# Mohammed S. Shaikh v. U.S. Attorney General

> Court of Appeals for the Eleventh Circuit · May 23, 2017 · 688 F. App'x 804

URL: https://www.frixlaw.com/law-library/cases/4170975

## Case

- **Full name:** Mohammed S. SHAIKH, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** May 23, 2017
- **Citations:** 688 F. App'x 804
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Hull, Marcus, Jordan
- **Nature of suit:** NEW
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4170975

## How later opinions describe it (automated extraction)

- explaining that when an appellant fails to challenge one of the independent grounds supporting the judgment, he is deemed to have abandoned any challenge to that ground, and the judgment must be affirmed
- explaining that the no-contact provision in a protection order exists to prevent the victim from being victimized again, and violating a no-contact provision by attempting to call a spouse’s home rendered an alien removable under INA § 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E…
- concluding that the BIA’s interpretation of "lawfully admitted for permanent residence” in the INA raises a question of law, which this Court has jurisdiction to review under INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D)

## Opinion text

Case: 16-15160 Date Filed: 05/23/2017 Page: 1 of 20

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 16-15160
Non-Argument Calendar
________________________

Agency No. A095-163-516

MOHAMMED S. SHAIKH,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
________________________

(May 23, 2017)

Before HULL, MARCUS and JORDAN, Circuit Judges.

PER CURIAM:
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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.

I. BACKGROUND FACTS

A. VSG’s I-140 Visa Petition on Behalf of Shaikh

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 for

1
In March 2003, the functions of the former INS were transferred from the Department of
Justice to the newly formed Department of Homeland Security, which includes the United States
Citizenship and Immigration Services (“USCIS”), the agency that now handles visa petitions.
See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002).
2
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Worldres 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.

B. Shaikh’s Application for Adjustment of Status

2
In 2003 administrative proceedings before the Department of Labor, Shaikh sought
unpaid wages from VSG for the period between April 19, 2001 and August 26, 2002. Shaikh
testified before an ALJ that he had continued to work remotely for VSG while also working for
Worldres and Seisint. VSG’s chief executive officer, Visaw Mandalapu, testified that Shaikh did
not work for VSG after he resigned on April 18, 2001, and that Mandalapu agreed to seek an
extension of Shaikh’s H-1B visa in June 2001 only “for backup reasons” as a favor to Shaikh,
who was looking for employment. The ALJ credited Mandalapu’s testimony over Shaikh’s
testimony, found that Shaikh’s employment with VSG ended on April 18, 2001, and denied
Shaikh’s claim. On appeal, the Administrative Review Board dismissed Shaikh’s complaint with
prejudice.
3
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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.

C. VSG’s Letters to INS Withdrawing the I-140 Visa Petition

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.”

4
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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.

D. Shaikh’s Conviction for Violating a Domestic Violence Protection Order

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 other

3
In addition, between February and November 2003, VSG’s attorney also sent four letters
to the agency outlining the facts and requesting that the I-140 petition be revoked so that the
substitute employee could use the approved petition.
5
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things, 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

E. Removal Proceedings

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 been

4
In state post-conviction proceedings, Shaikh’s conviction was initially vacated, but then
reinstated on appeal. See State v. Shaikh, 65 So. 3d 539 (Fla. 5th Dist. Ct. App. 2011).
6
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convicted 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.

F. DHS Appeal and BIA Remand

7
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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.”

G. IJ’s Denial of Shaikh’s Request for Cancellation of Removal

Upon remand, the parties declined to present additional evidence, agreeing

the record was sufficient for the IJ to make a determination. The IJ issued a

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written 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

admitted for permanent residence.

H. Shaikh’s Appeal to the BIA

This time, Shaikh appealed to the BIA. Shaikh argued, among other things,

that: (1) he was not removable due to his violation of the domestic violence

injunction; and (2) VSG’s I-140 visa petition was not automatically revoked

because Shaikh had successfully ported the petition pursuant to INA § 204(j), 8

U.S.C. § 1154(j).

The BIA adopted and affirmed the IJ’s decision. The BIA concluded that

Shaikh’s challenge to his removability was barred by the law of the case doctrine

because the BIA had already affirmed that determination in the DHS’s 2014

appeal.

As to cancellation of removal, the BIA concluded that the IJ had not clearly

erred in his findings of fact, including the finding that the record indicated that the

I-140 visa petition was automatically revoked as of the day of its original approval.

