Mizanur Sikder v. William P. Barr ( 2019 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 19a0222n.06
No. 18-3567
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
MIZANUR RAHMAN SIKDER, ) Apr 29, 2019
) DEBORAH S. HUNT, Clerk
Petitioner, )
)
v. ) ON PETITION FOR REVIEW
) FROM THE UNITED STATES
WILLIAM P. BARR, Attorney General, ) BOARD OF IMMIGRATION
) APPEALS
Respondent. )
)
BEFORE: SUHRHEINRICH, THAPAR, and LARSEN, Circuit Judges.
SUHRHEINRICH, Circuit Judge. Mizanur Rahman Sikder is a native and citizen of
Bangladesh. He came to the United States as a temporary worker in November 1991 and became
a conditional permanent resident in August 2008 after his marriage to a United States citizen. An
Immigration Judge (“IJ”) ordered him to be removed from the country because the marriage was
a sham. The Board of Immigration Appeals adopted the IJ’s decision and dismissed Sikder’s
appeal. We DENY Sikder’s petition for review of those decisions.
I.
Sikder and Mokhlesina Lebu (“Ms. Lebu”), a United States citizen, were married from
May 14, 2007 to February 23, 2010. Based on their marriage, Sikder received conditional
permanent resident status in August 2008. However, in October 2009, Ms. Lebu reported Sikder
to Citizenship & Immigration Officer Stephen Lewis after she became suspicious that her marriage
was a sham.
No. 18-3567, Sikder v. Barr
Ms. Lebu explained to Officer Lewis that she first contacted Sikder after seeing an ad in a
Bengali newspaper about a man looking for a wife. They began their relationship over the phone
while Ms. Lebu lived in Michigan and Sikder lived in New York. They were married in Michigan,
but Sikder stayed with Ms. Lebu for only two or three days after their wedding, and then returned
to New York while Ms. Lebu remained in Michigan. Sikder would return every month or so and
stay for two or three days at a time. Ms. Lebu’s suspicions arose in April 2009 when Sikder failed
to come home to take care of her after she suffered injuries in a car accident that required her to
be bedridden for four months. She traced his phone number to an address on Elmhurst Avenue in
New York, different than the address he had given her. She sent a friend to New York to
investigate, and the friend reported that Sikder was living in an apartment at the Elmhurst Avenue
address with another woman. Ms. Lebu believed Sikder was living with Rafeza Parveen, his ex-
wife from Bangladesh. She was right.
Officer Lewis ordered CIS officials in New York to conduct a site visit to the Elmhurst
Avenue apartment, where they found Parveen living with her son, Ziaur Rahman. Rahman told
the United States Citizenship and Immigration Services (“USCIS”) officials that Sikder was his
father, and there was a framed picture of Sikder on the wall. A worker in the management office
and the building superintendent both confirmed that Sikder was living with Parveen and Rahman.
Four-and-a-half months after Ms. Lebu’s report to Officer Lewis, she and Sikder were
divorced. Despite the divorce, Sikder filed a Form I-751 petition to remove the conditions on his
residence. The government detected many problems in Sikder’s I-751 petition, including
inconsistent dates regarding his prior marriage to Rafeza Parveen; inconsistent stories about the
paternity of Parveen’s son, Ziaur Rahman; and evidence that Sikder was still living with Parveen
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in New York while married to Ms. Lebu. Therefore, the government found that Sikder had married
Ms. Lebu solely for immigration benefits and denied his I-751 petition.
The government classified Sikder as removable on two grounds: (1) under 8 U.S.C.
§ 1227(a)(1)(D)(i), because his conditional permanent resident status had been terminated, and
(2) under 8 U.S.C. § 1227(a)(1)(G)(i), because he procured his conditional permanent resident
status through marriage fraud. Sikder eventually appeared before an IJ, where he requested a
second review of his I-751 petition, a fraud waiver under 8 U.S.C. § 1227(a)(1)(H), and, in the
alternative, cancellation of removal under 8 U.S.C. § 1229b(1) based on his new marriage to Polly
Gosh.1 All of his requested relief turned on whether his marriage to Ms. Lebu was a sham. The
IJ heard testimony from four people—Ms. Lebu, Sikder, Officer Lewis, and Ratan Barua (a family
friend). The IJ also considered extensive documentary evidence.
The IJ found Ms. Lebu to be a credible witness. Her testimony mirrored the statement she
gave to Officer Lewis in October 2009. Ms. Lebu testified that, although she initially believed her
marriage to Sikder to be legitimate, Sikder’s behavior changed her mind. For example, Ms. Lebu
testified that Sikder spent less than fifty days total with her over the three years they were married,
with the bulk of that time coming during Sikder’s green card interview. Sikder gave Ms. Lebu a
fake home address in New York and never provided Ms. Lebu with financial support. He did not
visit Ms. Lebu until three months after her injury, and that was only to pick up his green card. And
when Sikder got word that Ms. Lebu was going to report him to immigration officials, he
threatened to post a naked picture of Ms. Lebu online.
In contrast, the IJ determined that Sikder was not a credible witness. The IJ found that
Sikder “was evasive throughout his testimony, even in response to the most basic of questions.”
