Freedom of Information Act Request in Removal Proceedings

February 28, 2007


Press Release

USCIS Launches New Track For Processing Freedom of Information Act (FOIA) Requests

Will provide certain individuals accelerated access to A-files

WASHINGTON—USCIS today added a new and quicker path for certain individuals to access their immigration files when they submit a Freedom of Information Act (FOIA) request.

The ‘Notice to Appear’ track augments the agency’s overall procedures for responding to FOIA requests and is set aside for individuals who are scheduled to appear before an immigration judge. This new track will allow for accelerated access to their Alien-File (A-File) when it is requested through the FOIA process.

“One of our pillars to building an immigration service for the 21st century is improving service delivery,”

said USCIS Director Emilio Gonzalez. “Part of that service delivery is improving our FOIA procedures. This new processing track will not only enhance our FOIA processing times, but also help us to reduce

FOIA backlogs.”

USCIS currently uses two tracks to process FOIA requests, including one for routine inquiries and another for more complex requests that require additional search and review. The new track allows for accelerated access of a large portion of requests the agency receives from individuals, or their representatives, who have been notified to appear before an immigration court.

Individuals, or their representatives, may submit a FOIA request to USCIS seeking access to their A-file using a FOIA/Privacy Act request form (G-639). While the form is not required, it provides step-by-step instructions. To be placed in the new track for accelerated access to the file, requesters must provide one of the following:

• Notice to Appear (Form I-862);

• Order to Show Cause (Form I-122);

• Notice of Referral to Immigration Judge (Form I-863); or

• A written notice of continuation of a scheduled hearing before the immigration judge.

Cases in which an immigration judge has issued a final order or those in which an appeal of a decision has been filed with the Board of Immigration Appeals will not be included in the ‘Notice to Appear’ track. Individuals wishing to move their pending FOIA request to the new track must resubmit it based on the above guidelines.

The notice, published in today’s Federal Register, is effective March 30, 2007. Visit USCIS’ Web site at www.uscis.gov for more information on the FOIA program.

- USCIS - On March 1, 2003, U.S Citizenship and Immigration Services became one of three legacy INS components to join the U.S. Department of Homeland Security. USCIS is charged with fundamentally transforming and improving the delivery of immigration and citizenship services, while enhancing the integrity of our nation's security.

In re Mario Eduardo VELARDE-Pacheco, 23 I&N Dec. 253 (BIA 2002) - Adjustment of Status in Removal Proceedings - Five Factors

BIA found that a properly filed motion to reopen may be granted, in the exercise of discretion, to provide an alien an opportunity to pursue an application for adjustment where the following 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, 21 I&N Dec. 541 (BIA 1996), or on any other procedural grounds; (4) the motion presents clear and convincing evidence indicating a strong likelihood that the respondent’s marriage is bona fide; and (5) the Service either does not oppose the motion or bases its opposition solely on Matter of Arthur.