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Thus, the BIA concluded that Shaikh was not in possession of an immediately

available immigrant visa when he applied to adjust his status. And, because he

was not lawfully admitted for permanent residency, he was ineligible for

cancellation of removal. Finally, the BIA noted that to the extent Shaikh raised

potential improprieties surrounding the revocation of his visa petition, those

matters were outside of the scope of the removal proceedings and needed to be

raised before the director of the United States Citizenship and Immigration Service

(“USCIS”), which issues and revokes visa petitions.

II. DISCUSSION

A. Shaikh’s Removability

When the IJ found in June 2010 that Shaikh was removable for violating the

no-contact provision of the domestic violence injunction, Shaikh did not appeal the

IJ’s order. Instead, the DHS appealed the IJ’s order, and the BIA affirmed the IJ’s

finding that Shaikh was removable, but vacated the IJ’s order granting Shaikh

cancellation of that removal. The BIA’s remand was for the limited purpose of

determining whether Shaikh was ineligible for cancellation of removal by virtue of

VSG’s undisputed withdrawal of the I-40 petition. Only after Shaikh lost on this

remand issue and the IJ concluded that he was not eligible for cancellation of

removal did Shaikh challenge the IJ’s 2010 finding that he was removable. The

BIA concluded Shaikh’s challenge came too late and that the doctrine of the law of

10
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the case foreclosed it from reconsidering the removability issue in Shaikh’s

subsequent BIA appeal.

Importantly, although Shaikh’s petition for review argues on the merits that

he is not removable, it does not challenge the BIA’s application of the law of the

case doctrine. Because Shaikh has abandoned this threshold legal issue, we have

no cause to address the merits of the IJ’s finding of removability. See Sapuppo v.

Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (explaining that

when an appellant fails to challenge one of the independent grounds supporting the

judgment, he is deemed to have abandoned any challenge to that ground, and the

judgment must be affirmed).

Even if we were to reach the merits, however, we would conclude that

substantial evidence supports the IJ’s finding, affirmed by the BIA, that Shaikh

was removable.5 The record shows—and Shaikh does not dispute—that in

December 2006, Shaikh was under a domestic violence injunction and that in

October 2007, he pled nolo contendere to violating the no-contact provision of that

injunction. It is immaterial that the circumstances of Shaikh’s violation of the

protection injunction did not involve an act or threat of violence; he was

nonetheless removable under INA § 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii),

5
We review findings of fact, including findings of removability, using the substantial
evidence test. Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004). Under that test,
we draw every reasonable inference from the evidence in favor of the agency’s decision and
reverse a finding of fact only if the record compels it. Id. at 1027.
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for violating the no-contact provision of that injunction. See INA

§ 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii) (providing that an alien is

removable from the United States if a court determines he has “violate[d] the

portion of a protection order that involves protection against credible threats of

violence, repeated harassment, or bodily injury to the person or persons for whom

the protection order was issued”); In re Strydom, 25 I. & N. Dec.507, 510 (BIA

2011) (explaining that the no-contact provision in a protection order exists to

prevent the victim from being victimized again, and violating a no-contact

provision by attempting to call a spouse’s home rendered an alien removable under

INA § 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii)). The state court documents

constitute substantial evidence supporting the finding that Shaikh was removable

under INA § 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii).

B. Cancellation of Removal

The IJ and the BIA concluded that Shaikh was statutorily ineligible for

cancellation of removal because he was not “lawfully admitted for permanent

residence.” More specifically, the IJ concluded, and the BIA agreed, that because

VSG automatically revoked its I-140 petition before Shaikh’s application of

adjustment of status was granted, he was not “lawfully admitted.” We agree. 6

6
While we lack jurisdiction to review the decision to grant or deny a request for
cancellation of removal under INA § 240A, 8 U.S.C. § 1229b, we nonetheless retain jurisdiction
to consider constitutional claims and questions of law. See INA § 242(a)(2)(B)(i), (a)(2)(D) 8
12
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Under INA § 240A, 8 U.S.C. § 1229b, the Attorney General may cancel

removal of an alien who is a permanent resident. INA § 240A(a), 8 U.S.C.

§ 1229b(a). Once the government proves that an alien is removable, the alien

bears the burden to show he is eligible for, and merits, such discretionary relief.

INA § 240(c)(4)(A), 8 U.S.C. § 1229a(c)(4)(A).

