Mohammed Shahid v. Atty Gen USA ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-3171
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JOHN DOE a/k/a MOHAMMED SHAHID;
JOHN DOE a/k/a MOHAMMED BILAL,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
__________________
On a Petition For Review of an Order of the Board of Immigration Appeals
Agency Nos. A079-211-398 & A079-211-399
Immigration Judge: Margaret R. Reichenberg
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Submitted Pursuant to Third Circuit LAR 34.1(a)
June 2, 2010
Before: SCIRICA, SMITH and WEIS, Circuit Judges
Opinion filed: June 03, 2010
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OPINION
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PER CURIAM.
Petitioners Mohammad Shahid and Mohammad Bilal, father and son, and
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natives and citizens of Pakistan, illegally entered the United States in November of 2000.
In December of 2000, the former Immigration and Naturalization Service issued each of
them a Notice to Appear, charging that they were removable under Immigration &
Nationality Act (“INA”) § 212(a)(6)(A)(I), 8 U.S.C. § 1182(a)(6)(A)(I), as aliens who
were present in the United States without having been admitted or paroled.
On April 20, 2001, Shahid married Lakeysha Y. Thomas, a United States
citizen. A.R. 439. On April 30, 2001, a day before the LIFE Act deadline, Thomas filed
immediate relative visa petitions, Form I-130, see 8 U.S.C. § 1151(b)(2)(A)(I), for Shahid
as her spouse, and Bilal as her unmarried child. A.R. 437-38.1 On November 2, 2001,
Thomas was notified of the approval of the visa petitions. See id. On April 22, 2002, the
State of New Jersey granted Shahid a divorce from Thomas.
On April 25, 2002, three days after his divorce from Thomas, Shahid
married Balbir Kaur, a lawful permanent resident of the United States. A.R. 50. Three
months later, on July 25, 2002, Kaur filed two immediate relative visa petitions, A.R.
1
On December 21, 2000, Congress enacted the Legal Immigration Family Equity
(“LIFE”) Act Amendments, which amended a prior law benefitting certain individuals
who were otherwise ineligible to adjust their status in the United States because they were
present without having been admitted or paroled. It replaced the original cut-off date
with the new date of April 30, 2001. See generally Khan v. Att’y Gen. of U.S., 448 F.3d
226, 229 (3d Cir. 2006). The LIFE Act amendments provided, in pertinent part, that a
beneficiary of a petition for an immigrant visa filed on or before April 30, 2001, who was
physically present in the United States on the date of enactment and paid the $1,000 fee,
could adjust status under INA section 245(i). See INA § 245(i)(1)(B), 8 U.S.C. §
1255(i)(1)(B).
2
435-36 – one for Shahid as her spouse, and one for Bilal as her unmarried child, see 8
U.S.C. § 1153(a)(2)(A).
On April 12, 2006, Shahid submitted an application for asylum and
withholding of removal, Form I-589, claiming changed circumstances and a fear of
returning to Pakistan. A.R. 271-79. About two weeks later, Shahid and Bilal appeared
before the Immigration Judge. They conceded that they were removable as charged and
proceeded solely on the basis of Shahid’s request for asylum. Shahid testified at his
merits hearing and claimed to fear persecution in Pakistan from “Shia people” over
religious differences. At the conclusion of Shahid’s testimony, the Immigration Judge
denied his request for relief and protection, thereby also denying Bilal asylum as a
derivative of Shahid’s application. Shahid and Bilal appealed the IJ’s decision to the
Board of Immigration Appeals, which affirmed on October 9, 2007.
On November 16, 2007, Shahid and Bilal filed a motion to reopen with the
Board, claiming that they had approved immediate relative visa petitions filed by Balbir
Kaur, and the priority dates for their visas were current. They requested that the Board
grant them adjustment of status. Attached to the motion to reopen were the following: the
Approval Notice, Form I-797C, for Bilal relating to the visa petition filed by Ms. Kaur,
A.R. 79, and a copy of the Department of State Visa Bulletin for October, 2007. On April
25, 2008, the Board denied the motion to reopen on procedural and substantive grounds.
First, Shahid and Bilal had failed to file an application to adjust status, Form I-485, along
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with their motion, as required by 8 C.F.R. § 1003.2(c)(1) (requiring that all applications
for relief be appended to motions to reopen). Second, Shahid and Bilal failed to establish
prima facie eligibility for adjustment of status, because, as aliens who had entered the
United States without being admitted or paroled, they were ineligible to adjust their status
under INA § 245(a), 8 U.S.C. § 1255(a), and they did not submit evidence that they
qualified under INA § 245(I), 8 U.S.C. § 1255(I), either.
On January 7, 2009, Shahid and Bilal, now represented by different counsel,
filed a second motion to reopen with the Board. In it they claimed that they were the
victims of ineffective assistance of counsel by their previous attorney, Dominick S.
