Nur A Siddique v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10004
Non-Argument Calendar
____________________
NUR A ALAM SIDDIQUE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A203-183-190
____________________
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2 Opinion of the Court 23-10004
Before J ORDAN, G RANT, and L AGOA , Circuit Judges.
G RANT, Circuit Judge:
Nur A. Alam Siddique seeks review of the Board of
Immigration Appeals order denying his motion to reconsider its
order affirming the denial of his petition to remove conditions on
his lawful permanent residence. On appeal, Siddique argues that
the immigration judge and the Board violated his due process
rights in several respects and committed a legal error by admitting
documents proffered by the government at his removal hearing.
Because none of Siddique’s legal or constitutional claims are
colorable, we dismiss the petition for lack of jurisdiction.
I.
Siddique, a native and citizen of Bangladesh, was admitted
into the United States as a lawful permanent resident on a
conditional basis related to his marriage to a United States citizen,
Tamarah Vergel. About two years after his admission, Siddique
filed a joint petition with Vergel for removal of the conditions on
his residency pursuant to 8 U.S.C. § 1186a(c)(1). That petition fell
through when Vergel did not appear for the required joint
interview with the United States Citizenship and Immigration
Services (USCIS). Following Vergel’s no-show at the joint
interview, USCIS terminated Siddique’s status as a conditional
permanent resident in September 2015. See 8 U.S.C.
§ 1186a(b)(1)(A)(i) (requiring termination of permanent resident
status if the Secretary of Homeland Security determines within
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23-10004 Opinion of the Court 3
two years of admission that the qualifying marriage was entered
into “for the purpose of procuring an alien’s admission as an
immigrant”). The next month, Siddique and Vergel divorced.
After the divorce, Siddique filed another petition for removal
of the conditions on his residency, this time filing individually and
seeking a waiver of the requirement for a joint petition on the
ground that he entered into his marriage with Vergel in good faith,
though the marriage was later terminated. See 8 U.S.C.
§ 1186a(c)(4). During an interview with USCIS agents on his
second petition, Siddique refused to provide a sworn statement
about his marriage with Vergel. USCIS denied his individual
petition for removal of the conditions on his residency and initiated
proceedings to remove him from the United States.
USCIS charged that Siddique was removable as a noncitizen
whose conditional resident status had been terminated because he
was not engaged in a bona fide marriage with a United States
citizen. Siddique responded by admitting that he was a native and
citizen of Bangladesh admitted to the United States on a
conditional basis but denying that his marriage to Vergel was not
bona fide. At the master calendar hearing before an immigration
judge, Siddique also admitted that his conditional resident status
had been terminated, thereby conceding removability. He
requested review by the immigration judge of USCIS’s decision on
his individual petition for a good-faith marriage waiver and
removal of the conditions on his residency. In support, he
submitted financial records and statements from Vergel, members
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4 Opinion of the Court 23-10004
of her family, and friends of Vergel and Siddique stating that their
marriage was bona fide.
In rebuttal, USCIS introduced a Homeland Security
Investigation report and a Form I-213 Record of
Deportable/Inadmissible Alien. According to the Form I-213,
Siddique admitted in an interview with Homeland Security
Investigation agents that he only married Vergel to obtain
residency in the United States.
Siddique testified at the removal hearing and denied that he
told immigration agents that he married Vergel to get residency.
He testified that he had married Vergel because he loved her and
for no other reason.
The immigration judge denied Siddique’s petition to remove
the conditions on his resident status and ordered him removed
from the United States to Bangladesh. The immigration judge
observed that Siddique had conceded removability, though he
contested the factual allegation that his marriage to Vergel had not
been bona fide. The immigration judge concluded that Siddique
had not met his burden of showing that his marriage to Vergel was
in good faith, so he was not eligible for a waiver of the joint filing
requirements.
