Ahmed Afifi v. Atty Gen USA

Filing

MANDATE ISSUED, filed.

Ahmed Afifi v. Atty Gen USA

Doc. 0 Att. 1

Case: 09-3342

Document: 003110260555

Page: 1

Date Filed: 08/23/2010

NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 09-3342 ___________ A H M E D SHAWKY FARAG AFIFI, Petitioner v. A T T O R N E Y GENERAL OF THE UNITED STATES, Respondent ____________________________________ O n Petition for Review of an Order of the B o a rd of Immigration Appeals (A g e n c y No. A098-496-718) Im m ig ra tio n Judge: Honorable Mirlande Tadal ____________________________________ S u b m itte d Pursuant to Third Circuit LAR 34.1(a) M a y 12, 2010 B e f o re : MCKEE, FUENTES and VAN ANTWERPEN, Circuit Judges (O p in io n filed: June 30, 2010) ___________ O P IN IO N ___________ P E R CURIAM A h m e d Shawky Farag Afifi petitions for review of a decision of the Board of Im m ig ra tio n Appeals (BIA). For the reasons below, we will dismiss the petition. A f if i, a citizen of Egypt, entered the United States in February 1999, with

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Case: 09-3342

Document: 003110260555

Page: 2

Date Filed: 08/23/2010

a u th o riz a tio n to remain until August 1999. In 2007, he was charged as removable for o v e rs ta yin g his admission period. Afifi conceded removability and applied for special c a n c e lla tio n of removal as a battered spouse. After a hearing, an Immigration Judge (IJ) d e n ied the application and ordered Afifi removed to Egypt. O n appeal to the BIA, Afifi argued that the IJ's decision was correct but that he h a d been poorly represented by his former counsel because he failed to present the te stim o n y of Afifi's mother as a qualifying relative for his application of cancellation of re m o v a l. The BIA denied the motion to remand and dismissed the appeal. It concluded th a t Afifi had not satisfied any of the requirements for an ineffective assistance of counsel c la im set forth in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). The BIA also agreed w ith the IJ that Afifi had not demonstrated that he was battered by his spouse. Afifi filed a pro se petition for review. W e need not decide whether we have jurisdiction to review the denial of Afifi's a p p lic a tio n made pursuant to 8 U.S.C. § 1229b(b)(2) for cancellation of removal as a b a tte re d spouse because Afifi does not challenge the BIA's decision.1 In his brief, Afifi s im p ly states that his wife became a citizen in July 2008 and he has an approved petition f o r a "green card." He asserts that he and his wife are on good terms now. He notes that

See 8 U.S.C. § 1252(a)(2)(B); see Stepanovic v. Filip, 554 F.3d 673, 679 (7th Cir. 2 0 0 9 ); Wilmore v. Gonzales, 455 F.3d 524, 528 (5th Cir. 2006); Perales-Cumpean v. G o n z a le s, 429 F.3d 977, 982-84 (10th Cir. 2005); but see Hernandez v. Ashcroft, 345 F .3 d 824, 833-35 (9th Cir. 2003). We would have jurisdiction to review constitutional claim s or questions of law. 8 U.S.C. § 1252(a)(2)(D). 2

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Case: 09-3342

Document: 003110260555

Page: 3

Date Filed: 08/23/2010

h e has lived in the United States for over ten years, his mother is a citizen, and he has no c rim in a l record. He requests that we send his case back to the IJ to adjudicate the p e titio n . A f if i did not raise and exhaust these issues before the BIA or file a motion to re o p e n with the BIA.2 Under 8 U.S.C. § 1252(d)(1), we may review a final order of re m o v a l only if the petitioner has exhausted all administrative remedies. See James v. M u k a se y, 522 F.3d 250, 258-59 (2d Cir. 2008) (Court lacked jurisdiction to consider c la im of eligibility of adjustment of status when application was not filed before the IJ). Moreover, we may decide the petition only on the administrative record on which the o rd e r of removal was based. 8 U.S.C. § 1252(b)(4)(A). The documents Afifi has s u b m itte d on appeal are not part of the administrative record. F o r the above reasons, we will dismiss the petition for review for lack of ju ris d ic tio n . Afifi's second motion for an extension of time to file a reply brief is denied. Afifi's motion to stay removal and to reverse and remand is denied.

If Afifi's wife became a citizen in July 2008, it appears arguable that Afifi's counsel b ef o re the BIA was ineffective for failing to file a motion to reopen pursuant to In re V e la rd e -P a c h e co , 23 I. & N. Dec. 253 (BIA 2002). Afifi may wish to consider filing a m o tio n to reopen in the BIA on those grounds. We express no opinion on the merit of s u c h a motion. 3

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