and 09-3828 HATEM EL OZEIRY, a/k/a Jatim El Ozeiry v. Attorney General of the United States

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 08-3189 and 09-3828
___________
HATEM EL OZEIRY,
a/k/a Jatim El Ozeiry,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petitions for Review of Orders
of the Board of Immigration Appeals
Agency No. A97 698 736
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 6, 2010
Before: BARRY, GREENAWAY, JR. AND STAPLETON, Circuit Judges
(Opinion filed: October 7, 2010)
___________
OPINION
___________
PER CURIAM
Hatem El Ozeiry petitions for review of two decisions of the Board of
Immigration Appeals (“BIA”). We will deny the first petition and dismiss the second for

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lack of jurisdiction.
Petitioner is a citizen of Egypt. He entered the United States as a visitor, and
stayed longer than permitted. He applied for withholding of removal and protection
under the Convention Against Torture, but after a hearing before an Immigration Judge,
relief was denied. The BIA denied his appeal on December 26, 2007. Petitioner filed a
timely motion to reopen, seeking to adjust status based on his marriage to a United States
citizen, April Hampton. The Government filed a non-opposition to the motion to reopen,
but the BIA denied the motion on June 26, 2008. Petitioner filed a timely petition for
review of that decision, which was docketed at C.A. No. 08-3189.
On July 7, 2009, Petitioner filed a second motion to reopen with the BIA. The
BIA denied the second motion on August 31, 2009, and Petitioner filed a timely petition
for review, which was docketed at 09-3828.
08-3189 - First Motion to Reopen
“[W]hen the Board . . . denies reopening on prima facie case grounds, the ultimate
decision should be reviewed for an abuse of discretion, while findings of fact should be
reviewed for substantial evidence.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.
2002). The BIA abuses its discretion only where the ultimate decision is arbitrary,
irrational, or contrary to law. Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994).
The BIA here denied Petitioner’s first motion to reopen because he had not
established prima facie eligibility for adjustment of status pursuant to Matter of Velarde,
23 I. & N. Dec. 253 (BIA 2002). Pursuant to that case:

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[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 factors are present: (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 . . . 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.
Id. at 256. Here, the only factor at issue was the fourth. The BIA found that Petitioner
had failed to provide clear and convincing evidence that his marriage was bona fide; in
particular, he failed to show the commingling of financial resources. A.R. 27.1
As the Government notes in its brief, even though Petitioner produced a joint
lease, a joint bank account statement, and two repair invoices, none of those pieces of
evidence shows a commingling of assets. The lease is co-signed by Petitioner’s wife, but
there is no evidence that she contributes in any way to rent. While the bank statement
lists the names of both April A. Hampton and Hatem A. El Ozeiry, it shows a zero
balance, and warns that if the “account remains at a zero balance for two entire statement
cycles with no activity, it will be closed.” A.R. 68. The repair invoices have the name
“April Ozeiry” on the top, but, as the Government notes, the first shows no charges, and
the second, with a charge of $116.55, was signed by Petitioner, and not by his wife. A.R.
1
Regulations list evidence that may be provided to establish that a marriage is bona fide,
including evidence that shows the commingling of financial resources. 8 C.F.R. §
204.2(a)(1)(i)(B). The BIA’s citation in its decision to 8 C.F.R. § 1204.2(a)(1)(iii)(B)
appears to be a typographical error.

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41-42. The BIA’s factual finding of a lack of evidence showing commingling of funds is
supported by the record. The BIA’s ultimate decision to deny the motion to reopen is not
arbitrary or capricious, given the failure to provide evidence that the couple has
commingled finances, and given the dearth of other evidence showing the bona fides of
their marriage.2 We will thus deny the petition for review of the decision denying the
first motion to reopen.
09-3828 - Second Motion to Reopen
Petitioner filed a second motion to reopen, because his wife’s Petition for Alien
Relative (I-130), filed on his behalf, had been approved on April 16, 2009. Petitioner
recognized that the motion was untimely, but filed it with the hope that the Government
would join the motion to reopen, or that the BIA would exercise its sua sponte power to
reopen. The Government indicated that it was opposed to the motion. A.R. 7-8. The
BIA denied the motion, noting that it was both time and number-barred. The BIA noted
that Petitioner was the beneficiary of an approved I-130, but stated that his motion did
“not fall within any exception to the statutory limits imposed on motions to reopen.” The
BIA also stated that Petitioner had “not demonstrated an exceptional situation that would
warrant the exercise of our discretionary authority to reopen proceedings sua sponte.”
References to “A.R.” are to the administrative record filed in 09-3828.
2
For example, an affidavit from a friend states that he knows Petitioner and his wife, and
would be willing to testify concerning their relationship, but says nothing about that
relationship. A.R. 44. The photographs provided, purporting to show a Thanksgiving
celebration, are uncaptioned and undated, and do not materially advance Petitioner’s

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A.R. 3.
In his brief here, Petitioner does not challenge the BIA’s decision to the extent that
it found his motion to reopen time and number-barred. Instead, he argues only that the
BIA should have exercised its sua sponte authority to reopen. However, we lack
jurisdiction to review the Board’s decision not to exercise its sua sponte authority to
reopen proceedings. See Cruz v. U.S. Attorney Gen., 452 F.3d 240, 249 (3d Cir. 2006);
Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003). In his reply brief, Petitioner
argues that following the Supreme Court’s decision in Kucana v. Holder,130 S. Ct. 827,
839 (2010), we have jurisdiction to review the BIA’s decision not to reopen sua sponte,
because the Attorney General’s authority to reopen sua sponte comes through a
regulation and not a statute.3 However, in Kucana, the Supreme Court expressly reserved
opinion “on whether federal courts may review the Board’s decision not to reopen
removal proceedings sua sponte,” and noted that eleven courts had found such a decision
“unreviewable because sua sponte reopening is committed to agency discretion by law.”
130 S. Ct. at 839 n.18. Because the Supreme Court has reserved judgment on the issue,
claim to a bona fide relationship with his wife.
3
In Kucana, the Supreme Court held that 8 U.S.C. § 1252(a)(2)(B)(ii), which bars courts
from reviewing “any other decision or action of the Attorney General or the Secretary of
Homeland Security the authority for which is specified under this subchapter to be in the
discretion of the Attorney General or the Secretary of Homeland Security, other than the
granting of relief under section 1158(a) of this title,” does not bar courts from reviewing
the denial of a timely motion to reopen, as the Attorney General’s discretionary authority
to deny a timely motion to reopen comes through regulation rather than statute, and is
thus not “specified under” the statutory subchapter.

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our prior cases do not currently conflict with any Supreme Court law. We are thus bound
to follow our prior cases. Internal Operating Procedures, 9.1; United States v. Tann, 577
F.3d 533, 541 (2009). We therefore hold that we lack jurisdiction to review the BIA’s
decision not to exercise its sua sponte authority to reopen Petitioner’s proceedings, and
we will thus dismiss the second petition for review.
For the foregoing reasons, we will deny the first petition for review and dismiss
the second.

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