Melnitsenko v. Mukasey, (2d Cir. 2/6/08)

Where DHS opposes a motion to reopen for adjustment of status based on an unapproved petition with respect to a marriage that takes place during removal proceedings, the BIA may not deny the motion based solely on the fact of DHS's objection under Velarde-Pacheco. If the BIA denies a motion based on the merits of DHS's objection, it must provide adequate reasoning as to why the objection calls for denial of the motion.

Petitioner entered the U.S. as a nonimmigrant and overstayed her authorized period of admission. In 2004, while traveling home to Connecticut from a weekend in Vermont with her then U.S. citizen boyfriend (now husband), Petitioner was detained and interrogated at a border patrol checkpoint. Petitioner admitted that she was a citizen of Estonia and that she had overstayed her visa. At her removal hearing, the government introduced into evidence Form I-213, "Record of Deportable/Inadmissible Alien." Petitioner moved to suppress the I-213 on the basis that the statements contained therein were "illegally obtained." Petitioner submitted an affidavit in support of her motion to suppress which stated that she was stopped by border patrol officers while driving home from Vermont , was taken into a trailer with about four or five border patrol officers and was detained for about three hours before being released. Other than admitting her name and date of birth, Petitioner refused to testify in order not to incriminate herself. Petitioner applied for no relief from removal.

The immigration judge found Petitioner's affidavit insufficient to support a finding that the border patrol acted egregiously, rejected any allegation that the checkpoint was illegal and admitted the I-213 into evidence. Moreover, based on Petitioner's admission as to her name and date of birth and the contents of the I-213, the IJ found Petitioner removable as charged. The BIA affirmed. On August 29, 2006, Petitioner filed a timely motion to reopen in order to apply for adjustment of status based on her recent marriage to her U.S. citizen boyfriend. DHS opposed the motion on the ground that Petitioner "refused to provide any argument or evidence to support her claim and refused to answer any questions" at her removal hearing. The BIA denied the motion, finding that under Matter of Velarde-Pacheco, 23 I&N Dec. 253 (BIA 2002) (en banc), a motion to reopen based on an unapproved petition with respect to a marriage occurring after the initiation of removal proceedings, must be denied if DHS opposes the motion.

The court first addressed Petitioner's argument that the I-213 should have been suppressed because it was obtained in violation of her Fourth Amendment rights. Under INA §287(a)(3), immigration officers have authority to search vehicles within a "reasonable distance" from the border. "Reasonable distance" is defined as "within 100 air miles from any external boundary of the United States ." 8 CFR §287.1(a)(2). Petitioner argued that the checkpoint was approximately 107 miles from the Canadian border and was therefore in excess of the 100 mile "reasonable distance' authorized by regulation. Petitioner argued that even if the checkpoint was within 100 "air miles" of the border, it did not qualify as a "functional equivalent of the border" under United States v. Jackson, 825 F.2d 853, 860 (5th Cir. 1987) (en banc).

In INS v. Lopez-Mendoza, 468 U.S. 1032, 1046 (1984), the Supreme Court held that a Fourth Amendment violation does not, by itself, require suppression of evidence in removal proceedings. However, in Almeida-Amaral v. Gonzales, 461 F.3d 231, 234 (2d Cir. 2006), the court recognized that a Fourth Amendment violation may be found where (1) the alleged violations were widespread; or (2) where the alleged violation was particularly egregious. Because Petitioner did not previously raise a claim that the violations were widespread, the court focused on the egregiousness prong. Noting that Petitioner did not allege that her stop was based on race or "some other grossly improper consideration," Almeida-Amaral, 461 F.3d at 235, the court found that the actions of the border patrol agents, even assuming that the checkpoint was illegal, fell short of "egregious." Therefore, the IJ did not err in refusing to suppress the I-213 or in ordering Petitioner removed.

Turning to Petitioner's motion to reopen, the court briefly discussed the development of policy and legislation regarding adjustment of status based on marriages that take place during removal proceedings. In Velarde-Pacheco, supra, the BIA held that a motion to reopen for adjustment of status in such a case may be granted as a matter of discretion where (1) the motion is timely; (2) the motion is not numerically barred; (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 of the bona fides of the marriage; and (5) the Service does not oppose the motion, or its opposition is based solely on Matter of Arthur, 20 I&N Dec. 475 (BIA 1992).

The court noted that it was undisputed that Petitioner satisfied the first four prongs of Velarde-Pacheco and that the BIA denied the motion based solely on the fifth prong-DHS's opposition to the motion. However, DHS opposed the motion on grounds unrelated to the bona fides of the marriage: Petitioner's refusal to answer any questions at her removal hearing. The court explained that the BIA "provided no explanation, let alone a 'rational' one, for why the fact of DHS's objection justified denying the motion." Moreover, Velarde-Pacheco itself does not provide a rational explanation for why the fact of DHS's opposition is alone sufficient to deny a motion. While the BIA acknowledged that DHS is "in a better position to ascertain whether additional factors, which may not be readily apparent, mitigate against reopening," Velarde-Pacheco, 23 I&N Dec. at 257, the court found that this did not justify "the imposition of a mechanism by which the DHS, an adversarial party in the proceeding, may unilaterally block a motion to reopen for any or no reason, with no effective review by the BIA." The court held that when DHS opposes a motion to reopen for adjustment of status based on a marriage that took placed during removal proceedings, the BIA may not deny the motion based solely on the fact of DHS's objection. Moreover, if the BIA denies a motion based on the merits of DHS's objection, it must provide adequate reasoning as to why the objection calls for denial of the motion in order to provide a meaningful opportunity for judicial review.