Shaikh v. U.S. Attorney Gen.
| Decision Date | 23 May 2017 |
| Docket Number | No. 16-15160,16-15160 |
| Parties | MOHAMMED S. SHAIKH, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Non-Argument Calendar
Petition for Review of a Decision of the Board of Immigration Appeals
Before HULL, MARCUS and JORDAN, Circuit Judges.
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.
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 forWorldres 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.
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.
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."
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.
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 otherthings, 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
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 beenconvicted 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.
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."
Upon remand, the parties declined to present additional evidence, agreeing the record was sufficient for the IJ to make a determination. The IJ issued awritten 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...
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