                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-16-2006

Mkanyia v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5129




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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 05-5129


               STEVEN DAVID MKANYIA; JULIANA NYASINGA,

                                                                    Petitioners

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                                                    Respondent


                          On Petition for review of a decision
                         of the Board of Immigration Appeals
                        (BIA Nos. A76 240 980, A78 573 888)


                      Submitted under Third Circuit LAR 34.1(a)
                                 November 9, 2006

       BEFORE: SLOVITER, CHAGARES, and GREENBERG, Circuit Judges

                              (Filed: November 16, 2006)


                             OPINION OF THE COURT


GREENBERG, Circuit Judge.

      This matter comes on before the court on a timely petition for review of a decision

by the Board of Immigration Appeals entered October 27, 2005, denying motions by

petitioners Steven David Mkanyia and Juliana Nyasinga to reopen and reconsider a
decision of the BIA entered March 23, 2004, which affirmed a decision of an immigration

judge ordering petitioners’ removal and denying their applications for cancellation of

removal. The petitioners had filed a petition for review with this court with respect to the

March 23, 2004 decision of the BIA, for the first time raising an ineffective assistance of

counsel argument. We denied the petition for review on August 10, 2005, as we lacked

jurisdiction to entertain petitioners’ ineffective assistance of counsel argument as well as

their claim that they qualified for cancellation of removal under 8 U.S.C. §

1229b(b)(1)(D). Mkanyia v. Gonzales, 140 Fed. Appx. 422, 423 (3d Cir. 2005).1

       In the proceedings before us now, the petitioners assert that prior counsel was

ineffective and that they presented sufficient evidence in support of their motion to

reopen the proceedings to demonstrate prima facie eligibility for cancellation of removal.

Petitioners explain that the immigration judge had denied them cancellation of removal


  1
   We summarized the case and its disposition as follows:

              Petitioners assert three claims. First, they argue that their ‘removal
       would result in exceptional and extremely unusual hardship to’ their three
       citizen children, and thus, that they qualify for cancellation of removal. 8
       U.S.C. § 1229b(b)(1)(D). Second, they argue that the IJ’s denial of their
       request for a continuance, so that Nyasinga could obtain evidence of the
       genital mutilation she suffered in Kenya, deprived them of a full and fair
       removal rehearing. Third, they contend that they were prejudiced by
       ineffective assistance of counsel during their removal proceedings.

              We lack jurisdiction over Petitioners’ first and third claims, and
       conclude that their second claim lacks merit. Accordingly, we are
       constrained to deny the petition for review.

Mkanyia v. Gonzales, 140 Fed. Appx. at 423.
                                              2
on the basis that they “failed to establish that their removal would cause exceptional and

extremely unusual hardship to their citizen born daughters.” Petitioners’ br. at 19-20.

We have jurisdiction under section 242(a) of the Immigration and Nationality Act, 8

U.S.C. § 1252(a), as amended by the Real ID Act of 2005, Pub. L. No.109-13, Div. B, §

106, 119 Stat. 231. A determination to open or reconsider “is within the discretion of the

[BIA.]” 8 C.F.R. § 1003.2(a). Consequently, we will not disturb a decision on an

application to reopen or reconsider unless it is “arbitrary, irrational or contrary to law.”

See Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994) (internal quotations and citation

omitted).

       In its October 27, 2005 decision the BIA indicated that in its March 23, 2004

decision it found that the petitioners “failed to demonstrate the requisite level of hardship

to a qualifying relative should they be removed from the United States so as to merit a

grant of cancellation of removal.” App. at 2. The BIA concluded its decision as follows:

              On September 1, 2005, the respondents filed with us motions to
       reopen and reconsider our March 23, 2004, order, claiming that they fell
       victim of ineffective assistance of their prior counsel. Specifically, they
       claim that the counsel who represented them during the proceedings before
       the Immigration Judge failed to request of them, assemble, and submit to
       the Immigration Court all necessary evidence in support of their application
       for cancellation of removal. They also claim that their second attorney,
       who represented them on appeal before us, failed to raise a claim of
       ineffective assistance of the prior counsel which, in itself, amounted to
       ineffective assistance of counsel. However, other than advancing the
       aforementioned allegations in the motions to reconsider and reopen, the
       respondents have failed to meet the requirements necessary to establish a
       claim for ineffective assistance of counsel. See Zheng v. Gonzales, 422
       F.3d 98 (3d Cir. 2005); see also Matter of Lozada, 19 I & N Dec. 637 (BIA
       1988). Accordingly, we find it inappropriate to reopen proceedings and

                                              3
       reconsider our prior decision. 8 C.F.R. §§ 1003.2(b), 1003.2(c)(1). In view
       of the foregoing, the following orders shall be entered.

App. at 2-3.

       We are satisfied that the petition for review is without merit. Taking petitioners’

arguments in reverse order, we point out that we will not consider the hardship

determination as we lack jurisdiction to do so. Thus, petitioners’ lengthy argument in

which they acknowledge that they “reassert their eligibility for cancellation of removal,”

petitioners’ br. at 18, does not address the issue before us. Rather, the issue is whether

petitioners satisfied the criteria of Matter of Lozada, 19 I & N Dec. 637 (BIA 1988), for

the assertion of an ineffective assistance of counsel argument. While it is true that

petitioners argue at length that their prior counsel was ineffective, as far as we can see, in

advancing this contention they have not complied with any of the three-part Lozada

requirements. Id. at 639-40. Accordingly, we are constrained to deny the petition for

review. See Lu v. Ashcroft, 259 F.3d 127, 134-35 (3d Cir. 2001).

       The petition for review of the decision entered October 27, 2005, will be denied.




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