Mohammed Shahid, et al v. Atty Gen USA

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MANDATE ISSUED, filed.

Mohammed Shahid, et al v. Atty Gen USA

Doc. 0 Att. 1

Case: 09-3171

Document: 003110228561

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Date Filed: 07/26/2010

N O T PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 09-3171 ___________ J O H N DOE a/k/a MOHAMMED SHAHID; J O H N DOE a/k/a MOHAMMED BILAL, P e t i t io n e r s v. A T T O R N E Y GENERAL OF THE UNITED STATES, Respondent __________________ O n a Petition For Review of an Order of the Board of Immigration Appeals A g e n c y Nos. A079-211-398 & A079-211-399 Im m ig ratio n Judge: Margaret R. Reichenberg ____________________________________ S u b m itte d Pursuant to Third Circuit LAR 34.1(a) J u n e 2, 2010 B e f o re : SCIRICA, SMITH and WEIS, Circuit Judges O p in io n filed: June 03, 2010 ____________ O P IN IO N ___________ P E R CURIAM. P e titio n e rs Mohammad Shahid and Mohammad Bilal, father and son, and

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Dockets.Justia.com

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n a tiv e s 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 th e m a Notice to Appear, charging that they were removable under Immigration & N a tio n a lity Act ("INA") § 212(a)(6)(A)(I), 8 U.S.C. § 1182(a)(6)(A)(I), as aliens who w e re present in the United States without having been admitted or paroled. O n April 20, 2001, Shahid married Lakeysha Y. Thomas, a United States c itiz e n . A.R. 439. On April 30, 2001, a day before the LIFE Act deadline, Thomas filed im m e d iate relative visa petitions, Form I-130, see 8 U.S.C. § 1151(b)(2)(A)(I), for Shahid a s her spouse, and Bilal as her unmarried child. A.R. 437-38.1 On November 2, 2001, T h o m a s was notified of the approval of the visa petitions. See id. On April 22, 2002, the S ta te of New Jersey granted Shahid a divorce from Thomas. O n April 25, 2002, three days after his divorce from Thomas, Shahid m a rrie d Balbir Kaur, a lawful permanent resident of the United States. A.R. 50. Three m o n th s later, on July 25, 2002, Kaur filed two immediate relative visa petitions, A.R.

On December 21, 2000, Congress enacted the Legal Immigration Family Equity (" L IF E " ) Act Amendments, which amended a prior law benefitting certain individuals w h o were otherwise ineligible to adjust their status in the United States because they were p re se n t without having been admitted or paroled. It replaced the original cut-off date w ith the new date of April 30, 2001. See generally Khan v. Att'y Gen. of U.S., 448 F.3d 2 2 6 , 229 (3d Cir. 2006). The LIFE Act amendments provided, in pertinent part, that a b e n e fic ia ry of a petition for an immigrant visa filed on or before April 30, 2001, who was p h ys ic a lly present in the United States on the date of enactment and paid the $1,000 fee, c o u ld adjust status under INA section 245(i). See INA § 245(i)(1)(B), 8 U.S.C. § 1 2 5 5 ( i) ( 1 ) ( B ) . 2