1
Eight months after his divorce from Ms. Lebu, Sikder married Polly Gosh in New York.
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The IJ also found certain aspects of Sikder’s story to be embellished and implausible. For example,
Sikder testified that he lived in New York because he could not find work in Michigan. Sikder
also testified that Ms. Lebu was angry with him after her accident and demanded that he buy her a
car and a house. Sikder testified that when he could not, Ms. Lebu kicked him, even though she
was on bed rest at the time.
The IJ also found that Sikder gave false testimony because his story was inconsistent with
testimony from other witnesses and the documents Sikder submitted in various applications. His
marriage to Parveen, for example: Sikder testified that he and Parveen were married in Bangladesh
in 1988, and that Parveen filed for divorce. Sikder testified that he and Parveen were officially
divorced on November 19, 1996, but he did not know about the divorce (even though he was living
with Parveen) until he received the divorce documents in 1998. Sikder’s divorce decree from
Bangladesh told a different story. It states that Sikder married Parveen in 1980, that Sikder
initiated the divorce, and that he was present for the divorce proceedings. The IJ cited another
example: Sikder’s residence at Elmhurst Avenue. Sikder testified that he lived with Parveen at the
Elmhurst Avenue apartment until 1998 but returned periodically thereafter to pick up his mail.
However, his application to adjust status states that he lived at Elmhurst Avenue until 2007, and
two building employees told immigration officials that Sikder still lived in the building as of 2009.
A third example: Sikder’s paternity. Sikder testified that Ziaur Rahman is his stepson, yet listed
him as his son on his application to be a conditional permanent resident. This also contradicted
Rahman’s statement to immigration officials that Sikder was his father.
The remaining testimony was brief. Officer Lewis testified only to corroborate Ms. Lebu’s
story about her report in October 2009. Barua testified about his relationship with Ms. Lebu and
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Sikder. The IJ found Barua to be credible, but that his testimony was of limited probative value
because it was speculative as he did not interact often with the couple.
After reviewing the testimony and evidence, the IJ stated that it was likely Sikder was still
living with Parveen while he was married to Ms. Lebu and determined that Sikder did not enter
his marriage with Ms. Lebu in good faith. Accordingly, the IJ sustained the denial of Sikder’s
I- 751 petition and the charges of removability. The IJ declined to reach the issue of marriage
fraud waiver, but explained that even if the IJ could waive marriage fraud, she would not because
Sikder lied under oath and threatened to blackmail Ms. Lebu. Finally, the IJ pretermitted Sikder’s
application for cancellation of removal because he gave false testimony and therefore could not
prove he was a person of good moral character.
The Board adopted and affirmed the IJ’s decision in full. Upholding the adverse credibility
finding as to Sikder, the Board cited the implausibility in Sikder’s testimony that he could not find
work in Michigan and in his testimony that Ms. Lebu kicked him while she was on bedrest
following her accident in April 2009. The Board also referenced the inconsistencies between
Sikder’s testimony, his divorce documents with Parveen, and his immigration applications.
Finally, the Board found that Sikder failed to explain why three different people identified him as
living with Parveen in New York while he was married to Ms. Lebu.
II.
Sikder petitions for review of the IJ’s decision, which the BIA adopted. “When the BIA
adopts the IJ’s reasoning and supplements the IJ’s opinion, that opinion, as supplemented by the
BIA, becomes the basis for review.” Slyusar v. Holder, 740 F.3d 1068, 1072 (6th Cir. 2014)
(quoting Zhao v. Holder, 569 F.3d 238, 246 (6th Cir. 2009)). Thus, we review the IJ’s decision
directly and consider any additional comments from the BIA. Id.
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A. Adverse Credibility Determination
Sikder bears the burden to prove he should not be removed. 8 U.S.C. § 1229a(c)(4). The
IJ’s adverse credibility determination is his primary obstacle because “[a]n adverse credibility
determination is fatal to claims for . . . relief from removal, preventing such claims from being
considered on their merits.” Slyusar, 740 F.3d at 1072 (citation omitted). When assessing the
credibility of a witness, an IJ may consider the witness’s “demeanor, candor, or responsiveness,”
the plausibility and consistency of the witness’s story both internally and when compared with
other evidence, and any inaccuracies or falsehoods, “without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the applicant’s claim.” § 1229a(c)(4)(C). We review
credibility determinations under the substantial evidence standard and will uphold the
determination “as long as it is supported by reasonable, substantial, and probative evidence on the
record considered as a whole.” Bi Qing Zheng v. Lynch, 819 F.3d 287, 293–94 (6th Cir. 2016)
(quoting Parlak v. Holder, 578 F.3d 457, 462 (6th Cir. 2009)).
Sikder challenges the adverse credibility finding, making four arguments. First, he asserts
that the IJ’s finding that Sikder did not provide an explanation as to why he could not find work in
Michigan has no support in the record. Second, he claims that we should discount Ms. Lebu’s
testimony because it was contradicted by Barua. Without Ms. Lebu’s testimony, Sikder claims
that his “factual testimony holds together as consistent, cogent, and detailed.” Third, he contends
that the inconsistencies in his marriage documents from Bangladesh are very common. Finally,
he insists the USCIS investigation into his New York residence was not credible because it yielded
different explanations from different people.
