(caption unavailable)

*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-4499
Summary Calendar
MICHAEL BRIGHT,
Petitioner,
VERSUS
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals
(A26 087 916)
(November 19, 1992)
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
BACKGROUND
On April 3, 1985, Michael Bright, a citizen of Pakistan,
entered the United States on a nonimmigrant visitor's visa
authorizing him to remain until October 2, 1985. Unfortunately
Bright overstayed his welcome and remained beyond this date. On

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October 25, 1985, the Immigration and Naturalization Service
("INS") issued an Order to Show Cause why Bright should not be
deported.
At his deportation hearing held on April 23, 1986, Bright
admitted he was not a citizen or national of the United States but
requested an indefinite continuance until new procedural rules for
the conduct of hearings were published by the newly created
Executive Office of Immigration Review. The immigration judge
denied Bright's requested continuance and found him to be
deportable. Accommodatingly enough, the judge granted Bright's
request for voluntary departure for a period of 90 days.
Two days after the hearing, Bright appealed the judge's order
to the Board of Immigration Appeals ("Board"). Bright asserted
that the judge erred by denying his requested continuance and
conducting the hearing under the existing INS rules in violation of
the Administrative Procedure Act. Bright did not challenge the
grounds for his deportability, claim that he was entitled to any
relief from deportation, or allege that his hearing before the
immigration judge was prejudicial or unfair. Bright requested oral
argument and 30 days to file his brief. Due to certain
professional and personal circumstances allegedly beyond his
control, Bright's attorney failed to file a brief or request an
extension.
On August 20, 1987, the Board dismissed Bright's appeal,
concluding it was frivolous and filed for the sole purpose of
delay. The Board found that the immigration judge had properly

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1 Section 162(b)(5) and (6) of The Immigration
Act of 1990, Pub.L. 101-649, 104 Stat. 4978
(codified as amended in scattered sections of
8 U.S.C.) redesignated former subsection (h)
as (g).
3
conducted the hearing in accordance with the Immigration and
Nationality Act and title eight of the Code of Federal Regulations.
It further noted that in as much as Bright did not file a brief, he
failed both to demonstrate how this was error and allege that he
was prejudiced in any manner by the hearing as conducted. The
Board did not renew Bright's voluntary departure.
On October 30, 1987, Bright filed with the Board a motion to
reconsider its dismissal and, for the first time, a brief in
support of his appeal. He also petitioned this court to review the
Board's dismissal of his appeal.
On February 22, 1988, this court affirmed the Board's
dismissal of Bright's appeal. Bright v. INS, 837 F.2d 1330 (5th
Cir. 1988). We held that the immigration judge's application of
the then existing rules was not error and that Bright's claim that
he was prejudiced and deprived of a meaningful hearing because of
their application lacked any merit. Id. at 1331-2.
On April 9, 1988, Bright married Jill Colby Bright, a United
States citizen. Four days later, Jill Colby Bright filed an
"immediate relative" petition under 8 U.S.C. § 1154(a), claiming
that Bright was entitled to immediate relative status. The Brights
also challenged the constitutionality of 8 U.S.C. § 1154(h)1, as
amended by § 5 of the Immigration Marriage Fraud Amendment of 1986,

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2 The Immigration Marriage Fraud Amendment of 1986 also
created subsection (e), paragraphs (1) and (2) of 8 U.S.C. § 1255
which provide in part:
An alien who is seeking to receive an immigrant visa on
the basis of a marriage which was entered into during the
period [in which administrative or judicial proceedings
are pending regarding the alien's right to remain in the
United States], may not have the alien's status adjusted
[to that of an alien lawfully admitted for permanent
residence].
8 U.S.C. § 1255(e)(1), (2) (1986).
4
Pub.L. No. 99-639, 100 Stat. 3537, 3543 (1986)2, which stated in
part:
[A] petition may not be approved to grant an alien
immediate relative status ... by reason of a marriage
which was entered into during the period [in which
administrative or judicial proceedings are pending
regarding the alien's right to remain in the United
States], until the alien has resided outside the United
States for a 2-year period beginning after the date of
the marriage.
8 U.S.C. §§ 1154(h), 1255(e)(2) (1986).
The district court granted the defendants' motion for summary
judgment, and this court affirmed the judgment on December 13,
1990. Bright v. Parra, 919 F.2d 31 (5th Cir. 1990). We held that
the above provision is the result of a policy decision by Congress,
that it does not violate the fundamental rights of a United States
citizen to marry and reside in this country, and that it is not a
procedural provision, and thus, procedural due process is not
required. Id. at 33-4. This court stated that Jill Colby Bright
could still petition for immediate relative status for her alien
husband but that they must wait for two years while her alien
husband leaves the country. Id. at 33.

