Bona Fide Marriage Exemption - Marriage after Deportation Proceedings Commenced

8 C.F.R. § 204.2   Petitions for relatives, widows and widowers, and abused spouses and children.

§ 204.2   Petitions for relatives, widows and widowers, and abused spouses and children.

(a) Petition for a spouse—(1) Eligibility. A United States citizen or alien admitted for lawful permanent residence may file a petition on behalf of a spouse.

(i) Marriage within five years of petitioner's obtaining lawful permanent resident status.(A) A visa petition filed on behalf of an alien by a lawful permanent resident spouse may not be approved if the marriage occurred within five years of the petitioner being accorded the status of lawful permanent resident based upon a prior marriage to a United States citizen or alien lawfully admitted for permanent residence, unless:

(1) The petitioner establishes by clear and convincing evidence that the marriage through which the petitioner gained permanent residence was not entered into for the purposes of evading the immigration laws; or

(2) The marriage through which the petitioner obtained permanent residence was terminated through death.

(B) Documentation. The petitioner should submit documents which cover the period of the prior marriage. The types of documents which may establish that the prior marriage was not entered into for the purpose of evading the immigration laws include, but are not limited to:

(1) Documentation showing joint ownership of property;

(2) A lease showing joint tenancy of a common residence;

(3) Documentation showing commingling of financial resources;

(4) Birth certificate(s) of child(ren) born to the petitioner and prior spouse;

(5) Affidavits sworn to or affirmed by third parties having personal knowledge of the bona fides of the prior marital relationship. (Each affidavit must contain the full name and address, date and place of birth of the person making the affidavit; his or her relationship, if any, to the petitioner, beneficiary or prior spouse; and complete information and details explaining how the person acquired his or her knowledge of the prior marriage. The affiant may be required to testify before an immigration officer about the information contained in the affidavit. Affidavits should be supported, if possible, by one or more types of documentary evidence listed in this paragraph.); or

(6) Any other documentation which is relevant to establish that the prior marriage was not entered into in order to evade the immigration laws of the United States.

(C) The petitioner must establish by clear and convincing evidence that the prior marriage was not entered into for the purpose of evading the immigration laws. Failure to meet the “clear and convincing evidence” standard will result in the denial of the petition. Such a denial shall be without prejudice to the filing of a new petition once the petitioner has acquired five years of lawful permanent residence. The director may choose to initiate deportation proceedings based upon information gained through the adjudication of the petition; however, failure to initiate such proceedings shall not establish that the petitioner's prior marriage was not entered into for the purpose of evading the immigration laws. Unless the petition is approved, the beneficiary shall not be accorded a filing date within the meaning of section 203(c) of the Act based upon any spousal second preference petition.

(ii) Fraudulent marriage prohibition. Section 204(c) of the Act prohibits the approval of a visa petition filed on behalf of an alien who has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws. The director will deny a petition for immigrant visa classification filed on behalf of any alien for whom there is substantial and probative evidence of such an attempt or conspiracy, regardless of whether that alien received a benefit through the attempt or conspiracy. Although it is not necessary that the alien have been convicted of, or even prosecuted for, the attempt or conspiracy, the evidence of the attempt or conspiracy must be contained in the alien's file.

(iii) Marriage during proceedings—general prohibition against approval of visa petition.A visa petition filed on behalf of an alien by a United States citizen or a lawful permanent resident spouse shall not be approved if the marriage creating the relationship occurred on or after November 10, 1986, and while the alien was in exclusion, deportation, or removal proceedings, or judicial proceedings relating thereto. Determination of commencement and termination of proceedings and exemptions shall be in accordance with §245.1(c)(9) of this chapter, except that the burden in visa petition proceedings to establish eligibility for the exemption in §245.1(c)(9)(iii)(F) of this chapter shall rest with the petitioner.

(A) Request for exemption. No application or fee is required to request an exemption. The request must be made in writing and submitted with the Form I–130. The request must state the reason for seeking the exemption and must be supported by documentary evidence establishing eligibility for the exemption.

(B) Evidence to establish eligibility for the bona fide marriage exemption. The petitioner should submit documents which establish that the marriage was entered into in good faith and not entered into for the purpose of procuring the alien's entry as an immigrant. The types of documents the petitioner may submit include, but are not limited to:

(1) Documentation showing joint ownership of property;

(2) Lease showing joint tenancy of a common residence;

(3) Documentation showing commingling of financial resources;

(4) Birth certificate(s) of child(ren) born to the petitioner and beneficiary;

(5) Affidavits of third parties having knowledge of the bona fides of the marital relationship (Such persons may be required to testify before an immigration officer as to the information contained in the affidavit. Affidavits must be sworn to or affirmed by people who have personal knowledge of the marital relationship. Each affidavit must contain the full name and address, date and place of birth of the person making the affidavit and his or her relationship to the spouses, if any. The affidavit must contain complete information and details explaining how the person acquired his or her knowledge of the marriage. Affidavits should be supported, if possible, by one or more types of documentary evidence listed in this paragraph); or

(6) Any other documentation which is relevant to establish that the marriage was not entered into in order to evade the immigration laws of the United States.

(C) Decision. Any petition filed during the prohibited period shall be denied, unless the petitioner establishes eligibility for an exemption from the general prohibition. The petitioner shall be notified in writing of the decision of the director.

(D) Denials. The denial of a petition because the marriage took place during the prohibited period shall be without prejudice to the filing of a new petition after the beneficiary has resided outside the United States for the required period of two years following the marriage. The denial shall also be without prejudice to the consideration of a new petition or a motion to reopen the visa petition proceedings if deportation or exclusion proceedings are terminated after the denial other than by the beneficiary's departure from the United States. Furthermore, the denial shall be without prejudice to the consideration of a new petition or motion to reopen the visa petition proceedings, if the petitioner establishes eligibility for the bona fide marriage exemption contained in this part: Provided, That no motion to reopen visa petition proceedings may be accepted if the approval of the motion would result in the beneficiary being accorded a priority date within the meaning of section 203(c) of the Act earlier than November 29, 1990.

(E) Appeals. The decision of the Board of Immigration Appeals concerning the denial of a relative visa petition because the petitioner failed to establish eligibility for the bona fide marriage exemption contained in this part will constitute the single level of appellate review established by statute.

Matter of Ajmal Hussain Shah HASHMI, 24 I&N Dec. 785 (BIA 2009) - Denial of Continuance to Adjudicate I-130 Petition in Removal Proceedings cannot be arbitrary

Cite as 24 I&N Dec. 785 (BIA 2009) Interim Decision #3640

Matter of Ajmal Hussain Shah HASHMI, Respondent
File A095 827 197 - Newark, New Jersey
Decided April 22, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An alien’s unopposed motion to continue ongoing removal proceedings to await the
adjudication of a pending family-based visa petition should generally be granted if
approval of the visa petition would render him prima facie eligible for adjustment of status.
Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), followed.
(2) In determining whether good cause exists to continue such proceedings, a variety of factors may be considered, including, but not limited to: (1) the Department of Homeland Security’s response to the motion to continue; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status;
(4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and any other relevant procedural factors.