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4 3 5 -3 6 ­ one for Shahid as her spouse, and one for Bilal as her unmarried child, see 8 U .S .C . § 1153(a)(2)(A). O n April 12, 2006, Shahid submitted an application for asylum and w ith h o ld in g of removal, Form I-589, claiming changed circumstances and a fear of re tu rn in g to Pakistan. A.R. 271-79. About two weeks later, Shahid and Bilal appeared b e f o re the Immigration Judge. They conceded that they were removable as charged and p ro c e e d e d solely on the basis of Shahid's request for asylum. Shahid testified at his m e rits hearing and claimed to fear persecution in Pakistan from "Shia people" over re lig io u s differences. At the conclusion of Shahid's testimony, the Immigration Judge d e n ie d his request for relief and protection, thereby also denying Bilal asylum as a d e riv a tiv e of Shahid's application. Shahid and Bilal appealed the IJ's decision to the B o a rd of Immigration Appeals, which affirmed on October 9, 2007. O n November 16, 2007, Shahid and Bilal filed a motion to reopen with the B o a rd , claiming that they had approved immediate relative visa petitions filed by Balbir K au r, and the priority dates for their visas were current. They requested that the Board g ra n t them adjustment of status. Attached to the motion to reopen were the following: the A p p rov al 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 2 5 , 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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w ith their motion, as required by 8 C.F.R. § 1003.2(c)(1) (requiring that all applications f o r relief be appended to motions to reopen). Second, Shahid and Bilal failed to establish p rim a facie eligibility for adjustment of status, because, as aliens who had entered the U n ite d States without being admitted or paroled, they were ineligible to adjust their status u n d e r INA § 245(a), 8 U.S.C. § 1255(a), and they did not submit evidence that they q u alified under INA § 245(I), 8 U.S.C. § 1255(I), either. O n January 7, 2009, Shahid and Bilal, now represented by different counsel, f ile d a second motion to reopen with the Board. In it they claimed that they were the v ic tim s of ineffective assistance of counsel by their previous attorney, Dominick S. C a rd in a le , who assisted them in filing their first motion to reopen. Attached to the m o tio n to reopen and offered in support of it were the following: a copy of the Receipt N o tic e from July 18, 2001 for Lakeysha Thomas's immediate relative visa petition for S h ah id; a copy of the Approval Notice from November 2, 2001 for Ms. Thomas's im m e d ia te relative visa petition for Bilal; copies of the Receipt Notices from July 25, 2 0 0 2 for Balbir Kaur's immediate relative visa petitions for Bilal and Shahid; a copy of th e Approval Notice, Form I-797C, from April 20, 2005 for Ms. Kaur's immediate re la tiv e visa petition for Bilal; various documents regarding attorney Cardinale; an a f f id a v it 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 G3 2 5 and G-325A, completed by Ms. Kaur and Shahid; Shahid and Ms. Kaur's marriage

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c e rtif ic a te ; photographs; documents regarding Shahid's previous marriage to and divorce f ro m Ms. Thomas; documents regarding both Ms. Kaur's birth, and her marriage to and d iv o rc e from Harjit Singh; and documents regarding Shahid's previous marriage to and d iv o rc e from Bilal's biological mother in Pakistan. A.R. 22-66. O n July 17, 2009, the Board denied Shahid's and Bilal's second motion to re o p e n . The Board concluded that it was both untimely, as it was filed more than 90 days a f te r the Board's final decision, and number-barred. The Board noted that Shahid and B ilal claimed to have suffered ineffective assistance of counsel, but irrespective of that, th e second motion to reopen did not include any evidence that the immediate relative visa p e titio n filed by Ms. Kaur on behalf of Shahid had been approved. A Form I-797C had b e e n submitted with the motion to reopen indicating that Ms. Kaur's I-130 petition had b e e n approved for 13 year-old Bilal, but there was no proof submitted that her visa p e titio n 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 s u b m itte d of the bona fides of Shahid's marriage to Ms. Kaur. Accordingly, there was no s h o w in g that Shahid was prima facie eligible for discretionary relief in the form of a d ju s tm e n t of status.2 This timely petition for review followed.

We note that the immediate relative visa petitions filed by Ms. Kaur for Shahid as h e r spouse and Bilal as her unmarried child, A.R. 435-36, were not filed by the LIFE A c t's April 30, 2001 deadline. The Board, however, did not base its "no prima facie e lig ib ility" determination under INA § 245(i), 8 U.S.C. § 1255(i), on this fact. Our d is p o s itio n of the petition for review does not require us to reach the issue whether 5

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W e 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 m o tio n to reopen for an abuse of discretion. Immigration & Naturalization Serv. v. D o h e rty, 502 U.S. 314, 323 (1992). The Supreme Court has stated that "[m]otions for reo p en ing of immigration proceedings are disfavored," noting that "as a general matter, e v e ry 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 w a s arbitrary, irrational or contrary to law. See, e.g., Sevoian v. Ashcroft, 290 F.3d 166, 1 7 4 (3d Cir. 2002). The agency's factual determinations are upheld if they are supported b y 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 " sh a ll state the new facts that will be proven at a hearing to be held if the motion is g ra n te d , and shall be supported by affidavits or other evidentiary material." 8 U.S.C. § 1 2 2 9 a (c )(7 )(A ),(B ). Ordinarily, "[t]he motion to reopen shall be filed within 90 days of th e date of entry of a final administrative order of removal." 8 U.S.C. § 1 2 2 9 a (c )(7 )(C )(I); 8 C.F.R. § 1003.2(c)(2). Shahid and Bilal's second motion to reopen w a s 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 § 2 4 5 (i) by the immediate relative visa petitions filed by Ms. Thomas by the deadline. 6