Siddique appealed the immigration judge’s decision to the
Board of Immigration Appeals, arguing that the immigration judge
erred in denying his petition for a good-faith marriage waiver and
removal of the conditions of residency. He argued that the
immigration judge should not have admitted the Homeland
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23-10004 Opinion of the Court 5
Security Investigation report and the form I-213 into evidence
because the statements in the documents were hearsay and because
the documents were not produced before the hearing so that he
and his attorney could properly review them.
The Board of Immigration Appeals affirmed the
immigration judge’s decision and dismissed Siddique’s appeal.
Siddique did not file a petition in this Court for review of the BIA’s
dismissal order. He filed a motion for reconsideration, which the
Board denied. Siddique now seeks our review of the Board’s order
denying his motion for reconsideration.
II.
We review questions concerning our jurisdiction de novo.
Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 866 (11th Cir. 2018).
We review a Board of Immigration Appeals order denying a
motion to reconsider for abuse of discretion. Assa’ad v. U.S. Att’y
Gen., 332 F.3d 1321, 1341 (11th Cir. 2003). The Board abuses its
discretion “when it misapplies the law in reaching its decision” or
“by not following its own precedents without providing a reasoned
explanation for doing so.” Ferreira v. U.S. Att’y Gen., 714 F.3d 1240,
1243 (11th Cir. 2013). Finally, we review the Board’s decision on
legal and constitutional issues de novo. Poveda v. U.S. Att’y Gen., 692
F.3d 1168, 1172 (11th Cir. 2012).
III.
We must consider first whether we have jurisdiction to
entertain the petitioner’s claims. Bing Quan Lin, 881 F.3d at 866.
Under the Immigration and Nationality Act, we generally lack
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6 Opinion of the Court 23-10004
jurisdiction to review a decision specified under 8 U.S.C. §§ 1151–
1378 “to be in the discretion of the Attorney General or the
Secretary of Homeland Security.” 8 U.S.C. § 1252(a)(2)(B)(ii). We
retain jurisdiction to review such decisions only to the extent that
the petitioner raises colorable constitutional or legal claims. 8
U.S.C. § 1252(a)(2)(D); Patel v. U.S. Att’y Gen., 971 F.3d 1258, 1275
(11th Cir. 2020) (en banc). To be colorable, a claim “must be non-
frivolous” and “have some possible validity.” Ponce Flores v. U.S.
Att’y Gen., 64 F.4th 1208, 1217 (11th Cir. 2023) (quotation omitted).
The decision whether to remove the conditional basis of
permanent resident status for a noncitizen whose qualifying
marriage was entered into in good faith is explicitly assigned to the
discretion of the Secretary of Homeland Security by 8 U.S.C. §
1186a(c)(4). See Fynn v. U.S. Att’y Gen., 752 F.3d 1250, 1252 (11th Cir.
2014). We therefore lack jurisdiction to review the denial of an
application for a good-faith marriage waiver and removal of
conditions on residency except to the extent that the petitioner
raises colorable constitutional claims or questions of law. See 8
U.S.C. §§ 1252(a)(2)(B)(ii), 1252(a)(2)(D); Patel, 971 F.3d at 1275.
This jurisdictional bar extends to our review of the Board’s related
denial of a motion for reconsideration. See Butalova v. U.S. Att’y
Gen., 768 F.3d 1179, 1184 (11th Cir. 2014).
To assess our jurisdiction, therefore, we must determine
whether Siddique raises any colorable legal or constitutional
claims. In his petition for review, Siddique argues that the
immigration judge and the Board violated his due process rights
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23-10004 Opinion of the Court 7
by (1) failing to review USCIS’s termination of his status and his
removability;1 (2) allowing the government to introduce the Form
I-213 into evidence without producing the document to him before
the hearing; and (3) showing bias against him by finding his
testimony and the written statements he submitted less credible
than the statements attributed to him by USCIS agents in the Form
I-213. He also argues that the immigration judge committed legal
error in admitting the Form I-213 without requiring authentication
or an appropriate foundation for the document.