FOR RESPONDENT: Regis Fernandez, Esquire, Newark, New Jersey
FOR THE DEPARTMENT OF HOMELAND SECURITY: Xiomara Davis-Gumbs,
Assistant Chief Counsel
BEFORE: Board Panel: OSUNA, Chairman; GREER and MALPHRUS, Board Members.
GREER, Board Member:

On July 7, 2008, in Hashmi v. Attorney General of U.S., 531 F.3d 256 (3d Cir. 2008), the United States Court of Appeals for the Third Circuit granted the respondent’s petition for review of our July 31, 2006, decision, vacated our
prior order, and remanded the case to us for further proceedings. Upon further
review of the respondent’s case, we will sustain the respondent’s appeal and
remand the record to the Immigration Judge for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent, a native and citizen of Pakistan, entered the United States
as a visitor on October 22, 2000. He married a United States citizen in 2001.
The respondent was personally served with a Notice to Appear (Form I-862)

On March 1, 2003, pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, 2178, the functions of the Immigration and Naturalization Service were transferred to the Department of Homeland Security. As a result of this transfer, benefit and enforcement functions were separated. The DHS’s United States Citizenship and Immigration Services is authorized to provide immigration and naturalization benefits to aliens, including the adjudication of visa petitions. The DHS’s United States Immigration and Customs Enforcement (“ICE”) is authorized to enforce the Immigration and Nationality Act and other immigration-related laws. Attorneys from ICE’s Office of the Principal Legal Advisor represent the DHS in removal proceedings.
2 In this decision, we refer to the ICE attorney as the “DHS attorney.”

on July 30, 2003. When he first appeared before the Immigration Judge on September 25, 2003, the respondent, through counsel, admitted the allegations of fact and conceded the charges of removability in the Notice to Appear. He informed the Immigration Judge that he intended to apply for adjustment of status based on his marriage to a United States citizen and the pending Petition for Alien Relative (Form I-130) filed by his wife on his behalf. The Immigration Judge granted the respondent a 4-month continuance to allow time for the United States Citizenship and Immigration Services (“USCIS”) of the Department of Homeland Security (“DHS”)1 to adjudicate the visa petition.
When the parties reconvened on February 5, 2004, the respondent reported that the I-130 was still pending. He explained that the USCIS interviewed him on November 25, 2003, and the following month he submitted the additional documentation requested by the USCIS. The DHS attorney2 advised that he did not have the respondent’s file because it was with the Cherry Hill USCIS office where the respondent had been interviewed. The Immigration Judge granted the respondent a second continuance to give the USCIS additional time to adjudicate the I-130. The parties reconvened on May 24, 2004, and again reported that the I-130 remained pending. This time the DHS attorney had the respondent’s file. The Immigration Judge granted a third continuance to wait for the USCIS to adjudicate the I-130. On August 26, 2004, the Immigration Judge continued the proceedings for a fourth time for the same reason.
At the final removal hearing on March 29, 2005, counsel for the respondent reported that the Cherry Hill USCIS office could not adjudicate the I-130 because the DHS attorney had the file. The respondent sought another continuance, which the DHS did not oppose. The Immigration Judge denied the fifth continuance request. He observed that despite numerous continuances over an 18-month period, the I-130 was still pending and unadjudicated. The Immigration Judge explained that he was expected to complete cases in a reasonable period of time by meeting certain “case completion goals” set by the Department of Justice. The Immigration Judge recognized that the case completion goals are not mandatory, but they are intended to provide case management guidance to Immigration Judges. The respondent appealed.

On July 31, 2006, we adopted and affirmed the Immigration Judge’s decision denying the respondent’s motion to continue. We agreed with the Immigration Judge that a further continuance was unwarranted in light of the numerous continuances already granted. We also found that the respondent failed to establish that his case was prejudiced because, at the time of our decision, he had yet to proffer an approved I-130. Citing Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983), we recognized that an Immigration Judge’s discretionary decision denying a continuance will not be reversed on appeal unless the respondent establishes that the denial caused him actual prejudice and harm, and it materially affected the outcome of his case. Moreover, we found that the adjudication of the I-130 was delayed, in part, because of the respondent’s failure to disclose a prior marriage, as well as doubts that were cast on the authenticity of his divorce decree.
The respondent filed a petition for review of our decision with the Third Circuit. First, the court found that the Immigration Judge’s denial of the respondent’s final continuance request was arbitrary and an abuse of discretion because it was “based solely on case-completion goals,” rather than the specific facts and circumstances of the case. Hashmi v. Att’y Gen. of U.S., supra, at 261. Next, the court concluded that our finding that the respondent contributed to the delay in the I-130 adjudication constituted impermissible fact-finding on appeal. See 8 C.F.R. § 1003.1(d)(3)(iv) (2008) (“[T]he Board will not engage in factfinding in the course of deciding appeals.”). The case was remanded to us for further proceedings consistent with the court’s opinion.

II. ISSUE

In this case, the respondent sought multiple continuances to afford the USCIS the time and opportunity to adjudicate his I-130, which, if approved, would render him prima facie eligible for adjustment of status. The question presented is what factors should be considered in determining whether the respondent should be allowed to continue ongoing removal proceedings pending the final adjudication of an I-130, which is a prerequisite for adjustment of status. This is a difficult question because of the inherent tension between the conflicting needs to bring finality to the removal proceedings and to give the respondent an opportunity to apply for relief, especially where the respondent may be eligible for lawful permanent resident status through a family-based petition.

3 Matter of Garcia predates the enactment of time and number limits on motions to reopen under section 240(c)(7) of the Act, 8 U.S.C. § 1229a(c)(7) (2006).