Plausibility of Work in Michigan. Sikder disputes the IJ’s conclusion that it was
implausible that he could not find work in Michigan. The IJ found that Sikder supported his
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assertion “only by repeatedly stating that the economy in Michigan was bad.” Sikder testified that
he lived with Ms. Lebu in Detroit from July to November 2007. During that time, Sikder says he
worked as a cashier at a neighborhood store until he was laid off. Sikder testified that he could
not find another job and that Ms. Lebu told him to move back to New York to drive a taxi. In
contrast, Ms. Lebu testified that there were enough jobs in Michigan for Sikder. She also testified
that Sikder lived with her for fewer than 50 days total during their marriage. These stories are
inconsistent. Sikder either lived in Michigan for five months or for fewer than 50 days. He either
had access to a job or he did not. The IJ picked Ms. Lebu’s story, and substantial evidence supports
her decision.
Ms. Lebu’s Testimony. Sikder asks us to outright ignore Ms. Lebu’s testimony because
without it, “[his] factual testimony holds together as consistent, cogent, and detailed.” We cannot
do that because we are charged with reviewing the record as a whole. Bi Qing Zheng, 819 F.3d at
293–94. Nor will we discount the IJ’s finding that Ms. Lebu was a credible witness. According
to the IJ, she was candid with her answers and testified based on first-hand knowledge. Her
testimony was consistent with the statement she gave to Officer Lewis in October 2009. Sikder
suggests Ms. Lebu was not credible because Barua contradicted her testimony, but the IJ explained
that Barua’s testimony was mostly speculative and therefore of limited probative value. Nothing
in the record suggests we should disturb that conclusion.
Inconsistencies in Marriage Documents and USCIS Investigation. Sikder next asserts that
various inconsistencies between his testimony and other evidence are of little importance. For
example, Sikder claims the divorce decree lists the wrong date because “these types of mistakes
[are] very common in Bangladesh.” And he claims that the USCIS investigation at the Elmhurst
Avenue apartment led to different explanations from different people, so it cannot be reliable.
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Therefore, according to Sikder, the IJ erred by relying on this evidence. We disagree. Not only is
the IJ allowed to consider “any inaccuracies or falsehoods in [an applicant’s] statements, without
regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s
claim,” Slyusar, 740 F.3d at 1072 (alteration in original) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)),
these inconsistencies—directly concerning whether Sikder lied about his marriage to Parveen—
bear a direct relation to the marriage fraud question in this case.
Indeed, our review of Sikder’s testimony and record evidence amply supports the IJ’s
findings that Sikder was evasive and inconsistent throughout his entire testimony. In short,
substantial evidence supports the IJ’s adverse credibility determination.
B. Denial of I-751 Waiver Petition and Application for Cancellation of Removal
With the adverse credibility determination intact, we can quickly dispense with two of
Sikder’s other requests for relief. To succeed on his I-751 waiver petition, Sikder had to prove
that he entered his marriage to Ms. Lebu in good faith. 8 U.S.C. § 1186a(c)(4)(B). As explained
above, substantial evidence supports the IJ’s determination that Sikder did not. Therefore, the IJ
and the Board correctly sustained the denial of Sikder’s I-751 petition.
Next, Sikder’s request for cancellation of removal requires, among other things, that he
“has been a person of good moral character” during the last ten years. 8 U.S.C. § 1229b(b)(1)(B).
Sikder committed marriage fraud by living with his ex-wife while he was married to Ms. Lebu and
then lied about it under oath to immigration officials and the IJ. Consequently, he cannot
demonstrate good moral character. See 8 U.S.C. § 1101(f)(6) (“No person shall be regarded as, or
found to be, a person of good moral character who, during the period for which good moral
character is required to be established is, or was . . . one who has given false testimony for the
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purpose of obtaining any benefits under this chapter[.]”). The IJ properly pretermitted Sikder’s
application for cancellation of removal.
C. Denial of Marriage Fraud Waiver
Finally, Sikder seeks relief under 8 U.S.C. § 1227(a)(1)(H), which grants the Attorney
General discretion to waive removability where an alien gains an immigrant visa as a direct result
of fraud or misrepresentation. The IJ and the Board assumed without deciding that the Attorney
General could waive removal for those who commit marriage fraud, but ultimately determined that
Sikder did not deserve the waiver. That determination is discretionary and beyond the scope of
our jurisdiction. 8 U.S.C. § 1252(a)(2)(B)(ii) (stating “no court shall have jurisdiction to review .
. . any . . . decision or action . . . to be in the discretion of the Attorney General”); cf. Al-Saka v.
Sessions, 904 F.3d 427, 431–32 (6th Cir. 2018) (explaining that we could review only
“constitutional claims or questions of law,” such as whether the Attorney General even has the
authority to grant a waiver for marriage fraud under § 1227(a)(1)(H)).
***
For the foregoing reasons, we DENY the petition for review.
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