Mohammed S. Shaikh v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15160
Non-Argument Calendar
________________________
Agency No. A095-163-516
MOHAMMED S. SHAIKH,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 23, 2017)
Before HULL, MARCUS and JORDAN, Circuit Judges.
PER CURIAM:
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Mohammed Shaikh, proceeding pro se, seeks review of the Board of
Immigration Appeals’s (“BIA”) order adopting and affirming the immigration
judge’s (“IJ”) decision: (1) finding that Shaikh was removable because he violated
a no-contact provision of a domestic violence protection order; and (2) denying
Shaikh’s request for cancellation of removal. After review, we deny the petition.
I. BACKGROUND FACTS
A. VSG’s I-140 Visa Petition on Behalf of Shaikh
In April 1999, Shaikh, a native and citizen of India, entered the United
States as a nonimmigrant worker on an H-1B visa. On August 29, 2000, Vision
Systems Group, Inc. (“VSG”), a New Jersey computer consulting and software
development company, filed with the Department of Labor an application for a
labor certification on Shaihk’s behalf. The labor certification was for Shaikh to
work for VSG on an H-1B visa as a “Programmer Analyst.” On December 20,
2000, the Department of Labor approved the labor certification. Thereafter, on
January 29, 2001, VSG filed an I-140 immigrant petition for alien worker with the
former Immigration and Naturalization Service (“INS”) on behalf of Shaikh. 1
On April 18, 2001, while the I-140 petition was still pending, Shaikh
resigned from VSG to work for another company, Worldres. Shaikh worked for
1
In March 2003, the functions of the former INS were transferred from the Department of
Justice to the newly formed Department of Homeland Security, which includes the United States
Citizenship and Immigration Services (“USCIS”), the agency that now handles visa petitions.
See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002).
2
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Worldres in California as a system administrator for only three weeks before being
terminated. Then, in July or August 2001, Shaikh worked for only four to six
weeks as a database administrator for Seisint, Inc., another company in Boca
Raton, Florida.
Despite Shaikh’s having left VSG, in June 2001, VSG petitioned the INS to
extend Shaikh’s H-1B visa, which was due to expire in August 2001. In the
petition, VSG stated its intention to “continuously employ” Shaikh and that Shaikh
had worked for the company as a programmer analyst from “7/99 – present.” The
INS granted the request and extended Shaikh’s H-1B visa to May 16, 2004.2
During this period, VSG also marketed Shaikh to some of its clients as one of its
own employees.
On August 2, 2001, the INS approved the I-140 petition on behalf of Shaikh,
with a priority date of August 29, 2000.
B. Shaikh’s Application for Adjustment of Status
2
In 2003 administrative proceedings before the Department of Labor, Shaikh sought
unpaid wages from VSG for the period between April 19, 2001 and August 26, 2002. Shaikh
testified before an ALJ that he had continued to work remotely for VSG while also working for
Worldres and Seisint. VSG’s chief executive officer, Visaw Mandalapu, testified that Shaikh did
not work for VSG after he resigned on April 18, 2001, and that Mandalapu agreed to seek an
extension of Shaikh’s H-1B visa in June 2001 only “for backup reasons” as a favor to Shaikh,
who was looking for employment. The ALJ credited Mandalapu’s testimony over Shaikh’s
testimony, found that Shaikh’s employment with VSG ended on April 18, 2001, and denied
Shaikh’s claim. On appeal, the Administrative Review Board dismissed Shaikh’s complaint with
prejudice.
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On August 17, 2001, Shaikh filed a Form I-485 with the INS seeking to
adjust his status to that of a lawful permanent resident based on VSG’s approved I-
140 petition. As part of his application, Shaikh indicated that he had worked for
VSG from July 1999 to the “present time,” and he did not include his work at
either Worldres or other companies after April 18, 2001.
C. VSG’s Letters to INS Withdrawing the I-140 Visa Petition
Between November 2001 and November 2002, VSG sent a series of letters
to the INS stating it wished to withdraw the I-140 petition on behalf of Shaikh
because he no longer worked for the company. The first letter, dated November
29, 2001, stated that Shaikh “with H1B status is no longer working with our
company.” VSG stated that it wished “to withdraw our petition with immediate
effect,” and asked the INS to cancel Shaikh’s H1B status “originally issued under
Vision Systems Group, Inc.” The second letter, dated April 22, 2002, was stamped
received by the INS on July 29, 2002, and repeated VSG’s “wish to withdraw Mr.