III. ANALYSIS

A. Motions for Continuances
The Immigration and Nationality Act does not contain specific statutory authority for the adjudication of motions to continue removal proceedings. Rather, Immigration Judges derive their broad discretionary authority over continuances from the regulations, which state that “[t]he Immigration Judge may grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29 (2008); see also 8 C.F.R. § 1240.6 (2008) (providing that the Immigration Judge may grant a reasonable adjournment either at his or her own instance or, for good cause shown, upon application by the respondent or the DHS).
The regulations do not contain a definition of what constitutes good cause.We have defined the parameters of “good cause” in different ways depending on the facts and circumstances presented. For example, in Matter of Sibrun, supra, we set a high standard for adjudicating motions to continue to give the respondent more time to prepare and the opportunity to obtain additional evidence. Under Sibrun, these motions must be accompanied, at a minimum, by a “reasonable showing that the lack of preparation occurred despite a diligent good faith effort to be ready to proceed and that any additional evidence [the alien] seeks to present is probative, noncumulative, and significantly favorable to the alien.” Id. at 356; cf. Matter of Silva-Rodriguez, 20 I&N Dec. 448 (BIA 1992) (holding that good cause was not shown where the respondent sought a continuance to have more time to establish rehabilitation in furtherance of his application for a waiver of inadmissibility under former section 212(c) of the Act, 8 U.S.C. § 1182(c) (Supp. II 1990)).
Pertinent to the matter before us, in Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), modified on other grounds, Matter of Arthur, 20 I&N Dec. 475 (BIA 1992), we considered whether a respondent should be granted reopening or a continuance for the adjudication of a pending I-130. We held “that discretion should, as a general rule, be favorably exercised where a prima facie approvable visa petition and adjustment application have been submitted in the course of a deportation hearing or upon a motion to reopen.” Id. at 657. In Garcia, the respondent requested reopening of his deportation proceedings pending adjudication of a visa petition filed by his United States citizen wife simultaneously with his application to pursue adjustment of status before the Immigration Judge, who had jurisdiction over that application.3 Garcia aimed to allow a respondent, as the likely beneficiary of a visa petition conferring immediate eligibility for adjustment of status, an opportunity to await the outcome of the visa petition decision before proceedings concluded. Our decision focused on the likelihood of success of the visa petition on the merits, which would result in “a substantial claim to relief from deportation under section 245 of the Act.” Matter of Garcia, supra, at 656. The circuit courts reacted favorably to Garcia, supporting its presumption that discretion should be favorably exercised in appropriate cases to await resolution of the ancillary visa petition. The circuit courts also recognized that Garcia “did not create an inflexible rule, requiring an [Immigration Judge] to continue deportation proceedings, regardless of the merits of the pending visa petition.” Onyeme v. U.S. INS, 146 F.3d 227, 233 (4th Cir. 1998); see also
Pedreros v. Keisler, 503 F.3d 162, 166 (2d Cir. 2007); Hassan v. INS, 110 F.3d 490 (7th Cir. 1997); Oluyemi v. INS, 902 F.2d 1032, 1034 (1st Cir. 1990).
B. Motions to Continue for Adjustment of Status
1. Adjustment of Status Process
A two-step process underlies a family-based adjustment of status. First, the United States citizen or lawful permanent resident petitioner files an I-130 with the USCIS on behalf of his or her qualifying family member, who is the beneficiary of the visa petition and later becomes the respondent in removal proceedings. The petitioner must establish his or her own United States citizenship or lawful permanent resident status and the bona fides of the claimed relationship to the beneficiary and must also show that the family relationship meets the statutory requirements. See 8 C.F.R. §§ 204.1-204.2 (2008) (providing filing and adjudication procedures for certain family-based immigrant visa petitions).
Once the I-130 is approved and an immigrant visa is immediately available, the respondent may apply for adjustment of status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2006). The burden is on the respondent to establish his adjustment eligibility. See 8 C.F.R. § 1240.8(d) (2008). To establish eligibility for adjustment of status under section 245(a) of the Act, the respondent must demonstrate that he has been inspected and admitted or paroled into the United States; is eligible to receive an immigrant visa and has a visa immediately available to him; is not statutorily barred from adjustment; and is admissible to the United States within the meaning of section 212(a) of the Act or, if inadmissible, is eligible for a waiver of inadmissibility.
Regarding the requirement that a visa be immediately available, immediate relatives, who are defined as parents, spouses, and children of United States citizens in section 201(b)(2)(A)(i) of the Act, 8 U.S.C. § 1151(b)(2)(A)(i) (2006), are not subject to numerical limits on immigrant visas, meaning that visa availability is immediate. On the other hand, aliens in the preference categories under section 203(a) of the Act, 8 U.S.C. § 1153(a) (2006) (e.g., the spouse of a lawful permanent resident), are subject to numerical limits on visas. The Department of State tracks visa availability in its monthly Visa Bulletin. A visa is immediately available when the alien’s priority date is earlier than the date for the specified preference category shown on the current Visa Bulletin. See 8 C.F.R. §§ 245.1(g)(1), 1245.1(g)(1) (2008). The alien’s priority date is fixed when the I-130 is filed with the USCIS. See 8 C.F.R. §§ 245.1(g)(2), 1245.1(g)(2).
2. Appropriate Factors for Consideration of a Motion To Continue for Adjustment of Status

After evaluating the respondent’s place in the adjustment of status process, the Immigration Judge must determine whether to grant a continuance request. This brings us to the precise issue before us, namely, what factors should be considered in determining whether to continue removal proceedings pending final adjudication of an I-130 filed in conjunction with an adjustment application.
Adjudication of a motion to continue should begin with the presumption stated in Matter of Garcia, supra, at 657, that discretion should be favorably exercised where a prima facie approvable visa petition and adjustment application have been submitted in the course of an ongoing removal hearing.
This presumption is reasonable given the significant interest at stake—the chance to acquire lawful permanent resident status through a family-based visa petition. At the same time, it is well established that Garcia does not require the Immigration Judge to grant a continuance in every case where there is a pending visa petition. Although the focus of the inquiry is the likelihood that the adjustment application will be granted, we find that there are a number of factors that may be relevant to evaluate and weigh in deciding whether a continuance is warranted in family-based adjustment scenarios.
In determining whether to continue proceedings to afford the respondent an opportunity to apply for adjustment of status premised on a pending visa petition, a variety of factors may be considered, including, but not limited to:
(1) the DHS response to the motion; (2) whether the underlying visa petition
is prima facie approvable; (3) the respondent’s statutory eligibility for
adjustment of status; (4) whether the respondent’s application for adjustment
merits a favorable exercise of discretion; and (5) the reason for the continuance
and other procedural factors. These factors are illustrative, not exhaustive. While all these factors may be relevant in a given case, the focus of the inquiry is the apparent ultimate likelihood of success on the adjustment application.