Cite as 23 I&N Dec. 253 (BIA 2002) Interim Decision #3463
In re Mario Eduardo VELARDE-Pacheco, Respondent
File A70 178 696 - San Diego
Decided March 6, 2002
U.S. Department of JusticeExecutive Office for Immigration Review Board of Immigration Appeals
A properly filed motion to reopen for adjustment of status based on a marriage entered into after the commencement of proceedings may be granted in the exercise of discretion, notwithstanding the pendency of a visa petition filed on the alien’s behalf, where: (1) the motion to reopen is timely filed; (2) the motion is not numerically barred by the regulations;
(3) the motion is not barred by Matter of Shaar, 21 I&N Dec. 541 (BIA 1996), or on any other procedural grounds;(4) clear and convincing evidence is presented indicating a strong likelihood that the marriage is bona fide; and (5) the Immigration and Naturalization Service does not oppose the motion or bases its opposition solely on Matter of Arthur, 20 I&N Dec. 475 (BIA 1992). Matter of H-A-, Interim Decision 3394 (BIA 1999), and Matter of Arthur, supra, modified.
FOR RESPONDENT: Manuel Armando Rios, Esquire, San Diego, California
FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Alan S. Rabinowitz, Deputy District Counsel
BEFORE: Board En Banc: SCHMIDT, VILLAGELIU, GUENDELSBERGER, MOSCATO, MILLER, BRENNAN, and OSUNA, Board Members. Concurring Opinions: HOLMES, Board Member, joined by HURWITZ, Board Member; ROSENBERG, Board Member; ESPENOZA, Board Member. Dissenting Opinions: GRANT, Board Member; PAULEY, Board Member, joined by SCIALABBA, Acting Chairman; DUNNE, Vice Chairman; FILPPU, COLE, OHLSON, and HESS, Board Members.
VILLAGELIU, Board Member:
This case was last before us on June 12, 2001, when we dismissed the respondent’s appeal from an Immigration Judge’s decision finding him removable as an alien who was inadmissible at the time of entry and ineligible for any form of relief. The respondent now seeks to reopen the proceedings, arguing that he is prima facie eligible for adjustment of status based on his bona fide marriage to a United States citizen. The motion will be granted and the record will be remanded to the Immigration Judge for further proceedings.
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I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a 25-year-old native and citizen of Mexico. At a hearing on October 27, 1997, the Immigration Judge ordered the respondent deported to Mexico. The respondent filed a timely appeal from that decision.
On February 23, 1999, the respondent married a United States citizen. The couple’s son was born on July 24, 1999. On April 30, 2001, the respondent’s wife filed a Petition for Alien Relative (Form I-130) with the Service on the respondent’s behalf, and he simultaneously filed an Application to Register Permanent Residence or Adjust Status (Form I-485), pursuant to 8 C.F.R. § 245.2(a)(2)(i) (2001), seeking the benefits of section 245(i) of the Act, 8 U.S.C. § 1255(i) (2000).
We dismissed the respondent’s appeal on June 12, 2001. On September 10, 2001, the respondent filed the present motion to reopen with supporting documentation that includes a copy of his marriage certificate, a copy of his son’s birth certificate, and copies of his filing fee receipts. He has also submitted copies of his adjustment application and supporting documentation, as required by 8 C.F.R. § 3.2(c)(1) (2001). These materials include the birth certificate of the couple’s United States citizen son as evidence of the bona fide nature of their marriage. See 8 C.F.R. §§ 204.2(a)(1)(iii)(B)(4), 245.1(c)(9)(v)(D) (2001).
The respondent argues that he should be given an opportunity to adjust his status to that of a lawful permanent resident as a result of his marriage to a United States citizen, and he urges us to reopen proceedings and remand his case to the Immigration Judge to allow him to apply for such relief.
In its response to the respondent’s motion, the Immigration and Naturalization Service argues that we are precluded from reopening this case by our decisions in Matter of Arthur, 20 I&N Dec. 475 (BIA 1992), and Matter of H-A-, Interim Decision 3394 (BIA 1999).
II. ISSUE
The issue before us is whether we should modify our policy, stated in Matter of Arthur, supra, and reaffirmed in Matter of H-A-, supra, to deny a motion to reopen to apply for adjustment of status that is based on an unadjudicated visa petition filed by a United States citizen or lawful permanent resident on behalf of his or her spouse, in light of the Service’s recently revised procedures regarding the joining of untimely motions to reopen that are submitted after visa petition approval.
III. ANALYSIS
In Matter of Arthur, supra, the respondent filed a motion to reopen with the Immigration Judge, claiming eligibility for adjustment of status based on his
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marriage to a United States citizen after the commencement of deportation proceedings. The respondent filed a Form I-485, and a Form I-130 was submitted on his behalf. The Immigration Judge denied the respondent’s motion because the I-130 had not yet been adjudicated by the Service. We affirmed, modifying our holding in Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), which treated pending visa petitions that are prima facie approvable as already approved for purposes of reopening based on the simultaneous filing provisions of 8 C.F.R. § 245.2(a)(2)(i). Matter of Arthur, supra, at 477.
In Matter of H-A-, supra, we addressed a situation in which we initially denied the respondent’s motion to reopen to apply for adjustment of status under section 245(i) of the Act, in accordance with the policy articulated in Matter of Arthur, because a Form I-130 filed on the respondent’s behalf had not yet been approved by the Service. After the visa petition was eventually approved, we denied a subsequently filed motion to reconsider based on the time and number limits set forth in 8 C.F.R. § 3.2(c)(2). Matter of H-A-, supra.
The effect of our policy in Matter of Arthur, supra, coupled with the regulation limiting respondents to one motion to reopen filed within 90 days of a final administrative decision and the Service’s inability to adjudicate many I-130 visa petitions within that time frame, has been to deprive a small class of respondents, who are otherwise prima facie eligible for adjustment, of the opportunity to have their adjustment applications reviewed by an Immigration Judge. See sections 204(g), 245(e) of the Act, 8 U.S.C. §§ 1154(g), 1255(e) (2000); Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, § 5, 100 Stat. 3537, 3543; Immigration Act of 1990, Pub. L. No. 101-649, § 702, 104 Stat. 4978, 5086; 8 C.F.R. §§ 3.2(c)(2), 3.23(b)(3) (2001); see also INS v. Doherty, 502 U.S. 314 (1992); INS v. Abudu, 485 U.S. 94 (1988); Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996); Matter of Coelho, 20 I&N Dec. 464 (BIA 1992); H.R. Conf. Rep. No. 101-955, at 128 (1990), reprinted in 1990 U.S.C.C.A.N. 6784, 6793.
The Service recently revised its policy on joining untimely motions to reopen for adjustment of status. In a memorandum dated July 16, 2001, the Service’s General Counsel stated that, given changes to the Act, including the “stop-time rule” of section 240A(d) of the Act, 8 U.S.C. § 1229b(d) (2000), and repeated amendments to section 245(i) of the Act, an amendment to the Service’s guidance as it relates to adjustment of status and motions to reopen was warranted. See Memorandum for Regional Counsel for Distribution to District and Sector Counsel, Office of the General Counsel (July 16, 2001). The Service withdrew its “extraordinary and compelling circumstances” standard for joining such a motion, stating that assistant district counsels may now join in a motion to reopen for consideration of adjustment of status if that
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relief was not available to the alien at the former hearing, the alien is statutorily eligible for adjustment, and the alien merits a favorable exercise of discretion. Id.
We conclude that a properly filed motion to reopen may be granted, in the exercise of discretion, to provide an alien an opportunity to pursue an application for adjustment where the following 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, 21 I&N Dec. 541 (BIA 1996), or on any other procedural grounds; (4) the motion presents clear and convincing evidence indicating a strong likelihood that the respondent’s marriage is bona fide; and (5) the Service either does not oppose the motion or bases its opposition solely on Matter of Arthur, supra.
In the instant case, the respondent filed his first and only motion to reopen before this Board within 90 days of our decision dismissing his appeal. The respondent was not granted voluntary departure during proceedings before the Immigration Judge, and he is therefore not barred from adjustment of status for overstaying a voluntary departure period. See Matter of Shaar, supra. We find no other procedural bars to his motion to reopen.
Most importantly, the respondent has submitted clear and convincing evidence that his marriage is bona fide, based on the evidentiary standard set forth at 8 C.F.R. § 204.2(a)(1)(iii)(B). The respondent has submitted copies of his receipt for the I-485 filing fee; his receipt for the I-130 filing fee that was submitted on his behalf by his wife; his receipt for the additional sum prescribed by 8 C.F.R. § 245.10(b) (2001); his marriage certificate; and the birth certificate of his United States citizen son. He has also submitted an affidavit attesting that he has known his wife since 1995.
