Rishi Malik v. Attorney General United States
21-2177
| 3rd Cir. | Apr 6, 2022Background
- Malik, an Indian national, entered the U.S. in 2003, later married U.S. citizen Mary Benjamin (2013) and obtained conditional permanent resident status based on that marriage.
- Malik and Benjamin filed a joint petition to remove conditions in 2015; DHS concluded the marriage was fraudulent in 2016, terminated Malik’s status, denied the joint petition, and issued a Notice to Appear (NTA).
- Malik and Benjamin divorced in 2017. Malik sought a hardship waiver under 8 U.S.C. § 1186a(c)(4)(B) and sought review of DHS’s termination during removal proceedings; DHS also charged an independent aggravated-felonies ground of removability.
- At the 2020 merits hearing (held by video/telephone due to the pandemic), the IJ found Malik’s marriage was entered in good faith but denied discretionary relief because of Malik’s fraud conviction; the IJ also refused to terminate proceedings despite the NTA omitting a date/time and allowed Malik’s counsel to appear telephonically.
- The BIA affirmed: Malik was statutorily ineligible to renew the joint petition because the marriage was terminated before IJ review; telephonic counsel appearance did not violate statutory/regulatory rights or due process; the defective NTA did not warrant termination because Malik received hearing notices and was not prejudiced.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Eligibility to renew § 1186a joint petition after divorce | Malik: may renew/seek review of DHS denial in removal proceedings despite subsequent divorce | Government: statute bars approval if qualifying marriage is terminated before IJ adjudication; Matter of Tee applies | Court: Statute unambiguous — Malik ineligible because marriage was terminated before IJ review; BIA correct |
| Counsel appearing telephonically at merits hearing | Malik: counsel’s telephone appearance violated 8 U.S.C. § 1229a(b)(2)(B), 8 C.F.R. § 1003.25(c) and due process | Government: statutes/regulations protect noncitizen’s right to appear in person, not counsel’s in-person appearance; no prejudice shown | Court: Regulations govern noncitizen appearance; telephonic counsel did not prevent presentation or cause prejudice; claim fails |
| Defective NTA (no date/time) | Malik: omission required termination of removal proceedings | Government: omission alone does not divest jurisdiction; NTA is a claims‑processing rule and error was harmless because Malik received hearing notices and had full hearing | Court: NTA omission did not affect outcome; IJ retained jurisdiction; no relief warranted |
Key Cases Cited
- Urena-Tavarez v. Ashcroft, 367 F.3d 154 (3d Cir. 2004) (explains conditional permanent residency and removal consequences when DHS terminates status)
- Akinwande v. Ashcroft, 380 F.3d 517 (1st Cir. 2004) (regulation’s “right to proceed in person” belongs to noncitizen, not counsel)
- Fadiga v. Attorney General, 488 F.3d 142 (3d Cir. 2007) (due process requires showing prevented presentation and substantial prejudice)
- Nkomo v. Attorney General, 930 F.3d 129 (3d Cir. 2019) (defective NTA does not divest IJ of jurisdiction)
- Chavez-Chilel v. Attorney General, 20 F.4th 138 (3d Cir. 2021) (NTA date/time requirement is a claims-processing rule; harmless-error/ equitable excuse framework applies)