An alien who is a permanent resident is eligible for cancellation of removal

if the alien: “(1) has been lawfully admitted for permanent residence for not less

than five years, (2) has resided in the United States continuously for [seven] years

after having been admitted in any status, and (3) has not been convicted of an

aggravated felony.” INA § 240A(a)(1)-(3), 8 U.S.C. § 1229b(a)(1)-(3) (emphasis

added). “Lawfully admitted for permanent residence” is defined in the INA as

“having been lawfully accorded the privilege of residing permanently in the United

States as an immigrant in accordance with the immigration laws, such status not

having changed.” INA § 101(a)(20), 8 U.S.C. § 1101(a)(20). “‘Lawfully

admitted’ means more than admitted in a procedurally regular fashion[;] it means

more than that the right forms were stamped in the right places.” Savoury v. U.S.

U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D); Jimenez-Galicia v. U.S. Att’y Gen., 690 F.3d 1207, 1209 &
n.3, 1210-11 (11th Cir. 2012). Whether an alien was “lawfully admitted for permanent
residence” within the meaning of § 1229b(a)(1) is a question of law we review de novo. See
Bedoya-Melendez v. U.S. Att’y Gen., 680 F.3d 1321, 1324-25 (11th Cir. 2012); Savoury v. U.S.
Att’y Gen., 449 F.3d 1307, 1312 (11th Cir. 2006) (concluding that the BIA’s interpretation of
“lawfully admitted for permanent residence” in the INA raises a question of law, which this
Court has jurisdiction to review under INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D)). Where,
as here, the BIA adopts and affirms the IJ’s conclusion, we review both the IJ’s and the BIA’s
decisions. See Seck v. U.S. Att’y Gen., 663 F.3d 1356, 1364 (11th Cir. 2011).
13
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Att’y Gen., 449 F.3d 1307, 1317 (11th Cir. 2006). An alien is not lawfully

admitted for permanent residence if his status was “mistakenly adjusted to that of a

lawful permanent resident.” Reganit v. Sec’y, Dep’t of Homeland Sec., 814 F.3d

1253, 1257 (11th Cir. 2016).

One way an alien can be lawfully admitted for permanent residence is by

entering the United States as an immigrant worker and then adjusting his status.

This path to lawful permanent residence is a three-step process. Kurapati v. U.S.

Bureau of Citizenship & Immigration Servs., 775 F.3d 1255, 1258 (11th Cir.

2014). During the first two steps, the alien’s prospective U.S. employer files (1) an

application for a labor certification with the Department of Labor (“DOL”); and (2)

a Form I-140 immigrant worker visa petition with the USCIS. Id. If the I-140

petition is approved, then, at the third step, the alien files (3) a Form I-485

application for adjustment of status. Id. A worker may not file his I-485

application until a visa is immediately available, which is determined by the

priority date on the alien’s approved I-140 petition. INA §§ 203(e)(1), 245(a)(3), 8

U.S.C. §§ 1153(e)(1), 1255(a)(3); 8 C.F.R. §§ 204.5(d), 245.2(a)(2).

The Attorney General has discretion to adjust an alien’s status to lawful

permanent resident if: (1) the alien applies for such adjustment; (2) the alien is

eligible to receive an immigrant visa and is admissible to the United States for

permanent residence; and (3) an immigrant visa is immediately available to the

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alien at the time the application is filed. INA § 245(a), 8 U.S.C. § 1255(a)

(emphasis added). The burden is on the alien to show that he is eligible for

adjustment of status. Id. § 240(c)(2)(A), (4)(A)(i), 8 U.S.C. § 1229a(c)(2)(A),

(4)(a)(i); id. § 245(a), 8 U.S.C. § 1255(a).

However, an approved I-140 petition on behalf of alien worker can be

automatically revoked upon the petitioner-employer’s written notification. See 8

C.F.R. § 205.1(a)(3)(iii)(C). Revocation occurs “[u]pon written notice of

withdrawal filed by the petitioner . . . with any officer of the [USCIS] who is

authorized to grant or deny petitions,” so long as that written notice happens

“before the decision on [the alien’s] adjustment application becomes final.” 8

C.F.R. § 205.1(a)(3)(iii)(C) (2016). Further, if these conditions are met, the I-140

petition is deemed “revoked as of the date of approval.” Id. § 205.1(a).