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e x c e p tio n s apply,3 the Board did not abuse its discretion in denying it. Doherty, 502 U.S. a t 323; Sevoian, 290 F.3d at 174. In their brief, Shahid and Bilal claim that the Board erred because, but for th e alleged ineffective assistance of their prior attorney in his filing of their first motion to re o p e n , they would have been able to demonstrate prima facie eligibility for adjustment of s ta tu s . We have held that attorney conduct can provide a basis for equitable tolling of the n in e ty-d a y deadline, see Mahmood v. Gonzales, 427 F.3d 248, 250-53 (3d Cir.2005), but, re g a rd le ss of Shahid's and Bilal's claim of ineffective assistance of counsel, their second m o tio n to reopen also failed to provide the necessary evidence to demonstrate their prima f a c ie eligibility for adjustment of status.4 T o be eligible for a discretionary grant of adjustment of status, the applicant m u s t be eligible to receive an immigrant visa, be admissible for permanent residency, and d e m o n s tra te 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 o th e rw is e ineligible to adjust their status because of an illegal entry, may take advantage o f INA § 245(I) if they are the beneficiaries of a visa petition filed prior to April 30, 2 0 0 1 , and the visa petition was approvable when filed. See 8 U.S.C. § 1255(i)(1)(B)(i).
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There are exceptions to the ninety day deadline which are not applicable here. 8 C .F .R . § 1003.2(c)(3). Bilal did not advance a claim to the Board, nor do Shahid and Bilal argue in their b rie f , that Bilal is independently eligible for adjustment of status on the basis of the ap p rov ed petition filed by Ms. Kaur, who is not his biological mother. 7
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In addition, an alien like Shahid, who marries after removal proceedings have begun, is sta tu to rily ineligible for adjustment of status unless he establishes that his marriage is b o n a fide. See 8 C.F.R. §§ 1245.1(c)(8), 1245.1(c)(8)(iii)(F); 8 U.S.C. § 1255(e)(1), (3). S h a h id and Bilal thus bore the burden of demonstrating a prima facie case th a t they were the beneficiaries of approved I-130 immediate relative petitions, with p r io r ity dates for currently available visas, that they were not ineligible to adjust status, a n d that Shahid's marriage to Kaur was bona fide. See Sevoian, 290 F.3d at 175 (prima f a cie standard for motion to reopen requires applicant to produce objective evidence sh o w ing reasonable likelihood that he can establish he is entitled to relief). As the Board p ro p e rly observed, Shahid and Bilal had evidentiary failures in their second motion to re o p e n in that they failed to demonstrate that Shahid was the beneficiary of an approved im m e d ia te relative visa petition. This failure alone supports the Board's denial of the m o tio n 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 f a ilu re in a footnote in their brief, stating, "Petitioner's second motion to reopen ... e rro n e o u sly 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, w h ile Petitioner Mohammed Bilal (son) is the beneficiary of an approved I-130 visa p e titio n ." See Petitioner's Brief, at 11 n.1.

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N e v e r th e l e ss , Shahid and Bilal argue that a pending immediate relative visa p e titio n is sufficient under the reasoning of Matter of Velarde-Pachecho, 23 I. & N. Dec. 2 5 3 (BIA 2002). See Petitioner's Brief, at 23-25. We do not agree. Matter of Velarde h e ld that a motion to reopen seeking adjustment of status based on a marriage entered into a f te r removal proceedings began may be granted notwithstanding the pendency of a visa p e titio n 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 m o tio n s to reopen filed after the 90-day deadline has passed, and pointedly explained that m o tio n s submitted after the 90-day period "present additional considerations regarding th e finality of proceedings." Id. at 256-57. Shahid's and Bilal's second motion to reopen w as not timely filed and thus Matter of Velarde does not apply. Accordingly, the Board's d e n ia l of the second motion to reopen on the ground that Shahid and Bilal could not show p r im a facie eligibility for adjustment of status without evidence of an approved visa p e titio n for Shahid was not an abuse of discretion. R e g a rd in g the bona fides of Shahid's marriage, materials which may d e m o n s tr a te that a marriage is bona fide include: (1) documentation showing joint o w n e rs h ip of property; (2) a lease showing joint tenancy of a common residence; (3) e v id e n c e of commingling of financial resources; (4) birth certificates of children born to th e petitioner and beneficiary; (5) affidavits of third parties having knowledge of the bona fid e s 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 th e 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, a n d certainly not clear and convincing evidence. What evidence he did submit did not fit in to 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 a c te d within its discretion in denying the second motion to reopen. F o r the foregoing reasons, we will deny the petition for review.

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