Mohammad Kashem v. Eric Holder, Jr, U S Attorney

Filing 920091030

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 30, 2009 N o . 09-60146 S u m m a r y Calendar Charles R. Fulbruge III Clerk

M O H A M M A D A. KASHEM, P e titio n e r v. E R IC H. HOLDER, JR., U.S. ATTORNEY GENERAL, R esp on d en t

P e tit io n for Review of an Order of the B o a r d of Immigration Appeals B I A No. A097-676-497

B e fo r e HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges. P E R CURIAM:* M o h a m m a d Kashem has filed a petition for review of a Board of I m m ig r a t io n Appeals ("BIA") decision affirming the denial of Kashem's request fo r a continuance. He alleges that the Immigration Judge ("IJ"), sustained by t h e BIA, committed an abuse of discretion by refusing to continue Kashem's r e m o v a l proceedings until a pending I-130 visa petition could be adjudicated. W e find no error. Accordingly, the petition for review is DENIED.

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

No. 09-60146

BACKGROUND A. I n i tia l Proceedings M o h a m m a d Kashem, a native of Bangladesh, was admitted to the United S t a t e s in August 2001 as a non-immigrant student to attend Bellevue University in Nebraska. He was authorized to remain in the United States for the duration o f his student status. However, after earning his degree in June 2004, Kashem r e m a in e d in the country without authorization. O n October 6, 2005, the Department of Homeland Security issued an a r r e s t warrant and a Notice to Appear, which charged Kashem with r e m o v a b ilit y as an alien present in violation of the law and with failing to c o m p ly with the conditions of the non-immigrant status under which he had b e e n admitted. Kashem was taken into custody the same day and released on b o n d on October 14, 2005. During a hearing before the IJ on October 20, 2005, Kashem admitted the fa c t u a l allegations in the Notice to Appear and conceded removability. However, K a s h e m requested adjustment of status based on his July 24, 2004 marriage to S h a s h o n d e Gunnels, a United States citizen. Although they had been married f o r nearly fifteen months at the time of the hearing, Gunnels did not file an I1 3 0 1 visa petition on Kashem's behalf until the day before the hearing, October 1 9 , 2005. The IJ sua sponte continued the hearing for one month to permit K a s h e m to submit evidence demonstrating that his marriage was bona fide.

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An I-130 visa petition, also known as a Petition for Alien Relative, is filed by a United States citizen or permanent resident on behalf of an alien relative. The petition is only approved after verifying that the claimed familial relationship is bona fide. See 8 C.F.R. 204.2(a).

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No. 09-60146 W h e n the hearing resumed on November 29, 2005, Kashem presented the fo llo w in g evidence in support of his claim that his marriage to Gunnels was bona fid e : a copy of the I-130 visa petition and receipt notice; a copy of their marriage lic e n s e and 2004 tax returns filed as a married couple; a lease agreement; bank a n d electricity statements; and family photos, including photos from their w e d d in g . In addition, Kashem, Gunnels, and several members of Gunnels's fa m ily testified on Kashem's behalf. Two Immigration and Customs

E n fo r c e m e n t ("ICE") officers who had been assigned to investigate Kashem's im m ig r a t io n status testified for the government. A t the conclusion of the hearing, the IJ issued an oral decision finding K a s h e m removable on the charges in the Notice to Appear. In addition,

K a s h e m 's motion for a continuance to await adjudication of the pending I-130 v is a petition was denied. In denying a continuance, the IJ relied on Matter of V e la r d e , 23 I. & N. Dec. 253 (BIA 2002) and found that Kashem failed to e s ta b l is h that his marriage was bona fide by clear and convincing evidence. F in a l l y , the IJ denied Kashem's request for voluntary departure, and ordered h im removed to Bangladesh. O n April 13, 2007, the BIA held that the IJ erroneously relied on Matter o f Velarde when determining whether to grant Kashem's continuance request. T h e BIA explained that since Kashem entered into marriage prior to the removal p r o c e e d in g s , he was exempt from complying with the requirements outlined in M a tte r of Velarde, including the requirement that he establish that his marriage w a s bona fide by clear and convincing evidence. Accordingly, this matter was r e m a n d e d to the IJ to determine whether Kashem's I-130 visa permit was prima fa c ie approvable. B. P r o ce e d i n g s After Remand to Immigration Judge

