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Manuel Lopez-Rivera, A089 235 276 (BIA Jan. 3, 2014)

Manuel Lopez-Rivera, A089 235 276 (BIA Jan. 3, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) denied a sua sponte motion to reopen filed by a respondent who married his U.S. citizen husband after the issuance of United States v. Windsor, 133 S. Ct. 2675 (2013) and Matter of Zeleniak, 26 l&N Dec. 158 (BIA 2013), which struck down Section 3 of the Defense of Marriage Act and recognized lawful same-sex marriages under the immigration laws. The Board stated that the submission of a marriage certificate and a pending Form I-130 was not sufficient to demonstrate that the marriage was bona fide. The decision was written by Member Molly Kendall-Clark.
In this unpublished decision, the Board of Immigration Appeals (BIA) denied a sua sponte motion to reopen filed by a respondent who married his U.S. citizen husband after the issuance of United States v. Windsor, 133 S. Ct. 2675 (2013) and Matter of Zeleniak, 26 l&N Dec. 158 (BIA 2013), which struck down Section 3 of the Defense of Marriage Act and recognized lawful same-sex marriages under the immigration laws. The Board stated that the submission of a marriage certificate and a pending Form I-130 was not sufficient to demonstrate that the marriage was bona fide. The decision was written by Member Molly Kendall-Clark.

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Published by: Immigrant & Refugee Appellate Center, LLC on Jan 13, 2014
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02/15/2014

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Free, R.

Andrew
PO Box 90568
Nashville, TN 37209
Name: LOPEZ-RIVERA, MANUEL
U.S. Department of Justice
Executive Ofce fr Imigration Review
Board of Immigration Appeals
Ofce of the Clerk
5/07 Leeburg Pike. Suite 2000
Falb Cl1 rch, Vrginia 20530
OHS/ICE Ofice of Chief Counsel • MEM
167 N. Main St., Suite 737 A
Memphis, TN 38103
A 089-235-276
Date of this notice: 1/3/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Kendall-Clark, Molly
Sincerely,
DO ct
Donna Carr
Chief Clerk
Trane
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Manuel Lopez-Rivera, A089 235 276 (BIA Jan. 3, 2014)
U.S. Department of Justice
Executive Ofce fr Imigation Review
Decision of the Boad of Imigation Appeals
Falls Chuch, Viginia 20530
File: A089 235 276 - Memphis, T
In re: MAEL LOPEZ-RIVERA
I REMOVAL PROCEEDIGS
MOTION
Date:
ON BEHALF OF RSPONDENT: R. Andrew Free, Esquire
ON BEHALF OF OHS:
APPLICATION: Reopening
William A. Lund
Assistant Chief Counsel
JAN 3
2014
Te respondent's motion to reopen was submited on October 17, 2013, more tha 90 days
aer the Boad's dismissal of the respondent's appeal on Mach 20, 2013. Accordingly, this
motion to reopen is untimely fled. See section 240( c )(7)(C)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Te Deparment of
Homeland Security opposes reopening. The motion to reopen will be denied.
The respondent seeks reopening on the basis that, since te issuace of United States v.
Windsor, --- U.S. ---, 133 S. Ct. 2675 (2013), ad Matter of Zeleniak, 26 l&N Dec. 158
(BIA 2013), the respondent has ma ied his United States citizen husband. Te respondent states
that he seeks reopening on te basis of a pending I-130 family-based visa petition, and requests a
provisional waver based on his ma  iage.
While the Boad does have the discretionay authority to reopen proceedings sua sponte, that
authority is limited to rae, "exceptional" situations. 8 C.F.R. § 1003.2(a); Matter of J-J-, 21
I&N Dec. 976 (BIA 1997). Whle a "fdamental" change in law may constitute an
"exceptional" situation (see Matter of G-D-, 22 I&N Dec. 1132 (BIA 1999)), the respondent has
not shown that reopening in his case is waranted. The respondent's motion includes his
mariage certifcate, but no supporting evidence to show that his mariage is bona fde. Even
wth a timely motion to reopen, more needs to be shown to warant reopening beyond a couple's
ma iage certifcate ad a pending 1-130 visa petition. There must also be "clea ad convincing
evidence that their mar iage is bona fde." See Matter of Velarde, 23 I&N Dec. 253, 257 (BIA
2002). Therefre, the moton to reopen will be denied.
ORER: The motion to reopen is denied.
FOR THE BOARD
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Cite as: Manuel Lopez-Rivera, A089 235 276 (BIA Jan. 3, 2014)

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