CA1: no I-485 no reopening

Palma-Mazariegos v. Keisler, No. 05-2248 (10/2/07) The petitioner’s initial petitions for asylum were rejected. While they were on appeal, he sought to reopen with the BIA, because his wife had become a citizen. The BIA rejected it, saying that he hasn’t provided “clear and convincing” evidence that the marriage was for real, and “Palma did not submit with his motion a completed I-485 application to adjust status, as the regulations require.” The BIA eventually denied the motion to reopen (and a motion to reconsider, which wasn’t appealed). The First says that each separate denial must be appealed independently. The First explains that the “bona fide marriage” requirement serves a purpose in the case of unadjudicated visa petitions more legitimate and not a delay tactic. The First notes that the evidence regarding the marriage is debatable, but relies on the BIA’s alternative ground, that his motion to reopen didn’t include the application to adjust status. Then the First ends with this strange note of sympathy for the BIA:

The result appears harsh--Palma did submit his I-485 a few weeks later with his motion for reconsideration--but the requirement for the completed application was straightforward. The Board is already overwhelmed and, lest its proceedings be further delayed, is entitled to insist that the required documents be supplied at the outset. Even immigration proceedings must at some point come to an end.

So basically this guy has to be separated from his wife because he filed the I-485 late, and people actually believe the BIA’s whining.