BIA: DHS can’t veto motion to reopen based on pending marriage-based petition

By University of Denver Sturm College of Law

Jul 31, 2009

The BIA this week held that an Immigration Judge cannot deny a non-citizen’s motion to reopen based on a pending visa petition solely because the Department of Homeland Security opposes that motion. Matter of Lamus-Pava, 25 I&N Dec. 61 (BIA 2009). Rather, the IJ must consider the merits of the arguments made by both parties. Matter of Lamus-Pava, 25 I&N Dec. at 65.

In this case, the motion to reopen was filed by a non-citizen who sought time to pursue an application for adjustment of status based on a pending visa petition filed on his behalf by his United States citizen wife. Matter of Lamus-Pava, 25 I&N Dec. at 62. The IJ denied the motion based on the fact that DHS opposed the motion. Matter of Lamus-Pava, 25 I&N Dec. at 62. The IJ did not consider the merits of DHS’s opposition. Matter of Lamus-Pava, 25 I&N Dec. at 65.

In reaching a decision in this case, the BIA affirmed its 2002 test for deciding a motion to reopen to apply for adjustment based on a marriage entered into after commencement of removal proceedings. Matter of Lamus-Pava, 25 I&N Dec. at 62. In Matter of Valverde, 23 I&N Dec. 253 (BIA 2002), the BIA

“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”).”

(“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.” Matter of Lamus-Pava, 25 I&N Dec. at 62 n.2)

The BIA quickly hinted at its holding when it characterized the issue presented as “should the DHS essentially have the unreviewable discretion to ‘veto’ a Velarde motion?” Matter of Lamus-Pava, 25 I&N Dec. at 63. Needless to say, the BIA found that DHS should not and does not have such authority. Matter of Lamus-Pava, 25 I&N Dec. at 64-65.

The “mere fact of a DHS opposition to a motion, in and of itself, should not be dispositive of the motion without regard to the merit of that opposition.” Matter of Lamus-Pava, 25 I&N Dec. at 65. Rather, the IJ must consider the merits of the arguments put forth by the non-citizen and DHS. Matter of Lamus-Pava, 25 I&N Dec. at 65. “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.” Matter of Lamus-Pava, 25 I&N Dec. at 65.

This is a bit of sunshine in an often foreboding rain of BIA decisionmaking.