PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 08-3874
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MUHAMMAD SAEED MALIK,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
______
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A046-964-203)
Immigration Judge: Honorable Mirlande Tadal
______
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 23, 2011
Before: FISHER, HARDIMAN and GREENAWAY, Jr.,
Circuit Judges.
(Filed: October 4, 2011)
M. Anne Hannigan, Esq.
777 North Michigan Avenue, Suite 3009
Chicago, IL 60611
Gopal T. Kukreja, Esq.
147 West 35th Street, Suite 209
New York, NY 10001
Counsel for Petitioner
Thomas W. Hussey, Esq.
Daniel I. Smulow, Esq.
Paul F. Stone, Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Muhammad Saeed Malik seeks review of the decision
of the Board of Immigrations Appeals (“BIA”) sustaining his
removability from the United States. Malik argues the BIA
erred in affirming the decision of the Immigration Judge
(“IJ”) that he obtained a visa through a fraudulent marriage
2
and that 8 U.S.C. § 1256(a) did not bar the institution of
removal proceedings against him. We will dismiss the
petition for review.
I.
Malik is a native and citizen of Pakistan who entered
the United States in April 1999 as a legal permanent resident
(“LPR”) after receiving an IR-1 immigrant visa based on his
1996 marriage to Margarita Ramos, a United States citizen.
Malik and Ramos were divorced in 2000. In 2005, the
Department of Homeland Security (“DHS”) initiated removal
proceedings, charging Malik with being removable under 8
U.S.C. § 1227(a)(1)(A), for being inadmissible upon entry,
and under 8 U.S.C. § 1182(a)(6)(C)(i), as an alien who
attempted to procure a visa through fraud.
Before the IJ, Malik argued that 8 U.S.C. § 1256(a)
prohibited institution of removal proceedings against him
because more than five years had passed since his admission
to the United States in 1999. Additionally, he maintained that
his marriage to Ramos was legitimate. At the hearing before
the IJ, Malik, Ramos, Malik‟s brother, and his sister-in-law
testified that Malik and Ramos married on November 25,
1996, in Pakistan. Beyond that, however, their stories
diverged considerably. Malik claimed his relationship with
Ramos began by telephone and letters several months prior to
her arrival in Pakistan. Malik testified that Ramos intended to
marry him when she came to Pakistan, that the couple did
marry, and that they consummated their marriage. After
Ramos returned to the United States a few days later, Malik
testified that he stayed in contact with her by calling her at his
3
brother‟s house where she stayed at least twice a week.
Eventually, Malik secured a visa through the U.S. consulate
in Pakistan, with Ramos as his sponsor, and he arrived in the
United States. Shortly thereafter, Ramos informed Malik that
she was pregnant with another man‟s child and asked for a
divorce.
By contrast, Ramos testified that she traveled to
Pakistan with Malik‟s sister-in-law to help her babysit. She
stated that she and Malik were introduced to each other in
Pakistan, and that he mentioned marriage a few days before
she was going to leave. She decided to marry him because
she thought they could have a future together. Ramos,
however, testified that, after marrying, they did not
consummate their marriage and that Malik never contacted
her after she returned to the United States. Further, she
denied staying at Malik‟s brother‟s house. She explained that
she completed the visa petition for Malik because she wanted
to be with him, but abandoned her attempts to assist him after
he did not contact her. As a result, Ramos started seeing
another man, became pregnant, and gave birth in September
1998.
The IJ ruled that 8 U.S.C. § 1256(a) did not prevent
the institution of removal proceedings, and rejected Malik‟s
version of the events. The IJ concluded the marriage was
fraudulent because Malik and Ramos never intended to
4
establish a life together. The BIA affirmed,1 reasoning that 8
U.S.C. § 1256(a) did not apply to Malik because his status
was never adjusted to LPR. Malik filed this timely petition
for review.
II.
The BIA had jurisdiction pursuant to 8 C.F.R.
§ 1003.1(b)(3), and we have jurisdiction under 8 U.S.C.
§ 1252(a). We review the BIA‟s disposition and look to the
IJ‟s ruling only insofar as the BIA defers to it. Huang v. Att’y
Gen., 620 F.3d 372, 379 (3d Cir. 2010). We review the
BIA‟s legal conclusions de novo.2 Id. We defer to those
factual findings that are supported by substantial evidence,
and will reverse only “if no reasonable fact finder could make
1
On August 18, 2008, the BIA affirmed the IJ‟s
decision and rejected Malik‟s statute of limitations argument.