4 In appropriate circumstances, such as where there is a pending prima facie approvable visa petition, we urge the DHS to consider agreeing to administrative closure of the case. See generally Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996) (stating that administrative closure is used to temporarily remove the case from the court’s docket and that a case may not be administratively closed if opposed by either party). Administrative closure is an attractive option in these situations, as it will assist in ensuring that only those cases that are likely to be resolved are before the Immigration Judge. This will avoid the repeated rescheduling of a case that is clearly not ready to be concluded. Notably, either party can move to have the case recalendered once the visa petition has been adjudicated or some other factor has arisen indicating that the case is ready for a hearing. Id. 791
See Pede v. Gonzales, 442 F.3d 570, 571 (7th Cir. 2006) (stating that the
denial of a continuance was not an abuse of discretion, given the “ultimate hopelessness” of the adjustment application). First, the Immigration Judge should consider the DHS’s position. If the DHS affirmatively expresses a lack of opposition, the proceedings ordinarily should be continued by the Immigration Judge in the absence of unusual, clearly identified, and supported reasons for not doing so.
Government opposition that is reasonable and supported by the record may warrant denial of a continuance. On the other hand, unsupported opposition does not carry much weight. The Immigration Judge should evaluate the Government’s objection, considering the totality of the circumstances. See Badwan v. Gonzales, 494 F.3d 566, 568 (6th Cir. 2007) (stating that the DHS’s lack of opposition “underscores the importance of the [Immigration Judge’s] offering a coherent explanation as to why, from the perspective of the immigration courts, the motion should be denied”).4
If the DHS does oppose a continuance or further analysis is warranted, the Immigration Judge may need to evaluate whether the respondent is the beneficiary of a prima facie approvable I-130. It is well established that Immigration Judges do not have jurisdiction to decide visa petitions. See Matter of Perez Vargas, 23 I&N Dec. 829, 831 (BIA 2005). However, in the context of deciding a motion to continue for the USCIS to adjudicate the petition, it is useful for the Immigration Judge to evaluate the viability of the underlying I-130. See, e.g., Afzal v. Holder, 559 F.3d 677, 679 (7th Cir. 2009) (finding that the denial of a continuance was not an abuse of discretion where the respondent “could not point to any prospect of success regarding the reinstatement of his visa”).
Submission of the visa petition to the Immigration Judge assists in determining the viability of the underlying I-130. If needed, the respondent’s request for a continuance should be supported by particularized facts and evidence, including a copy of the I-130 visa petition packet that the respondent filed with the USCIS, along with the USCIS Notice of Action (Form I-797)

5 In this case, the respondent did not submit any evidence of the pending I-130 and did not specify the date it was filed, although it appears to have been filed prior to the initiation of his removal proceedings.

showing the date of receipt.5 Cf. Ilic-Lee v. Mukasey, 507 F.3d 1044, 1048 (6th Cir. 2007) (noting that the respondent failed to provide evidence, such as a copy of the pending I-130 petition).
If other visa petitions filed on the respondent’s behalf have been denied, those petitions and the USCIS’s determinations could also be presented and considered. These prior filings or other evidence of potential fraud or dilatory tactics may impact the viability of the visa petition underlying the motion. See, e.g., Pedreros v. Keisler, supra, at 166 (finding that it was not an abuse of discretion to deny a continuance where there was “no basis to conclude that the denial of the I-130 petition had any likelihood of being overturned on appeal”); Morgan v. Gonzales, 445 F.3d 549, 552 (2d Cir. 2006) (finding no abuse of discretion in the denial of a continuance for adjudication of a second visa petition when the first I-130 filed by the same petitioner was denied by the USCIS for failure to establish a bona fide marriage).
Third, the Immigration Judge may evaluate the respondent’s statutory eligibility for adjustment of status. We held in Matter of Garcia, supra, that a continuance request could be denied based on a determination that the respondent is statutorily ineligible for adjustment. See also Ilic-Lee v. Mukasey, supra, at 1048 (finding no obligation to continue where it was unlikely that an adjustment application would be approved); Pedreros v. Keisler, supra, at 166 (finding no obligation to continue “when there is a reliable basis to conclude that the visa petition or the adjustment of status will ultimately be denied”); Oluyemi v. INS, supra, at 1034 (finding no obligation to continue when the Immigration Judge “believed that the adjustment petition eventually would be denied”).

To determine the likelihood of success of the adjustment application, the
Immigration Judge needs some basis to examine the merits of the application. Therefore, the respondent may be required to submit evidence establishing prima facie eligibility for adjustment, including the Application to Register Permanent Residence or Adjust Status (Form I-485), the required supporting documentation, and the USCIS fee receipts. See section 245(a) of the Act (requiring that the alien make an application for such adjustment). If warranted, the respondent should provide evidence establishing his admissibility or his eligibility for a corresponding waiver of inadmissibility. See 8 C.F.R. §1245.1(f) (2008) (providing that an application for a waiver of inadmissibility should be filed concurrently with an adjustment application).

If a waiver of inadmissibility is required, the appropriate application for a waiver may also be submitted to the Immigration Judge, along with the required supporting documentation. See Onyeme v. U.S. INS, supra (finding that a respondent who failed to demonstrate eligibility for a waiver of inadmissibility could not establish a prima facie case for adjustment of status).
Similarly, a respondent who is present in this country without having been inspected and admitted or paroled, or who is barred from adjustment under section 245(c) of the Act, would need to establish eligibility for adjustment of status under section 245(i) of the Act. This would include proof that a labor certification or visa petition was properly filed on the respondent’s behalf on or before April 30, 2001, and was approvable when filed. See Matter of Jara Riero and Jara Espinol, 24 I&N Dec. 267 (BIA 2007); 8 C.F.R. § 1245.10 (2008).
Fourth, the Immigration Judge may consider whether the respondent warrants adjustment of status in the exercise of discretion. See Matter of Garcia, supra, at 657 (stating that a continuance may be denied based on a determination that adjustment is not warranted in the exercise of discretion, notwithstanding the approval of the visa petition); see also Malik v. Mukasey, 546 F.3d 890 (7th Cir. 2008) (finding that it is not an abuse of discretion to deny a continuance based on the determination that the alien does not merit adjustment in the exercise of discretion). Factors relevant to determining whether a favorable exercise of discretion is warranted include, but are not limited to, the existence of family ties in the United States; the length of the respondent’s residence in the United States; the hardship of traveling abroad; and the respondent’s immigration history, including any preconceived intent to immigrate at the time of entering as a nonimmigrant. See generally Matter of Blas, 15 I&N Dec. 626 (BIA 1974; A.G. 1976); Matter of Arai, 13 I&N Dec. 494 (BIA 1970); see also Oluyemi v. INS, supra, at 1033-34 (stating that an alien must establish that adjustment is warranted as a matter of discretion). A respondent’s criminal history is an additional consideration. See Abu-Khaliel v. Gonzales, 436 F.3d 627, 634 (6th Cir. 2006).
Fifth, the Immigration Judge may consider the reasons for the continuance and other relevant procedural factors. In some cases, both parties may require additional time. See, e.g., Badwan v. Gonzales, supra (noting that the DHS needed time to complete the required background check and the respondent needed time to prove the validity of his divorce). In other cases, however, a critical inquiry will revolve around which party is most responsible for the delay in the proceedings. In the instant case, the continuance was predicated on the USCIS’s delay in processing the I-130. The delay was exacerbated by the movement of the respondent’s file back and forth between the offices of the USCIS adjudicator and the DHS trial attorney. Delay that is not attributable to the respondent augurs in favor of a continuance. The Immigration Judge may also consider any other relevant procedural factors. Compliance with an Immigration Judge’s case completion goals, however, is not a proper factor in deciding a continuance request, and Immigration Judges should not cite such goals in decisions relating to continuances. See Hashmi v. Att’y Gen. of U.S., supra, at 261. The number and length of prior continuances are not alone determinative. However, a history of continuances being granted by the Immigration Judge for the adjudication of a pending I-130, coupled with other relevant factors, may support a decision to move forward with the case. See, e.g., Abu-Khaliel
v. Gonzales, supra (finding that the denial of a continuance was not an abuse of discretion where the Immigration Judge considered the number and length of prior continuances, the recently filed second I-130 by the respondent’s second wife, and the respondent’s criminal history).
Finally, as with other discretionary determinations, the Immigration Judge should articulate, balance, and explain all these relevant factors, and any others that may be applicable, in deciding whether to grant the respondent a continuance for the USCIS to adjudicate the I-130 or, alternatively, to proceed with the case despite the pendency of the visa petition. See Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004) (finding an abuse of discretion where the Immigration Judge offered no reason for denying the continuance).
IV. CONCLUSION
The record will be remanded to the Immigration Judge so that he can consider the aforementioned factors to determine whether a continuance is warranted in this case. In considering the facts and circumstances of this particular case, he should evaluate the following five factors, as relevant:
(1) the DHS’s position on the motion to continue; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and any other relevant procedural factors. He may also consider any other facts that he deems appropriate. The parties will be afforded the opportunity to satisfy the evidentiary requirements described above.
ORDER: The respondent’s appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

