Jesus Alberto Gutierrez v. U.S. Attorney General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEB 9, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-13021
Non-Argument Calendar
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Agency No. A095-891-563
JESUS ALBERTO GUTIERREZ,
llllllllllllllllllllllllllllllllllll llll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 9, 2012)
Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
Jesus Gutierrez, a native and citizen of Venezuela, has filed a petition for
review of the Board of Immigration Appeals’s (“BIA”) denial of his motion to

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reconsider its decision denying his motion to remand to seek derivative asylum
benefits based on his status as the spouse of an asylee. After an Immigration Judge
denied his application for asylum, but before the BIA had issued a decision on his
appeal, Gutierrez married his third wife, who subsequently was granted asylum. On
the same day the BIA denied his appeal, Gutierrez filed a motion to remand based on
his marriage to an asylee, but the BIA denied his motion. He then filed a motion to
reconsider and submitted additional evidence to support his claim of a bona fide
marriage, but the BIA also denied this motion. On appeal, he argues that: (1) the
correct standard to prove that a person is an eligible spouse is by a preponderance of
the evidence, but the BIA applied the clear-and-convincing standard when it denied
his motion to remand; and (2) when the BIA denied his motion to reconsider, it
incorrectly applied 8 C.F.R. § 208.21(f), which specifies the documents that a
beneficiary must submit and when a higher standard is required. After careful review,
we deny the petition.
We review the BIA’s denial of a motion to reconsider for abuse of discretion.
Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328 (11th Cir. 2007). An alien may file a
motion to reconsider before the BIA within 30 days of the entry of a BIA decision.
See 8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R. § 1003.2(b)(2). “A motion to reconsider
shall state the reasons for the motion by specifying the errors of fact or law in the
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prior [BIA] decision and shall be supported by pertinent authority.” 8 C.F.R. §
1003.2(b)(1). When reviewing the denial of discretionary relief, we consider whether
the exercise of discretion was “arbitrary or capricious.” Garcia-Mir v. Smith, 766
F.2d 1478, 1490 (11th Cir. 1985) (quotation omitted).
A motion to remand that seeks to introduce evidence that has not previously
been presented is generally treated as a motion to reopen. Chacku v. U.S. Att’y Gen.,
555 F.3d 1281, 1286 (11th Cir. 2008). The BIA does not abuse its discretion in
denying a motion to reopen when there is (1) a failure to establish prima facie
eligibility for relief; (2) a failure to introduce previously unavailable and material
evidence; and (3) a determination that, despite an eligibility for relief, the alien is not
entitled to a favorable exercise of discretion. Id.
The spouse of an alien who has been granted asylum may be granted the same
status. 8 U.S.C. § 1158(b)(3)(A). The aliens must have been married before the
principal alien’s asylum application was approved. 8 C.F.R. § 208.21(b) (2010).
When the spouse was not included in the principal alien’s asylum application, a Form
I-730 must be submitted with supporting evidence. Id. § 208.21(c). In order to
establish a spousal relationship, “evidence must be submitted with the request as set
forth in part 204 of this chapter.” Id. § 208.21(f). In relevant part, the evidence
should consist when possible of the documents specified in § 204.2(a)(1)(iii)(B) and
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(a)(2). Id. The principal alien must establish by a preponderance of the evidence that
the beneficiary is an eligible spouse. Id.
When a marriage is entered into while the beneficiary is in deportation or
removal proceedings, evidence must be submitted to establish that the marriage was
entered into in good faith. 8 C.F.R. § 204.2(a)(1)(iii)(A)-(B); see also 8 C.F.R. §
208.21(f) (referencing § 204.2(a)(1)(iii)(B)). This evidence can include (1)
documents showing joint ownership of property, (2) a lease showing joint tenancy of
a common residence, (3) documents showing commingling of financial resources, (4)
birth certificates of any children born to the petitioner and beneficiary, (5) affidavits
from third parties who have knowledge of the bona fides of the marriage, and (6) any
other relevant documents. Id. § 204.2(a)(1)(iii)(B). In addition, the petitioner and
beneficiary must submit a certificate of marriage and proof of termination of all prior
marriages. Id. § 204.2(a)(2).
First, we reject Gutierrez’s argument that the BIA improperly placed a higher
burden on him to prove his eligibility for reopening by clear and convincing evidence.
As the record shows, the statement regarding the “clear and convincing” evidence
standard in the BIA’s underlying decision on the motion to remand was not the basis
for denying that motion. Rather, the BIA used the statement to demonstrate that a
marriage entered into during removal proceedings was suspect under the immigration
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statute. The BIA clearly stated that it was denying his motion to reopen because he
failed to establish his prima facie eligibility for relief, and, as part of its analysis,
noted that Gutierrez’s suspect third marriage undermined his claim that he was prima
facie eligible for the relief. Because the BIA may deny a motion to reopen if the
respondent fails to establish a prima facie case for relief, Gutierrez failed to present
any new facts or law that would warrant reconsideration. Chacku, 555 F.3d at 1286.
Nor are we persuaded by Gutierrez’s argument that the BIA applied a
heightened standard in its denial of his motion to reconsider. First, the BIA does not
mention the clear-and-convincing standard in its opinion denying Gutierrez’s motion
to reconsider. Instead, the BIA said that Gutierrez failed to establish his prima facie
eligibility, which is the correct standard. Second, the BIA did not cite to 8 C.F.R. part
204 in order to impose a clear-and-convincing standard, but rather was citing the
portions of part 204 that specify the documents that are needed to demonstrate a bona
fide marriage. Therefore, Gutierrez’s argument that the BIA again improperly applied
a higher standard on reconsideration is incorrect.
Finally, Gutierrez does not challenge the BIA’s determination that the new
evidence he offered with his motion for reconsideration failed to establish his prima
facie eligibility for relief. Therefore, Gutierrez has abandoned any argument as to this
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issue. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005)
(noting that a petitioner abandons an issue, if she offers no challenge or argument).
Because Gutierrez presented no error of fact or law in the BIA’s decision, the
BIA did not abuse its discretion in denying his motion to reconsider. Accordingly,
we deny Gutierrez’s petition for review.
PETITION DENIED.
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