NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 09-3126 ___________

EARL SIMMONDS, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES, Respondent ____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (BIA No. A028-421-405 ) U.S. Immigration Judge: Honorable Margaret R. Reichenberg ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) January 3, 2011

Before: SCIRICA, FISHER and ALDISERT, Circuit Judges

(Filed: January 6, 2011) ___________

OPINION OF THE COURT ___________

PER CURIAM.

Petitioner Earl Simmonds is a native and citizen of Nevis who seeks review

of the Board of Immigration Appeals‟ (“BIA”) order denying his motion to reopen his

removal proceedings. For the following reasons, we will deny the petition for review. Simmonds entered the United States as a visitor in June 1986. He thereafter

adjusted to a conditional permanent resident on November 19, 1987, based on his

marriage to Ruth Bryant, a United States citizen. Simmonds subsequently filed several

Form I-751 petitions to remove the conditions to his residency, with the last such petition

being filed on September 12, 2005. A.R. 309. Given his divorce from Bryant in June

1990, Simmonds also sought a waiver under INA § 216(c)(4)(B) of the statutory

requirement that he and his citizen wife jointly petition to remove the conditions on his

permanent residency. A.R. 315. Simmonds‟ conditional resident status was terminated

on October 4, 2006, after the District Director of the Citizenship and Immigration Service

determined that he failed to establish that his marriage had been entered into in good faith

and not merely to procure his entry into the United States as an immigrant. A.R. 309.

The Department of Homeland Security (“DHS”) thereafter issued petitioner a Notice to

Appear, charging him with removability due to the termination of his conditional

permanent residency status. See INA § 237(a)(1)(D)(i),

(a)(1)(D)(i).

A.R. 563.

On April 21, 2008, the Immigration Judge (“IJ”) found Simmonds removable as

charged. The IJ also denied Simmonds‟ applications for a § 216(c)(4)(B) waiver of the

joint petition requirement to remove the conditions on his residency and for cancellation

of removal. The IJ determined that Simmonds failed to prove that he had any qualifying

relative to establish a statutory eligibility for cancellation of removal under INA §

240A(b)(1). The IJ further concluded that Simmonds had not been a credible and 2 persuasive witness as to the bona fides of his marriage. Based upon the totality of the

evidence, the IJ found that Simmonds failed to meet his burden to show that his marriage

to his ex-wife had been entered into in good faith. Simmonds‟ waiver request under INA

§ 216(c)(4)(B) was therefore denied, and he was ordered removed. The BIA affirmed the

IJ‟s decision and dismissed Simmonds‟ appeal in an order issued on December 8, 2008.

Simmonds did not seek judicial review of that decision.

The following month, Simmonds filed a timely motion with the BIA seeking to

reopen proceedings to reapply for cancellation of removal under INA § 240A(b)(1),

based on his marriage on January 5, 2009, to longtime fiancée, Brenda Bartlette. He also

requested that the BIA stay his removal from the United States. Simmonds‟ motion fared

no better than his appeal. In an order issued on June 26, 2009, the BIA denied his reopen

motion and found that his request for a stay had been rendered moot. The BIA concluded

that Simmonds failed to make a prima facie showing of eligibility for cancellation of

removal. In particular, the BIA noted that, other than counsel‟s statements (which are not

evidence), Simmonds presented no evidence that his spouse -- who also appears to be

from Nevis, see A.R. 17 -- is, in fact, a lawful permanent resident, and thus a qualifying

relative. The BIA determined that Simmonds likewise failed to present any evidence in

support of a prima facie showing that his removal to Nevis would result in the

exceptional and extremely unusual hardship to his wife as required by INA §

240A(b)(1)(D).

Simmonds, through counsel, seeks review of the BIA‟s final order of removal. 3 We exercise jurisdiction over a petition for review pursuant to

(a)(1), and review the denial of a motion to reopen for an abuse of discretion. Filja

v. Gonzales,

(3d Cir. 2006). We must affirm the BIA‟s denial of a

motion to reopen unless its decision was “arbitrary, irrational, or contrary to law.” Rranci

v. Att‟y Gen.,

(3d Cir. 2008)(internal quotations and citation omitted).

Simmonds‟ sole argument is that the BIA abused its discretion in denying his

motion to reopen without considering all of the record evidence, including statements and

documents attached to the motion. As set forth in 8 U.S.C. § 1229a(c)(7)(B), “[a] motion

to reopen shall state the new facts that will be proven at a hearing to be held if the motion

is granted, and shall be supported by affidavits or other evidentiary material.” See also

(c)(1). According to Simmonds, he introduced sufficient facts and

evidence that his new wife, Brenda Bartlette, would suffer extreme and unusual hardship

such that a reopening of his immigration proceedings was justified.

From our review of the record, however, we are compelled to find no abuse of

discretion on the part of the BIA in concluding that Simmonds failed to demonstrate

prima facie eligibility for cancellation of removal. The only evidence submitted with the

reopen motion was a four-sentence affidavit by petitioner noting his marriage to Brenda

Bartlett and a copy of the couple‟s marriage certificate. Even assuming arguendo that a

simple marriage certificate could be deemed sufficient evidence for the purpose of

establishing that Simmonds ‟ new wife was a qualifying relative -- a contention that is far

from clear in the instant case -- he submitted no objective evidence whatsoever that his 4 wife would suffer exceptional and extremely unusual hardship if he were removed from

the United States. See Fadiga v. Att‟y Gen.,

(3d Cir. 2007) (“[T]he

prima facie case standard for a motion to reopen … requires the applicant to produce

objective evidence showing a „reasonable likelihood‟ that he can establish that he [merits

relief under the applicable standard].”) (quoting Sevoian v. Ashcroft,

(3d Cir. 2002)). While Simmonds correctly notes that “[f]acts presented in the motion to

reopen are accepted as true unless inherently unbelievable,” see Shardar v. Att‟y Gen.,

(3d Cir. 2007), the mere recitation of the applicable statutory language

does not equate to a prima facie showing of eligibility for cancellation of removal in the

absence of any objective evidence whatsoever.

For the foregoing reasons, we deny the petition for review.

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