Matter of Revelo - Recognition of Foreign Divorce under CT law - Litvaitis v. Litvaitis

Interim Decision #2691

Matter of Revelo

In Visa Petition Proceedings
A-19518541
Decided by Board March 7,1979

(1) Under Connecticut law, a bona fide domicile by at least one of the parties to a foreign divorce in the country where the divorce took place is required for recognition, whether the divorce is ex parte or by mutual consent. Matter of Biebl, Interim Decision 2672(BIA 1978); Litvatis v. Litvaitis, 162 Conn. 540, 295 A.2d 519 (1972); Gildersleeve v. Gildersleeve, 88 Conn. 689, 92 A. 684 (1914).
(2) A party must have a legally protected interest in order to participate in a judicial proceeding so that the legal questions are framed with the necessary specificity and the issues contested with the necessary adverseness and vigor. Flast v. Cohen, 392 U.S. 83(1S68).
(3) In a Visa petition proceeding the District Director Is an adjudicator, not an adversary win needs standing to participate, therefore, the term «standing" has no relevance to his role.
(4) The Immigration and Naturalization Service has the power to contest the validity of a foreign divorce in visa petition proceedings.

ON BEHALF OF PETITIONER: ON BEHALF OF SERVICE:
Joseph N. Tauber, Esquire George I^cato
29 Hoyt Street Appellate Trial Attorney
Stamford, Connecticut 06995
BY; Milhollan, Chairman; Mariatis, Appleman, Maguire, and Farb, Board Members
This case presents an appeal from the decision of the Acting District
Director dated June 12,1978, denying a visa petition filed on behalf of the
beneficiary as the spouse of the petitioner pursuant to section 203(a)(2)
of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(2). The appeal
will be dismissed.
The petitioner is a native and citizen of Ecuador who was admitted as a lawful permanent resident of the United States at New York on April 9, 1974. The beneficiary is a native and citizen of Colombia. On December 18, 1976, the parties married in Stamford, Connecticut, after each had obtained Dominican divorces from their previous spouses in 1975.

The Acting District Director denied the visa petition concluding that the parties' marriage subsequent to the Dominican divorces was invalid under Connecticut law, and, thus, the beneficiary was not entitled to preference immigration status through the petitioner. His conclusion was based on the Connecticut Supreme Court's decision in Litvaitis v. Litvaitis, 162 Conn. 540,295 A.2d 519 (1972), where the court ruled that an order for a foreign divorce to be recognized in Connecticut, at least one of the parties must be a good faith domiciliary of ťhe foreign country where the divorce was obtained. Since the petitioner was a lawful permanent resident of the United States when the divorce took place and there was no record of the beneficiary having been in the Dominican Republic, the Acting District Director concluded that neither party was a Dominican domiciliary and the divorce would not be recognized under Connecticut law.

The legal validity of a marriage is generally determined by the place of celebration. Matter of Levine, 13 I. & N. Dec. 244 (BIA 1969); Matter of Freeman, 11 I. & N. Dec. 482 (BIA 1966). In the present case, Connecticut is the place of the marriage celebration, thus, we must evaluate the marriage's validity under Connecticut law.

In Matter of Biebl, Interim Decision 2672 (BIA 1978), we examined the law of Connecticut and concluded that a bona fide domicile by at least one of the parties to the divorce in the country where the divorce took place was required in order to recognize it. 8 C.F.E. 204.2(c)(2)specifically requires a petitioner to establish the validity of a claimed divorce. Since the petitioner has not submitted any evidence to prove that any of the parties to the two divorces was a Dominican domiciliary, the petitioner has not met his burden of proving that he is entitled to the immigration benefits sought. Matter of Brantigan, 111. & N. Dec 4S3
(EIA 1966).
However, the petitioner at oral argument has attempted to distinguish the facts in the present case from those considered by the Connecticut court in Litvaitis v. LitvaitUs, supra. He points out that Litvaitis dealt with an er parte divorce unlike the mutual consent divorce which the petitioner and beneficiary in the present case obtained.

Although we agree with the petitioner's contention that Litvaitis was not a mutual consent divorce, that difference does not require a different result from the Acting District Director's conclusion. In Litvaitis the Connecticut Supreme Court was not stating a rule limited to ex parte divorces. Rather, the court in Litvaitis was restating its previous holdings in other cases involving bilateral divorces, that a bona fide domicile by at least one of the parties was a requirement for recognition under Connecticut law. See Gilder sleeve v. Gildersleeve, 88 Conn. 689, 92 A. 684 (1914); Rice v. Rice, 134 Conn. 440, 58 A.2d 523 (19483; State v.Cooke, 110 Conn. 348,148 A. 385 (1930). The rationale for the Connecticut rule is that the divorcing court must have personal jurisdiction and also res jurisdiction over the marriage which is the res in divorce proceeding: See Gildersleeve v. Gildersleeve, 92 A. at 685.

We also reject the petitioner's contention that the Acting District Director lacks standing under Connecticut law to challenge the validity of the Dominican divorces. The word "standing" is a legal term intimately related to a court's jurisdiction. The courts must ascertain that a party has a legally protested interest in order to allow him to participate in a judicial proceeding so that the legal questions will be framed with the necessary specificity and the issues contested with the necessary adverseness and vigor. See Flast v. Cohen, 392 U.S. 83,106 (1968).

In a visa petition proceeding the Acting District Director is not an adversary who needs standing to participate. 8 C.F.R. 103.1(n) grants the District Director the power to adjudicate the visa petition. Thus, the District Director's role is that of an adjudicator and not an adversary in visa petition proceedings. The term "standing" has therefore no relevance with regards to the Acting District Director's role in adjudicating a visa petition. We impliedly held that the Service has the power to contest the validity of a foreign divorce in visa petition proceedings. See e.g. Matter of Guzman, Interim Decision 2484 (BIA 1976); Matter of Darwish, 141. & N. Dec. 307 (BIA 1973); Matter of Atwater, 141. & N. Dec. 410 (BIA 1973). Thus, the petitioner's contention is without merit and the appeal will be dismissed.