Mohammed S. Shaikh, I-140 petition that has been applied with immediate affect
[sic].” On July 24, 2002, VSG also sent to the INS a letter seeking a “substitution
of beneficiary” for the I-140 petition that had previously been approved on behalf
of Shaikh and replacing Shaikh with another alien worker “equally qualified for
the position.”
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On August 26, 2002, the INS approved Shaikh’s I-485 petition, and his
status was adjusted to lawful permanent resident.
On September 26, 2002, VSG sent another letter to the INS explaining that it
had sent the April 22, 2002 letter withdrawing Shaikh’s I-140 petition before it was
approved, and enclosed a copy of the letter and the FedEx receipt. VSG advised
that Shaikh “left our employment in April, 2001 by transferring his H1B work visa
to another firm,” and pointed out that, although VSG had withdrawn its petition on
Shaikh’s behalf, the “INS had still granted permanent residency on 8/20/02 to Mr.
Shaikh.” VSG reiterated that it would not be employing Shaikh and asked the INS
to review the matter “and take immediate steps and not grant permanent residency
status on behalf of our company, Vision Systems Group, Inc.” On November 5,
2002, VSG sent a final letter to the INS noting that Shaikh’s “H1B has yet to be
cancelled.” 3 On February 14, 2003, the INS notified VSG that the approval of
VSG’s June 2001 H-1B extension on behalf of Shaikh was automatically revoked.
D. Shaikh’s Conviction for Violating a Domestic Violence Protection Order
On December 21, 2006, a Florida state court granted a petition by Shaikh’s
then-wife, Farasha Shaikh, and entered a final judgment of injunction for
protection against domestic violence. The injunction provided, among other
3
In addition, between February and November 2003, VSG’s attorney also sent four letters
to the agency outlining the facts and requesting that the I-140 petition be revoked so that the
substitute employee could use the approved petition.
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things, that Shaikh “shall have no contact with” Farasha Shaikh, directly or
indirectly, in person, by mail, e-mail, fax, telephone, through another person, or in
any other manner.
In April 2007, Shaikh was charged in Florida state court with aggravated
stalking after an injunction and seven counts of violating a domestic violence
injunction. On October 29, 2007, Shaikh, with counsel present, pled nolo
contendere to Count 2, which charged that on January 6, 2007, Shaikh willfully
violated “the provisions of an injunction for protection against domestic violence,
or the provisions of a foreign protection order, by telephoning, contacting, or
otherwise communicating with the Petitioner directly or indirectly,” in violation of
Florida Statute § 741.31(4)(A)(5). The remaining charges were nolle prossed.
Adjudication was withheld, and Shaikh was placed on twelve months’ probation.4
E. Removal Proceedings
Shortly thereafter, the Department of Homeland Security (“DHS”) initiated
removal proceedings against Shaikh, charging that he was removable on two
grounds: (1) for willfully and materially misrepresenting his employment status on
his adjustment of status application, pursuant to Immigration and Nationality Act
(“INA”) § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A); and (2) for having been
4
In state post-conviction proceedings, Shaikh’s conviction was initially vacated, but then
reinstated on appeal. See State v. Shaikh, 65 So. 3d 539 (Fla. 5th Dist. Ct. App. 2011).
6
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convicted of violating a protective order against domestic violence, pursuant to
INA § 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii).
Over the course of several removal hearings, Shaikh disputed many things
but notably did not dispute that he had entered a nolo plea to violating the state
court no-contact injunction. Instead, Shaikh argued that the circumstances of his
violation—emailing his wife about legal matters during their pro se divorce
proceedings and briefly encountering his wife at their son’s school—had not
involved any violence or threat of violence and thus was not conduct qualifying
him for removal under INA § 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii).
