Assaf v. Atty Gen USA , 279 F. App'x 112 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-21-2008
Assaf v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1837
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 07-1837 & 07-2867
___________
ADNAN HAMAD ASSAF,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of Orders of the
Board of Immigration Appeals
(BIA No. A95-831-900)
(U.S. Immigration Judge: Honorable Henry Dogin)
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 7, 2008
Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges.
(Filed: May 21, 2008)
___________
OPINION OF THE COURT
___________
PER CURIAM.
Adnan Assaf petitions for review of a Board of Immigration Appeals (“BIA”)
decision dismissing his appeal from an Immigration Judge’s (“IJ”) decision denying his
application for cancellation of removal, and a BIA decision denying his motion to reopen
his immigration proceedings. We will dismiss Assaf’s petition for review of the BIA’s
initial decision for lack of jurisdiction, and deny the petition for review of the BIA’s
decision denying Assaf’s motion to reopen.
Assaf is a native and citizen of Jordan. He came to the United States in 1988 as a
visitor. In 2003, the Immigration and Naturalization Service issued a notice to appear
charging that Assaf was subject to removal because he stayed here longer than permitted.
Assaf conceded that he was removable as charged, and applied for cancellation of
removal. Assaf has three children who are United States citizens. Assaf’s wife is here
illegally.
The IJ denied Assaf’s application for cancellation for removal because he did not
establish “exceptional and extremely unusual hardship” to his children if he was removed,
as required by 8 U.S.C. § 1229b(b)(1). The IJ recognized that Assaf’s children would
have lesser educational opportunities in Jordan, that Assaf would have a diminished
income, and that the children’s uprooting would be difficult, but the IJ stated that these
factors were not a basis for cancellation of removal. The IJ noted that Assaf had
extensive family ties in Jordan and owned a home there. Assaf appealed, and the BIA
agreed that he did not show the requisite hardship for cancellation of removal.1
Assaf filed a petition for review. While his petition was pending, Assaf retained
new counsel and moved to reopen the proceedings, claiming that he had new evidence of
1
The BIA and the IJ granted Assaf voluntary departure, but it does not appear that he
has left the United States.
2
trauma to his children resulting from the prospect of moving to Jordan, and that he had
received ineffective assistance of counsel. Assaf argued that his attorney failed to prepare
for his hearing and did not submit all of the evidence of hardship that his children would
suffer if he was removed. Assaf submitted a letter from a psychologist, letters from his
children, and his own affidavit, all of which were prepared after the BIA issued its
decision. He also submitted the affidavit of a man named Hassan Hasan and a letter from
Hasan’s daughter. The Hasan family moved to Jordan so that the children could learn
about their heritage, but they returned to the United States because they were dissatisfied
with the school system in Jordan, and because the children, who had been raised here, had
difficulty communicating in Arabic.
The BIA denied the motion to reopen, stating that Assaf did not specify the
evidence that existed before the hearing that his attorney would have introduced had he
been more prepared, and he did not present new facts that were unavailable at the earlier
hearing. The BIA noted that the psychologist’s report stated that Assaf’s children feared
emotional, economic, and educational hardships – factors that the IJ had already
considered and that did not amount to exceptional and extremely unusual hardship under
the applicable case law. The BIA also concluded that Assaf had not satisfied the
procedural requirements for bringing an ineffective assistance of counsel claim, and that
counsel did not provide ineffective assistance that prejudiced him. Assaf filed a petition
for review, which was consolidated with his petition for review of the BIA’s decision
3
dismissing his appeal of the order denying cancellation of removal.
Assaf does not address in his brief the BIA’s initial decision that he did not
establish the requisite hardship for cancellation of removal. To the extent Assaf still
seeks review of that decision, we lack jurisdiction to review whether the BIA and IJ
correctly decided that he did not meet the hardship requirement because such a
determination is a discretionary judgment that is not subject to review under 8 U.S.C.
§ 1252(a)(2)(B). Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir. 2003).
We have jurisdiction to review the denial of a motion to reopen, and we review
such a decision for an abuse of discretion. Borges v. Gonzalez, 402 F.3d 398, 404 (3d
Cir. 2005). Under this standard, we will disturb the BIA’s decision only if it is arbitrary,
irrational, or contrary to law. Id.Assaf argues that the BIA erred in concluding that the evidence of his children’s
deteriorating emotional states contained in the psychologist’s report was not new. The
psychologist’s report, however, does not discuss any new developments since Assaf’s
hearing. Rather, the psychologist stated that he interviewed the Assaf family regarding
the potential effects of Assaf’s removal on the children. The children expressed financial
concerns, concerns about hostility and lack of opportunity in Jordan, and sadness. The
psychologist opined that Assaf’s removal would negatively alter the course of the
children’s emotional and educational development, and that, if the children lived here
with their mother, they would likely live below the poverty level. Assaf has not shown
4
that the BIA’s conclusion that he did not present new material facts that were not
available at his hearing was arbitrary, irrational, or contrary to law.2
Assaf also argues that he was prejudiced by counsel’s ineffective assistance. We
have jurisdiction to review this claim. See Fernandez, 439 F.3d at 602 (noting the court
may determine whether the petitioner was prejudiced, and it will weigh hardship in an
indirect fashion). Assaf contends that his attorney failed to present evidence showing that
he is the sole source of income for the family, that he purchased the house in Jordan for
his mother and his sisters, and that the children are not close to their grandmother.
Assaf, however, testified at his hearing that his wife did not work, that he rented
his home in Jordan and his mother received the rental income, and that the children had
only met their grandmother when she visited the United States. Even assuming Assaf’s
lawyer should have presented more evidence on these subjects, Assaf has not shown that
the result of the proceedings would have been different. The denial of cancellation of
removal was primarily based on the conclusion that Assaf’s diminished income and the
children’s uprooting did not establish exceptional and extremely unusual hardship.
Similarly, evidence about the Hasan family’s experience in Jordan would not have
2
To the extent Assaf asserts that he established a prima facie case of hardship based on
his purported new evidence, we lack jurisdiction to review the BIA’s ruling that the
factors discussed by the psychologist did not amount to “exceptional and extremely
unusual hardship.” See Fernandez v. Gonzales, 439 F.3d 592, 601 (9th Cir. 2006)
(explaining that otherwise a petitioner could make an end-run around the bar to review of
direct appeals involving a lack of hardship by filing a motion to reopen).
5
changed the IJ’s decision.3
Accordingly, we will dismiss Assaf’s petition for review of the BIA’s initial
decision for lack of jurisdiction, and deny the petition for review of the BIA’s decision
denying Assaf’s motion to reopen.
3
Based on our conclusion that Assaf was not prejudiced, we need not address the
BIA’s additional conclusion that he did not satisfy the procedural requirements for
bringing an ineffective assistance of counsel claim.
6