Following our decision in Garcia v. Attorney General, 553
F.3d 724 (3d Cir. 2009), which discussed the statute of
limitations in the context of removal proceedings, we granted
the Attorney General‟s unopposed motion to remand. On
remand, the BIA reaffirmed its prior decision on April 6,
2010.
2
The Attorney General‟s interpretation of the statute
of limitations in 8 U.S.C. § 1256(a) is not entitled to
deference under Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837 (1984). See Bamidele v. INS, 99
F.3d 557, 561-62 (3d Cir. 1996).
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that finding on the administrative record.” Dia v. Ashcroft,
353 F.3d 228, 249 (3d Cir. 2003).
III.
Malik advances two arguments in support of his
petition. First, he asserts that the five year statute of
limitations in 8 U.S.C. § 1256(a) bars the institution of
removal proceedings against him. Second, he maintains he
did not obtain his visa through fraud because his marriage to
Ramos was legitimate. We address each contention in turn.
A. Statute of Limitations
Under 8 U.S.C. § 1256(a):
If, at any time within five years after the status
of a person has been otherwise adjusted under
the provisions of section 1255 or 1259 of this
title or any other provision of law to that of an
alien lawfully admitted for permanent
residence, it shall appear to the satisfaction of
the Attorney General that the person was not in
fact eligible for such adjustment of status, the
Attorney General shall rescind the action taken
granting an adjustment of status to such person
and cancelling removal in the case of such
person if that occurred and the person shall
thereupon be subject to all provisions of this
chapter to the same extent as if the adjustment
of status had not been made.
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Malik claims that the terms “otherwise adjusted under . . . any
other provision of law” include an alien who was issued an
immigrant visa through the consular process and admitted to
the United States as an LPR. The Attorney General
acknowledges that Malik was an LPR for more than five
years prior to the commencement of removal proceedings, but
maintains that § 1256(a) does not apply because Malik
obtained his status through the consular process, not through
an adjustment of status.
Our resolution of this issue is informed by our
decisions in Bamidele v. INS, 99 F.3d 557 (3d Cir. 1996) and
Garcia v. Attorney General, 553 F.3d 724 (3d Cir. 2009). In
Bamidele, the petitioner‟s status was adjusted to LPR based
on his marriage to a U.S. citizen. 99 F.3d at 559. After he
was charged with being removable more than five years later
because he obtained the adjustment fraudulently, Bamidele
claimed that 8 U.S.C. § 1256(a) barred the institution of
removal proceedings. The Attorney General agreed § 1256(a)
proscribed an untimely rescission of an adjustment of status,
but insisted it did not bar removal proceedings based on fraud
in obtaining the adjustment of status. Rejecting this
argument, we determined that “the running of the limitation
period bars the rescission of Bamidele‟s permanent resident
status and, in the absence of the commission of any other
offense, thereby bars initiation of deportation proceedings[.]”
Id. at 563.
Subsequent to Bamidele, § 1256(a) was amended to
state that “[n]othing in this subsection shall require the
Attorney General to rescind the alien‟s status prior to
commencement of procedures to remove the alien.” 8 U.S.C.
7
§ 1256(a). In Garcia, an alien residing in the United States
received an adjustment of status to LPR, asserting that she
was an unmarried adult child of a U.S. citizen. 553 F.3d at
726. Later, DHS instituted removal proceedings when an
investigation revealed that the woman Garcia claimed to be
her mother was not, in fact, her mother. Because eight years
had passed since Garcia received her adjustment of status, she
asserted that § 1256(a) barred her removal. The Attorney
General responded that the amendment to § 1256(a) permitted
the institution of removal proceedings against Garcia. We
held that the statutory amendment did not impact the
operation of the five-year time limit to removal proceedings.
Reaffirming Bamidele, we determined that § 1256(a)
prohibits the institution of removal proceedings after five
years based on an alien‟s erroneously granted adjustment of
status.
The import of Garcia and Bamidele is that the time bar
in § 1256(a) applies to both rescission and removal
proceedings initiated based on a fraudulent adjustment of
status. These decisions, however, are distinguishable from
Malik‟s situation in a significant aspect: Malik never
received an adjustment of status. Rather, he obtained his LPR
status by receiving an immigrant visa through the consular
process. Historically, “immigrant status was predicated upon
the issuance of an immigrant visa, which could be obtained
only at U.S. consular offices abroad.” Landin-Molina v.
