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

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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.
2

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 wellestablished. 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 fulltime as a religious instructor, he worked part-time as a

construction worker, a gas station attendant, and at a donut
3

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
4

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