Here the IJ and the BIA correctly concluded that Shaikh was ineligible for

cancellation of removal because he could not show he had been “lawfully admitted

for permanent residence” as that term is defined in the INA. This is so because

VSG automatically revoked the I-140 visa petition it had filed on Shaikh’s behalf

before Shaikh’s I-485 application for adjustment of status was approved on August

26, 2002. 7

7
The IJ and the BIA also correctly concluded that the IJ’s jurisdiction was limited to
determining whether the I-140 petition had been automatically revoked or remained valid
because Shaikh had met the portability requirements of INA § 204(j), 8 U.S.C. § 1154(j). See
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According to the record, VSG sent at least five letters notifying the former

INS in writing that it was withdrawing the I-140 petition filed on behalf of Shaikh

because Shaikh no longer worked for the company. At least one of these letters,

dated April 22, 2002, was stamped received by the INS on July 29, 2002, almost a

month before Shaikh’s application for adjustment of status was approved on

August 26, 2002. Because the I-140 petition was automatically revoked as of

August 2, 2001 (the date it was originally approved), Shaikh did not have an

immigrant visa immediately available to him on August 17, 2001, when he filed

his I-485 application for adjustment of status. In other words, Shaikh’s adjustment

of status on August 26, 2002, was the result of a mistake by the former INS and

thus he was never “lawfully admitted for permanent residence” within the meaning

of the INA. See INA § 101(a)(20), 8 U.S.C. § 1101(a)(20); Reganit, 814 F.3d at

1257; Savoury, 449 F.3d at 1317.

Shaikh argues that despite VSG’s withdrawing support for the I-140 petition,

that 2001 petition remained valid because he ported the petition to another

employer pursuant to INA § 204(j), 8 U.S.C. § 1154(j). Under § 204(j), 8 U.S.C.

Sung v. Keisler, 505 F.3d 372, 375-77 (5th Cir. 2007); Matovski v. Gonzales, 492 F.3d 722, 732-
37 (6th Cir. 2007); Perez-Vargas v. Gonzales, 478 F.3d 191, 194-95 (4th Cir. 2007); In re Neto,
25 I. & N. Dec. 169, 170 (BIA 2010). While an IJ conducting removal proceedings has
jurisdiction to rule on adjustment of status and cancellation of removal, see 8 C.F.R.
§§ 245.2(a)(2)(i), (a)(5)(ii), 1240.1(a), an IJ cannot approve or deny employment-based visa
petitions, which are within the jurisdiction of the USCIS, see 8 C.F.R. § 204.5. Thus, the IJ
could not address Shaikh’s arguments that the USCIS’s revocation of his petition was based on
VSG’s fraud.
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§ 1154(j), an employment-based petition “for an individual whose application for

adjustment of status . . . has been filed and remained unadjudicated for 180 days or

more shall remain valid with respect to a new job if the individual changes jobs or

employers if the new job is in the same or a similar occupational classification as

the job for which the petition was filed.” INA § 204(j), 8 U.S.C. § 1154(j); see

also 8 C.F.R. § 205.1(a)(3)(iii)(C) (2017). 8 The portability provision in § 204(j), 8

U.S.C. § 1154(j), was added to the INA in 2000 by section 106(c) of the American

Competitiveness in the Twenty-First Century Act (“AC21”). See Pub. L. No. 106-

313, 114 Stat. 1251 (Oct. 17, 2000). “Under the AC21, a worker no longer has to

remain with his sponsoring employer until his I-485 application is approved. In

effect, the worker’s new employer can use the previous employer’s labor

certification and I-140 petition to hire the worker (who is said to then ‘port’ to the

new employer), so long as the new job is in the same or similar occupational

classification as the previous one.” Musunuru v. Lynch, 831 F.3d 880, 884 (7th

Cir. 2016); see also Kurapiti, 775 F.3d at 1258 (“Approval of an I-140 visa petition

remains valid for beneficiaries with pending adjustment of status applications who

change jobs or employers if the adjustment of status application has remained

8
At the time of Shaikh’s removal proceedings, no regulations had yet been promulgated
to provide guidance on how to determine portability. While this appeal was pending, effective
January 17, 2017, portability language was added to the automatic revocation regulation. See 8
C.F.R. § 205.1(a)(3)(iii)(C) (2017). Even if we assume arguendo that the amended version of
§ 205.1(a)(3)(iii)(C) would apply retroactively, Shaikh could not show he met the requirements
for portability in § 204(j), 8 U.S.C. § 1154(j), for the reasons explained herein.
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unadjudicated for 180 days or more and the new job is in the same or a similar

occupational classification as the job for which the petition was filed.”). By

concluding that Shaikh failed to show he had an immediately available visa, the IJ

implicitly found that Skaikh failed to demonstrate portability of VSG’s I-140

petition.

