09-3224-ag
     Khoufaify v. Holder


                           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
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 11th day of February, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                PETER W. HALL,
 9                RAYMOND J. LOHIER, Jr.,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       AHMED KHOUFAIFY,
14
15                    Petitioner,
16
17                    -v.-                                               09-3224-ag
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21
22                Respondent.
23       - - - - - - - - - - - - - - - - - - - -X
24
25       FOR PETITIONER:           John Cobb
26                                 Cobb & Cobb
27                                 Newburgh, NY

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 1
 2   FOR RESPONDENT:   Wendy Benner-León
 3                     Office of Immigration Litigation
 4                     U.S. Dept. of Justice, Civil Division
 5                     Washington, DC
 6
 7        Petition for review of a decision of the Board of
 8   Immigration Appeals dismissing Petitioner’s appeal from a
 9   final order of removal entered by Immigration Judge Alan A.
10   Vomacka, and motion for an order staying or cancelling the
11   final order of removal.
12
13        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
14   AND DECREED that the petition and motion are DENIED.
15
16        The Petitioner, Ahmed Khoufaify, is a citizen of
17   Morocco who currently resides in the United States, having
18   overstayed his tourist visa by almost a decade. On December
19   6, 2007, an Immigration Judge (“IJ”) ordered him removed.
20   Khoufaify appealed this order to the Board of Immigration
21   Appeals (“BIA”), which dismissed his appeal on June 29,
22   2009. He now seeks review of that decision and requests
23   that we stay or cancel his removal order. We assume the
24   parties’ familiarity with the underlying facts, the
25   procedural history, and the issues presented for review.
26
27        While we lack jurisdiction to review discretionary non-
28   legal determinations by IJs and the BIA, 8 U.S.C. §
29   1252(a)(2)(B), we retain jurisdiction to review
30   determinations of an alien’s legal eligibility for
31   adjustment of status. 8 U.S.C. § 1252(a)(2)(D). In this
32   case, the IJ and BIA refused to stay Khoufaify’s removal
33   order based on their determination that he would not be
34   legally eligible for adjustment of status to permanent
35   resident in the near future. Because Khoufaify is disputing
36   this legal determination of his eligibility for adjustment
37   of status, we have jurisdiction to hear his petition.
38
39        During his removal hearings, Khoufaify asserted that he
40   would soon become eligible for adjustment of status based on
41   I-130 petitions filed on his behalf by his wife and his
42   brother, both of whom are U.S. citizens. Khoufaify
43   presented no evidence that his brother had ever filed such a
44   petition, and he admitted that even if such a petition did
45   exist, it would not entitle him to adjust his status to
46   permanent resident in the near future. The government
47   presented evidence that Khoufaify’s wife had withdrawn her

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 1   I-130 petition and had divorced him; Khoufaify was unable to
 2   refute this evidence, and his attorney admitted that the
 3   wife was not a viable conduit for Khoufaify to adjust his
 4   status. Based on this evidence, there is no substantial
 5   evidence against the IJ’s determination that Khoufaify will
 6   not be eligible for adjustment of status to permanent
 7   resident in the near future. Therefore, the IJ and the BIA
 8   were fully justified in refusing to stay Khoufaify’s removal
 9   order.
10
11        In any event, Khoufaify is ineligible for adjustment of
12   status to lawful permanent resident because he (at least
13   twice) used a sham marriage to attempt to evade U.S.
14   immigration laws. 8 U.S.C. § 1154(c) (“No petition shall be
15   approved if...the alien has previously been accorded, or has
16   sought to be accorded, an immediate relative or preference
17   status as the spouse of a citizen of the United States...by
18   reason of a marriage determined by the Attorney General to
19   have been entered into for the purpose of evading the
20   immigration laws.”). Khoufaify’s claim that he will soon be
21   eligible for adjustment of status based on pending I-130
22   petitions is therefore false regardless of the validity of
23   the factual findings made by the IJ and the BIA.
24
25        We hereby DENY Khoufaify’s petition for review of the
26   BIA’s June 29, 2009 decision. In addition, we DENY as moot
27   his pending motion for a stay or cancellation of his removal
28   order.
29
30
31                              FOR THE COURT:
32                              CATHERINE O’HAGAN WOLFE, CLERK
33




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