The Form I-485 filed by the respondent indicates that he and his wife have lived together at their current address since June 1999. Submission of such evidence, in compliance with the standards prescribed by 8 C.F.R. § 204.2(a)(1)(iii)(B) for establishing the bona fide nature of a marriage by clear and convincing evidence, indicates a high probability that the respondent’s marriage is bona fide. See Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Phillis, 15 I&N Dec. 385 (BIA 1975). The respondent has therefore met the above requirements for reopening of these proceedings.
We emphasize that we do not endorse granting adjustment of status in every case in which a respondent makes a prima facie showing of eligibility, nor do we address motions to reopen filed after the 90-day deadline has passed. Every application necessarily requires examination of the relevant factors and a determination of the weight such factors should be accorded in the exercise of discretion, with respect both to reopening and to the ultimate determination on the application for relief. Similarly, motions submitted after the 90-day period prescribed by regulation present additional considerations
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regarding the finality of proceedings, which can best be addressed through the Service’s recently announced policy on joining such a motion. The Service is in a better position to ascertain whether additional factors, which may not be readily apparent, militate against reopening.
In addition, our decision today does not require Immigration Judges to reopen proceedings pending adjudication of an I-130 visa petition in every case in which the respondent meets all five of the aforementioned factors. Immigration Judges may still deny motions to reopen if they determine that a respondent’s visa petition is frivolous or that adjustment would be denied in any event, either on statutory grounds or in the exercise of discretion. A prima facie showing of eligibility merely affords respondents who present sufficient evidence a single opportunity to have their adjustment applications adjudicated. Such an opportunity is consistent with Congress’ legislative intent in amending the marriage fraud provisions: that aliens who marry after proceedings have been initiated, and who seek adjustment of status, should be afforded one opportunity to present clear and convincing evidence that their marriage is bona fide. Compare H.R. Rep. No. 101-723 (I), at 50-52 (1990), reprinted in 1990 U.S.S.C.A.N. 6710, 6730-32, with H.R. Conf. Rep. No. 101-955, at 128.
At the same time, the Service is also provided an opportunity to fully investigate a respondent’s claim and present the results of that investigation to the Immigration Judge, as suggested in the Service’s Operations Instruction 245.2(f) (2001). See generally Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980) (finding the policy manifest in an Immigration and Naturalization Service Operations Instruction appropriate for consideration by the Immigration Judge and the Board in the exercise of discretion).
IV. CONCLUSION
Accordingly, we modify our decisions in Matter of H-A-, supra, and Matter of Arthur, supra, to allow for the granting of a motion to reopen to apply for adjustment of status, pending approval of the I-130 visa petition by the Service, in cases where an alien has satisfied the five factors listed above. The respondent has met the requirements for reopening of the proceedings in this case. The respondent’s motion to reopen will therefore be granted, and the record will be remanded to the Immigration Judge for further proceedings.
ORDER: The motion to reopen is granted.
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.
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CONCURRING OPINION: David B. Holmes, Board Member, in which Gerald S. Hurwitz, Board Member, joined
I respectfully concur. In my view, the issue before us is whether those respondents who can satisfy all of the other rigorous eligibility requirements for reopening proceedings to pursue an application for adjustment of status based on a marriage entered into while in proceedings should nonetheless be subject to an additional, absolute bar to reopening that arises neither from statute nor regulation, but instead is solely of the Board’s own creation. See Matter of H-A-, Interim Decision 3394 (BIA 1999); Matter of Arthur, 20 I&N Dec. 475 (BIA 1992). I find that such a bar is not appropriate given the development of the law in this area.
In this regard, I am guided by the fact that in 1986 Congress included in the Immigration and Nationality Act an absolute bar to adjustment for respondents who entered into marriages during the course of deportation or exclusion proceedings. See Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, § 5(b), 100 Stat. 3537, 3543 (codified as amended at section 245(e) of the Act, 8 U.S.C. § 1255(e) (Supp. IV 1986)). This preclusion to adjustment was easy for the Service, the Immigration Judges, and the Board to administer because it was absolute. Moreover, it was exceedingly effective at screening out suspect marriages because all marriages entered into during the course of proceedings were included in its sweep. However, this same broad sweep also excluded from adjustment many respondents, including those with United States citizen children, whose marital relationships were bona fide, with obvious resulting hardship to citizens and lawful permanent residents of this country. In response, Congress amended the Act in 1990 by exempting from the bar an alien who could establish “by clear and convincing evidence to the satisfaction of the Attorney General that the marriage was entered into in good faith and . . . was not entered into for the purpose of procuring the alien’s entry as an immigrant.” Immigration Act of 1990, Pub. L. No. 101-649, § 702, 104 Stat. 4978, 5086 (codified as amended at section 245(e)(3) of the Act, 8 U.S.C. § 1255(e)(3) (Supp. II 1990)).
This development of the law reflects Congress’ intent to rigorously screen out fraudulent or suspect marriages from eligibility for adjustment of status, but to not do so in a manner that unnecessarily includes within its scope genuine marital relationships. Given Congress’ decision in 1990 to replace an absolute bar with one that instead imposes a higher standard of proof, it does not seem appropriate to me for the Board to create an absolute bar to reopening in circumstances in which the statutory goals can similarly be met by the imposition of a more rigorous standard of proof. Accordingly, I would modify the Board’s decisions in Matter of H-A-, supra, and Matter of Arthur, supra, and apply the standards enunciated by the Board in Matter of Garcia,
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16 I&N Dec. 653 (BIA 1978), to cases such as the respondent’s, with the additional requirement that the underlying visa petition be prima facie approvable under the more rigorous “clear and convincing evidence” standard set forth in section 245(e)(3) of the Act, rather than under the “preponderance of the evidence” standard that governs other motions within the scope of Matter of Garcia.
In the present case, but for the Board’s decisions in Matter of H-A-, supra, and Matter of Arthur, supra, the respondent appears eligible under Matter of Garcia, supra, to have his proceedings reopened to provide him the opportunity to pursue an application for adjustment of status. I find a prima facie showing that the visa petition filed on his behalf is approvable under the “clear and convincing evidence” standard. See 8 C.F.R. § 204.2(a)(1)(iii)(B) (2001). Accordingly, I agree with the majority that the motion should be granted to permit the respondent an opportunity both to establish his eligibility for adjustment of status and, if eligible, to demonstrate that he warrants such relief in the exercise of discretion.
CONCURRING OPINION: Lory Diana Rosenberg, Board Member
I respectfully concur in the majority’s decision to grant the respondent’s motion to reopen, as I am in complete agreement that reconsideration of our opinions in Matter of Arthur, 20 I&N Dec. 475 (BIA 1992), and Matter of H-A-, Interim Decision 3394 (BIA 1999), is warranted. Upon reconsideration of those decisions, I also agree with the majority that it is within our discretion to grant a timely motion to reopen seeking a remand to apply for adjustment of status based on a showing of “clear and convincing evidence . . . indicating a strong likelihood that the respondent’s marriage is bona fide.” Matter of Velarde, 23 I&N Dec. 253, 256 (BIA 2002).
However, I would not find it necessary to restrict our discretion by imposing the additional condition that “the Service does not oppose the motion or bases its opposition to the motion to reopen solely on our decision in Matter of Arthur, supra.” Matter of Velarde, supra, at 256. Such a restriction is not warranted by sections 204(g) and 245(e) of the Immigration and Nationality Act, 8 U.S.C. §§ 1154(g) and 1255(e) (2000), which prompted our prior decision in Matter of Arthur, supra.
First, the respondent’s motion to reopen is timely, as it was filed within 90 days of our ruling on the respondent’s timely appeal from the October 27, 1997, decision of the Immigration Judge. See 8 C.F.R. § 3.2(c) (2001). It is a reasonable assumption that the considerations underlying the Immigration and Naturalization Service’s current policy of joining meritorious, untimely motions to enable a respondent to apply for adjustment of status also would extend to meritorious, timely motions. See Memorandum for Regional Counsel for Distribution to District and Sector Counsel, Office of the
