Court: Court of Appeals for the Third Circuit; June 3, 2010; Federal Appellate Court
Petitioners Mohammad Shahid and his son Mohammad Bilal, citizens of Pakistan, illegally entered the U.S. in November 2000 and were issued Notices to Appear by the former Immigration and Naturalization Service for removal under INA § 212(a)(6)(A) for being present without admission. Shahid married U.S. citizen La-keysha Y. Thomas in April 2001, who filed visa petitions for them before the LIFE Act deadline. These petitions were approved in November 2001. Shahid divorced Thomas in April 2002 and married lawful permanent resident Bal-bir Kaur shortly thereafter. Kaur filed new visa petitions for Shahid and Bilal in July 2002. In April 2006, Shahid applied for asylum due to a fear of persecution in Pakistan, which was denied by an Immigration Judge, subsequently affirmed by the Board of Immigration Appeals (BIA) in October 2007. Shahid and Bilal filed a motion to reopen with the BIA in November 2007, citing the approved visa petitions and requesting adjustment of status. The BIA denied the motion in April 2008, citing procedural failures, including the lack of a required adjustment status application and failure to demonstrate eligibility for adjustment due to their initial illegal entry.
On January 7, 2009, Shahid and Bilal, now with different legal representation, submitted a second motion to reopen their immigration case, alleging ineffective assistance from their former attorney, Dominick S. Cardinale, who had helped with their first motion. The motion included evidence such as visa petition receipts and approvals for Shahid and Bilal, along with an affidavit from Shahid and his adjustment of status application. On July 17, 2009, the Board denied their second motion, finding it both untimely, as it was filed over 90 days after the Board's final decision, and barred due to the lack of evidence showing the approval of the visa petition for Shahid. The Board noted insufficient proof of the legitimacy of Shahid's marriage to the petitioner, Ms. Kaur, which hindered his eligibility for discretionary relief. Following this, Shahid and Bilal filed a timely petition for review. The reviewing authority has jurisdiction under 8 U.S.C. 1252 and reviews the denial of the motion for abuse of discretion. The Supreme Court highlights that motions to reopen are generally disfavored, and the Board's decisions are upheld unless found arbitrary or contrary to law. Shahid and Bilal's motion was rejected as it was filed well beyond the 90-day limit, with no applicable exceptions, confirming that the Board did not abuse its discretion in its denial.
Shahid and Bilal argue that the Board made an error by not recognizing that ineffective assistance from their previous attorney affected their ability to demonstrate prima facie eligibility for adjustment of status. While attorney conduct can justify equitable tolling of the ninety-day deadline for motions to reopen, their second motion failed to provide sufficient evidence for eligibility. To qualify for adjustment of status, applicants must be eligible for an immigrant visa, admissible for permanent residency, and have an immediately available visa upon application, as outlined in INA § 245(a) and 8 U.S.C. § 1255(a).
Shahid and Bilal, due to their illegal entry, could only adjust status under INA § 245(i) if they had a visa petition filed before April 30, 2001, which was approvable when filed. Furthermore, Shahid's marriage after the initiation of removal proceedings requires proof of its bona fide nature for eligibility (8 C.F.R. § 1245.1). They needed to show they were beneficiaries of approved I-130 petitions with current priority dates and that Shahid's marriage to Kaur was genuine.
The Board found that Shahid and Bilal did not provide evidence showing Shahid was a beneficiary of an approved visa petition, which alone justified the denial of their motion to reopen. They acknowledged this evidentiary shortcoming, clarifying that Shahid has a pending I-130 petition while Bilal has an approved one. They claimed a pending petition suffices based on Matter of Velarde-Pacheco, but this case does not apply since their second motion was untimely filed. The Board's denial of their motion was therefore not an abuse of discretion, as they could not establish prima facie eligibility without evidence of an approved visa petition for Shahid.
To establish the bona fides of Shahid's marriage, various forms of evidence may be considered, including joint property ownership, joint tenancy leases, evidence of financial commingling, birth certificates of children from the marriage, affidavits from third parties, and any other relevant documentation that demonstrates the marriage was legitimate rather than an attempt to circumvent U.S. immigration laws (8 C.F.R. 204.2(a)(1)(i)(B)). The Board found Shahid's evidence in his second motion to reopen insufficient, as it did not meet the clear and convincing standard or fit the suggested categories of proof. Consequently, the Board exercised its discretion to deny the motion.
The Legal Immigration Family Equity (LIFE) Act Amendments, enacted on December 21, 2000, modified eligibility criteria for status adjustment for certain individuals present in the U.S. without admission or parole, establishing a new cut-off date of April 30, 2001 (Khan v. Att’y Gen. of U.S., 448 F.3d 226, 229 (3d Cir.2006)). Beneficiaries of visa petitions filed by this date could adjust their status under INA section 245(i) if they were physically present on the enactment date and paid a $1,000 fee (INA 245(i)(1)(B), 8 U.S.C. 1255(i)(1)(B)). However, Ms. Kaur's petitions for Shahid and her child Bilal were submitted after this deadline, although this did not influence the Board's eligibility determination under INA 245(i). The petition's disposition does not require further examination of whether Shahid and Bilal might be "grandfathered in" under previous filings by Ms. Thomas. Bilal did not claim independent eligibility for status adjustment based on Ms. Kaur's petition, as she is not his biological mother.
