In re Shaar

1 Analyses of this admin-law by attorneys

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

    University of Denver Sturm College of LawJuly 31, 2009

    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.”