Argued and Submitted: February 6, 2014, Pasadena, California
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A097-103-077. Agency No. A097-103-077. Agency No. A097-103-077.
Cheri Attix (argued), Law Office of Cheri Attix, San Diego, California, for Petitioner.
Jesse Lloyd Busen (argued), Trial Attorney, Tony West, Assistant Attorney General, and Erica B. Miles, Senior Litigation Counsel, United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, D.C., for Respondent.
Before: Harry Pregerson, Michael R. Murphy,[*] and Marsha S. Berzon, Circuit Judges.
BERZON, Circuit Judge:
After Masis Tadevosyan was ordered removed from the country for an immigration violation, he married an American citizen and applied for a visa and adjustment of status. The Board of Immigration Appeals (BIA) refused to reopen his removal proceedings. Our question is whether in doing so, the BIA improperly relied on the fact of the Department of Homeland Security's (DHS) opposition to his motion, rather than on the merits of the motion, or otherwise abused its discretion in deciding the motion. We grant the petition for review of the BIA's decision and remand for further proceedings.
Tadevosyan, a native of Iran and citizen of Armenia, entered the United States in May 2002 on a non-immigrant visa permitting him to remain in the country until later that year. After he overstayed the visa's expiration date, he was placed in removal proceedings, and an immigration judge ordered his removal to Armenia.
Tadevosyan appealed the removal order to the BIA. While his appeal was pending, Tadevosyan married Lyubov Smolyanyuk, a United States citizen. Smolyanyuk filed an I-130 petition for a visa for Tadevosyan.
The BIA then affirmed the removal order. Tadevosyan filed a timely motion to
reopen, asking the BIA to allow him to pursue adjustment of status through the pending I-130 petition filed by his wife. Attached to the motion were copies of the I-130 petition; an I-485 application for adjustment of status; and two I-864 affidavits of support, one from Smolyanyuk and a second from a joint sponsor, Norik Abrahamian. Smolyanyuk's affidavit represented that she and Tadevosyan had not earned any income in the prior tax year; Abrahamian's attested that his income in the last tax year was $22,211. Abrahamian attached photocopies of his 2006 Federal and state tax return forms, which showed an adjusted gross income of $22,211, and certified under penalty of perjury in the affidavit that the Federal income tax return was a true copy of the return filed with the Internal Revenue Service. Abrahamian did not include copies of his federal W-2 forms, but did submit with his California tax return a " Schedule W-2 CG," which contained the same information as his W-2 forms.
DHS opposed Tadevosyan's motion to reopen. It argued that Tadevosyan had not shown that the I-130 petition had been approved and thus that there was a visa available for Tadevosyan at this time. DHS further contended that Tadevosyan had not submitted sufficient evidence to establish that he was not a public charge, because " the joint sponsor has not provided any proof, such as Forms W-2s, letters, paycheck stubs, or financial statements, to support the income stated on his 2006 federal income tax return." (error in original). DHS did not address Abrahamian's submission of the Schedule W-2 CG.
The BIA denied Tadevosyan's motion to reopen on March 27, 2008, stating,
In this case, the record reflects that respondent does not have an approved immediate relative visa petition, and the DHS opposes his motion in light of the absence of evidence to establish that he is not inadmissible as a public charge. In this regard, as noted by DHS counsel, while the respondent has provided affidavits of support [from] his wife and a joint sponsor, his wife currently has no income and the joint sponsor neglected to submit supporting documentation for the reported income on his income tax return. As such, consistent with Matter of Velarde, 23 I& N Dec. 253 (BIA 2002), the DHS' opposition is sufficient to require a denial of the respondent's motion.
While the appeals before this Court were pending, the United States Citizenship and Immigration Service (USCIS) approved the I-130 visa petition ...