Ultimately, the IJ sustained the second ground for removability, but not the
first ground. As to the first ground, the IJ concluded that the DHS had failed to
carry its burden to show that Shaikh had willfully misrepresented his employment
status when he applied for adjustment of status. As to the second ground, however,
the DHS had shown that Shaikh violated the domestic violence no-contact
injunction. The IJ cited the Florida state court documents reflecting Shaikh’s nolo
contendere plea to violating the injunction by communicating with his wife.
Shaikh then filed an application for cancellation of removal, pursuant to INA
§ 240A(a), 8 U.S.C. § 1229b(a). In 2012, the IJ granted the application.
F. DHS Appeal and BIA Remand
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The DHS appealed to the BIA, which affirmed the IJ’s finding that Shaikh
was removable for having violated the domestic violence protection order. The
BIA rejected the DHS’s argument that Shaikh was ineligible for cancellation of
removal because he committed fraud on his application of adjustment of status.
The BIA concluded that it could “discern no clear error in [the IJ’s] finding that
[Shaikh’s] claim of employment with VSG was not deliberately fabricated.”
The BIA nonetheless vacated the IJ’s grant of cancellation of removal based
on the DHS’s alternative argument that Shaikh was ineligible for cancellation of
removal because VSG had formally withdrawn the I-140 visa petition, resulting in
an automatic revocation under 8 C.F.R. § 205.1(a)(3)(iii)(C). The BIA concluded
that, because no fact findings were made as to whether the regulatory conditions
were satisfied to revoke a visa petition, a remand to the IJ was necessary. The BIA
noted the “obvious relevance” of VSG letters to the INS withdrawing the I-140
petition, but stated that it “express[ed] no present opinion regarding the appropriate
evidentiary weight to which these documents are entitled.” The BIA “remand[ed]
the matter to the Immigration Judge on an open record for further proceedings in
this regard.”
G. IJ’s Denial of Shaikh’s Request for Cancellation of Removal
Upon remand, the parties declined to present additional evidence, agreeing
the record was sufficient for the IJ to make a determination. The IJ issued a
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written decision concluding that Shaikh had not met his burden to show that he
was eligible for cancellation of removal. Citing to VSG’s letters to the former INS
withdrawing the I-140 petition, the IJ found that a reasonable inference could be
drawn from the record that the I-140 petition was automatically revoked. Because
Shaikh had not shown that he had an immediately available immigrant visa when
he applied for adjustment of status, he also had not shown that he was lawfully
admitted for permanent residence.
H. Shaikh’s Appeal to the BIA
This time, Shaikh appealed to the BIA. Shaikh argued, among other things,
that: (1) he was not removable due to his violation of the domestic violence
injunction; and (2) VSG’s I-140 visa petition was not automatically revoked
because Shaikh had successfully ported the petition pursuant to INA § 204(j), 8
U.S.C. § 1154(j).
The BIA adopted and affirmed the IJ’s decision. The BIA concluded that
Shaikh’s challenge to his removability was barred by the law of the case doctrine
because the BIA had already affirmed that determination in the DHS’s 2014
appeal.
As to cancellation of removal, the BIA concluded that the IJ had not clearly
erred in his findings of fact, including the finding that the record indicated that the
I-140 visa petition was automatically revoked as of the day of its original approval.
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Thus, the BIA concluded that Shaikh was not in possession of an immediately
available immigrant visa when he applied to adjust his status. And, because he
was not lawfully admitted for permanent residency, he was ineligible for
cancellation of removal. Finally, the BIA noted that to the extent Shaikh raised
potential improprieties surrounding the revocation of his visa petition, those
matters were outside of the scope of the removal proceedings and needed to be
raised before the director of the United States Citizenship and Immigration Service
(“USCIS”), which issues and revokes visa petitions.
II. DISCUSSION
A. Shaikh’s Removability
When the IJ found in June 2010 that Shaikh was removable for violating the
no-contact provision of the domestic violence injunction, Shaikh did not appeal the
IJ’s order. Instead, the DHS appealed the IJ’s order, and the BIA affirmed the IJ’s
finding that Shaikh was removable, but vacated the IJ’s order granting Shaikh
cancellation of that removal. The BIA’s remand was for the limited purpose of
determining whether Shaikh was ineligible for cancellation of removal by virtue of
VSG’s undisputed withdrawal of the I-40 petition. Only after Shaikh lost on this
remand issue and the IJ concluded that he was not eligible for cancellation of
removal did Shaikh challenge the IJ’s 2010 finding that he was removable. The
BIA concluded Shaikh’s challenge came too late and that the doctrine of the law of
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the case foreclosed it from reconsidering the removability issue in Shaikh’s
subsequent BIA appeal.