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5
A few weeks before this court rendered its decision affirming
the district court's judgment, Congress enacted the Immigration Act
of 1990, Pub.L. 101-649, 104 Stat. 4978, on November 29, 1990. One
of the effects of the Immigration Act was to amend 8 U.S.C. § 1255
(e) by adding paragraph (3) which states in part:
Paragraph (1) and [former section 1154(h)] of this title
shall not apply with respect to a marriage if the alien
establishes by clear and convincing evidence to the
satisfaction of the Attorney General that the marriage
was entered into in good faith and in accordance with the
laws of the place where the marriage took place and the
marriage was not entered into for the purpose of
procuring the alien's entry as an immigrant and no fee or
other consideration was given (other than a fee or other
consideration to an attorney for assistance in
preparation of a lawful petition) for the filing of a
petition under section 1154(a) of this title or 1184(d)
of this title with respect to the alien spouse or alien
son or daughter.
8 U.S.C. § 1255(e)(3) (1990).
On January 24, 1991, Bright filed a motion to reopen his case
to apply for an adjustment of status under the newly created
paragraph (3) of 8 U.S.C. § 1255(e). On November 21, 1991, the
Board entered an order denying both Bright's motion to reopen and
his October 30, 1987 motion to reconsider the Board's August 20,
1987 dismissal of Bright's appeal .
The Board denied Bright's motion to reconsider because the
motion raised only the same issue Bright raised before, on direct
appeal, which both the Board and this court had previously found to
be without any merit. The Board denied Bright's motion to reopen
his case for two reasons. First, it found that Bright had failed
to comply with the requirements of 8 C.F.R. § 3.8(a) which dictates
what a movant must include in his motion to reopen. Second, the

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6
Board overruled the motion in the exercise of its discretion. The
Board considered Bright's conduct to militate against the favorable
exercise of its discretion. The conduct relied upon by the Board
included Bright's failure to depart the country after the
expiration of his nonimmigrant's visitor's visa, Bright's failure
to depart the country during the three month voluntary departure
period granted to Bright after the immigration judge had found him
to be deportable, Bright's filing of what the Board considered to
be a frivolous appeal of the deportation order for the sole purpose
of delay, and Bright's failure to depart the country after the
deportation order had become final, upon the dismissal of his
appeal. Additionally, the Board found that Bright's marriage to
a United States citizen was not a weighty factor for the Board to
consider because the marriage was entered into after his
deportation order had become final.
On February 21, 1992, Bright filed a motion to reopen and
reconsider the Board's November 21, 1991 decision denying Bright's
earlier motions to reopen and reconsider. On April 13, 1992, the
Board entered an order denying the motion and adopting its November
21, 1991 decision.
Bright appeals the Board's April 13 order, arguing that the
Board's denial of his motion to reopen to apply for adjustment of
status constitutes an abuse of discretion.
OPINION
The Board's denial of a motion to reopen will be overturned
only if this court finds the Board's decision amounts to an abuse

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7
of discretion. Oscuchukwu v. INS, 744 F.2d 1136, 1141 (5th Cir.
1984). The determinative issue is not whether Bright has met the
statutory requirements for an adjustment of status, rather, the
issue is whether the Board abused its broad discretion in denying
his motion to reopen. INS v. Rios-Pineda, 471 U.S. 443, 449 (1985).
In this regard, the denial of a motion to reopen will be upheld
unless it was made without a rational explanation, inexplicably
departed from established policies, or rested on an impermissible
basis such as invidious discrimination against a particular race or
group. Achacoso-Sanchez v. INS, 779 F.2d 260 (7th Cir. 1985);
Williams v. INS, 773 F.2d 8,9 (1st Cir. 1985); Balani v. INS, 669
F.2d 1157, 1161 (6th Cir. 1982).
Bright has the burden proving that the Board abused its
discretion in denying his motion based upon the circumstances
presented in this particular case. Yahkpua v. INS, 770 F.2d 1317,
1321 (5th Cir.1985). In light of the circumstances presented and
the Board's abundant discretion, Bright failed to carry his burden.
Id. As we stated in Yahkpua, "We lack the power, even if we
thought it kindly, to substitute our views for those of the
Board's." Id.
For these reasons, we AFFIRM the decision of the Board of
Immigration Appeals and DISMISS this petition for review.

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