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No. 09-60146 O n remand to the IJ, Kashem was ordered to submit evidence d e m o n s t r a t in g the bona fides of his marriage prior to a September 21, 2007 h e a r in g . Accordingly, Kashem submitted documentary evidence similar to that w h ic h he provided prior to the November 2005 hearing. A t the start of the September 21, 2007 hearing, Kashem's new attorney m a d e her first appearance. She advised the court that she did not plan to call a n y witnesses and indicated that she did not object to the documentary evidence s u b m it t e d to the court by Kashem's previous attorney. The government then s u b m it t e d a Notice of Intent to Deny Visa Petition ("NOID") issued three days e a rlie r by the Director of the Dallas Field Office, United States Citizenship and I m m ig r a t io n Services ("USCIS"). Kashem's attorney said she had no objection t o admitting the NOID into evidence. T h e NOID was a three-page letter that first summarized the procedure t h a t had been followed, including that Kashem and Gunnels were interviewed. T h e letter listed what the USCIS considered to be significant discrepancies b e t w e e n the answers Kashem and Gunnels gave about their shared lives. The d iffe r e n c e s convinced the USCIS that it was unlikely the couple was actually liv in g together as each asserted. Included on the list were these matters: (1 ) Gunnels stated that her younger son sees his biological father a lm o s t daily. Kashem claimed the biological father does not see the y o u n g e r son at all. (2 ) Gunnels stated that her older son has an on-going relationship w i t h his biological father and visited him for a month in Arizona d u r in g 2006. Kashem claimed the biological father has no r e la tio n s h ip with the older son. (3 ) Gunnels stated that they do not use birth control because she h a d received a birth control shot. Kashem claimed the couple used condom s. 4

No. 09-60146 (4 ) Gunnels did not know Kashem was Muslim, where he attended c o lle g e , what field he earned his Bachelor's and Master's degrees in, t h e names or ethnic background of Kashem's parents, or the name o f the country where his parents reside. After highlighting these and other discrepancies, the letter informed G u n n e ls that the USCIS concluded that "you and your spouse entered into this m a r r ia g e by fraud with the sole intention of evading immigration laws to obtain a n immigration benefit." The USCIS said it intended to deny the I-130 visa p e tit io n , but that a final decision would not be made for thirty days. The delay w a s to allow Gunnels an opportunity to submit any evidence she believed would r e b u t the reasons for denial stated in the letter. K a s h e m alleges that prior to the hearing, neither he nor Gunnels had been p r o v id e d with a copy of the NOID. They were unaware that one had even been issu e d . Although both were present at the hearing, neither Kashem nor Gunnels p r o v id e d any testimony to rebut the allegations in the NOID. A t the conclusion of the hearing, the IJ issued an oral decision in which he fo u n d that Kashem "has failed to meet his burden of proof that his visa petition is prima facie approvable." The IJ further explained: in light of the notice of intent to deny the visa Petition . . . and the in fo r m a t io n obtained herein which has not been rebutted or refuted b y the respondent or the petitioner today, the Court finds that no g o o d cause has been established to continue this matter and t h e r e fo r e , the continuance is denied. A ft e r denying Kashem's request for a continuance to await the final adjudication o f the I-130 visa petition, the IJ ordered Kashem removed from the United S ta te s to Bangladesh. On February 5, 2009, the BIA dismissed Kashem's appeal. The BIA found K a s h e m 's evidence in support of the prima facie approvability of the visa petition 5

No. 09-60146 t o be countered by the NOID. The allegations in the NOID "directly affected the e v id e n t ia r y weight of [Kashem's] documents." The BIA also stated that even

t h o u g h Kashem's failure to testify did not preclude him from establishing that h is marriage was bona fide, his failure to dispute the allegations in the NOID w a s "highly significant." Finally, the BIA concluded that Kashem "has not s h o w n that his marriage is bona fide and that his wife's visa petition is prima f a c i e approvable." All of this meant that the IJ did not need to grant a

c o n tin u a n c e because there was no good cause shown. D IS C U S S IO N T h e only issue in this petition for review is whether the BIA improperly fa ile d to overturn the refusal of the IJ to grant a continuance in order to await a resolution of the I-130. Two different arguments are made. One is that it was e r r o r to rely on the NOID as evidence. The other argument is that good cause fo r the continuance was shown. We review a decision to deny a continuance of a removal proceeding for a b u s e of discretion. Masih v. Mukasey, 536 F.3d 370, 373 (5th Cir. 2008). A lt h o u g h we only have authority to review the BIA's decision, "we may consider t h e IJ's decision to the extent that it influenced the BIA." Id. An alien properly admitted into the United States who later becomes s u b je c t to removal based on a failure to maintain his nonimmigrant status may b e eligible for an adjustment of status. Bolvito v. Mukasey, 527 F.3d 428, 431 (5 th Cir. 2008). The only eligibility criterion challenged here is that an

