Imad Malik v. Michael Mukasey ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3821
IMAD M ALIK , SAAD M ALIK , and F AHAD M ALIK ,1
Petitioners,
v.
M ICHAEL B. M UKASEY,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
Nos. A95-583-352, A95-583-360, and A95-583-361
A RGUED S EPTEMBER 3, 2008—D ECIDED O CTOBER 23, 2008
Before P OSNER, R IPPLE, and E VANS, Circuit Judges.
E VANS, Circuit Judge. Three brothers, Imad, Fahad, and
Saad Shoukat, moved to continue their removal proceed-
ings so that they could apply to become lawful permanent
residents based on their marriages to United States citi-
1
We have retained these names from the captions on the
briefs, but as our opinion explains, the last names of the peti-
tioners are inaccurate.
2 No. 07-3821
zens. The immigration judge denied the motion after
concluding that a continuance would be futile since their
applications were destined to be denied. The Board of
Immigration Appeals affirmed, leading to this petition
for review. The pivotal issue for us is whether we have
jurisdiction to consider the petition.
Imad and his twin brothers Fahad and Saad are citizens
of Pakistan (although the twins were apparently born
in the United Arab Emirates) who entered the United
States in 2001. Their parents came to the United States as
well, and their father filed an asylum application, claiming
that he and the boys were Indian citizens of Islamic faith,
facing religious discrimination in India. Fahad and Saad,
17 years old at the time, were listed as derivatives on
their father’s application, but with a slight twist on their
names. Pakistan follows a patronymic system, where
children take the father’s first name as their last name.
Perhaps to distance them from this Pakistani tradition,
Fahad and Saad were listed on the application with the
last name of “Malik,” the same last name as their father.
Imad, who apparently arrived here a few months before
his father and brothers, was 22 years old at the time so
he filed a separate asylum application, also claiming that
he was an Indian citizen with a last name of Malik. The
father’s first name, as it turned out, was “Shoukat” and
that, not Malik, was the brothers’ correct last name.
Both Imad and his father were interviewed by an
asylum officer, but their applications were not granted.
Instead, the family was placed in removal proceedings,
where they maintained the guise of Indian citizenship.
No. 07-3821 3
Notices to appear initiating the proceedings were issued,
and at a preliminary hearing all three of the brothers
asserted, through their attorney, that their allegations of
Indian citizenship were true. By this time, Fahad and Saad
were 18 and Imad was 23 years old. Throughout the
preliminary hearings, the Shoukats continued to pursue
their bogus asylum claims; Imad even filed an updated
asylum application, reiterating that he was an Indian
citizen facing religious discrimination there because he
is a Muslim.
The Shoukats did not fess up until they got caught.
Apparently, the initial asylum applications were filled
out with the help of an individual who became the focus
of a Joint Terrorism Task Force investigation. The
Shoukats’ home was searched during this investiga-
tion, and it was then, two years after their removal pro-
ceedings got underway, that the brothers admitted they
were actually citizens of Pakistan and that their given
last name was Shoukat, not Malik. At that time Saad and
Fahad were 20 years old and Imad was 24 years old. 2 Once
their attorney learned about their true citizenship, the
asylum applications were withdrawn.
After giving their sworn statements, each brother
allegedly got married to a United States citizen, who
2
The IJ states that Imad was in “his late teens” when he made
this statement. However, according to the birthday listed in his
Pakistani passport, he was 24 years old. What’s more, Imad
stated during a preliminary hearing that took place two
years before he gave this statement that he was 22 years old.
4 No. 07-3821
filed I-130 visa petitions shortly before the final removal
hearing got started. Because the petitions remained
pending by the time the hearing rolled around, the broth-
ers asked for a continuance so their petitions could be
adjudicated and that they could apply to adjust their status
to that of a lawful permanent resident. The IJ (Jenni L.
Giambastiani) denied the request and ordered the
brothers removed, explaining that there was no sense
waiting because the brothers’ asylum applications would
surely be denied. She began by noting the dearth of
evidence presented by the brothers. Although their
“wives” were present in court, the brothers offered no
documentary evidence—not even a copy of a marriage
certificate—to show that they had in fact married, that
the nuptials were entered into in good faith (i.e., not for
the purpose of procuring immigration benefits), or that
they would be eligible to adjust their status if the peti-
tions were granted. Based on this lack of evidence, the
IJ was not satisfied that the brothers were statutorily
eligible to adjust their status. See 8 U.S.C. § 1255(e). The
IJ went on to conclude that even if the brothers were
eligible to adjust their status, she would deny their ap-
plications as a matter of discretion because they had all
lied to her, and Imad lied to the asylum officer during
his interview. She acknowledged that the brothers were
young (and probably under the thumb of their father)
when the fraud first occurred, but she noted that each
helped to perpetuate the fraud throughout the removal
proceedings by claiming that they were Indian citizens
and that their last name was Malik. And “young,” of
course, is a relative term. Being over 16—and eligible for
a driver’s license—is quite different than being 10.
