A.R. at 2 (citations omitted). In his petition for review, Bhiski argues that the BIA erred in dismissing his appeal because the IJ violated his due process rights when the IJ (1) failed to ensure that he was financially capable of leaving under voluntary departure, (2) failed to explain the consequences of voluntarily departing, and (3) proceeded with the hearing despite the absence of an attorney for Bhiski. Bhiski further argues that the BIA erred in denying his motion for remand because he met the test, formulated in Matter of Velarde-Pacheco, 23 I. N. Dec. 253 (BIA 2002), for determining immigration proceedings based on a marriage entered into after the commencement of proceedings. II. DISCUSSION
On December 29, 2006, the BIA denied the motion to reopen. The BIA stated that, under its decision in Matter of Velarde-Pacheco, 23 I. N. Dec. 253 (B.I.A. 2002) (en banc), any motion to reopen to adjust status based upon an unapproved petition with respect to a marriage occurring after the initiation of removal proceedings requires, inter alia, that the DHS not oppose the motion. The BIA concluded that the motion "must be denied" based solely on the fact that the DHS opposed it.
The BIA denied Atuesta's motion to reopen. Citing a five-factor test established in Matter of Velarde-Pacheco, 23 I. N. Dec. 253 (BIA 2002), the BIA determined that Atuesta did not establish two of the five Velarde factors. In Velarde, the BIA determined that a properly filed motion to reopen may be granted, in the exercise of discretion, to provide an alien an opportunity to pursue an application for adjustment where the following five factors are present:
INA § 245(e)(3), 8 U.S.C. § 1255(e)(3). In Matter of Velarde-Pacheco, 23 I. & N. Dec. 253, 255-56 (BIA 2002), the BIA held that a motion to reopen may be granted under certain conditions, in the exercise of discretion, to enable an alien to pursue adjustment of status based on a marriage entered into after the commencement of removal proceedings. One of the required conditions is that "the motion presents clear and convincing evidence indicating a strong likelihood that the respondent's marriage is bona fide."
In this regard, as noted by DHS counsel, while the respondent has provided affidavits of support [from] his wife and a joint sponsor, his wife currently has no income and the joint sponsor neglected to submit supporting documentation for the reported income on his income tax return. As such, consistent with Matter of Velarde, 23 I & N Dec. 253 (BIA 2002), the DHS' opposition is sufficient to require a denial of the respondent's motion. Tadevosyan later filed a motion to reconsider and a renewed motion to reopen.
Finally, the BIA denied both of Huang's motions to remand. As to her motion to remand to allow her to apply for an adjustment of status based upon her marriage in October 2004 to Fong, a U.S. citizen, the BIA cited its decision in Matter of Velarde, 23 I. N. Dec. 253 (BIA 2002), to support its conclusion that "the requirements with respect to evidence that is to accompany a motion to remand have not been met in this case," noting also that "the DHS opposes [Huang's] motion because she previously perpetrated marriage fraud." J.A. at 3.
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).
However, a heightened burden of proof creates a rebuttable presumption. In re Arthur, 20 I. N. Dec. 475 (B.I.A. 1992), modified on other ground by In re Velarde-Pacheco, 23 I. N. Dec. 253 (B.I.A. 2002). Malilia had the burden of proof to show, through "clear and convincing evidence," that his marriage was not fraudulent.
Dinanto's motion to reopen needed to show, among other things, that he was at that time prima facie eligible for adjustment of status (not that he might at some point become prima facie eligible for adjustment of status). See In re Velarde-Pacheco, 23 I. N. Dec. 253, 255-57 (BIA 2002). Statutory eligibility includes showing that a visa would be immediately available to him.
(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 Service either does not oppose the motion or bases its opposition solely on Matter of Arthur [ 20 I. N. Dec. 475 (BIA 1992)]. 23 I. N. Dec. 253, 256 (BIA 2002) (emphasis added). A. DHS OPPOSITION UNDER VELARDE-PACHECO