ORDER: The appeal is dismissed

Religious workers with pending I-360 petition with USCIS, may be eligible for benefits under Ruiz-Diaz v. United States, No. C07-1881RSL

If you have a pending Form I-360 religious worker petition with USCIS, you may be eligible for benefits under Ruiz-Diaz v. United States, No. C07-1881RSL (W.D. Wash. June 11, 2009).

Persons with pending Form I-360 religious worker petitions are immediately eligible to file a Form I-485 and/or Form I-765. Individuals whose applications are properly filed with appropriate filing fees and supporting documentation with USCIS by September 9, 2009 will have any period of unlawful presence or unauthorized employment tolled until USCIS issues a final administrative decision. Failure to file prior to September 9, 2009, will result in the accrual of unlawful presence or unauthorized employment time.
Persons who want to file an Application to Register Permanent Residence or Adjust Status (Form I-485) and/or an Application for Employment Authorization (Form I-765)1 must mail the applications, with the required fees, to:

California Service Center
P.O. Box 10485
Laguna Niguel, CA 92677-1048

Any person who has a Form I-360 religious worker petition pending with USCIS as of June 11, 2009, will have any period of unlawful presence that began accruing as of the date of filing of the I-360 tolled until September 9, 2009. In addition, any period of unauthorized employment that occurred after filing of the I-360 will be tolled until September 9, 2009.

Persons who properly file the Form I-485 and Form I-765 applications on or after June 11, 2009 and have their applications received by USCIS prior to September 9, 2009 also will have the accrual of unlawful presence and unlawful employment tolled until USCIS issues a final administrative decision.

Spouses and children who are the beneficiaries of properly filed Forms I-360 by religious workers may be accorded the same status and order of consideration as the principal, unless the spouse and child are already entitled to another immigrant status and immediate issuance of a visa under section 203(a), (b), or (c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(a), (b), or (c).

For additional information please see the USCIS webpage at www.uscis.gov.

1 Applicants may also file an Application for Travel Document, Form I-131, as long as they are eligible and properly file the application.

H-1B Cap 2010 | H1B Petition Filings as of April 27, 2009

USCIS Update April 27, 2009
USCIS Updates Count of FY2010 H-1B Petition Filings
Regular Updates Posted on USCIS Web site

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced an updated number of filings for H-1B petitions for the fiscal year 2010 program. USCIS has received approximately 45,000 H-1B petitions counting toward the Congressionally mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.

Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees; however, we continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.

For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition. USCIS will provide regular updates on the processing of FY2010 H-1B petitions. The updates can be found on the USCIS’ Web site at www.uscis.gov/h-1b_count.

Courts are not barred from Judicial Review of I-130 Petition

Ayanbadejo v. Chertoff [2/26/08, ___ F.3d ___]

United States Court of Appeals for the Fifth Circuit

No. 06-20866

JOHN AYANBADEJO; FELICIA AYANBADEJO
Plaintiff-Appellant,

v.

MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND SECURITY ET AL.
Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas

Before WIENER, BARKSDALE, and DENNIS, Circuit Judges. PER CURIAM:

Plaintiffs-Appellants John Ayanbadejo and Felicia Malveaux Ayanbadejo filed this action against Defendants-Appellees Michael Chertoff, in his official capacity as Secretary of the Department of Homeland Security ("DHS"), and District Director Sharon A. Hudson of the United States Citizenship and Immigration Services ("USCIS"), which is part of DHS, and that agency, seeking declaratory, injunctive, and mandamus relief from adverse immigration decisions by these officials. As the district court incorrectly concluded that it lacked subject matter jurisdiction to review the denial of Felicia's I-130 visa petition, we reverse the decision of the district court granting the government's motion to dismiss and remand for a new trial.


Plaintiff husband, a native and citizen of Nigeria, entered the U.S. as a nonimmigrant visitor and married his U.S. citizen wife shortly thereafter. Plaintiff wife submitted an I-130 petition and Plaintiff husband filed an accompanying application for adjustment of status. USCIS denied the I-130 petition and I-485 application after an investigation raised doubts about the validity of the marriage. The BIA affirmed without opinion. Plaintiffs filed a complaint in district court, and a subsequent motion to amend their complaint to allege that (1) they were denied the right to a full and fair hearing before CIS and the BIA; (2) their rights under FOIA were violated when they did not receive their immigration documents within 30 days of filing a request; and (3) their rights under the International Covenant on Civil and Political Rights were violated by CIS and the BIA. The district court found no constitutional violations with respect to the agency's determinations regarding the validity of Plaintiffs' marriage. In addition, the district court found the FOIA claim moot and found no cognizable action with regard to Plaintiffs' claim under the ICCPR. The court denied the motion to amend the complaint and ultimately granted the government's motion to dismiss for lack of subject matter jurisdiction, finding that CIS's denials of the I-130 and I-485 were within its discretion and were therefore, not subject to judicial review.

On appeal, the court addressed an issue of first impression in the Fifth Circuit: whether the district court has subject matter jurisdiction to review the denial of an I-130 petition and an I-485 application. Under INA §242(a)(2)(B)(ii), "no court shall have jurisdiction to review…any other decision or action of the Attorney General or Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or Secretary of Homeland Security…." In Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005), the court interpreted this provision to mean that courts are precluded from reviewing those decisions "specified in the statute" to be discretionary. Zhao emphasized that the language in §242(a)(2)(B) was meant to "delineate definitively which types of decisions are discretionary, and thus nonreviewable by a court." While §242(a)(2)(B)(i) explicitly points to "any judgment regarding the granting of relief under…section [245]" as discretionary, INA §204(a)(1)(A)(i), which governs I-130 petitions, is not mentioned in §242(a)(2)(B)(i). Therefore, the court concluded that the district court properly found that it lacked jurisdiction to review the denial of Plaintiff husband's I-485 application, but incorrectly concluded that it did not have subject matter jurisdiction over the denial of Plaintiff wife's I-130 petition. The court also found that the district court did not err in denying Plaintiffs' motion to amend their complaint to add the FOIA and ICCPR claims.
OPINION

I. Facts and Proceedings

John, a citizen of Nigeria, met Felicia, a United States citizen residing in Beaumont, Texas, during a visit to the United States on a tourist visa in December 1996. The couple married on February 10, 1997. Less than a month after their marriage, Felicia filed a Form I-130 "Petition for Alien Relative" to have John classified as an "immediate relative." 1

See 8 U.S.C. § 1154(a)(1)(A)(i) (providing that "any citizen of the United States claiming that an alien is entitled to . . . an immediate relative status . . . may file a petition with the Attorney General for such classification"); 8 U.S.C. § 1151(b)(2)(A)(i) (defining "immediate relative" to include citizen's spouse).
John subsequently filed a Form I-485 "Application to Register Permanent Residence or Adjust Status" to become a lawful permanent resident. 2

See 8 U.S.C. § 1255(a) (providing that Attorney General may, "in his discretion," adjust alien's status to legal permanent resident).