This Court has not yet addressed whether the portability provision in

§ 204(j), 8 U.S.C. § 1154(j), sustains the validity of an approved I-140 petition

when an employer withdraws the petition more than 180 days after an alien has

submitted his application for adjustment of status.9 We need not resolve that

question here, however, because even assuming arguendo that an otherwise

automatically revoked I-140 petition can remain valid under INA § 204(j), 8

U.S.C. § 1154(j), Shaikh did not show he successfully ported his I-140 petition to a

new employer or job. Indeed, Shaikh did not provide any evidence that he had a

new employer when VSG withdrew the I-140 petition or when his status was

adjusted. See INA § 204(j), 8 U.S.C. § 1154(j).

There is evidence in the record that Shaikh briefly worked for Worldres and

Seisint, Inc. after his April 18, 2001 resignation from VSG and prior to his

9
Shaikh’s I-485 application for adjustment of status was filed on August 17, 2001, and
was pending for 180 days as of February 13, 2002. Although VSG sent letters to the INS
withdrawing the approved I-140 petition as early as November 2001, we need rely on only the
April 22, 2002 letter, which was stamped received by the INS on July 29, 2002, and was thus
received by the INS before action on the application for adjustment of status on August 26, 2002.
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adjustment of status. However, he worked for those two employers for only three

weeks in April 2001 (Worldres) and four to six weeks in July or August 2001

(Seisint), respectively. Because it is undisputed that Shaikh was not employed by

either of these companies in 2002 when VSG withdrew its I-140 petition and

Shaikh’s status was adjusted, neither job could have served as the basis to port

VSG’s I-140 petition under INA § 204(j), 8 U.S.C. § 1154(j). Simply put, Shaikh

needed to obtain new and qualifying employment in order to be eligible to adjust

his status after VSG withdrew its I-140 petition, but there is no evidence that he

did so.

Finally, we reject Shaikh’s argument that the IJ’s and the BIA’s reliance on

VSG’s letters to deny him cancellation of removal violated evidentiary rules and

his due process rights. The Federal Rules of Evidence do not apply to immigration

proceedings. Garces v. U.S. Att’y Gen., 611 F.3d 1337, 1347 (11th Cir. 2010). To

safeguard due process, the INA provides that an alien in removal proceedings shall

have a reasonable opportunity to examine the evidence against him, present his

own evidence, and cross-examine any government witnesses. See INA

§ 240(b)(4)(B), 8 U.S.C. § 1229a(b)(4)(B). As the government submitted the

letters to the immigration court on July 30, 2009, Shaikh had ample opportunity to

examine the letters before his June 2010 removal hearing. Apart from conclusory

allegations that the letters were fraudulent, Shaikh offered no evidence to suggest

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that they were unreliable. In fact, to the extent Shaikh agrees he submitted his

resignation to VSG on April 18, 2001, the letters appear to be reliable.

In any event, to establish a due process violation, an alien in removal

proceedings must show, inter alia, the deprivation of a liberty interest. Lapaix v.

U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010). We have repeatedly held

that an alien does not have a constitutionally protected liberty interest in a purely

discretionary form of relief, such as cancellation of removal. See Alhuay v. U.S.

Att’y Gen., 661 F.3d 534, 548-49 (11th Cir. 2011) (cancellation of removal);

Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008) (adjustment of

status); Garcia v. Att’y Gen., 329 F.3d 1217, 1223-24 (11th Cir. 2003) (§ 212(h)

waiver); Mohammed v. Ashcroft, 261 F.3d 1244, 1251 (11th Cir. 2001)

(cancellation of removal). Thus, Shaikh cannot show a due process violation with

respect to the denial of his request for cancellation of removal.

In sum, Shaikh had the burden to show he was eligible for cancellation of

removal, yet he failed to provide evidence to the IJ that the I-140 petition VSG

filed on his behalf remained valid when his status was adjusted. For these reasons,

the IJ and the BIA did not err in concluding that Shaikh was not lawfully admitted

for permanent residence and therefore was statutorily ineligible for cancellation of

removal.

PETITION DENIED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4170975. Public record. Not legal advice.