Mizanur Sikder v. William P. Barr

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 29, 2019
• Docket: 18-3567
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 19a0222n.06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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