On December 5, 2000, after an investigation by the USCIS raised doubts about the validity of the Ayanbadejos' marriage, the USCIS issued a notice of intent to deny Felicia's I-130 petition and John's I-485 application. 3

In its notice, USCIS stated that Felicia acknowledged that she lived in Beaumont, Texas while John lived in New York and New Jersey, and that she had not visited John. John provided evidence that he had flown to Houston, Texas, where some of his relatives live, but provided no evidence that he had visited Felicia. The couple also failed to provide sufficient documentation that they shared financial accounts.
On April 17, 2001, Felicia filed a second I-130 petition seeking an immediate relative visa for John, and John filed a second I-485 application requesting adjustment of his status. On June 26, 2002, the USCIS issued a notice of intent to deny Felicia's second I-130 petition on the same ground as its previous notice of intent to deny - that the Ayanbadejos' union was not bona fide but was a sham marriage, entered into solely for immigration purposes. Felicia filed a response to USCIS's notice with additional documentation. Unpersuaded, on October 9, 2002, the USCIS issued a notice of denial of the Felicia's I-130 petition and John's I-485 application.

When the USCIS denied the Ayanbadejos' I-130 petition and I-485 application based on its finding that their marriage was entered into for the purposes of circumventing immigration laws, the Ayanbadejos filed an appeal with the Board of Immigration Appeals ("BIA") of the United States Department of Justice. On June 16, 2005, the BIA affirmed the USCIS's decision without a written order. John subsequently filed a petition for review of the BIA's decision with us, which we dismissed for lack of jurisdiction.

The Ayanbadejos then filed a complaint in district court. The government filed a motion to dismiss for lack of subject matter jurisdiction, 4

See FED. R. CIV. P. 12(b)(1).
arguing that the REAL ID Act of 2005, codified at 8 U.S.C. § 1252(a)(2)(B), eliminated the district court's right to review the Ayanbadejos' I-130 petition and I-485 application.

The Ayanbadejos filed a motion to amend their complaint, in which they alleged that: (1) their constitutional rights had been violated when they were denied a full and fair hearing before the USCIS and BIA; (2) their rights under the Freedom of Information Act ("FOIA") had been violated when they requested, but did not receive, their immigration records within 30 days of filing a request, as required by FOIA; and (3) their rights under the International Covenant on Civil and Political Rights ("ICCPR") were violated by the errors and omissions of the USCIS and BIA.

The district court held that: (1) the immigration decisions involving the Ayanbadejos did not violate their constitutional rights because the correct standards were employed in determining that the couple failed to provide sufficient evidence that their marriage was bona fide; (2) the USCIS's denials of Felicia's I-130 petition and John's I-485 application were within its discretion and therefore not subject to judicial review; (3) the Ayanbadejos' FOIA claim was moot because the records they requested had been produced; and (4) their claim under the ICCPR did not present a cognizable cause of action. For these reasons, the court denied the Ayanbadejos' motion to amend their complaint to present their FOIA and ICCPR claims, and granted the government's motion to dismiss for lack of subject matter jurisdiction. The Ayanbadejos filed a motion for new trial, which the district court denied. The Ayanbadejos then timely filed a notice of appeal.

II. Standard of Review

We review de novo the district court's grant of a motion to dismiss under Rule 12(b)(1). 5

Premiere Network Servs., Inc. v. SBC Commc'ns, Inc., 440 F.3d 683, 687 (5th Cir. 2006); Crockett v. R.J. Reynolds Tobacco, 436 F.3d 529 (5th Cir. 2006).
We review the district court's decision to grant or deny a motion to amend for abuse of discretion. 6

Briddle v. Scott, 63 F.3d 364, 379 (5th Cir. 1995).

III. Analysis

The Ayanbadejos raise three issues on appeal: (1) whether the district court erred in granting the government's motion to dismiss for lack of subject matter jurisdiction because § 1252(a)(2)(B) precluded its review of the Ayanbadejos' I-130 petition and I-485 application; (2) whether the court erred in denying the Ayanbadejos' motion to amend their complaint to include their FOIA and ICCPR claims; and (3) whether the court erred in denying the Ayanbadejos' motion for a new trial. Issues Two and Three are without merit, but our analysis of Issue One, which presents a matter of first impression, leads us to conclude that the district court did, in fact, have subject matter jurisdiction to review Felicia's I-485 petition, requiring us to reverse the district court's ruling and remand to the district court for a new trial.

A. Subject Matter Jurisdiction

The Ayanbadejos contend that the district court incorrectly concluded that § 1252(a)(2)(B) divested it of the jurisdiction to hear their claims. We agree with the Ayanbadejos, at least in part. Our decision in Zhao v. Gonzales, 7

404 F.3d 295 (5th Cir. 2005).
which provides a clear and consistent roadmap for interpreting §1252(a)(2)(B), is directly applicable to the instant case, and leads us to conclude that, although the district court did not have jurisdiction to review the determinations made with respect to John's I-485 application, the court did have jurisdiction to review the determinations made with respect to Felicia's I-130 petition.

First, the district court correctly held that, under § 1252(a)(2)(B), it did not have jurisdiction to review the decisions to deny John's I-485 application because these determinations were "in the discretion of" immigration officials acting under authority of the Attorney General. Section 1252(a)(2)(B)(ii) provides that "no court shall have jurisdiction to review . . . any other decision or action of the Attorney General or 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 . . . ." 8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added).
In Zhao, we interpreted this language to mean that courts are precluded from reviewing those decisions "specified in the statute" to be discretionary. Zhao, 404 F.3d at 303 ( "One might mistakenly read § 1252(a)(2)(B)(ii) as stripping us of the authority to review any discretionary immigration decision. That reading, however, is incorrect, because § 1252(a)(2)(B)(ii) strips us only of jurisdiction to review discretionary authority that is specified in the statute."). Section 1252(a)(2)(B)(i) explicitly places "any judgment regarding the granting of relief under . . . section 1255," which provides the statutory authority for I-485 applications, in this category of discretionary decisions that no courts have jurisdiction to review. The law makes clear that we and the district court lack jurisdiction over determinations made with respect to an I-485 application for permanent resident status under § 1255. 10

Hadwani v. Gonzales, 445 F.3d 798, 800 (5th Cir. 2006) ("[W]e join a number of our sister circuits in holding that we lack jurisdiction over petitions for review concerning the discretionary denial of relief under 8 U.S.C. § 1255."). The district court thus correctly held that it lacked jurisdiction to review the denial of John's I-485 application. 11

Under § 1252(a)(2)(D), "constitutional claims or questions of law" related to any claim for relief under § 1252(a)(2)(B) are exempted from the category of non-reviewable decisions left to the discretion of the Attorney General. Although the Ayanbadejos argue that the USCIS's basis for refusing to adjust John's status was a legal conclusion that a non-viable marriage precluded the change-in-status John requested, the USCIS's predicate determination of whether the Ayanbadejos had a bona fide marriage was a question of fact, not law, and therefore does not qualify for the § 1252(a)(2)(D) exception to the § 1252(a)(2)(B) jurisdiction stripping provision.