Importantly, although Shaikh’s petition for review argues on the merits that
he is not removable, it does not challenge the BIA’s application of the law of the
case doctrine. Because Shaikh has abandoned this threshold legal issue, we have
no cause to address the merits of the IJ’s finding of removability. See Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (explaining that
when an appellant fails to challenge one of the independent grounds supporting the
judgment, he is deemed to have abandoned any challenge to that ground, and the
judgment must be affirmed).
Even if we were to reach the merits, however, we would conclude that
substantial evidence supports the IJ’s finding, affirmed by the BIA, that Shaikh
was removable.5 The record shows—and Shaikh does not dispute—that in
December 2006, Shaikh was under a domestic violence injunction and that in
October 2007, he pled nolo contendere to violating the no-contact provision of that
injunction. It is immaterial that the circumstances of Shaikh’s violation of the
protection injunction did not involve an act or threat of violence; he was
nonetheless removable under INA § 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii),
5
We review findings of fact, including findings of removability, using the substantial
evidence test. Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004). Under that test,
we draw every reasonable inference from the evidence in favor of the agency’s decision and
reverse a finding of fact only if the record compels it. Id. at 1027.
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for violating the no-contact provision of that injunction. See INA
§ 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii) (providing that an alien is
removable from the United States if a court determines he has “violate[d] the
portion of a protection order that involves protection against credible threats of
violence, repeated harassment, or bodily injury to the person or persons for whom
the protection order was issued”); In re Strydom, 25 I. & N. Dec.507, 510 (BIA
2011) (explaining that the no-contact provision in a protection order exists to
prevent the victim from being victimized again, and violating a no-contact
provision by attempting to call a spouse’s home rendered an alien removable under
INA § 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii)). The state court documents
constitute substantial evidence supporting the finding that Shaikh was removable
under INA § 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii).
B. Cancellation of Removal
The IJ and the BIA concluded that Shaikh was statutorily ineligible for
cancellation of removal because he was not “lawfully admitted for permanent
residence.” More specifically, the IJ concluded, and the BIA agreed, that because
VSG automatically revoked its I-140 petition before Shaikh’s application of
adjustment of status was granted, he was not “lawfully admitted.” We agree. 6
6
While we lack jurisdiction to review the decision to grant or deny a request for
cancellation of removal under INA § 240A, 8 U.S.C. § 1229b, we nonetheless retain jurisdiction
to consider constitutional claims and questions of law. See INA § 242(a)(2)(B)(i), (a)(2)(D) 8
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Under INA § 240A, 8 U.S.C. § 1229b, the Attorney General may cancel
removal of an alien who is a permanent resident. INA § 240A(a), 8 U.S.C.
§ 1229b(a). Once the government proves that an alien is removable, the alien
bears the burden to show he is eligible for, and merits, such discretionary relief.
INA § 240(c)(4)(A), 8 U.S.C. § 1229a(c)(4)(A).
An alien who is a permanent resident is eligible for cancellation of removal
if the alien: “(1) has been lawfully admitted for permanent residence for not less
than five years, (2) has resided in the United States continuously for [seven] years
after having been admitted in any status, and (3) has not been convicted of an
aggravated felony.” INA § 240A(a)(1)-(3), 8 U.S.C. § 1229b(a)(1)-(3) (emphasis
added). “Lawfully admitted for permanent residence” is defined in the INA as
“having been lawfully accorded the privilege of residing permanently in the United
States as an immigrant in accordance with the immigration laws, such status not
having changed.” INA § 101(a)(20), 8 U.S.C. § 1101(a)(20). “‘Lawfully
admitted’ means more than admitted in a procedurally regular fashion[;] it means
more than that the right forms were stamped in the right places.” Savoury v. U.S.
