Salvador v. Gonzales

MEMORANDUM ** Leonilo Bustamante Salvador, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings to seek adjustment of status based on an unapproved visa petition filed on his behalf by his U.S. citizen spouse. We review for abuse of discretion, Konstantinova v. INS, 195 F.3d 528, 529 (9th Cir.1999), and we grant the petition for review. The BIA may grant a motion to reopen for adjustment of status based on a marriage entered into after the commencement of removal proceedings where there is clear and convincing evidence that the marriage is bona fide. See Malhi v. INS, 336 F.3d 989, 994 (9th Cir.2003) (“[I]n order to qualify for the bona fide marriage exemption, an applicant must offer evidence that is probative of the motivation for marriage, not just the bare fact of getting married”); Matter of Velarde-Pacheco, 23 I. & N. Dec. 253, 256 , 2002 WL *643 893173 (BIA 2002) (en banc); 8 C.F.R. § 204.2 (a)(l)(iii). Here, the BIA abused its discretion when it failed to explain why it found the evidence submitted by Salvador to be insufficient to meet the clear and convincing standard. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005) (holding that the BIA abuses its discretion when it fails to provide a reasoned explanation for its actions). PETITION FOR REVIEW GRANTED; REMANDED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.