In the context of other types of administrative matters—motions to reopen and requests for continuances—the BIA and the Ninth Circuit, as well as other circuits, have rejected allowing such veto power to a party. Id .; see Matter of Lamus-Pava , 25 I. & N. Dec. 61, 64–65 (BIA 2009) (overruling prior BIA law and holding that a motion to reopen may not be denied based solely on Department opposition and without regard to the merit of the opposition); Ahmed v. Mukasey , 548 F.3d 768, 772 (9th Cir. 2008) (holding that when the Department opposes a motion to reopen for adjustment of status the BIA can consider the objection but not deny the motion solely on the Department’s objection); Matter of Hashmi , 24 I. & N. Dec. 785, 790–91 (BIA 2009) (addressing DHS opposition to a request for a continuance and holding that an IJ should evaluate the request under the totality of the circumstances, not giving much weight to an unsupported DHS opposition); Malilia v. Holder , 632 F.3d 598, 606 (9th Cir. 2011) (approving the factors set forth in Matter of Hashmi ).Like a motion to reopen or a motion for a continuance, administrative closure is a tool that an IJ or the BIA must be able to use, in appropriate circumstances, as part of their delegated authority, independence and d

Kolodziejczyk is correct that he could have moved to remand proceedings on the basis of his second wife's pending immediate-relative visa petition (before the agency's approval of that petition) and without moving jointly with the Department of Homeland Security ("DHS"). In re Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002); see Melnitsenko v. Mukasey, 517 F.3d 42, 49 (2d Cir. 2008) (under Velarde-Pacheco, a motion to reopen to pursue adjustment may be granted prior to the adjudication of the visa petition filed on the applicant's behalf); Matter of Lamus-Pava, 25 I. & N. Dec. 61, 64-65 (BIA 2009) ( Velarde-Pacheco "does not grant the DHS 'veto' power over an otherwise approvable Velarde motion"). The grant of such a motion is a matter of BIA discretion, however.

The BIA as a whole later recognized that “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 Lamus–Pava, 25 I. & N. Dec. 61, 64 (BIA 2009) (collecting citations). As a result, in applying Velarde, the BIA “accorded controlling weight to the opposition of the DHS in at least some cases.”

The BIA denied Dakaud's motion on the basis of the fifth factor. Although Velarde-Pacheco suggests that the DHS's opposition to the motion is dispositive, see Bhiski v. Ashcroft, 373 F.3d 363, 370-72 (3d Cir. 2004), the BIA recently "clarifi[ed] or . . . modifi[ed]" Velarde-Pacheco, leaving no doubt that the fifth factor "does not grant the DHS 'veto' power over an otherwise approvable Velarde motion," Matter of Lamus-Pava, 25 I. N. Dec. 61, 64-65 (BIA 2009). The BIA explained:

Mr. Hernandez-Ortiz argues the BIA abused its discretion in denying his motion to reopen to apply for adjustment of status solely on the basis that he failed to include his application with his motion. He contends the BIA's decision departs from the established policy in In re Velarde-Pacheco, 23 I. &N. Dec. 253, 257 (BIA 2002), modified in part by Matter of Lamus-Pava, 25 I. &N. Dec. 61 (BIA 2009).

The Board denied Synedzhuk's motion to reopen. Citing Matter of Velarde, 23 I. & N. Dec. 253 (BIA 2002) and Matter of Lamus-Pava, 25 I. & N. Dec. 61 (BIA 2009), the Board first explained that a motion to reopen may be granted in the exercise of discretion when an alien enters a marriage during immigration proceedings and while a marriage-based visa petition is pending, provided that, among other things, (1) "the motion presents clear and convincing evidence indicating a strong likelihood that the respondent's marriage is bona fide;" and (2) "the government . . . does not oppose the motion." Velarde, 23 I. & N. at 256; see also Lamus-Pava, 24 I. & N. at 64-65 (clarifying that an alien's motion to reopen may not be denied solely on the basis of the government's opposition).

The BIA affirmed and Mr. Krylov appealed to this court. While that appeal was pending, the government moved to remand based on In re Lamus-Pava, 25 I. N. Dec. 61, 64-65 (BIA 2009), which held that DHS opposition to a motion to reopen based on marriage to a United States citizen is not "dispositive of the motion without regard to the merit of that opposition," abrogating Velarde-Pacheco. Accordingly, the case was remanded to the BIA.

The BIA currently employs a multifactor test to determine whether to grant a motion to reopen for adjustment of status based on a marriage entered into after commencement of removal proceedings, the first factor of which is whether the motion is timely filed. See Matter of Velarde-Pacheco, 23 I. N. Dec. 253, 256 (BIA 2002); modified, Matter of Lamus-Pava, 25 I. N. Dec. 61, 64-65 (BIA 2009). Accordingly, we will deny the petition for review.

We conclude that it is unnecessary to reach reopen to apply for adjustment of status based on a marriage entered into after removal proceedings are commenced may not be denied simply because the Government opposes it. See Matter of Lamus-Pava, 25 I. N. Dec. 61 (BIA 2009). For these reasons, we conclude that the BIA's order was not arbitrary, irrational, or contrary to law, and that Shabayek presents no substantial issue on appeal.