Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
1-31-2007
Abusheikh v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5130
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-5130
ABDELHADI ABUSHEIKH,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of
The Board of Immigration Appeals (No. A72-433-013)
Initially docketed as an
Appeal from the United States District Court
for the District of New Jersey prior to the
enactment of the Real ID Act
(Civ. No. 05-cv-01819)
District Judge: Honorable Dennis M. Cavanaugh
Submitted Under Third Circuit LAR 34.1(a)
September 28, 2006
Before: McKEE, and AMBRO, Circuit Judges
and RESTANI,* Chief Judge
(Opinion filed January 31, 2007 )
*
Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
OPINION
AMBRO, Circuit Judge
Abdelhadi Abusheikh petitions for review of an order issued by the Board of
Immigration Appeals (“BIA”) affirming the denial of his application for cancellation of
removal. We have jurisdiction to consider the petition under Section 242(b) of the
Immigration and Nationality Act (“INA”), codified at 8 U.S.C. § 1252(b). For the
reasons set forth below, we deny the petition.
I.
We highlight only those facts that are pertinent to our analysis. Abusheikh is a
native and citizen of Jordan who moved to the West Bank when he was a child, at a time
when the land was under Jordanian control. Following the Six-Day War in 1967, this
territory was under the control of Israel. Abusheikh came to the United States with an
Israeli travel document as a non-immigrant visitor on October 3, 1989, and was
authorized to stay until April 3, 1990. However, he overstayed his visa, and in 2002 he
was arrested and charged with removal. Abusheikh conceded the charge of removal and
was released after posting bond. He proceeded to apply for cancellation of removal under
8 U.S.C. § 1229b(b)(1).
After a hearing on the merits, the immigration judge (“IJ”) denied Abusheikh’s
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petition, designated Jordan and Israel as removal countries, and granted him voluntary
departure. In response to Abusheikh’s allegation that he would not be able to return to
Jordan because of his status as a Palestinian, the IJ noted that he failed to provide any
documentation to support this claim. In addition, the IJ concluded that any hardship
Abusheikh would face if he had to return to the West Bank would not rise to a level
requiring cancellation of removal. See 8 U.S.C. § 1229b(b)(1) (governing cancellation of
removal for non-permanent residents).
Abusheikh appealed the IJ’s decision and the BIA affirmed without opinion. He
then applied for travel documents with the Jordanian and Israeli authorities. Before
receiving a response, he filed a motion with the BIA to reopen his case, expressing
concern that he would not be accepted by either of the removal countries designated by
the IJ. The BIA denied this motion, stating that it did not have the authority to cancel
removal on the ground that no country was willing to accept Abusheikh. After being
refused travel documents by the Jordanian embassy, but prior to having received word
from the Israeli embassy, Abusheikh filed yet another motion to reopen, which was
denied by the BIA for lack of jurisdiction because his removal order became final upon
his failure to depart voluntarily.
Following his detention, Abusheikh filed a petition for a stay of removal and a writ
of habeas corpus under 28 U.S.C. § 2241 with the United States District Court for the
District of New Jersey, which transferred his claim (now treated as a petition for review)
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to us pursuant to 8 U.S.C. § 1252(b)(2).1
II.
Under 8 U.S.C. § 1252(a)(2)(B)(I), we do not have jurisdiction to review a
discretionary decision to deny cancellation of removal under § 1229b. However, we do
retain jurisdiction to review “constitutional claims or questions of law” notwithstanding
this jurisdictional limit. See 8 U.S.C. § 1252(a)(2)(D); Mendez-Reyes v. Att’y Gen., 428
F.3d 187, 189 (3d Cir. 2005).
Abusheikh argues that the IJ’s refusal to cancel his removal has resulted in unequal
treatment on the basis of national origin in violation of the Fifth and Fourteenth
Amendments because, as a stateless Palestinian, he can neither depart the United States
nor work or live here legally. This claim fails. To prove an equal protection violation,
Abusheikh must first demonstrate “disparate treatment of different groups.” DeSousa v.
Reno, 190 F.3d 175, 184 (3d Cir. 1999). However, Abusheikh fails to establish the basis
for such a claim. In addition, to the extent that Abusheikh contends that we should set
aside his order of removal because he purports to be stateless, we note that statelessness
alone is an insufficient basis on which to grant a petition for asylum or withholding of
removal without additional factors present. See, e.g., Ahmed v. Ashcroft, 341 F.3d 214,
1
Abusheikh erroneously contends that we have jurisdiction to consider his petition
under 28 U.S.C. § 2241. However, the relief he requests—specifically, to be permitted to
remain in the United States—is not encompassed by that statute. Rather, 8 U.S.C. §
1252(b)(2) clarifies that a petition for review to the courts of appeals is the exclusive
means of review of an administrative order of removal.
4
218 (3d Cir. 2003).
* * * * *
Accordingly, we deny Abusheikh’s petition for review.
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