Holder, 580 F.3d 913, 915-16 (9th Cir. 2009). With the
enactment of 8 U.S.C. § 1255, however, Congress
“authorized a process – „adjustment of status‟ – whereby
certain aliens physically present in the United States could
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seek lawful permanent resident status without having to
depart this country.” Id. at 916. In this regard, there are two
distinct paths for an alien to obtain LPR status: (1) through
consular processing, 8 U.S.C. § 1201(a); and (2) through an
adjustment of status, 8 U.S.C. § 1255.
“The plain language of the statute is the „starting place
in our inquiry.‟” United States v. Introcaso, 506 F.3d 260,
264 (3d Cir. 2007) (quoting Staples v. United States, 511 U.S.
600, 605 (1994)). Section 1256(a) speaks of the Attorney
General‟s responsibility to take action on an erroneously
granted adjustment within five years if “the status of a person
has been otherwise adjusted under . . . any other provision of
law to that of an alien lawfully admitted for permanent
residence.” 8 U.S.C. § 1256(a) (emphasis added). Malik did
not obtain an adjustment of status to become an LPR.
Instead, he derived his LPR status through the process
described in 8 U.S.C. § 1201. Because § 1256(a) explicitly
discusses “adjustment of status,” the statute of limitations
does not apply to the institution of removal proceedings
where Malik did not obtain his LPR status in this manner.
Given that there is nothing in the statute to suggest its
applicability to proceedings against an alien who never
adjusted his status, Malik‟s argument fails.
B. Whether the Marriage was Fraudulent
Second, Malik argues that the BIA erred in affirming
the IJ‟s decision that he entered into a fraudulent marriage.
An alien bears the burden to establish that the marriage “was
not contracted for the purpose of evading any provisions of
the immigration laws.” 8 U.S.C. § 1227(a)(1)(G)(i). When
9
determining whether a marriage is fraudulent, we consider
whether the parties intended to establish a life together at the
time of marriage. See, e.g., Rodriguez v. INS, 204 F.3d 25, 27
(1st Cir. 2000); Bark v. INS, 511 F.2d 1200, 1201 (9th Cir.
1975); In re Soriano, 19 I. & N. Dec. 764, 765 (BIA 1988).
Post-marriage conduct may be relevant to resolving this issue,
insofar as it reveals the couple‟s state of mind at the time they
married. See Rodriguez, 204 F.3d at 27; Bark, 511 F.2d at
1202. In reviewing the BIA‟s affirmance of the IJ‟s decision,
we examine whether there was substantial evidence to sustain
the conclusion that Malik and Ramos did not intend to
establish a life together. Dia, 353 F.3d at 249.
We determine that substantial evidence supports the
finding that Malik and Ramos did not so intend. Even though
Malik and Ramos testified that they wanted to have a future
together, the IJ permissibly concluded that their post-marriage
conduct belied that assertion. The parties‟ testimony
conflicted on many crucial aspects. Ramos testified that
Malik never contacted her after she returned to the United
States. Conversely, Malik asserted that he communicated
with Ramos through letters and phone calls to his brother‟s
house. Malik‟s brother and sister-in-law corroborated this
testimony. Nevertheless, the IJ credited Ramos‟ testimony
because it found it problematic that Ramos was pregnant and
gave birth without Malik‟s brother or sister-in-law noticing,
given that she was supposedly in frequent contact with them.
Although Malik‟s brother and sister-in-law explained that
they were unaware of Ramos‟ pregnancy because she was
heavy set, they also admitted she was not so overweight that a
pregnancy would have been unnoticeable. To this end, the IJ
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concluded that Ramos never stayed with Malik‟s brother,
Malik did not contact Ramos during their separation, and the
lack of communication demonstrated that the couple did not
intend to establish a life together. The IJ‟s determination was
reasonable because it would have been difficult for Ramos to
have stayed with Malik‟s brother for two nights per week and
have her pregnancy and subsequent birth go undetected. As
such, a reasonable fact finder could conclude that the
marriage between Malik and Ramos was fraudulent. Id.
IV.
For the foregoing reasons, we will deny the petition for
review.
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