U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D); Jimenez-Galicia v. U.S. Att’y Gen., 690 F.3d 1207, 1209 &
n.3, 1210-11 (11th Cir. 2012). Whether an alien was “lawfully admitted for permanent
residence” within the meaning of § 1229b(a)(1) is a question of law we review de novo. See
Bedoya-Melendez v. U.S. Att’y Gen., 680 F.3d 1321, 1324-25 (11th Cir. 2012); Savoury v. U.S.
Att’y Gen., 449 F.3d 1307, 1312 (11th Cir. 2006) (concluding that the BIA’s interpretation of
“lawfully admitted for permanent residence” in the INA raises a question of law, which this
Court has jurisdiction to review under INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D)). Where,
as here, the BIA adopts and affirms the IJ’s conclusion, we review both the IJ’s and the BIA’s
decisions. See Seck v. U.S. Att’y Gen., 663 F.3d 1356, 1364 (11th Cir. 2011).
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Att’y Gen., 449 F.3d 1307, 1317 (11th Cir. 2006). An alien is not lawfully
admitted for permanent residence if his status was “mistakenly adjusted to that of a
lawful permanent resident.” Reganit v. Sec’y, Dep’t of Homeland Sec., 814 F.3d
1253, 1257 (11th Cir. 2016).
One way an alien can be lawfully admitted for permanent residence is by
entering the United States as an immigrant worker and then adjusting his status.
This path to lawful permanent residence is a three-step process. Kurapati v. U.S.
Bureau of Citizenship & Immigration Servs., 775 F.3d 1255, 1258 (11th Cir.
2014). During the first two steps, the alien’s prospective U.S. employer files (1) an
application for a labor certification with the Department of Labor (“DOL”); and (2)
a Form I-140 immigrant worker visa petition with the USCIS. Id. If the I-140
petition is approved, then, at the third step, the alien files (3) a Form I-485
application for adjustment of status. Id. A worker may not file his I-485
application until a visa is immediately available, which is determined by the
priority date on the alien’s approved I-140 petition. INA §§ 203(e)(1), 245(a)(3), 8
U.S.C. §§ 1153(e)(1), 1255(a)(3); 8 C.F.R. §§ 204.5(d), 245.2(a)(2).
The Attorney General has discretion to adjust an alien’s status to lawful
permanent resident if: (1) the alien applies for such adjustment; (2) the alien is
eligible to receive an immigrant visa and is admissible to the United States for
permanent residence; and (3) an immigrant visa is immediately available to the
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alien at the time the application is filed. INA § 245(a), 8 U.S.C. § 1255(a)
(emphasis added). The burden is on the alien to show that he is eligible for
adjustment of status. Id. § 240(c)(2)(A), (4)(A)(i), 8 U.S.C. § 1229a(c)(2)(A),
(4)(a)(i); id. § 245(a), 8 U.S.C. § 1255(a).
However, an approved I-140 petition on behalf of alien worker can be
automatically revoked upon the petitioner-employer’s written notification. See 8
C.F.R. § 205.1(a)(3)(iii)(C). Revocation occurs “[u]pon written notice of
withdrawal filed by the petitioner . . . with any officer of the [USCIS] who is
authorized to grant or deny petitions,” so long as that written notice happens
“before the decision on [the alien’s] adjustment application becomes final.” 8
C.F.R. § 205.1(a)(3)(iii)(C) (2016). Further, if these conditions are met, the I-140
petition is deemed “revoked as of the date of approval.” Id. § 205.1(a).
