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Barushi v. Gonzalez

January 13, 2006

RE: BARUSHI
v.
GONZALEZ ET AL.,



The opinion of the court was delivered by: William J. Martini Judge

MARTIN LUTHER KING JR. FEDERAL BLDG. & U.S. COURTHOUSE 50 WALNUT STREET, P.O. BOX 419 NEW ARK, NJ 07101-0419 (973) 645-6340

LETTER OPINION

Dear Counsel:

This matter comes before the Court on Petitioner Lendina Barushi's ("Petitioner") motion for reconsideration of this Court's November 22, 2005 Letter Opinion and Order granting Respondents' motion for summary judgment. For the following reasons, Petitioner's request is DENIED.

I. Background

Familiarity with the facts of this matter is presumed. See Barushi v. Gonzales, No. 05-2719, slip op. (D.N.J. Sep. 22, 2005). On September 22, 2005, this Court granted Respondents' motion for summary judgment, thereby dismissing Petitioner's request that the United States Citizen and Immigration Services ("CIS") process her Refugee/Asylee Relative Petition (I-730), along with her applications to adjust status (I-485), work authorization (I-765), and for a refugee travel document (I-131). See id. Petitioner now asks the Court to reconsider its holding. In particular, Petitioner argues that the Court erred in its prior ruling by: (1) improperly granting summary judgment when material issues of fact exist; (2) improperly characterizing the matter as involving a denial of an application for asylum instead of a denial of a derivative asylum application; and (3) incorrectly denying Petitioner's request for a writ of mandamus. We will consider these issues in turn.

II. Standard of Review on a Motion for Reconsideration

Relief by way of a motion for reconsideration is "an extraordinary remedy" that is to be granted "very sparingly." See NL Indus. Inc. v. Commercial Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996); Maldonado v. Lucca, 636 F. Supp. 621, 630 (D.N.J. 1986). Local Rule 7.1(i), which governs motions for reconsideration, does not contemplate a recapitulation of arguments considered by the Court before rendering its decision. See Bermingham v. Sony Corp. of Am., Inc., 820 F. Supp. 834, 856 (D.N.J. 1992), aff'd, 37 F.3d 1485 (3d Cir. 1994); Carteret Sav. Bank, F.A. v. Shushan, 721 F. Supp. 705, 709 (D.N.J. 1989). Rather, the rule permits a reconsideration only when "dispositive factual matters or controlling decisions of law" were presented to the court but were overlooked. See Resorts Int'l v. Great Bay Hotel and Casino, 830 F. Supp. 826, 831 (D.N.J. 1992); Khair v. Campbell Soup Co., 893 F. Supp. 316, 337 (D.N.J. 1995). Under Local Rule 7.1(i), the moving party must "set[] forth concisely the matters or controlling decisions which counsel believes the [court] has overlooked." D.N.J. Civ. R. 7.1(i). A motion under Local Rule 7.1(i) may be granted if: (1) "an intervening change in the controlling law has occurred; (2) evidence not previously available has become available; or (3) it is necessary to correct a clear error of law or prevent manifest injustice." Database Am., 825 F. Supp. at 1220; North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir 1995).

III. Petitioner's Motion for Reconsideration of this Court's Determination that the Matter is Ripe for Summary Judgment Must be Denied

In her motion for reconsideration, Petitioner argues that this Court incorrectly ruled that no substantial issue of material fact existed and that this matter was ripe for summary judgment. See Barushi, slip op. at 2-3. Petitioner contends that summary judgment was inappropriate because material issues of fact existed regarding the following: (1) whether Petitioner was married to the principal applicant when he received asylum; (2) whether the purported marriage entered into by the Petitioner was valid under the laws of the United States and the State of New Jersey; and (3) whether due deference was given to the purported marriage which, Petitioner contends, would establish whether the Respondents' determination was arbitrary, capricious and in accordance with the law.

In our prior decision in this matter, the Court held that Respondents' denial of Petitioner's Refugee/Asylee Relative Petition (I-730), along with her various other applications, was not arbitrary, capricious or an abuse of discretion, and that Respondents' factual determinations underlying the denial of those applications was based on substantial evidence. See Barushi, slip. op. at 2. In reaching this conclusion, the Court reviewed documents outside the Respondents' motion to dismiss, thereby transforming the motion into one for summary judgement under Fed. R. Civ. P. 56(b). See Fed. R. Civ. P. 12(b).*fn1 After reviewing this evidence, the Court held that no material issue of fact existed regarding the lack of any evidence actually setting forth the date on which Plaintiff and her putative husband were married. Based on this lack of actual evidence, we held that Respondents' denial of Petitioner's Refugee/Asylee Relative Petition was not arbitrary, capricious, or an abuse of discretion.

This holding was correct, and will not be disturbed on Petitioner's motion for reconsideration. An applicant for derivative asylum status must demonstrate that the marriage relationship existed at the time the principal alien's asylum application was approved. 8 C.F.R. § 208.21(b). The burden of proving the marriage relationship is on the principal alien. 8 C.F.R. § 208.21(f). As stated in the Code of Federal Regulations, evidence must be submitted that establishes that the prior marriage was not entered into for the purpose of evading immigration laws, and such evidence must cover the period of the prior marriage. Id. (citing 8 C.F.R. § 204.2(a)(1)(i)(B)). Such documents can include documentation showing joint ownership of property, a lease showing joint tenancy of a common residence, documentation showing commingling of financial resources, birth certificates of children born to the petitioner and prior spouse, and an affidavit meeting specific statutory requirements. See 8 C.F.R. § 204.2(a)(1)(i)(B)(1)-(6). The documentation must also include a "certificate of marriage issued by civil authorities." 8 C.F.R. § 204.2(a)(2).

Upon reviewing the documents submitted by Petitioner -- mainly a "certificate of marriage" dated one month after Petitioner's putative husband received asylum -- we held that the CIS did not act arbitrarily, capriciously, nor did it abuse its discretion, in denying Petitioner's various applications. This holding will not be disturbed. The Petitioner failed to submit documents covering the period of the marriage, and did not provide any other documents that sufficiently established that Petitioner was in fact married to her putative husband at the time he obtained asylum. Based on the lack of such evidence, the Respondents' decision to deny Petitioner the aforementioned documents was not arbitrary, capricious, or an abuse of discretion. Accordingly, Petitioner's motion for reconsideration of our decision to grant summary judgment is denied.

IV. Petitioner's Motion for Reconsideration of this Court's Denial of Petitioner's Refugee/Asylee ...


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