We emphasize that our review is limited to the Board’s
December 12, 2022, order denying Siddique’s motion for
reconsideration. We cannot review the earlier order dismissing
Siddique’s appeal because his petition for review was not filed
within 30 days of that order as required by the Immigration and
Nationality Act. See 8 U.S.C. § 1252(b)(1); Dakane v. U.S. Att’y Gen.,
1 We part ways with the concurrence on this issue in two respects. First, based
on Siddique’s own summary of the argument, we understand his complaint to
be that the immigration courts failed to review USCIS’s termination of his
status (on which the government would have borne the burden of proof),
before reviewing the denial of his application for a good-faith marriage waiver
(on which he bore the burden of proof). Compare 8 U.S.C. § 1186a(b)(2) with
§ 1186a(c)(4). Second, even if we focus solely on the burden of proof applied,
our decision in Bourdon v. U.S. Dep’t of Homeland Sec. is not controlling here.
In Bourdon, we concluded that a specific provision of the Adam Walsh Act
prohibited judicial review of the Secretary of Homeland Security’s decisional
process in determining whether a citizen posed a risk to his foreign spouse.
940 F.3d 537, 543–44 (11th Cir. 2019); see 8 U.S.C. § 1154(a)(1)(A)(viii)(I).
Neither the Adam Walsh Act nor an agency no-risk determination are at issue
here.
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8 Opinion of the Court 23-10004
399 F.3d 1269, 1272 n.3 (11th Cir. 2005) (the statutory period for
filing a petition for review is “mandatory and jurisdictional”
(quotation omitted)); see also Stone v. I.N.S., 514 U.S. 386, 405 (1995)
(a motion for reconsideration does not toll or extend the statutory
deadline).
A.
Turning first to the constitutional claims, we conclude that
Siddique is unable to state any colorable claim for a violation of his
due process rights. Whether to grant a motion for reconsideration
and review a prior decision is “up to the Board in its discretion”;
reconsideration is not available as a matter of right. Santos-Zacaria
v. Garland, 598 U.S. 411, 424–25 (2023); see 8 C.F.R. § 1003.2(a)
(2022). The “failure to receive relief that is purely discretionary in
nature does not amount to a deprivation of a liberty interest and
thus cannot deprive an alien of due process under the Fifth
Amendment.” Ponce Flores, 64 F.4th at 1218 (quotation omitted);
see Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008)
(noncitizen had no constitutionally protected interest in
reconsideration by the Board).
In addition, Siddique’s due process claims have other fatal
flaws. His claim that the immigration judge and the Board failed
to review the termination of his conditional status or consider the
issue of removability is without merit because he explicitly
conceded removability during the removal hearing and did not
raise either issue in his brief on appeal to the Board or in his motion
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23-10004 Opinion of the Court 9
for reconsideration. The Board could not have abused its discretion
in failing to reconsider an issue that Siddique did not raise.
As to Siddique’s due process claim regarding the
immigration judge’s admission of the Form I-213, the Board held
that he waived that claim by failing to object on any related ground
before the immigration judge. Siddique does not address that
conclusion in his brief filed in this Court, much less raise any
colorable legal or constitutional claim arising from the Board’s
refusal to reconsider it.
And finally, although Siddique couches his argument about
the immigration judge’s decision to credit the Form I-213 over his
testimony and witnesses in constitutional terms, his allegations of
bias center on the judge’s credibility determinations and the
relative weight given to the evidence. As we have explained before,
this “is a garden-variety abuse of discretion argument that is
insufficient to state a legal claim over which we have jurisdiction
under § 1252(a)(2)(D).” Fynn, 752 F.3d at 1253 (quotation omitted).
B.
Siddique also raises one claim of legal error: that the
immigration judge and the Board erred in ruling that the Form I-
213 was admissible as a business record without requiring proper
authentication or foundation for the document. Siddique raised
this argument for the first time before the Board in his motion for
reconsideration. The Board ruled that, like Siddique’s other
contentions about the admissibility of the Form I-213, he waived
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10 Opinion of the Court 23-10004
the argument by failing to object on those grounds before the
immigration judge.