Here the IJ and the BIA correctly concluded that Shaikh was ineligible for
cancellation of removal because he could not show he had been “lawfully admitted
for permanent residence” as that term is defined in the INA. This is so because
VSG automatically revoked the I-140 visa petition it had filed on Shaikh’s behalf
before Shaikh’s I-485 application for adjustment of status was approved on August
26, 2002. 7
7
The IJ and the BIA also correctly concluded that the IJ’s jurisdiction was limited to
determining whether the I-140 petition had been automatically revoked or remained valid
because Shaikh had met the portability requirements of INA § 204(j), 8 U.S.C. § 1154(j). See
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According to the record, VSG sent at least five letters notifying the former
INS in writing that it was withdrawing the I-140 petition filed on behalf of Shaikh
because Shaikh no longer worked for the company. At least one of these letters,
dated April 22, 2002, was stamped received by the INS on July 29, 2002, almost a
month before Shaikh’s application for adjustment of status was approved on
August 26, 2002. Because the I-140 petition was automatically revoked as of
August 2, 2001 (the date it was originally approved), Shaikh did not have an
immigrant visa immediately available to him on August 17, 2001, when he filed
his I-485 application for adjustment of status. In other words, Shaikh’s adjustment
of status on August 26, 2002, was the result of a mistake by the former INS and
thus he was never “lawfully admitted for permanent residence” within the meaning
of the INA. See INA § 101(a)(20), 8 U.S.C. § 1101(a)(20); Reganit, 814 F.3d at
1257; Savoury, 449 F.3d at 1317.
Shaikh argues that despite VSG’s withdrawing support for the I-140 petition,
that 2001 petition remained valid because he ported the petition to another
employer pursuant to INA § 204(j), 8 U.S.C. § 1154(j). Under § 204(j), 8 U.S.C.
Sung v. Keisler, 505 F.3d 372, 375-77 (5th Cir. 2007); Matovski v. Gonzales, 492 F.3d 722, 732-
37 (6th Cir. 2007); Perez-Vargas v. Gonzales, 478 F.3d 191, 194-95 (4th Cir. 2007); In re Neto,
25 I. & N. Dec. 169, 170 (BIA 2010). While an IJ conducting removal proceedings has
jurisdiction to rule on adjustment of status and cancellation of removal, see 8 C.F.R.
§§ 245.2(a)(2)(i), (a)(5)(ii), 1240.1(a), an IJ cannot approve or deny employment-based visa
petitions, which are within the jurisdiction of the USCIS, see 8 C.F.R. § 204.5. Thus, the IJ
could not address Shaikh’s arguments that the USCIS’s revocation of his petition was based on
VSG’s fraud.
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§ 1154(j), an employment-based petition “for an individual whose application for
adjustment of status . . . has been filed and remained unadjudicated for 180 days or
more shall remain valid with respect to a new job if the individual changes jobs or
employers if the new job is in the same or a similar occupational classification as
the job for which the petition was filed.” INA § 204(j), 8 U.S.C. § 1154(j); see
also 8 C.F.R. § 205.1(a)(3)(iii)(C) (2017). 8 The portability provision in § 204(j), 8
U.S.C. § 1154(j), was added to the INA in 2000 by section 106(c) of the American
Competitiveness in the Twenty-First Century Act (“AC21”). See Pub. L. No. 106-
313, 114 Stat. 1251 (Oct. 17, 2000). “Under the AC21, a worker no longer has to
remain with his sponsoring employer until his I-485 application is approved. In
effect, the worker’s new employer can use the previous employer’s labor
certification and I-140 petition to hire the worker (who is said to then ‘port’ to the
new employer), so long as the new job is in the same or similar occupational
classification as the previous one.” Musunuru v. Lynch, 831 F.3d 880, 884 (7th
Cir. 2016); see also Kurapiti, 775 F.3d at 1258 (“Approval of an I-140 visa petition
remains valid for beneficiaries with pending adjustment of status applications who
change jobs or employers if the adjustment of status application has remained
8
At the time of Shaikh’s removal proceedings, no regulations had yet been promulgated
to provide guidance on how to determine portability. While this appeal was pending, effective
January 17, 2017, portability language was added to the automatic revocation regulation. See 8
C.F.R. § 205.1(a)(3)(iii)(C) (2017). Even if we assume arguendo that the amended version of
§ 205.1(a)(3)(iii)(C) would apply retroactively, Shaikh could not show he met the requirements
for portability in § 204(j), 8 U.S.C. § 1154(j), for the reasons explained herein.
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unadjudicated for 180 days or more and the new job is in the same or a similar
occupational classification as the job for which the petition was filed.”). By
concluding that Shaikh failed to show he had an immediately available visa, the IJ
implicitly found that Skaikh failed to demonstrate portability of VSG’s I-140
petition.