Cardinale, who assisted them in filing their first motion to reopen. Attached to the
motion to reopen and offered in support of it were the following: a copy of the Receipt
Notice from July 18, 2001 for Lakeysha Thomas’s immediate relative visa petition for
Shahid; a copy of the Approval Notice from November 2, 2001 for Ms. Thomas’s
immediate relative visa petition for Bilal; copies of the Receipt Notices from July 25,
2002 for Balbir Kaur’s immediate relative visa petitions for Bilal and Shahid; a copy of
the Approval Notice, Form I-797C, from April 20, 2005 for Ms. Kaur’s immediate
relative visa petition for Bilal; various documents regarding attorney Cardinale; an
affidavit from Shahid; Shahid’s application to adjust status, Form I-485, with Supplement
A relating to INA § 245(I), 8 U.S.C. § 1255(I); biographic information sheets, Form G-
325 and G-325A, completed by Ms. Kaur and Shahid; Shahid and Ms. Kaur’s marriage
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certificate; photographs; documents regarding Shahid’s previous marriage to and divorce
from Ms. Thomas; documents regarding both Ms. Kaur’s birth, and her marriage to and
divorce from Harjit Singh; and documents regarding Shahid’s previous marriage to and
divorce from Bilal’s biological mother in Pakistan. A.R. 22-66.
On July 17, 2009, the Board denied Shahid’s and Bilal’s second motion to
reopen. The Board concluded that it was both untimely, as it was filed more than 90 days
after the Board’s final decision, and number-barred. The Board noted that Shahid and
Bilal claimed to have suffered ineffective assistance of counsel, but irrespective of that,
the second motion to reopen did not include any evidence that the immediate relative visa
petition filed by Ms. Kaur on behalf of Shahid had been approved. A Form I-797C had
been submitted with the motion to reopen indicating that Ms. Kaur’s I-130 petition had
been approved for 13 year-old Bilal, but there was no proof submitted that her visa
petition had been approved for the lead respondent, Shahid, based on their marriage.
Moreover, the Board observed, as the motion itself admitted, there was little evidence
submitted of the bona fides of Shahid’s marriage to Ms. Kaur. Accordingly, there was no
showing that Shahid was prima facie eligible for discretionary relief in the form of
adjustment of status.2 This timely petition for review followed.
2
We note that the immediate relative visa petitions filed by Ms. Kaur for Shahid as
her spouse and Bilal as her unmarried child, A.R. 435-36, were not filed by the LIFE
Act’s April 30, 2001 deadline. The Board, however, did not base its “no prima facie
eligibility” determination under INA § 245(i), 8 U.S.C. § 1255(i), on this fact. Our
disposition of the petition for review does not require us to reach the issue whether
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We will deny the petition for review. We have jurisdiction under 8 U.S.C.
§ 1252(a)(1) and (b)(1) to review a final order of removal. We review the denial of a
motion to reopen for an abuse of discretion. Immigration & Naturalization Serv. v.
Doherty, 502 U.S. 314, 323 (1992). The Supreme Court has stated that “[m]otions for
reopening of immigration proceedings are disfavored,” noting that “as a general matter,
every delay works to the advantage of the deportable alien who wishes merely to remain
in the United States.” Id. We will not disturb the Board’s discretionary decision unless it
was arbitrary, irrational or contrary to law. See, e.g., Sevoian v. Ashcroft, 290 F.3d 166,
174 (3d Cir. 2002). The agency’s factual determinations are upheld if they are supported
by reasonable, substantial, and probative evidence on the record considered as a whole.
Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
“An alien may file one motion to reopen proceedings,” and such a motion
“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.” 8 U.S.C. §
1229a(c)(7)(A),(B). Ordinarily, “[t]he motion to reopen shall be filed within 90 days of
the date of entry of a final administrative order of removal.” 8 U.S.C. §
1229a(c)(7)(C)(I); 8 C.F.R. § 1003.2(c)(2). Shahid and Bilal’s second motion to reopen
was a year late. Because the second motion to reopen was untimely, and none of the
Shahid and Bilal were “grandfathered in” with respect to their eligibility under INA §
245(i) by the immediate relative visa petitions filed by Ms. Thomas by the deadline.
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exceptions apply,3 the Board did not abuse its discretion in denying it. Doherty, 502 U.S.
at 323; Sevoian, 290 F.3d at 174.
