PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 08-3874

______

MUHAMMAD SAEED MALIK,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

______

On Petition for Review from an

Order of the Board of Immigration Appeals

(Board No. A046-964-203)

Immigration Judge: Honorable Mirlande Tadal

______

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 23, 2011

Before: FISHER, HARDIMAN and GREENAWAY, Jr., 

Circuit Judges.

(Filed: October 4, 2011)
2

M. Anne Hannigan, Esq.

777 North Michigan Avenue, Suite 3009

Chicago, IL 60611

Gopal T. Kukreja, Esq.

147 West 35th Street, Suite 209

New York, NY 10001

Counsel for Petitioner

Thomas W. Hussey, Esq.

Daniel I. Smulow, Esq.

Paul F. Stone, Esq.

United States Department of Justice

Office of Immigration Litigation, Civil Division

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

______

OPINION OF THE COURT

______

FISHER, Circuit Judge.

Muhammad Saeed Malik seeks review of the decision 

of the Board of Immigrations Appeals (“BIA”) sustaining his 

removability from the United States. Malik argues the BIA 

erred in affirming the decision of the Immigration Judge 

(“IJ”) that he obtained a visa through a fraudulent marriage 
3

and that 8 U.S.C. § 1256(a) did not bar the institution of 

removal proceedings against him. We will dismiss the 

petition for review.

I.

Malik is a native and citizen of Pakistan who entered 

the United States in April 1999 as a legal permanent resident 

(“LPR”) after receiving an IR-1 immigrant visa based on his 

1996 marriage to Margarita Ramos, a United States citizen. 

Malik and Ramos were divorced in 2000. In 2005, the 

Department of Homeland Security (“DHS”) initiated removal 

proceedings, charging Malik with being removable under 8 

U.S.C. § 1227(a)(1)(A), for being inadmissible upon entry, 

and under 8 U.S.C. § 1182(a)(6)(C)(i), as an alien who 

attempted to procure a visa through fraud.

Before the IJ, Malik argued that 8 U.S.C. § 1256(a) 

prohibited institution of removal proceedings against him 

because more than five years had passed since his admission 

to the United States in 1999. Additionally, he maintained that 

his marriage to Ramos was legitimate. At the hearing before 

the IJ, Malik, Ramos, Malik‟s brother, and his sister-in-law 

testified that Malik and Ramos married on November 25, 

1996, in Pakistan. Beyond that, however, their stories 

diverged considerably. Malik claimed his relationship with 

Ramos began by telephone and letters several months prior to 

her arrival in Pakistan. Malik testified that Ramos intended to 

marry him when she came to Pakistan, that the couple did 

marry, and that they consummated their marriage. After 

Ramos returned to the United States a few days later, Malik 

testified that he stayed in contact with her by calling her at his 
4

brother‟s house where she stayed at least twice a week. 

Eventually, Malik secured a visa through the U.S. consulate 

in Pakistan, with Ramos as his sponsor, and he arrived in the 

United States. Shortly thereafter, Ramos informed Malik that 

she was pregnant with another man‟s child and asked for a 

divorce.

By contrast, Ramos testified that she traveled to 

Pakistan with Malik‟s sister-in-law to help her babysit. She 

stated that she and Malik were introduced to each other in 

Pakistan, and that he mentioned marriage a few days before 

she was going to leave. She decided to marry him because 

she thought they could have a future together. Ramos, 

however, testified that, after marrying, they did not

consummate their marriage and that Malik never contacted 

her after she returned to the United States. Further, she 

denied staying at Malik‟s brother‟s house. She explained that 

she completed the visa petition for Malik because she wanted 

to be with him, but abandoned her attempts to assist him after 

he did not contact her. As a result, Ramos started seeing 

another man, became pregnant, and gave birth in September 

1998.

The IJ ruled that 8 U.S.C. § 1256(a) did not prevent

the institution of removal proceedings, and rejected Malik‟s 

version of the events. The IJ concluded the marriage was 

fraudulent because Malik and Ramos never intended to 
5

establish a life together. The BIA affirmed,

1

reasoning that 8 

U.S.C. § 1256(a) did not apply to Malik because his status 

was never adjusted to LPR. Malik filed this timely petition 

for review.

II.

The BIA had jurisdiction pursuant to 8 C.F.R. 

§ 1003.1(b)(3), and we have jurisdiction under 8 U.S.C. 