This Court has not yet addressed whether the portability provision in
§ 204(j), 8 U.S.C. § 1154(j), sustains the validity of an approved I-140 petition
when an employer withdraws the petition more than 180 days after an alien has
submitted his application for adjustment of status.9 We need not resolve that
question here, however, because even assuming arguendo that an otherwise
automatically revoked I-140 petition can remain valid under INA § 204(j), 8
U.S.C. § 1154(j), Shaikh did not show he successfully ported his I-140 petition to a
new employer or job. Indeed, Shaikh did not provide any evidence that he had a
new employer when VSG withdrew the I-140 petition or when his status was
adjusted. See INA § 204(j), 8 U.S.C. § 1154(j).
There is evidence in the record that Shaikh briefly worked for Worldres and
Seisint, Inc. after his April 18, 2001 resignation from VSG and prior to his
9
Shaikh’s I-485 application for adjustment of status was filed on August 17, 2001, and
was pending for 180 days as of February 13, 2002. Although VSG sent letters to the INS
withdrawing the approved I-140 petition as early as November 2001, we need rely on only the
April 22, 2002 letter, which was stamped received by the INS on July 29, 2002, and was thus
received by the INS before action on the application for adjustment of status on August 26, 2002.
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adjustment of status. However, he worked for those two employers for only three
weeks in April 2001 (Worldres) and four to six weeks in July or August 2001
(Seisint), respectively. Because it is undisputed that Shaikh was not employed by
either of these companies in 2002 when VSG withdrew its I-140 petition and
Shaikh’s status was adjusted, neither job could have served as the basis to port
VSG’s I-140 petition under INA § 204(j), 8 U.S.C. § 1154(j). Simply put, Shaikh
needed to obtain new and qualifying employment in order to be eligible to adjust
his status after VSG withdrew its I-140 petition, but there is no evidence that he
did so.
Finally, we reject Shaikh’s argument that the IJ’s and the BIA’s reliance on
VSG’s letters to deny him cancellation of removal violated evidentiary rules and
his due process rights. The Federal Rules of Evidence do not apply to immigration
proceedings. Garces v. U.S. Att’y Gen., 611 F.3d 1337, 1347 (11th Cir. 2010). To
safeguard due process, the INA provides that an alien in removal proceedings shall
have a reasonable opportunity to examine the evidence against him, present his
own evidence, and cross-examine any government witnesses. See INA
§ 240(b)(4)(B), 8 U.S.C. § 1229a(b)(4)(B). As the government submitted the
letters to the immigration court on July 30, 2009, Shaikh had ample opportunity to
examine the letters before his June 2010 removal hearing. Apart from conclusory
allegations that the letters were fraudulent, Shaikh offered no evidence to suggest
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that they were unreliable. In fact, to the extent Shaikh agrees he submitted his
resignation to VSG on April 18, 2001, the letters appear to be reliable.
In any event, to establish a due process violation, an alien in removal
proceedings must show, inter alia, the deprivation of a liberty interest. Lapaix v.
U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010). We have repeatedly held
that an alien does not have a constitutionally protected liberty interest in a purely
discretionary form of relief, such as cancellation of removal. See Alhuay v. U.S.
Att’y Gen., 661 F.3d 534, 548-49 (11th Cir. 2011) (cancellation of removal);
Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008) (adjustment of
status); Garcia v. Att’y Gen., 329 F.3d 1217, 1223-24 (11th Cir. 2003) (§ 212(h)
waiver); Mohammed v. Ashcroft, 261 F.3d 1244, 1251 (11th Cir. 2001)
(cancellation of removal). Thus, Shaikh cannot show a due process violation with
respect to the denial of his request for cancellation of removal.
In sum, Shaikh had the burden to show he was eligible for cancellation of
removal, yet he failed to provide evidence to the IJ that the I-140 petition VSG
filed on his behalf remained valid when his status was adjusted. For these reasons,
the IJ and the BIA did not err in concluding that Shaikh was not lawfully admitted
for permanent residence and therefore was statutorily ineligible for cancellation of
removal.
PETITION DENIED.
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