Malik v. Attorney General of the United States, 659 F.3d 253

Malik, a Pakistani citizen, entered the United States in 1999 as an LPR based on an IR-1 visa tied to his 1996 marriage to Margarita Ramos.
Malik and Ramos divorced in 2000; DHS initiated removal proceedings in 2005 charging removability and visa fraud.
Malik contended §1256(a) barred removal proceedings because more than five years had passed since admission to the U.S.
Malik argued his marriage to Ramos was legitimate; Ramos testified to a non-consummated marriage and limited contact post-marriage.
IJ held §1256(a) did not bar removal and found the marriage fraudulent; BIA affirmed, agreeing §1256(a) did not apply since Malik’s status never adjusted to LPR.
The Third Circuit denied the petition for review, upholding the IJ/BIA findings and rejecting Malik’s §1256(a) argument.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does §1256(a) bar removal proceedings here?	Malik: five-year bar applies to any ‘adjustment’ to LPR status, including consular processing.	Malik: he never adjusted status; §1256(a) does not apply to consular-derived LPR.	§1256(a) does not apply; five-year bar applies to adjustments, not consular visas; proceedings may proceed.
Was Malik’s marriage to Ramos fraudulent for immigration purposes?	Malik: marriage intended to establish a life together; timeline supports legitimacy.	BIA: post-marriage conduct and lack of mutual life plans show fraudulent intent.	Substantial evidence supports finding of a fraudulent marriage.

Bamidele v. INS, 99 F.3d 557 (3d Cir.1996) (time bar can bar removal where fraud relates to adjustment)
Garcia v. Attorney General, 553 F.3d 724 (3d Cir.2009) (amendment to §1256(a) did not extend time bar to removal)
Landin-Molina v. Holder, 580 F.3d 913 (9th Cir.2009) (distinguishes consular processing vs. adjustment of status)
United States v. Introcaso, 506 F.3d 260 (3d Cir.2007) (statutory starting point for interpretation of §1256(a))