Felicia's I-130 petition is a different story. Even though all judgments regarding relief under § 1255, including reviews of I-485 applications, are specifically categorized as discretionary and non-reviewable by § 1252(a)(2)(B)(i), I-130 petitions are authorized by § 1154 (a)(1)(A)(i), not § 1255, and are not mentioned in § 1252(a)(2)(B)(i). We have not explicitly determined whether district courts have jurisdiction to review the denial of I-130 petitions, but in Zhao we reasoned that Congress included the phrase "specified under this subchapter" in §1252(a)(2)(B)(ii) for the purpose of precisely identifying which discretionary decisions are beyond judicial review. 12

Zhao, 404 F.3d at 303 ("The statutory language is uncharacteristically pellucid on this score; it does not allude generally to 'discretionary authority' or to 'discretionary authority exercised under this statute,' but specifically to 'authority for which is specified under this subchapter to be in the discretion of the Attorney General.'"). Zhao emphasizes that this language was meant to delineate definitively which types of decisions are discretionary, and thus non-reviewable, by a court. 13

Id
The language of other federal regulations addressing I-130 petitions might lead one to infer that I-130 determinations are discretionary, and thus non-reviewable, 14

ee 8 U.S.C. § 1154(b), which authorizes I-130 petitions ("After an investigation of the facts in each case . . . the Attorney General shall, if he determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made is an immediate relative specified in section 1151(b) . . . approve the petition . . . .") (emphasis added); 8 U.S.C. § 1154(c) ("[N]o petition shall be approved if . . . the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.") (emphasis added). The use of the word "shall" in these regulations indicates that the approval or disapproval of the petition may not be discretionary. Cf. 8 C.F.R. § 204.2(a)(1)(ii) (providing that to deny I-130 petition based on sham marriage, there must be "substantial and probative evidence" of immigrant's attempt or conspiracy to enter into marriage to evade immigration laws - arguably, a discretionary determination).
but, following Zhoa, we decline to abdicate our jurisdiction based on any such extra-statutory authority. 15

Zhoa, 404 F.3d 303 ("In ruling on Zhao's motion, however, the BIA exercised no such statutorily delineated discretion; that discretion instead derived from regulations promulgated by the Attorney General.").
Categorizing I-130 petition determinations as discretionary based on authority found in an implementing regulation would contradict the plain statutory language of §1252(a)(2)(B)(ii), which specifies that courts are only stripped of authority to review decisions designated as discretionary by the statute. Section 1252(a)(2)(B)(i) simply does not include I-130 petition determinations in the discretionary category that expressly includes determinations of I-485 applications. Following our clear precedent in Zhao, our inquiry need not go any further. Determinations regarding the validity of marriage for I-130 petition purposes are not discretionary within the meaning of §1252(a)(2)(B), and thus are subject to review by courts. 16

Cf. Yerkovich v. Ashcroft, 381 F.3d 990, 994 (10th Cir. 2004) (stating that "the jurisdictional bar in § 1252(a)(2)(B)(ii) applies only to acts over which a statute gives the Attorney General pure discretion unguided by legal standards or statutory guidelines") (internal quotations omitted); Onyinkwa v. Ashcroft, 376 F.3d 797, 799-800 (8th Cir. 2004); Ginters v. Cangemi, 419 F. Supp.2d 1124, 1130 (district court determined that, pursuant to § 1252(a)(2)(B)(ii), it lacked jurisdiction to review denial of I-130 petition because determination whether petitioner had entered into sham marriage was discretionary decision).
The district court incorrectly concluded that it did not have subject matter jurisdiction to review Felicia's I-130 petition.

B. FOIA, ICCPR Claims

The district court did not err in denying the Ayanbadejos' motion to amend their complaint to add their FOIA and ICCPR claims. "A party may amend its pleading once as a matter of course" at any time before a responsive pleading is served and, thereafter, only by leave of the court or written consent of the adverse party. 17

FED. R. CIV. P. 5(a).
Courts are instructed to grant leave to amend freely "when justice so requires." 18

Id.
Although the Ayanbadejos argue that the district court erred in dismissing their FOIA claim as moot, the USCIS did produce the Ayanbadejos' immigration record to their counsel pursuant to their FOIA request, making this claim moot. The district court did not abuse its discretion in denying the Ayanbadejos' motion to amend their complaint to add their FOIA claim. 19

See Avatar Exploration, Inc. v. Chevron, 933 F.2d 314, 321 (5th Cir. 1991) (district court may properly deny motion to amend when amendment would be futile, would cause undue delay, or is in bad faith).

The Ayanbadejos also assert that the acts of the USCIS and BIA are continuous violations of the ICCPR, but the Supreme Court has explicitly held that this treaty does not create obligations enforceable in federal courts. 20

Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004).
The district court did not abuse its discretion in denying the Ayanbadejos' motion to amend their complaint to add a claim under the ICCPR. 21

See Avatar, 933 F.2d at 321.

The Ayanbadejos contend that the district court erred in denying their motion for a new trial. 22

See FED. R. CIV. P. 59(e).
Specifically, they assert that, because the USCIS did not transmit their brief containing new evidence to the BIA, their due process rights were violated. The record does not support this claim. On April 18, 2005, the DHS filed a motion with the BIA to dismiss the appeal because the Ayanbadejos new brief was filed with the wrong administrative case number and the DHS did not have a copy of the brief. This motion was served on the Ayanbadejos' counsel on the same day that it was filed, so the Ayanbadejos should have known there was a problem with their brief at that time. They could have resolved the problem prior to the BIA's affirmance of the decision of the USCIS on June 16, 2005. The record also reflects that the Ayanbadejos' immigration records were made available to them on August 29, 2006, almost a month before the district court granted the motion to dismiss on September 21, 2006. The Ayanbadejos therefore had access to their records prior to the district court's ruling and could have raised this claim prior to the court's dismissal of their complaint.

IV. Conclusion

We hold that determinations pertaining to I-130 petitions are not precluded from review by courts pursuant to § 1252(a)(2)(B)(ii). The district court did not err in denying the Ayanbadejos' motion to amend their complaint to include their FOIA and ICCPR claims or in denying the Ayanbadejos' motion for a new trial. Although the district court correctly held that the denials of John's I-485 application by the USCIS and BIA were non-reviewable, the court's holding that it did not have subject matter jurisdiction to review Felicia's I-130 petition conflicts with the plain meaning of §1252(a)(2)(B)(ii) and our decision in Zhao. The judgment of the district court is therefore REVERSED to the extent that it dismissed Felicia's I-130 petition for lack of jurisdiction and this case is REMANDED to the district court for further proceedings consistent with this opinion.