Ricardo Banuelos-Delena v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICARDO BANUELOS-DELENA,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-72431
Agency No. A092-789-794
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 6, 2014 **
Pasadena, California
Before: GOULD and N.R. SMITH, Circuit Judges, and KORMAN, Senior District
Judge.***
In July 1998, the Immigration Naturalization Service initiated removal
proceedings against Ricardo Banuelos-Delena pursuant to the Immigration and
FILED
JUN 20 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).
*** The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.

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Nationality Act (INA), which authorizes the removal of any alien who is convicted of
an “aggravated felony” at any time after admission. 8 U.S.C. § 1227(a)(2)(A)(iii).
At an October 2004 hearing before an Immigration Judge (IJ), Banuelos-Delena
admitted that he had been convicted of various sexual offenses against a minor.
Specifically, he was convicted of statutory rape under California Penal Code sections
288a(b)(2) (oral copulation with another person who is under 16 years of age),
286(b)(2) (sodomy with another person who is under 16 years of age) and 261.5
(unlawful sexual intercourse with a person who is under 18 years of age). The INA
defines the term “aggravated felony” to include the “sexual abuse of a minor.” 8
U.S.C. § 1101(a)(43)(A). Thus, the IJ ruled that Banuelos-Delena was removable
because he had been convicted of an “aggravated felony.” After subsequent
proceedings before the Board of Immigration Appeals (BIA), which are not relevant
here, the IJ ordered Banuelos-Delena removed to Mexico. Banuelos-Delena then
appealed the final order of removal to the BIA.
While the appeal was pending, Banuelos-Delena divorced his then-wife on
December 11, 2006, and approximately two weeks later married Olga Felix, who is
a United States citizen. The BIA affirmed the order of removal and dismissed the
appeal. Soon after, Banuelos-Delena filed a motion to reopen his case before the BIA
seeking adjustment of his status under the bona fide marriage exemption. In re
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Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002), overruled on other grounds by
Matter of Avetisyan, 25 I. & N. Dec. 688 (BIA 2012). In November 2007, the BIA
denied the motion to reopen on the basis that Banuelos-Delena had provided
insufficient evidence to establish the bona fides of his marriage. This petition for
review followed. We review for abuse of discretion and will reverse the denial of a
motion to reopen only if the BIA acted “arbitrarily, irrationally, or contrary to law.”
Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 857 (9th Cir. 2004) (internal quotation
marks omitted).
Congress has set forth a non-exhaustive list of the types of evidence that serve
as proof of a bona fide marriage, which include documents demonstrating “joint
ownership of property,” a “[l]ease showing joint tenancy of a common residence,”
“[d]ocumentation showing commingling of financial resources,” “[a]ffidavits of third
parties . . . contain[ing] complete information and details explaining how the person
acquired his or her knowledge of the marriage,” and “[a]ny other documentation
which is relevant to establish that the marriage was not entered into in order to evade
the immigration laws of the United States.” 8 C.F.R. § 204.2(a)(1)(iii)(B). In this
case, Banuelos-Delena simply submits the Forms I-130 and I-485, his marriage and
divorce certificates, and the sworn statements that Olga and he made during his
removal proceedings. None of the evidence submitted by Banuelos-Delena falls into
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any of the categories suggested by 8 C.F.R. § 204.2(a)(1)(iii)(B). More significantly,
Banuelos-Delena testified at the October 2004 removal proceeding that he intended
to marry Olga, whom he had lived with for approximately three years. Banuelos-
Delena did not, however, act on those intentions until after the BIA ordered his
removal in March 2006. Accordingly, the BIA properly concluded that Banuelos-
Delena provided insufficient evidence to establish the bona fide marriage exemption
and we therefore deny his petition. See Sharma v. Holder, 633 F.3d 865, 872-74 (9th
Cir. 2011).
PETITION FOR REVIEW DENIED.
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