1 15-336-ag Rehman v. Lynch UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (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 C ourt of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 7 th day of September, two thousand sixteen. PRESENT: JON O. NEWMAN, RALPH K. WINTER, REENA RAGGI, Circuit Judges

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---------------------------- ---------------------------- -------------- FAZAL UR REHMAN, Petitioner , v. No. 15-336-ag LORETTA E. LYNCH, UNITED STATES ATTORNEY GENERAL, Respondent

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-------------------------------------- -------------------------------- APPEARING FOR PETITIONER: KHAG ENDRA GHARTI CH HETRY, Esq., New York, New York.
APPEARING FOR RESPONDENT: JOHN M. MCADAMS, JR., Trial Attorney (Benjamin Mizer, Principal Deputy Assistant Attorney General; Dere k C. Julius, Senior Litigation Counsel, on the brief ), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.2 UPON DUE CONSIDERAT ION of this petition for revi ew of an Administrative Appeals Office (“AAO”) decision and a Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition is DENIED. Petitioner Fazal Ur Rehman, a native and citi zen of Pakistan, seeks review of (1) a December 8, 2010 decision of the AAO, dism issing his appeal of the February 19, 2008 decision of a District Director of the U.S. Citizenship and Immigration Services division of the Department of Homeland Security de nying his application to adjust status under the Legal Immigration Family Equity Act (“LI FE Act”), see In re Fazal Ur Rehman, No. A93 249 310 (A.A.O. Dec. 8, 2010), aff’g No. A93- 249-310 (Legaliza tion Unit, USCIS, N.Y. Dist. Feb. 19, 2008); an d (2) a January 14, 2015 deci sion of the BIA affirming an Immigration Judge’s (“IJ”) February 28, 2013 order of removal, In re Fazal Ur Rehman, No. A093 249 310 (BIA Jan. 14, 2015). We assume the parties’ familiarity with the facts and records of prior proceedings, which we reference only as necessary to explain our decision to deny th e petition for review. The government has conceded that on re view of the order of removal, we may review the decision of the AAO that dism issed the appeal from the denial of the application to adjust status. Our review of the AAO’s adverse decision on Rehman’s LIFE Act application is limited to “the admini strative record established at the time of the review by the [AAO,] and the findings of f act and determinations contained in such record [are] conclusive unless the applicant ca n establish abuse of discretion or that the findings are directly contrary to clear a nd convincing facts cont ained in the record considered as a whole.” 8 U.S.C. § 1255a (f)(4)(B). On such revi ew, we identify no3 error in the denial of LIFE Act relief. Under the LIFE Act, an alien seeking adjustment of status has the burden of establishing by a preponderance of th e evidence the following requirements:

 he entered the United States before January 1, 1982;

 he continuously resided in the United St ates in an unlawfu l status from that date through May 4, 1988;

 he was continuously physically pres ent in the United States between November 6, 1986 and May 4, 1988;

 he is not inadmissible; and

 he can demonstrate basic citizenship skills.
See 8 C.F.R. §§ 245a.11 (requirem ents), 245a.12(e) (burden). To carry this burden, “an applicant must provide eviden ce of eligibility apart from his or her own testimony.” Id. § 245a.12(f). The agency found th at Rehman failed to estab lish by a preponderance of the evidence that he entered the United States before January 1, 1982, and that he continuously resided unlawfully in the United States from that date through May 4, 1988. These conclusive findings supporte d denial of LIFE Act relief. As the agency noted, Rehman did not subm it any primary evidence that he entered the United States in 1981 as he claimed, and the government did not have any records of his entry. The agency acknowl edged witness affidavits stating that Rehman entered the United States in 1981, but reas onably found those affidavits neither credible nor subject to verification. See id. § 245a.2(d) (“ Applications submitted with unverifiable documentation may be denied.”). The author s of the strikingly similar affidavits4 provided no details of their relationships or contacts with Rehman to support the statements made. See In re E–M–, 20 I. & N. D ec. 77, 81 (BIA 1989) (“[I]n determining the weight of an affidavit, it should be examined fi rst to determine upon what basis the affiant is making the statemen t and whether the statement is internally consistent, plausible, or even credible.”); cf. Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 524 (2d Cir. 2007) (“[O]ur case law . . . ha s firmly embraced th e commonsensical notion that striking similarities between affidavits are an indication that the statements are ‘canned.’”) Accordingly, the agency did not abuse its discretion in finding that Rehman failed to establish by a preponderance of the ev idence that he ente red the United States prior to January 1, 1982. See 8 C.F. R. §§ 245a.11(b), 245a.12(e); see also In re E–M–, 20 I. & N. Dec. at 80–81. The agency’s decision is further suppor ted by its finding that Rehman failed to demonstrate his continuous unlawful residen ce from January 1, 1982, through May 4, 1988. See 8 C.F.R. § 245a.11(b). The agency r easonably declined to credit several employment verification letters because they di d not comply with requirements in agency regulations that such letters provide the ap plicant’s address at the time of employment, detail the applicant’s duties, and state how the dates of em ployment were ascertained.
See id. §§ 245a.2(d)(3)(i), 245a.15(b). A letter from a mosque stating that Rehman had attended daily prayers in 1987 and 1988 al so failed to comply with the regulatory requirement that such letters provide the ap plicant’s address during the relevant time and the origin of the info rmation provided. See id. § 245a.2(d)(3)(v). The agency also did not err in rejecting statements from Rehman ’s professed former roommates, given the5 authors’ failure to provide any contact info rmation or details abou t their relationships with Rehman that could be used to verify their assertions. See In re E–M–, 20 I. & N.
Dec. at 81. Contrary to Rehman’s contention, the AAO did not abuse its discretion by failing to address a letter from Chase Bank, which i ndicated that he had opened a Chase bank account in 1982, because th e letter was written after the AAO’s decision. See 8 U.S.C. § 1255a(f)(3)(B). Nor did the BIA err in declining to consider the Chase Bank letter. The AAO, not the BIA, is the only administrative appella te authority for LIFE Act applications. See id. § 1255a(f)(3 )(A); 8 C.F.R. § 245a.20(b). Accordingly, because Rehman failed to submit evidence—apart from his own testimony—that complied with ag ency regulations or containe d verifiable information as to his date of entry or date s of residency, the agency di d not abuse its discretion in denying adjustment of status under the LIFE Ac t. See 8 C.F.R. §§ 245a.2(d), 245a.11. We do not consider the BIA’s decision insofar as it found Rehman removable, concluded that his adjustment applicatio n was not properly befo re it on appeal, and declined to remand to permit him to apply for withholding of removal because Rehman has not adequately challenge d those findings here. See Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005). For the foregoing reasons, the petition for review is DENIED.
FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court