§ 1252(a). We review the BIA‟s disposition and look to the 

IJ‟s ruling only insofar as the BIA defers to it. Huang v. Att’y 

Gen., 620 F.3d 372, 379 (3d Cir. 2010). We review the 

BIA‟s legal conclusions de novo.2 Id. We defer to those 

factual findings that are supported by substantial evidence, 

and will reverse only “if no reasonable fact finder could make 

 

1 On August 18, 2008, the BIA affirmed the IJ‟s 

decision and rejected Malik‟s statute of limitations argument. 

Following our decision in Garcia v. Attorney General, 553 

F.3d 724 (3d Cir. 2009), which discussed the statute of 

limitations in the context of removal proceedings, we granted 

the Attorney General‟s unopposed motion to remand. On 

remand, the BIA reaffirmed its prior decision on April 6, 

2010.

2

The Attorney General‟s interpretation of the statute 

of limitations in 8 U.S.C. § 1256(a) is not entitled to 

deference under Chevron, U.S.A., Inc. v. Natural Res. Def. 

Council, Inc., 467 U.S. 837 (1984). See Bamidele v. INS, 99 

F.3d 557, 561-62 (3d Cir. 1996).
6

that finding on the administrative record.” Dia v. Ashcroft, 

353 F.3d 228, 249 (3d Cir. 2003).

III.

Malik advances two arguments in support of his 

petition. First, he asserts that the five year statute of

limitations in 8 U.S.C. § 1256(a) bars the institution of 

removal proceedings against him. Second, he maintains he 

did not obtain his visa through fraud because his marriage to 

Ramos was legitimate. We address each contention in turn.

A. Statute of Limitations

Under 8 U.S.C. § 1256(a):

If, at any time within five years after the status 

of a person has been otherwise adjusted under 

the provisions of section 1255 or 1259 of this 

title or any other provision of law to that of an 

alien lawfully admitted for permanent 

residence, it shall appear to the satisfaction of 

the Attorney General that the person was not in 

fact eligible for such adjustment of status, the 

Attorney General shall rescind the action taken 

granting an adjustment of status to such person 

and cancelling removal in the case of such 

person if that occurred and the person shall 

thereupon be subject to all provisions of this 

chapter to the same extent as if the adjustment 

of status had not been made.
7

Malik claims that the terms “otherwise adjusted under . . . any 

other provision of law” include an alien who was issued an 

immigrant visa through the consular process and admitted to 

the United States as an LPR. The Attorney General 

acknowledges that Malik was an LPR for more than five 

years prior to the commencement of removal proceedings, but 

maintains that § 1256(a) does not apply because Malik 

obtained his status through the consular process, not through 

an adjustment of status.

Our resolution of this issue is informed by our 

decisions in Bamidele v. INS, 99 F.3d 557 (3d Cir. 1996) and 

Garcia v. Attorney General, 553 F.3d 724 (3d Cir. 2009). In 

Bamidele, the petitioner‟s status was adjusted to LPR based 

on his marriage to a U.S. citizen. 99 F.3d at 559. After he 

was charged with being removable more than five years later 

because he obtained the adjustment fraudulently, Bamidele 

claimed that 8 U.S.C. § 1256(a) barred the institution of

removal proceedings. The Attorney General agreed § 1256(a) 

proscribed an untimely rescission of an adjustment of status, 

but insisted it did not bar removal proceedings based on fraud 

in obtaining the adjustment of status. Rejecting this 

argument, we determined that “the running of the limitation 

period bars the rescission of Bamidele‟s permanent resident 

status and, in the absence of the commission of any other 

offense, thereby bars initiation of deportation proceedings[.]” 

Id. at 563.

Subsequent to Bamidele, § 1256(a) was amended to 

state that “[n]othing in this subsection shall require the 

Attorney General to rescind the alien‟s status prior to 

commencement of procedures to remove the alien.” 8 U.S.C. 
8

§ 1256(a). In Garcia, an alien residing in the United States 

received an adjustment of status to LPR, asserting that she 

was an unmarried adult child of a U.S. citizen. 553 F.3d at 

726. Later, DHS instituted removal proceedings when an 

investigation revealed that the woman Garcia claimed to be 

her mother was not, in fact, her mother. Because eight years 

had passed since Garcia received her adjustment of status, she 

asserted that § 1256(a) barred her removal. The Attorney 

General responded that the amendment to § 1256(a) permitted 

the institution of removal proceedings against Garcia. We 

held that the statutory amendment did not impact the 

operation of the five-year time limit to removal proceedings. 

Reaffirming Bamidele, we determined that § 1256(a) 

prohibits the institution of removal proceedings after five 

years based on an alien‟s erroneously granted adjustment of 

status.