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General Counsel (July 16, 2001) (authorizing the Service to join a motion to reopen seeking adjustment of status if adjustment was not previously available, and the respondent is eligible and merits a favorable exercise of discretion). Indeed, all things being equal, it is difficult to imagine a rational reason why the Service would acquiesce in an untimely motion to facilitate the consideration of an adjustment of status application, but object to a timely filed one.
Second, at the time we dismissed the respondent’s appeal on June 12, 2001, the respondent had been married to a United States citizen for over 2 years, and the couple had a son who was 2 years old. In addition, the respondent had filed an application for adjustment of status with the Immigration Judge under section 245(i) of the Act. See 8 C.F.R. § 245.2(a)(1) (2001) (requiring that once an alien is in proceedings, the adjustment application shall be made and be considered only in such proceedings). His application had been properly filed originally in conjunction with his wife’s immediate relative petition seeking an exemption of the prohibition on approval of such petitions. See 8 C.F.R. § 245.2(a)(2)(i) (instructing that adjustment applications filed simultaneously with immediate relative visa petitions are to be retained when approval of the visa petition would make a visa immediately available at the time of filing the adjustment application).
Although section 204(g) of the Act restricts the approval of a marriage-based visa petition when the marriage is entered into during the period that administrative or judicial proceedings are pending, section 245(e)(3) provides an explicit exception to that restriction. Specifically, when a respondent 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 jurisdiction in which it took place, and that it was not entered into for the purpose of procuring the alien’s admission as an immigrant, the restrictions in section 204(g) of the Act and the prohibition on adjustment of status under section 245(e)(1) of the Act do not apply. Section 245(e)(3) of the Act; see also 8 C.F.R. § 204.2(a)(1)(iii)(B) (2001) (listing evidence to be relied upon to meet the bona fide marriage exemption to the marriage fraud provisions in sections 204(g) and 245(e) of the Act).
Accordingly, when a respondent supports a motion to reopen with documentation that contains clear and convincing evidence indicating the strong likelihood that his marriage is bona fide, he has made a prima facie showing of eligibility consistent with the exception provided in section 245(e)(3) of the Act. Although 8 C.F.R. § 204.1(e)(1) (2001) provides that jurisdiction lies with the Service office having jurisdiction over the petitioner’s residence, and 8 C.F.R. § 204.2(a)(1)(iii)(C) allocates the ultimate authority to approve the visa petition to the Service director, the Service’s authority is not exclusive. See Matter of Obaigbena, 19 I&N Dec.
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533 (BIA 1988); accord Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). But see Dodig v. INS, 9 F.3d 1418 (9th Cir. 1993) (holding that the district director is charged exclusively with ultimately approving a visa petition).
The exception to adjustment preclusion in section 245(e)(3) of the Act, and the regulatory provisions that permit simultaneous filings and mandate that an adjustment application be filed with the Immigration Judge after an alien is in proceedings, indicate that the Immigration Judge and the Board share some of the authority delegated to the Attorney General under section 245(e)(3) of the Act. See 8 C.F.R. §§ 245.2(a)(1), (2)(i). As the Service explained in interim rules issued on July 23, 1997, there is no requirement that an adjustment applicant be the beneficiary of an approved, valid, and unexpired visa petition in order to file an application for adjustment of status. Adjustment of Status to That of Person Admitted for Permanent Residence; Temporary Removal of Certain Restrictions of Eligibility, 62 Fed. Reg. 39,417, 39,419 (1997). Obviously, if the visa petition is filed simultaneously with the adjustment application in accordance with 8 C.F.R. § 245.2(a)(2)(i), the visa petition could not be already approved.
The submission of a pending visa petition accompanied by sufficient documentary evidence under 8 C.F.R. § 204.2(a)(1)(iii)(B) with a motion to reopen should suffice to establish prima facie evidence of a bona fide marriage for purposes of reopening. Looking to such a prima facie showing to determine whether to grant reopening under 8 C.F.R. § 3.2(c) is consistent with the statutory language in section 245(e)(3) of the Act, reflecting Congress’ express intent that an affected alien have an opportunity to provide clear and convincing evidence of a bona fide marriage. Id.
In Matter of Arthur, supra, we insisted on prior Service approval of a marriage-based visa petition before we would grant reopening for adjustment of status in cases subject to the marriage fraud provisions. Id. at 479 (holding that we would “hereafter decline to grant motions to reopen” until the Service approved the visa petition filed on the alien’s behalf). We found that, for purposes of reopening, a presumption that a marriage claimed on an unadjudicated visa petition was bona fide in the absence of clear ineligibility conflicted with the terms of the marriage fraud amendments. Id. (modifying Matter of Garcia, 16 I&N Dec. 653 (BIA 1978)).
With due respect, our reasoning in Matter of Arthur confuses the district director’s ultimate authority to approve a visa petition with the authority of the Immigration Judge or the Board to determine that a hearing to consider the merits of an adjustment application is warranted based on preliminary assessment that a respondent has made a prima facie showing that his marriage is bona fide. Matter of Arthur, supra, at 479. In Arthur, we reasoned that given the respondent’s burden of providing by clear and convincing evidence that his marriage is bona fide, a preliminary evaluation to determine prima facie eligibility was untenable and would amount to a
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substantial and unwarranted intrusion into the district director’s authority. Id. at 478-79 (finding that the “clear and convincing evidence” standard is, of course, more stringent than the “preponderance of the evidence” standard ordinarily required to establish a claimed relationship between a petitioner and a beneficiary).
In addition, our conclusion in Arthur that “[a]n inquiry into whether the evidence submitted in support of a visa petition is sufficient, in light of the heavy burden imposed on the petitioner, to demonstrate prima facie eligibility . . . would necessarily involve an in-depth examination into the merits of the petition” is erroneous. Id. at 479 (emphasis added). In my view, it distorts what is meant by “prima facie” eligibility.
Black’s Law Dictionary defines “prima facie” as “[a]t first sight; on first appearance but subject to further evidence or information.” Black’s Law Dictionary (7th ed. 1999). “Prima facie case” is defined as “1. The establishment of a legally required rebuttable presumption” or “2. A party’s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor.” Id. Therefore, a prima facie showing is made when the facts asserted, if later proven in a full hearing, would establish eligibility under the statutory standard. Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992) (tying prima facie eligibility to statutory eligibility).
The prima facie eligibility standard does not vary according to the particular substantive burden of proof that is applicable. Rather, it is demonstrated when facts sufficient to sustain the respondent’s burden after a hearing are presented in his motion to reopen. In this case, the regulations specify quite clearly the kinds of facts necessary to sustain the respondent’s burden of producing clear and convincing evidence of a bona fide marriage and trigger the exception allowing adjustment of status under section 245(e)(3) of the Act. There is no dispute that the respondent not only asserted such facts, but provided proof of them in connection with his motion to reopen.
We have ruled that reopening is warranted under the prima facie eligibility standard. See Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996). There is no question that we may determine prima facie eligibility under a clear and convincing evidence standard without ruling on the petition itself. Id. at 418-19 (recognizing that “the Board historically has not required a conclusive showing that, assuming the facts alleged to be true, eligibility for relief has been established”). By finding prima facie eligibility, we are deciding only that there is a reasonable likelihood that the statutory requirements for the relief sought will be satisfied. See M.A. v. United States INS, 899 F.2d 304 (4th Cir. 1990); Marcello v. INS, 694 F.2d 1033 (5th Cir.), cert. denied, 462 U.S. 1132 (1983).
Consequently, I must question the Board’s unsupported conclusion in Matter of Arthur, supra, that a prima facie eligibility test cannot be used
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merely because the standard the petitioner must satisfy in order for the respondent to be eligible to adjust his status to that of a lawful immigrant is greater than a preponderance of the evidence. Id. at 478-79. Moreover, instead of requiring prima facie evidence to support the motion to reopen, the Board in Arthur required conclusive evidence of eligibility: an approved visa petition. See 8 C.F.R. § 3.2(c). Such a conclusive showing for reopening is an inappropriate basis on which to deny a motion to reopen.