In their brief, Shahid and Bilal claim that the Board erred because, but for
the alleged ineffective assistance of their prior attorney in his filing of their first motion to
reopen, they would have been able to demonstrate prima facie eligibility for adjustment of
status. We have held that attorney conduct can provide a basis for equitable tolling of the
ninety-day deadline, see Mahmood v. Gonzales, 427 F.3d 248, 250-53 (3d Cir.2005), but,
regardless of Shahid’s and Bilal’s claim of ineffective assistance of counsel, their second
motion to reopen also failed to provide the necessary evidence to demonstrate their prima
facie eligibility for adjustment of status.4
To be eligible for a discretionary grant of adjustment of status, the applicant
must be eligible to receive an immigrant visa, be admissible for permanent residency, and
demonstrate that an immigrant visa is immediately available to him when the application
is filed. See INA § 245(a), 8 U.S.C. § 1255(a). Aliens, such as Shahid and Bilal, who are
otherwise ineligible to adjust their status because of an illegal entry, may take advantage
of INA § 245(I) if they are the beneficiaries of a visa petition filed prior to April 30,
2001, and the visa petition was approvable when filed. See 8 U.S.C. § 1255(i)(1)(B)(i).
3
There are exceptions to the ninety day deadline which are not applicable here. 8
C.F.R. § 1003.2(c)(3).
4
Bilal did not advance a claim to the Board, nor do Shahid and Bilal argue in their
brief, that Bilal is independently eligible for adjustment of status on the basis of the
approved petition filed by Ms. Kaur, who is not his biological mother.
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In addition, an alien like Shahid, who marries after removal proceedings have begun, is
statutorily ineligible for adjustment of status unless he establishes that his marriage is
bona fide. See 8 C.F.R. §§ 1245.1(c)(8), 1245.1(c)(8)(iii)(F); 8 U.S.C. § 1255(e)(1), (3).
Shahid and Bilal thus bore the burden of demonstrating a prima facie case
that they were the beneficiaries of approved I-130 immediate relative petitions, with
priority dates for currently available visas, that they were not ineligible to adjust status,
and that Shahid’s marriage to Kaur was bona fide. See Sevoian, 290 F.3d at 175 (prima
facie standard for motion to reopen requires applicant to produce objective evidence
showing reasonable likelihood that he can establish he is entitled to relief). As the Board
properly observed, Shahid and Bilal had evidentiary failures in their second motion to
reopen in that they failed to demonstrate that Shahid was the beneficiary of an approved
immediate relative visa petition. This failure alone supports the Board’s denial of the
motion to reopen because the Board could not adjust Shahid’s status without evidence of
an approved and immediately available visa. Shahid and Bilal concede this evidentiary
failure in a footnote in their brief, stating, “Petitioner’s second motion to reopen ...
erroneously stated that Petitioner is the beneficiary of an approved I-130 visa petition....
In actuality, Petitioner Mohammed Shahid (father) has only a pending I-130 petition,
while Petitioner Mohammed Bilal (son) is the beneficiary of an approved I-130 visa
petition.” See Petitioner’s Brief, at 11 n.1.
8
Nevertheless, Shahid and Bilal argue that a pending immediate relative visa
petition is sufficient under the reasoning of Matter of Velarde-Pachecho, 23 I. & N. Dec.
253 (BIA 2002). See Petitioner’s Brief, at 23-25. We do not agree. Matter of Velarde
held that a motion to reopen seeking adjustment of status based on a marriage entered into
after removal proceedings began may be granted notwithstanding the pendency of a visa
petition filed on the alien’s behalf if certain conditions are met. One of those conditions
is that the motion be timely filed. 23 I. & N. Dec. at 256. The Board did not address
motions to reopen filed after the 90-day deadline has passed, and pointedly explained that
motions submitted after the 90-day period “present additional considerations regarding
the finality of proceedings.” Id. at 256-57. Shahid’s and Bilal’s second motion to reopen
was not timely filed and thus Matter of Velarde does not apply. Accordingly, the Board’s
denial of the second motion to reopen on the ground that Shahid and Bilal could not show
prima facie eligibility for adjustment of status without evidence of an approved visa
petition for Shahid was not an abuse of discretion.
Regarding the bona fides of Shahid’s marriage, materials which may
demonstrate that a marriage is bona fide include: (1) documentation showing joint
ownership of property; (2) a lease showing joint tenancy of a common residence; (3)
evidence of commingling of financial resources; (4) birth certificates of children born to
the petitioner and beneficiary; (5) affidavits of third parties having knowledge of the bona
fides of the marital relationship; and (6) any other documentation which is relevant to
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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)(i)(B). As the Board noted, Shahid submitted
little evidence with his second motion to reopen that his marriage to Kaur is bona fide,
and certainly not clear and convincing evidence. What evidence he did submit did not fit
into any of the suggested categories, and thus was insufficient. See Malhi v. Immigration
& Naturalization Serv., 336 F.3d 989, 994 (9th Cir. 2003). Given this failure, the Board
acted within its discretion in denying the second motion to reopen.
For the foregoing reasons, we will deny the petition for review.
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