthur the BIA modified this rule with respect to respondents who marry after the commencement of proceedings. Section 245(e) of the Immigration and Nationality Act, enacted in 1990 as a modification of the Immigration Marriage Fraud Amendments of 1986, established a higher-than-normal standard that respondents seeking to adjust based on a marriage commenced after the start of proceedings must meet. Such respondents must show "by clear and convincing evidence" that the marriage was entered into in good faith. The BIA decided not to treat the visa petition as prima facie approvable in this situation, reasoning that to do so would conflict with the higher evidentiary requirement of section 245(e).

In Matter of H-A-, the BIA reaffirmed its ruling in Arthur. In H-A-, the respondent had filed a timely motion to reopen to apply for adjustment based on a marriage entered after proceedings began, and the BIA denied the motion because there was no approved petition, following Arthur. After the visa petition was approved, the respondent filed a motion to reconsider the denial of the motion, and the BIA denied that as untimely. Construing the motion as a motion to reopen, since the respondent sought to submit new evidence, the BIA also concluded that it was prohibited by the regulations that limit respondents to filing one motion to reopen.

In deciding to modify the rule of Arthur and H-A-, the BIA noted that the rule, in conjunction with the regulatory time and numerical limits for motions to reopen and the inability of the INS to adjudicate visa petitions within 90 days, serves "to deprive a small class of respondents, who are otherwise prima facie eligible for adjustment, of the opportunity" to apply. The BIA therefore modified the rule to allow reopening for adjustment, in the exercise of discretion, only where five conditions are met:

the motion to reopen must be timely filed (within 90 days of a final order);
the motion must not be numerically barred;
the motion must not be barred by Matter of Shaar, 21 I. & N. Dec. 541 (BIA 1996), or other procedural grounds (in Shaar, the BIA held that a respondent seeking to reopen deportation proceedings who had failed to depart the U.S. prior to the lapse of a granted period of voluntary departure was ineligible for relief for a five-year period under former INA section 242B(e)(2)(A));
the respondent must present clear and convincing evidence indicating a strong likelihood that the marriage is bona fide; and
the motion must not be opposed by the INS, or INS's opposition must be based solely on Matter of Arthur and Matter of H-A-.

Matter of Velarde-Pacheco, 23 I. & N. Dec. 253, Int. Dec. 3463 (BIA Mar. 6, 2002).