By contrast, the test proposed by the majority—clear and convincing evidence indicating the strong likelihood that the respondent’s marriage is bona fide—is within the authority of the Board to apply. The applicability of such a test in adjudicating a motion to reopen comports with our use of a prima facie eligibility standard to decide motions to reopen generally. See 8 C.F.R. § 3.2(c); Matter of L-O-G-, supra.
Furthermore, 8 C.F.R. § 204.2(a)(1)(iii)(B), specifying the type of evidence that can meet the bona fide marriage exemption to the marriage fraud provisions in sections 204(g) and 245(e) of the Act, was promulgated in conformity with our interpretation of the standard in Matter of Laureano, 19 I&N Dec. 1 (BIA 1983). See Petition to Classify Alien as Immediate Relative of a United States Citizen or as a Preference Immigrant, 57 Fed. Reg. 41,053, 41,058 (1992). In Matter of Laureano, supra, at 3, issued after Arthur, we ruled that “[t]he conduct of the parties after the marriage is relevant to their intent at the time of marriage,” and specified that “[e]vidence to establish intent may take many forms, including, but not limited to, proof that the beneficiary has been listed as the petitioner’s spouse on insurance policies, property leases, income tax forms, or bank accounts, and testimony or other evidence regarding courtship, wedding ceremony, shared residence, and experiences.” Our participation in such an assessment at the appellate level is clearly contemplated, as 8 C.F.R. § 204.2(a)(1)(iii)(E) specifies that the Board decision constitutes the single level of appellate review of bona fide visa petition denials provided in section 245(e)(3) of the Act. See 8 C.F.R. § 3.1(b)(5) (2001).
A prima facie showing consistent with our decision in Matter of Laureano provides a better guideline than the Arthur rule for purposes of reopening under 8 C.F.R. § 3.2. As 8 C.F.R. § 245.2(a)(1) requires that after an alien is in deportation or removal proceedings the adjustment application shall be made and be considered only in such proceedings, the Arthur rule denying reopening unreasonably encumbers the respondent’s statutory right to apply for residency in the United States through the adjustment of status process.1
Although one might argue that a respondent may obtain his immigrant visa through the consular process, this alternative is not a realistic one, as deportation or removal renders an alien inadmissible to the United States. See section 212(a)(9) of the Act, 8 U.S.C. § 1182(a)(9) (2000); see also section 212(a)(9)(A)(iii) of the Act (providing an exception if the
(continued...)
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See sections 201(b)(2)(A)(i), 212(a)(9),(o), 245(a), (i) of the Act, 8 U.S.C. §§ 1151(b)(2)(A)(i), 1182(a)(9), (o), 1255(a), (i).
Contrary to our prior rulings, there is no conflict between our concluding that a marriage appears bona fide for purposes of granting such a hearing and the district director’s ultimate determination of the visa petition. See Matter of Arthur, supra, at 478-79. Furthermore, the determination whether to grant a motion to reopen is essentially a discretionary one. Although the regulations provide certain requirements, such as time and number limitations, those limits are not at issue here. See 8 C.F.R. § 3.2.
Thus, I see no justification for the degree of deference extended to the Service under the fifth condition articulated in the majority opinion. I do not believe that Service opposition is an appropriate “condition” that, as a rule, should result in denial of a motion to reopen. Our role is to engage in impartial and independent adjudications, not to rubberstamp the preferences of the Service. See 8 C.F.R. § 3.1(d) (2001) (providing that the Board shall exercise such authority as is necessary and appropriate for the disposition of the case). In the exercise of discretion in adjudicating such a motion in the absence of visa petition approval, we certainly may consider any substantive objections to reopening offered by the Service. In particular, objections challenging the bona fides of the marriage may be entitled to considerable weight. However, such objections should not constitute an insurmountable barrier to granting a motion to reopen.
If the Service has serious concerns about the merits of the visa petition, the best way to defeat a motion to reopen is to adjudicate the visa petition and deny it. Even if that cannot be accomplished during the time that the motion is pending, the Service still could present evidence that would undermine the respondent’s prima facie case. And, even if the Service is unable to defeat a prima facie showing of eligibility before the motion to reopen is granted, the Service can adjudicate the petition and issue a denial that would ultimately defeat the application for adjustment of status before it is adjudicated on its merits in a hearing before the Immigration Judge.
I conclude that, in view of section 245(e)(3) of the Act, as implemented by 8 C.F.R. §§ 204.2(a)(1)(iii)(B), 245.2(a)(1), and 245.2(a)(2)(i), a respondent’s motion to reopen seeking an opportunity to apply for adjustment of status in a case in which the marriage was entered after proceedings began should be granted when the motion is supported by prima facie evidence, i.e., clear and convincing evidence indicating the strong likelihood that the respondent’s marriage is bona fide. Therefore, I concur in the majority opinion.
1 (...continued)
Attorney General permits an application for readmission). But see Matter of Tin, 14 I&N Dec.
371 (R.C. 1973) (conditioning such discretionary permission in large part on the length of time
spent outside the United States).
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CONCURRING OPINION: Cecelia M. Espenoza, Board Member
I respectfully concur in the result reached by the majority for the reasons stated herein.
A fundamental interest in our immigration laws is the preservation of the rights of United States citizens to process immigration visas for designated members of their families.1 The spouse of a United States citizen is a member of such a class. It is our duty to ensure that the competing interests of immigration enforcement and rights of citizens be recognized. The rule advanced today sets forth a reasonable, limited remedy.
I recognize that the right to petition for a spouse is not absolute, as it is balanced against the interests of the government to process and remove aliens who would fraudulently enter into marriages to evade immigration laws. See Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, § 5(b), 100 Stat. 3537, 3543 (“IMFA”); see also H.R. Rep. No. 99-906 (1986) (on H.R. 3737), reprinted in part in 1986 U.S.C.C.A.N. 5978-86;
S. Rep. No. 99-491 (1986) (on S. 2270). However, the issue presented here is whether the respondent is an individual who meets the exception to the rule because he has a bona fide marriage. See 8 C.F.R. §§ 204.2(a)(1)(iii)(B), 245.1(c)(9)(v) (2001) (setting forth the bona fide marriage exception and standards). In determining that this individual is entitled to relief, I agree with the analysis of Board Member Rosenberg regarding the error of our prior holding in Matter of Arthur, 20 I&N Dec. 475 (BIA 1992).
Consistent with the position of the majority, I believe that the evidence advanced by the respondent warrants reopening. The dissent essentially argues that the IMFA presumption justifies our prior holdings and can only be overcome if a visa petition is approved within 90 days of the issuance of our decision. If this were the law, there would be no need to set forth alternative evidence to demonstrate the bona fides of a marriage. See 8 C.F.R. §§ 204.2(a)(1)(iii)(B), 245.1(c)(9)(v).2
1 In fiscal year 2000, 69% of all legal immigrants were family sponsored immigrants. See Annual Report: Legal Immigration, Fiscal Year 2000, issued by the Office of Policy and Planning, Immigration and Naturalization Service, available at http://www.ins.gov/graphics/aboutins/statistics/Immigs.htm (“Legal Immigration”). Furthermore, in Boddie v. Connecticut, 401 U.S. 371, 376 (1971), the United States Supreme Court recognized that “marriage involves interests of basic importance in our society.” 2 The regulation setting forth these alternatives was issued subsequent to our ruling in Matter of Arthur, supra, and was promulgated to specify the evidence that can meet the bona fide marriage exemption to the marriage fraud provisions in sections 204(g) and 245(e) of the Immigration and Nationality Act, 8 U.S.C. §§ 1154(g) and 1255(e) (2000). See Petition to Classify Alien as Immediate Relative of a United States Citizen or as a Preference Immigrant, 57 Fed. Reg. 41,053, 41,058 (1992).
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In my view, the fundamental question we are faced with is whether sufficient facts exist to warrant a finding of a bona fide marriage in this case. The burden of the respondent is to demonstrate by “clear and convincing evidence . . . a strong likelihood that the respondent’s marriage is bona fide.” Matter of Velarde, 23 I&N Dec. 253, 256 (BIA 2002). This finding is required to insure that the marriage was not entered into for the purpose of evading the immigration laws. The respondent’s marriage prior to the birth of his child demonstrates an intent to legitimate the child, which undermines the notion that he entered into this marriage for immigration purposes. In fact, as a matter of law under the Immigration and Nationality Act, his marriage establishes that this is his child.3 Furthermore, if the respondent’s intent were to evade the immigration laws, it is far more likely that his wife would have filed a Petition for Alien Relative (Form I-130) with the Immigration and Naturalization Service prior to April 30, 2001, or subsequent to our decision on June 12, 2001. As the application was filed independent of either of these dates, I conclude that the evidence meets the clear and convincing evidence standard required by the regulations. 8 C.F.R. § 245.1(c)(9)(v).