im m ig r a n t visa must be immediately available when the application for a d ju s t m e n t of status is filed. 8 C.F.R. § 245 (a)(3). When a previously admitted a lie n seeks adjustment of status based on marriage to a United States citizen, a n approved I-130 visa petition satisfies the requirement that a visa be

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No. 09-60146 im m e d ia te ly available. INS v. Miranda, 459 U.S. 14, 15 (1982). Once an I-130 v i s a petition is approved, the alien can apply for status adjustment pursuant to 8 U.S.C. § 1255(a). In re Hashmi, 24 I. & N. Dec. 785, 789 (BIA 2009). Although an IJ has discretion in deciding whether there is good cause for a continuance of a removal proceeding, a continuance generally should be o r d e r e d if it is shown that a "prima facie approvable" I-130 immigration visa p e t it io n has been properly presented to the USCIS but no order has been e n te r e d . Hing Chuen Wu v. Holder, 571 F.3d 467, 469 (5th Cir. 2009). The alien b e a r s the burden of demonstrating prima facie approvability. Id. K a s h e m claims that the pending I-130 visa petition remained prima facie a p p r o v a b le at the time of the September 21, 2009 hearing, because no final d e n ia l had been issued. Under that premise, Kashem contends that he

d e m o n s t r a t e d good cause for the continuance, and that the IJ abused his d is c r e t io n by denying this request. W h e n assessing whether a continuance should be granted to await the f i n a l adjudication of a pending visa petition, "the focus of the inquiry is the a p p a r e n t ultimate likelihood of success on the adjustment application," and "it is useful for the Immigration Judge to evaluate the viability of the underlying I -1 3 0 ." In re Hashmi, 24 I. & N. Dec. at 790-91. Here, the record shows that the I J did focus on the viability of the I-130. An I-130 visa petition cannot be a p p r o v e d if the marriage supporting the petition was entered for the purpose of e v a d in g the immigration laws. 8 U.S.C. § 1154(c); 8 C.F.R. § 204.2(a)(1)(i)(C)(ii). T h u s , the USCIS's conclusion that Kashem entered into the marriage "by fraud w it h the sole intention of evading immigration laws to obtain an immigration b e n e fit " is evidence that the I-130 visa petition was not likely to be approved.

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No. 09-60146 T h o u g h a NOID is not the equivalent of a final denial from USCIS, the e v id e n c e it provides to the IJ is relevant in deciding whether a I-130 visa petition is prima facie approvable. The NOID was properly admitted into evidence w it h o u t objection. The IJ weighed this evidence against the documentary e v id e n c e submitted by Kashem. a lle g a tio n s in the NOID. Kashem did not attempt to rebut the

Viewing this evidence as a whole, we find that

s u b s ta n t ia l evidence supported the IJ's finding that the pending I-130 visa p e tit io n was not prima facie approvable. Kashem was the party seeking a continuance and therefore had the b u r d e n of demonstrating good cause. Ramchandani v. Gonzales, 434 F.3d 337, 3 3 8 (5th Cir. 2005). The IJ was entitled to find that the I-130 visa petition was n o t prima facie approvable. Accordingly, the IJ did not abuse his discretion by fin d i n g no good cause for a continuance. F in a lly , Kashem claims that he was unfairly required to respond to the a lle g a t io n s in the NOID during the September 21, 2007 hearing, despite the fact t h a t he only became aware of the NOID's existence when the government a d m it t e d it into evidence. This seems to be a claim that the IJ violated his due p r o c e s s rights. Kashem's attorney made no objection when the NOID was a d m it t e d . He did not, for example, request a continuance for the purpose of r e s p o n d in g to the allegations contained in the NOID.2 Not having objected at t h e time to the process being followed, Kashem cannot now claim that his due p r o c e s s rights were violated. See Bolvito, 527 F.3d at 438. T h e petition for review is DENIED.

This request for a continuance would have been different from Kashem's request for a continuance to await final adjudication of the I-130 visa petition.

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