No. 07-3821 5
The brothers appealed the IJ’s decision and the BIA
affirmed. Like the IJ, the BIA acknowledged that the
brothers were young when the fraud occurred but con-
cluded that they were old enough to know better and to
be held accountable for their actions. Compare Singh v.
Gonzales, 451 F.3d 400, 403, 409 (6th Cir. 2006) (refusing
to impute fraud of parents to their 5-year-old child).
The brothers now appeal, again arguing that the IJ erred
in denying their motion for a continuance. But before
we can reach the merits of this argument, the brothers
must overcome two jurisdictional hurdles. First, the
denial of the continuance was an ancillary “procedural
step along the way to an unreviewable final deci-
sion”—the denial of their adjustment applications—and we
generally lack jurisdiction to review such interim rul-
ings. Ali v. Gonzales, 502 F.3d 659, 664, (7th Cir. 2007);
Leguizamo-Medina v. Gonzales, 493 F.3d 772, 775 (7th Cir.
2007); 8 U.S.C. § 1252(a)(2)(B)(i). Secondly, 8 U.S.C.
§ 1252(a)(2)(B)(ii) prohibits our review of an IJ’s discre-
tionary rulings, such as the denial of a continuance
during removal proceedings. Ali, 502 F.3d at 663. There
is, however, an exception to these jurisdictional bars. We
retain jurisdiction where the decision to deny a motion
for a continuance has the “effect of nullifying the
statutory opportunity to adjust status.” Ceta v. Mukasey, 535
F.3d 639 (7th Cir. 2008); Ali, 502 F.3d at 665; Subhan v.
Ashcroft, 383 F.3d 591, 593-94 (7th Cir. 2004). In other
words, motions for a continuance cannot be denied for
arbitrary reasons or reasons inconsistent with the
adjustment-of-status statute, 8 U.S.C. § 1255. See Subhan,
383 F.3d at 595 (exercising jurisdiction where a continu-
6 No. 07-3821
ance was denied only because the government had yet
to act on the alien’s request for a certificate necessary
to adjust status).
But denying a continuance because the alien’s past
conduct disqualifies him to adjust his status, as the IJ did
here, is consistent with § 1255, Pede v. Gonzales, 442
F.3d 570, 571 (7th Cir. 2006), and we lack jurisdiction to
review the denial. Ali, 502 F.3d at 663. The IJ concluded
that the brothers’ applications were ultimately hopeless.
An alien is only entitled to adjust his status if he meets
all the statutory eligibility requirements and he merits
a favorable exercise of discretion. 8 U.S.C. § 1255(a), (e);
8 C.F.R. § 1245.1. If an alien seeks to adjust his status
based on a marriage entered into while removal pro-
ceedings are pending, as is the case here, the alien must
show by clear and convincing evidence that he was
married in good faith, not simply to forestall removal.
8 U.S.C. § 1255(e). The IJ found that the brothers, who
provided no documentary evidence, failed to demon-
strate that they could meet that burden. And in any
event, the IJ concluded that even if the I-130 petitions
were granted (after the IJ’s ruling, two of the petitions
were apparently approved) and the brothers met all the
eligibility requirements, she would deny the applications
as a matter of discretion because they lied to her, and
Imad, in addition, had also lied to an asylum officer.
Thus, the brothers’ right to adjust their status was not
nullified, they just didn’t qualify for relief. See Pede, 442
F.3d at 571 (holding that the denial of a continuance
based on the ultimate hopelessness of an adjustment
application is “perfectly acceptable”).
No. 07-3821 7
Of course, even though our ability to review the IJ’s
discretionary decisions is limited, our jurisdiction to
review questions of law and constitutional claims
remains intact. 8 U.S.C. § 1252(a)(2)(D). The Shoukats
attempt to invoke this jurisdictional provision by
arguing that the IJ erred as a matter of law by attributing
their father’s fraud to them. But this argument misses
the mark. The IJ held that each brother, given their ages
at the time, was accountable for his own actions and
misrepresentations.
Accordingly, the petition for review is D ISMISSED for
lack of jurisdiction.
10-23-08