The respondent’s timely filing within 90 days of our final decision provides us with this opportunity to reevaluate Matter of Arthur, supra, and Matter of H-A-, Interim Decision 3394 (BIA 1999). Contrary to the speculation of the dissent, the facts demonstrate that neither this respondent nor individuals similarly situated to him have the visa petitions that are filed on their behalf adjudicated in a timely manner. In addition, there is no indication that resources or a procedure for that purpose exist.4 Therefore, I concur in the majority opinion.
DISSENTING OPINION: Edward R. Grant, Board Member
I respectfully dissent without opinion.
DISSENTING OPINION: Roger A. Pauley, Board Member, in which Lori L. Scialabba, Acting Chairman; Mary Maguire Dunne, Vice Chairman; Lauri Steven Filppu, Patricia A. Cole, Kevin A. Ohlson, and Frederick D. Hess, Board Members, joined
The operative, though never expressly stated, reason for the majority’s retreat from Matter of Arthur, 20 I&N Dec. 475 (BIA 1992), and Matter of H-A-, Interim Decision 3394 (BIA 1999), is its belief that the Immigration and
3 The Immigration and Nationality Act sets forth who is a “child,” which, for purposes of the
Act, is “a child born in wedlock.” Section 101(b)(1)(A) of the Act, 8 U.S.C. § 1101(b)(1)(A)
(2000). Thus, paternity is established.
4 There were 1 million adjustment of status applications pending at the end of fiscal year
2000. See Legal Immigration, supra.
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Naturalization Service frequently fails to adjudicate visa petitions based on marriage to a United States citizen in a timely fashion, causing a “small class of respondents, who are otherwise prima facie eligible for adjustment,” to lose their opportunity to have their adjustment applications reviewed by an Immigration Judge. Matter of Velarde, 23 I&N Dec. 253, 255 (BIA 2002). In order to remedy this perceived injustice, the majority has determined to modify the above decisions to permit Immigration Judges to reopen removal proceedings to adjudicate adjustment of status applications based on visa petitions filed by spouses whose marriages were entered into during the pendency of removal proceedings, where, inter alia, the alien spouse submits clear and convincing evidence of the bona fide nature of the marriage and the Service does not oppose the motion.
Accepting the majority’s implicit premise that the Service often acts with insufficient celerity on this species of visa petition, I would nevertheless not modify the above decisions, which essentially require that, before reopening can be granted, an alien must present the Immigration Judge with an approved visa petition. The majority does not gainsay the validity of a principal underlying rationale of Matter of Arthur, supra, and Matter of H-A-, supra, that an “inquiry into whether the evidence submitted in support of a visa petition is sufficient . . . to demonstrate prima facie eligibility for the preference sought would necessarily involve an in-depth examination into the merits of the petition [that] would . . . constitute a substantial . . . intrusion into the district director’s authority over the adjudication” of such petitions. Matter of Arthur, supra, at 479. The majority evidently deems the intrusion justified by the fact that the Arthur/H-A-rule causes some applicants to lose their opportunity.
But changing otherwise salutary procedures because of resource constraints or allocations is of dubious merit. The Attorney General could tomorrow direct the Service to decide the pertinent class of visa petitions more speedily and provide additional resources to accomplish this task, whereupon the reason for today’s decision would vanish, leaving its burdens (discussed below) in place without any corresponding benefits. It is not for the Board, I submit, to alter its procedures (and arguably furnish a disincentive to the investment of additional resources in this area) based on its implicit speculation that such a change in executive policy is not likely to be forthcoming.
Moreover, nothing else suggests the wisdom of revisiting Arthur and H-A-. Those cases were grounded on the need to enforce the policy enacted by Congress in the Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537, as amended in 1990, specifically finding that marriages entered into during deportation proceedings were suspect and presumptively fraudulent. See sections 204(g), 245(e) of the Immigration and Nationality Act, 8 U.S.C. §§ 1154(g), 1255(e) (2000). The majority cites as
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a reason for reexamining Matter of Arthur and Matter of H-A-that the Service has recently revised and ameliorated its policy regarding joining untimely motions to reopen submitted after visa petitions are approved. But since the majority opinion is expressly limited to instances in which the motion is timely, this asserted justification is transparently insufficient. Accordingly, established principles of stare decisis dictate that the invitation to reconsider the Board’s decisions should be rejected. See generally Neal
v. United States, 516 U.S. 284 (1996) (indicating that stare decisis principles apply with utmost force to issues of statutory construction, because the legislature remains free to amend the statute); Hilton v. South Carolina Pub. Ry. Comm’n, 502 U.S. 197 (1991) (same). Notably, in the decade since Matter of Arthur, supra, was decided, neither the Congress through legislation nor an Attorney General through regulation has sought to amend the procedures established by that decision, notwithstanding numerous statutory and regulatory changes promulgated during that period.
Furthermore, the “modification” announced by the majority is not without its own costs. In addition to the problem identified in the quotation from Matter of Arthur, supra, the new doctrine will inevitably lead to disagreements among Immigration Judges, and panel disagreements within the Board itself, producing a lack of consistency in the determination of whether “clear and convincing” evidence of a strong likelihood of a bona fide marriage has been shown.1 And relaxing the standard for consideration of motions to adjust status based on presumptively fraudulent marriages entered into during the pendency of removal proceedings will likely cause an increase in this type of fraud and a consequent increase in the workload of the Service, the Immigration Judges, and this Board.
Even if one were to conclude that the balance of interests lay with some modification of the Matter of Arthur and Matter of H-A-rule, the majority opinion would not attract my vote since it fails to assure the objective it seeks. As I read the opinion, the Service is required only to register its opposition to the alien’s motion. The Service is not required to state the ground(s) for its opposition. Thus, if the Service wishes to preserve the status quo ante, it need only adopt a policy of filing a one-sentence
Moreover, I predict that, in future cases, Immigration Judges and the Board will have considerable difficulty in applying the cumbersome test laid down by the majority: “clear and convincing evidence . . . indicating a strong likelihood that the respondent’s marriage is bona fide.” Matter of Velarde, supra, at 256. It is not clear whether this standard is meant to be equivalent to, or more rigorous than, the normal standard of prima facie eligibility applicable to motions to reopen. If it is intended to be more rigorous, then the majority opinion has failed to provide relief for the entire class of aliens sought to be benefitted—namely the “small class . . . who are otherwise prima facie eligible for adjustment.” Id. at 255. Moreover, if it is more rigorous than prima facie eligibility, by what quantum? On the other hand, if no more rigorous test than prima facie eligibility is contemplated, then why use a formulation that is less than pellucid and will give rise to problems in application?
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“Opposition” to motions to reopen that previously would have been barred under Matter of Arthur and Matter of H-A-in all cases in which the Service had not yet completed its investigation of the bona fides of the alien’s marriage. The majority decision, far from remedying the perceived injustice on which it is predicated, may therefore prove to be nothing more than a source of useless additional paperwork.
Finally, the majority opinion appears to confer on Mr. Velarde-Pacheco an undeserved benefit. The logical outcome of the majority’s opinion should be a remand to permit the Service at least 13 days to determine whether or not to oppose the motion. See 8 C.F.R. § 3.2(g)(3) (2001). In this case, the Service reasonably relied solely on governing precedent (i.e., the Arthur and H-A-decisions of the Board) to oppose the respondent’s motion. It could not reasonably anticipate the “modification” of those decisions announced in today’s ruling. Hence, there seems no reason, under the majority opinion, not to allow the Service to indicate whether or not it opposes the motion to reopen on some other basis, as will occur with all future cases under the new procedures. Granting the respondent’s motion to reopen without affording the Service this opportunity is an unmerited windfall to this alien.
For all the above reasons, I respectfully dissent.
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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.