In his petition for review, Siddique again argues that the
Form I-213 should have been excluded at the merits hearing for lack
of authentication and foundation, but he does not challenge (or
even mention) the Board’s decision that he had waived those
arguments by not raising them before the immigration judge. He
therefore fails to make any colorable claim that the Board
misapplied the law, failed to follow its own precedents, or
otherwise abused its discretion in denying his motion for
reconsideration. See Ferreira, 714 F.3d at 1243.
IV.
Our jurisdiction to review the Board of Immigration
Appeals order denying Siddique’s motion for reconsideration is
limited to colorable constitutional claims or questions of law. See
8 U.S.C. §§ 1252(a)(2)(B)(ii), 1252(a)(2)(D); Fynn, 752 F.3d at 1252.
Because none of the constitutional or legal claims Siddique raises
in his petition are colorable, we must dismiss the petition for lack
of jurisdiction. See Ponce Flores, 64 F.4th at 1217.
PETITION DISMISSED.
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23-10004 J ORDAN, J., Concurring in Part 1
J ORDAN, Circuit Judge, concurring in part.
In his petition for review of the BIA’s decision, Mr. Siddique
raises five issues, some of which can be grouped together. Here’s
how I would resolve them.
● Mr. Siddique argues (issue 1) that the IJ violated his due
process rights by placing the burden on him to establish that his
marriage to Ms. Vergel was bona fide in violation of 8 C.F.R. §
1216.3. See Appellant’s Br. at 8. I believe we lack jurisdiction to
review this argument under Bourdon v. U.S. Dept. of Homeland
Security, 940 F.3d 537, 542-46 (11th Cir. 2019), which involved a
similar claim that immigration authorities had used an improper
standard of proof. I dissented in Bourdon, but the case constitutes
binding circuit precedent that we are obliged to follow.
● Mr. Siddique contends (issues 2, 3, and 4) that the IJ
violated his due process rights when she allowed the government
to file, submit, and introduce (i.e., admit) documents at the hearing
despite not complying with the March 15 deadline for “all filings.”
One of these documents, he points out, was a hearsay report of an
interview in which he allegedly stated that he had married Ms.
Vergel to obtain residency. He denied making that statement at the
hearing, but he contends that he was unable to secure witnesses on
his behalf and conduct cross-examination of the report. See
Appellant’s Br. at 10-12, 13-14. In my view, the evidentiary
arguments are foreclosed by Fynn v. United States, 752 F.3d 1250,
1252-54 (11th Cir. 2014), and similar decisions like Contreras-Salinas
v. Holder, 585 F.3d 710, 713-14 (2d Cir. 2009). As for the due process
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2 J ORDAN, J., Concurring in Part 23-10004
arguments, I think we have jurisdiction, see Stewart v. Atty. Gen., 776
F. App’x 573, 576 (11th Cir. 2019), but those arguments fail once the
evidentiary challenges are out of the calculus.
● Mr. Siddique asserts (issue 5) that the IJ was biased against
him because she remarked (and prejudged) that Mr. Siddique and
his affiants had “great reason not to speak candidly.” Appellant’s
Br. at 17. It seems to me that we have jurisdiction to consider this
claim of bias because it concerns the neutrality of the adjudicator
and not the ultimate denial of relief. See, e.g., Cardona-Franco v.
Garland, 35 F.4th 358, 363-64 (5th Cir. 2022). Nevertheless, the
claim fails on the merits because the IJ made the statement in her
oral decision (later reduced to writing) after the submission of
evidence in an adversary proceeding. The IJ’s decision to not credit
the evidence submitted by Mr. Siddique is not suggestive of bias,
but is instead within the province of the trier of fact.
I would dismiss the petition in part and deny it in part.
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