Khan v. Holder , 445 F. App'x 441 ( 2011 )

10-3825-ag
Khan v. Holder
BIA
Vomacka, IJ
A075 974 218
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 17th day of November, two thousand eleven.
PRESENT:
ROGER J. MINER,
ROBERT D. SACK,
PETER W. HALL,
Circuit Judges.
_____________________________________
MOHAMMAD NAWAZ KHAN,
Petitioner,
v. 10-3825-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Mitchell C. Zwaik, Bohemia, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Stephen J. Flynn, Assistant
Director; Annette M. Wietecha,
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Mohammad Nawaz Khan, a native and citizen of
Pakistan, seeks review of an August 27, 2010, order of the
BIA, affirming the June 22, 2009, decision of Immigration
Judge (“IJ”) Alan A. Vomacka, which found him removable and
denied his motion to terminate proceedings. In re Mohammad
Nawaz Khan, No. A075 974 218 (B.I.A. Aug. 27, 2010), aff’g
No. A075 974 218 (Immigr. Ct. N.Y. City June 22, 2009). We
assume the parties’ familiarity with the underlying facts
and procedural history of this case.
Under the circumstances of this case, we have reviewed
both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
2008). The applicable standards of review are well-
established. See 8 U.S.C. § 1252(b)(4)(B)(2006); Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). We have
reviewed the agency’s denial of Khan’s motion to terminate
proceedings for abuse of discretion. See, Twum v. INS, 411
F.3d 54, 58 (2d Cir. 2005). Here, the agency did not abuse
its discretion in denying Khan’s motion to terminate his
proceedings based on its finding that Khan did not have a
genuine job offer underlying his visa petition and he
presented fraudulent evidence, in particular a list of
students he was purportedly teaching, in order to obtain his
visa.
In finding that Khan’s religious worker visa petition
was based on fraud, the agency reasonably relied on the
testimony of Special Agent Marten, who interviewed many of
the parents whose names appeared on the list of students.
Special Agent Marten testified that of the parents he
interviewed, only one confirmed that Khan had provided
religious instruction as asserted in his visa petition.
Moreover, Khan conceded that one signature on the list was
obtained by someone else and he did not know who actually
signed the form. In finding that the petition was
fraudulently obtained, the agency also reasonably relied on
Khan’s testimony that while he was purportedly engaged full-
time as a religious instructor, he worked part-time as a
construction worker, a gas station attendant, and at a donut
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shop, and had paid $5,000 to the organization that submitted
the visa petition on his behalf. As a result, we conclude
that substantial evidence supports the agency’s
determination that Khan’s removability was shown by clear
and convincing evidence, for we cannot say that “‘any
rational trier of fact would be compelled to conclude that
the proof did not rise to [that] level.’” See Zerrei v.
Gonzalez, 471 F.3d 342, 345 (2d cir. 2006) (per
curiam)(quoting Francis v. Gonzalez, 442 F.3d 131, 138-39
(2d Cir. 2006).
Notwithstanding Khan’s arguments to the contrary, the
agency reasonably relied on Special Agent Marten’s testimony
and investigation notes in finding Khan removable. See Zhen
Nan Lin v. U.S. Dep't of Justice, 459 F.3d 255, 268 (2d Cir.
2006). This evidence was probative, and its use was
fundamentally fair because the reliability and
trustworthiness of the evidence were ensured through cross
examination. See Maryland v. Craig, 497 U.S. 836, 846
(1990); see also Felzcerek v. I.N.S., 75 F.3d 112, 116 (2d
Cir. 1996) (noting that “records made by public officials in
the ordinary course of their duties . . . evidence strong
indicia of reliability”).
Khan’s argument that he should have been provided an
interpreter at his airport interview lacks merit. See
Ramsameachire v. Ashcroft, 357 F.3d 169, 180 (2d Cir. 2004).
As noted by the BIA, Khan never stated that he needed a
translator during his airport interview, and he never
presented any evidence indicating that he was misunderstood.
Rather, Khan provided detailed and responsive answers during
the course of his airport interview that was. Those answers
were, to a large extent, in conformance with his hearing
testimony regarding his airport interview. As a result, the
record does not compel the conclusion that Khan was
improperly denied an interpreter at his airport interview;
the agency’s determination to the contrary is supported by
substantial evidence. See id.
Although Khan argues that the IJ ignored notarized
statements from four parents indicating that he taught the
Quran to their children, the record does not compellingly
suggest that the agency failed to consider this evidence.
Rather, the agency reasonably relied on Special Agent
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Marten’s testimony that four of the parents he interviewed
indicated that they did not know Khan, that Khan did not
teach their children, and that the signatures on Khan’s
student list were not theirs. See id.
Lastly, we decline to consider Khan’s argument made for
the first time in this court that IJs lack authority to
remove an alien who has entered the United States on a valid
alien registration document unless the underlying visa
petition has been revoked. This argument was not raised
before the agency at any stage of the proceedings and is
unexhausted. See Lin Zhong v. U.S. Dep’t of Justice, 480
F.3d 104, 120 (2d Cir. 2007).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DENIED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2) and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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