Momeni v. Chertoff, 521 F.3d 1094 C.A.9 (Cal.),2008 - Adjustment of Status for Overstay Visa Waiver Program Alien

Filing for an adjustment of status based on marriage by an overstay alien who came under Visa Waiver Program does not stop removal proceedings.


FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAMBIZ MOMENI, 
Petitioner-Appellant,
v.
MICHAEL CHERTOFF, Secretary,
United States Department of
Homeland Security; JULIE L.
MYERS, Assistant Secretary for US
Immigration and Customs No. 07-55018
Enforcement, United States
Department of Homeland Security; D.C. No. JOHN P. TORRES, Acting Director, CV-06-05675-SGL
Office of Detention and Removal, OPINION
US Immigration and Customs
Enforcement; JAMES T. HAYES,
District Director, Los Angeles
District Office, Detention and
Removal Operations, US
Immigration and Customs
Enforcement; KENNETH COX,
Respondents-Appellees. 
Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Argued and Submitted
July 12, 2007—Pasadena, California
Filed March 31, 2008
Before: Alex Kozinski, Chief Judge, Andrew J. Kleinfeld,
and Richard C. Tallman, Circuit Judges.
3283
Opinion by Judge Kleinfeld
3284 MOMENI v. CHERTOFF
COUNSEL
Lori B. Schoenberg, Reeves and Associates, A PLC, Pasadena,
California, for the appellant.
Thomas K. Buck, Assistant U.S. Attorney, Los Angeles, California,
for the appellees.