The import of Garcia and Bamidele is that the time bar 

in § 1256(a) applies to both rescission and removal 

proceedings initiated based on a fraudulent adjustment of 

status. These decisions, however, are distinguishable from 

Malik‟s situation in a significant aspect: Malik never 

received an adjustment of status. Rather, he obtained his LPR 

status by receiving an immigrant visa through the consular 

process. Historically, “immigrant status was predicated upon 

the issuance of an immigrant visa, which could be obtained 

only at U.S. consular offices abroad.” Landin-Molina v. 

Holder, 580 F.3d 913, 915-16 (9th Cir. 2009). With the 

enactment of 8 U.S.C. § 1255, however, Congress 

“authorized a process – „adjustment of status‟ – whereby 

certain aliens physically present in the United States could 
9

seek lawful permanent resident status without having to 

depart this country.” Id. at 916. In this regard, there are two 

distinct paths for an alien to obtain LPR status: (1) through 

consular processing, 8 U.S.C. § 1201(a); and (2) through an 

adjustment of status, 8 U.S.C. § 1255.

“The plain language of the statute is the „starting place 

in our inquiry.‟” United States v. Introcaso, 506 F.3d 260, 

264 (3d Cir. 2007) (quoting Staples v. United States, 511 U.S. 

600, 605 (1994)). Section 1256(a) speaks of the Attorney 

General‟s responsibility to take action on an erroneously 

granted adjustment within five years if “the status of a person 

has been otherwise adjusted under . . . any other provision of 

law to that of an alien lawfully admitted for permanent 

residence.” 8 U.S.C. § 1256(a) (emphasis added). Malik did 

not obtain an adjustment of status to become an LPR. 

Instead, he derived his LPR status through the process 

described in 8 U.S.C. § 1201. Because § 1256(a) explicitly 

discusses “adjustment of status,” the statute of limitations 

does not apply to the institution of removal proceedings 

where Malik did not obtain his LPR status in this manner. 

Given that there is nothing in the statute to suggest its 

applicability to proceedings against an alien who never 

adjusted his status, Malik‟s argument fails.

B. Whether the Marriage was Fraudulent

Second, Malik argues that the BIA erred in affirming 

the IJ‟s decision that he entered into a fraudulent marriage. 

An alien bears the burden to establish that the marriage “was 

not contracted for the purpose of evading any provisions of 

the immigration laws.” 8 U.S.C. § 1227(a)(1)(G)(i). When 
10

determining whether a marriage is fraudulent, we consider 

whether the parties intended to establish a life together at the 

time of marriage. See, e.g., Rodriguez v. INS, 204 F.3d 25, 27 

(1st Cir. 2000); Bark v. INS, 511 F.2d 1200, 1201 (9th Cir. 

1975); In re Soriano, 19 I. & N. Dec. 764, 765 (BIA 1988). 

Post-marriage conduct may be relevant to resolving this issue, 

insofar as it reveals the couple‟s state of mind at the time they 

married. See Rodriguez, 204 F.3d at 27; Bark, 511 F.2d at 

1202. In reviewing the BIA‟s affirmance of the IJ‟s decision, 

we examine whether there was substantial evidence to sustain 

the conclusion that Malik and Ramos did not intend to 

establish a life together. Dia, 353 F.3d at 249.

We determine that substantial evidence supports the 

finding that Malik and Ramos did not so intend. Even though 

Malik and Ramos testified that they wanted to have a future 

together, the IJ permissibly concluded that their post-marriage 

conduct belied that assertion. The parties‟ testimony 

conflicted on many crucial aspects. Ramos testified that 

Malik never contacted her after she returned to the United 

States. Conversely, Malik asserted that he communicated 

with Ramos through letters and phone calls to his brother‟s 

house. Malik‟s brother and sister-in-law corroborated this 

testimony. Nevertheless, the IJ credited Ramos‟ testimony 

because it found it problematic that Ramos was pregnant and 

gave birth without Malik‟s brother or sister-in-law noticing, 

given that she was supposedly in frequent contact with them. 

Although Malik‟s brother and sister-in-law explained that 

they were unaware of Ramos‟ pregnancy because she was 

heavy set, they also admitted she was not so overweight that a 

pregnancy would have been unnoticeable. To this end, the IJ 
11

concluded that Ramos never stayed with Malik‟s brother, 

Malik did not contact Ramos during their separation, and the 

lack of communication demonstrated that the couple did not 

intend to establish a life together. The IJ‟s determination was 

reasonable because it would have been difficult for Ramos to 

have stayed with Malik‟s brother for two nights per week and 

have her pregnancy and subsequent birth go undetected. As 

such, a reasonable fact finder could conclude that the 

marriage between Malik and Ramos was fraudulent. Id.

IV.

For the foregoing reasons, we will deny the petition for 

review.