Mohammed S. Shaikh v. U.S. Attorney General, 688 F. App'x 804

Background

Mohammed Shaikh, an Indian national, obtained an approved I-140 filed by Vision Systems Group, Inc. (VSG) and filed an I-485 to adjust status on August 17, 2001; his I-485 was approved on August 26, 2002.
VSG sent multiple written letters to the former INS between November 2001 and November 2002 withdrawing the I-140 petition; at least one withdrawal letter was stamped received by INS on July 29, 2002, before Shaikh’s I-485 approval.
In December 2006 Shaikh was subject to a Florida domestic-violence injunction containing a no-contact provision; in October 2007 he pled nolo contendere to violating that no-contact provision.
DHS initiated removal proceedings charging (1) willful misrepresentation on Shaikh’s I-485 and (2) removability for violating a domestic-violence protection order; the IJ sustained removability on the latter ground but not the former.
The IJ initially granted cancellation of removal; the BIA affirmed removability but remanded to determine whether VSG’s written withdrawal automatically revoked the I-140 and thus rendered Shaikh never “lawfully admitted” for permanent residence.
On remand the IJ denied cancellation, finding the I-140 was automatically revoked before adjustment; the BIA adopted and affirmed, and the Eleventh Circuit denied Shaikh’s petition for review.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Removability for violating domestic-violence no-contact order	Shaikh argued the conduct did not involve violence or threat and thus should not trigger removability	DHS relied on Shaikh’s nolo plea to a violation of the no-contact provision and statutory removability under INA § 237(a)(2)(E)(ii)	Court upheld removability; substantial evidence supported conviction and removability (and Shaikh abandoned a timely challenge to BIA’s prior affirmance)
Eligibility for cancellation: was Shaikh "lawfully admitted for permanent residence"?	Shaikh contended his adjustment was valid and he was lawfully admitted	DHS pointed to VSG’s written withdrawals that automatically revoked the I-140 before adjustment, so no immediately available visa at I-485 filing	Court held Shaikh was not lawfully admitted because the I-140 was automatically revoked before approval of his I-485; thus ineligible for cancellation
Portability under INA § 204(j) (could I-140 remain valid after employer withdrawal?)	Shaikh argued he ported the I-140 to subsequent employers, preserving the petition despite VSG’s withdrawal	DHS argued Shaikh offered no evidence of qualifying, continuous new employment or a valid porting event	Court declined to resolve the broader statutory question; assuming porting possible, Shaikh failed to prove he met §204(j) requirements (no evidence of qualifying new employer/job)
Evidentiary / due-process challenge to using VSG letters	Shaikh argued letters were unreliable/fraudulent and their use violated evidentiary rules and due process	DHS/agency relied on the letters, which were part of the administrative record and provided before the hearing	Court rejected the challenge: Federal Rules of Evidence do not apply in immigration proceedings; Shaikh had opportunity to examine evidence and offered no proof of fraud; cancellation is discretionary so no protected liberty interest for due-process claim

Key Cases Cited

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678 (11th Cir. 2014) (failure to challenge an independent ground constitutes abandonment)
Savoury v. U.S. Att’y Gen., 449 F.3d 1307 (11th Cir. 2006) (definition and review of "lawfully admitted for permanent residence")
Reganit v. Sec’y, Dep’t of Homeland Sec., 814 F.3d 1253 (11th Cir. 2016) (adjustment by mistake does not constitute lawful admission)
Kurapati v. U.S. Bureau of Citizenship & Immigration Servs., 775 F.3d 1255 (11th Cir. 2014) (three-step process for employment-based adjustment and portability context)
Adefemi v. Ashcroft, 386 F.3d 1022 (11th Cir. 2004) (substantial-evidence standard for review of agency fact findings)