Alfaouri

MEMORANDUM **

Jamal Yasin Atallah Alfaouri, a native and citizen of Jordan, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252 , and we deny the petition for review.

We review the BIA’s denial of a motion to reopen for abuse of discretion. Arrozal v. INS, 159 F.3d 429, 432 (9th Cir.1998). The BIA was within its discretion when it denied Alfaouri’s motion to reopen to apply *662 for adjustment of status on the merits, as Alfaouri did not submit clear and convincing evidence indicating a strong likelihood that his marriage to a U.S. citizen is bona fide. 8 C.F.R. § 204.2 (a)(1)(iii) (establishing regulatory presumption that marriages entered into during proceedings are fraudulent); 8 C.F.R. § 204.2 (a)(1)(iii)(A)-(B) (procedure for rebutting such presumption); In re Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002) (setting standard for rebutting such presumption). Most of Alfaouri’s proffered evidence related to the fact of his marriage, not its bona fide nature, and was thus irrelevant to the BIA’s inquiry. Malhi v. INS, 336 F.3d 989, 994 (9th Cir.2003).…

dissenting:

I respectfully dissent. We have repeatedly held that the BIA abuses its discretion in denying a motion to reopen “when it fails to consider and address in its entirety the evidence submitted by a petitioner. ...” Franco-Rosendo v. Gonzales, 454 F.3d 965, 966 (9th Cir.2006) (internal quotation marks omitted).

In its order denying Alfaouri’s motion to reopen, the BIA concludes that Alfaouri has failed to establish a “bona fide marriage” under 8 C.F.R. § 204.2 (a)(1)(iii)(B) because Alfaouri has “not submitted sufficient documentary evidence to establish commingling of financial resources or a common residence.” But the BIA does not discuss or even mention the joint income tax return of Alfaouri and his American-citizen spouse, which Alfaouri submitted to support his claim of a bona fide marriage. Such evidence, if considered, could have supported a finding that Al-faouri and his American-citizen spouse had commingled their financial resources and had a common residence. In my view, the BIA’s failure to consider this evidence was an abuse of discretion. Accordingly, I would grant Alfaouri’s petition and remand to the BIA for reconsideration of Alfaouri’s motion to…

FILED

NOT FOR PUBLICATION JAN 06 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

JAMAL YASIN ATALLAH ALFAOURI, No. 06-73066

Petitioner, Agency No. A077-305-194

v.

MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted October 4, 2010** Pasadena, California

Before: PREGERSON, D.W. NELSON and IKUTA, Circuit Judges.

Jamal Yasin Atallah Alfaouri, a native and citizen of Jordan, petitions for

review of the Board of Immigration Appeals' ('BIA') order denying his motion to

reopen removal proceedings. We have jurisdiction under 8 U.S.C. y 1252, and we

deny the petition for review.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). We review the BIA's denial of a motion to reopen for abuse of discretion.

Arrozal v. INS, 159 F.3d…