OPINION
KLEINFELD, Circuit Judge:

We consider whether a traveler to the United States under the Visa Waiver Program may contest deportation pending an application for adjustment of status. Momeni argues that under Freeman v. Gonzales1 the “no contest” provision2 of the 90-day tourist program does not apply to him, because he has since filed (and has pending) an application for adjustment of status, based on his marriage to a United States citizen. 1444 F.3d 1031 (9th Cir. 2006). 28 U.S.C. § 1187(b).

Facts

Momeni is a German citizen. He came to the United States as a tourist on November 30, 2005. Under a pilot program that Congress created, citizens of certain countries can come to the United States as tourists for 90 days or less without visas.3 Various conditions have to be satisfied by the country (e.g., a reciprocal program4) and the tourist (e.g., a round-trip ticket5). To get the government waiver of the usual visa requirement, the tourist has to sign a waiver of his or her own right to contest removal other than on the basis of asylum.6 Momeni did not go back to Germany by March 1, which was 90 days after he entered the United States. On April 11, 2006, he married a United States citizen. In July, Momeni was taken into custody for violating the conditions of his admission under the Visa Waiver Program, and given notice that he was to be removed. In September, Momeni and his wife applied to adjust Momeni’s status. His removal has been stayed pending disposition of this case. Because there are no administrative proceedings available for entrants under the Visa Waiver Program except on the basis of asylum, he sought none, and instead petitioned for a writ of habeas corpus in district court. The district court dismissed the petition on the ground that it lacked jurisdiction, and he appealed.

3See 8 U.S.C. § 1187.
4See 8 U.S.C. § 1187(a)(2).
5See 8 U.S.C. § 1187(a)(8).
6See 8 U.S.C. § 1187(b).

Under the Visa Waiver Program, an alien may enter the United States without a visa for a period of 90 days. An alien who enters under this program waives any right “(1) to review or appeal under this [Act] of an immigration officer’s determination as to the admissibility of the alien at the port of entry into the United States, or (2) to contest, other than on the basis of an application for asylum, any action for removal.” Id.

Analysis

I. Jurisdiction
[1] The district court correctly ruled that it did not have jurisdiction. In Iasu v. Smith,7 we held that, for habeas petitions filed after the effective date of the REAL ID Act, a “district court plainly lack[s] habeas jurisdiction” over challenges to removal orders.8 Congress amended 8 U.S.C. § 1252(a)(5) in the REAL ID Act to provide that “a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this [Act].” The scope of our own jurisdiction is arguable, but in order to avoid the constitutional argument raised by Momeni that the REAL ID act could not deprive the courts of habeas jurisdiction without violating the Suspension Clause,9 we assume for purposes of this decision that we have jurisdiction.10

II. Merits
[2] Momeni entered the United States under the Visa Waiver Program, a special program for tourists from 27 countries. 11 The Visa Waiver Program allows tourists to enter the United States “for 90 days or less” from the designated countries without visas.12 To do so, they must waive “any right . . . to contest, other than on the basis of an application for asylum, any action for removal.”13 Momeni has not sought asylum from Germany. That, basically, is the end of the case.
In Freeman, the alien married the United States citizen before entering the Visa Waiver Program and sought an adjustment of status within the 90 days she could stay. But she was thwarted from adjusting her status by the subsequent death of her husband in a car accident, shortly before their first wedding anniversary. We noted that there are “likely to be a small percentage of VWP entrants in Mrs. Freeman’s position,” 14 a very sympathetic one, and held that in that case the adjustment of status statute superseded the no contest provision. 15
[3] None of the relevant circumstances of Freeman pertain here. Freeman married before the 90 days expired (and before the particular trip to the United States), whereas Momeni married after his 90 days expired; Freeman applied for adjustment of status during the 90 days, whereas Momeni applied after the 90 days expired. These distinctions disqualify Momeni from circumventing the Visa Waiver Program’s no contest clause by means of adjustment of status.
We characterized this no contest clause in Handa v. Clark16 as “the linchpin of the [Visa Waiver] program, which assures that a person who comes here with a VWP visa will leave on time and will not raise a host of legal and factual claims to impede removal if he overstays.”17 Freeman was an exception because she was eligible to adjust her status at time she arrived, under 8 U.S.C. § 1254, she applied within her 90 days, and she would have obtained her adjustment of status but for her husband’s death. Momeni, though, doesn’t fall within this narrow exception.
[4] If a Visa Waiver Program entrant does not leave when the 90 days expires, life in the United States goes on. It may go on for many years before the alien comes to the government’s attention. There are legal means by which aliens may marry United States citizens, obtain visas, and obtain adjustment of status, but overstaying the 90 days for tourists in the Visa Waiver Program is not among them. If it were, our comment in Freeman that there are “likely to be a small percentage of VWP entrants in Mrs. Freeman’s position”18 would not be correct.

We agree with the Tenth Circuit in Schmitt v. Maurer,19 that to allow an adjustment of status petition after the 90 days has expired would create an avoidable conflict between the adjustment of status statute and the no contest statute. Where an appellate court can construe two statutes so that they conflict, or so that they can be reconciled and both can be applied, it is obliged to reconcile them.20 An alien who comes to the United States under the Visa Waiver Program generally cannot avoid his or her waiver of the right to contest removal (other than on the basis of asylum). Freeman is a narrow exception to the rule, but Momeni doesn’t fall within this exception

AFFIRMED.

7511 F.3d 881 (9th Cir. 2007).
8Id. at 888.
9U.S. Const. art I, § 9, cl. 2.
10See, e.g., INS v. St. Cyr, 533 U.S. 289 (2001).
11Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. See 8 C.F.R. § 217.2.
128 U.S.C. § 1187(a).
138 U.S.C. § 1187(b).
14Freeman, 444 F.3d at 1036 n.9.
15Id. at 1037.
16401 F.3d 1129 (9th Cir. 2005).
17Handa v. Clark, 401 F.3d 1129, 1135 (9th Cir. 2005).
18Freeman, 444 F.3d at 1036 n.9.
19451 F.3d 1092 (10th Cir. 2006).
20See, e.g., Cal. ex rel. Sacramento Metro. Air Quality Mgmt. Dist. v. United States, 215 F.3d 1005, 1012 (9th Cir. 2000) (“Of course, it is a well established axiom of statutory construction that, whenever possible, a court should interpret two seemingly inconsistent statutes to avoid a potential conflict.”).