                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-16-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3487




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 05-3487


                                  AZAM RAHMAN,

                                                Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                                Respondent




                        On Petition for Review of an Order of
                          The Board of Immigration Appeals
                     Immigration Judge: Honorable Annie S. Garcy
                                  (No. A70-651-119)


                      Submitted Under Third Circuit LAR 34.1(a)
                                   July 10, 2007

                   Before: RENDELL and AMBRO, Circuit Judges,
                             SHAPIRO,* District Judge

                              (Opinion filed July 16, 2007)


                                       OPINION



      *
       Honorable Norma L. Shapiro, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
AMBRO, Circuit Judge

       Azam Rahman is a native of Bangladesh who seeks review of a Board of

Immigration Appeals decision that adopted and affirmed an Immigration Judge’s denial

of discretionary cancellation of removal and denied Rahman’s motion to reopen his

removal proceedings on claims of ineffective assistance of counsel. Rahman has failed to

demonstrate that he suffered prejudice by counsel’s performance, and we lack jurisdiction

to review the discretionary denial of relief. Accordingly, we deny the petition for review.1

       Rahman is father to two children, ages four and one, both U.S. citizens. In 2002,

he was served with a notice to appear and charged with removability as an alien who

entered the United States without inspection. Rahman claims that if he is removed, he

will be forced to take his children with him to Bangladesh, where they will not receive

adequate healthcare. Because of substandard healthcare in Bangladesh, he argues, the

removal will result in “exceptional and extremely unusual hardship” to his children, for

which he is eligible for discretionary cancellation of removal under 8 U.S.C.




       1
         We have jurisdiction to review final orders of removal under 8 U.S.C.
§ 1252(a)(1), but are without jurisdiction to review denials of discretionary relief under 8
U.S.C. § 1252(a)(2)(B). Because the decision to deny cancellation of removal here was
discretionary, we lack jurisdiction to review it. Mendez-Moranchel v. Ashcroft, 338 F.3d
176, 176 (3d Cir. 2003). We review constitutional questions de novo and findings of fact
under the substantial evidence standard. Mudric v. Att’y Gen., 469 F.3d 94, 97 (3d Cir.
2007).

                                             2
§ 1229b(b)(1).2 He also argues that his counsel’s failure to develop a record to

demonstrate that his children would suffer this type of hardship in Bangladesh prejudiced

his application for cancellation.

       The IJ found that Rahman failed to demonstrate that he was eligible for

cancellation because he failed to prove that he would have to take his children with him.

According to the IJ, Rahman failed to elicit testimony from his wife or in-laws, with



       2
           This provision states:

       The Attorney General may cancel removal of, and adjust to the status of an
       alien lawfully admitted for permanent residence, an alien who is
       inadmissible or deportable from the United States if the alien-

                (A) has been physically present in the United States for a
                continuous period of not less than 10 years immediately
                preceding the date of such application;

                (B) has been a person of good moral character during such
                period;

                (C) has not been convicted of an offense under section
                1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to
                [instances where the Attorney General exercises discretion to
                grant a waiver under § 1227(a)(7) of this title]; and

                (D) establishes that removal would result in exceptional and
                extremely unusual hardship to the alien's spouse, parent, or
                child, who is a citizen of the United States or an alien lawfully
                admitted for permanent residence.

8 U.S.C. § 1229b(b)(1). The immigration judge resolved questions regarding the first
three elements in favor of Rahman, despite certain gaps in the evidence. The Government
does not contest those rulings. At issue is the fourth prong—whether Rahman’s children
would suffer “exceptional and extremely unusual hardship.”

                                               3
whom he and his children lived, to convince the IJ that the children must accompany him

to Bangladesh if he were removed. Nevertheless, assuming that Rahman would have to

take them, he did not demonstrate that his children would suffer hardship in Bangladesh,

much less “exceptional and extremely unusual hardship,” because he presented no

evidence that the medical system in Bangladesh is subpar. The IJ therefore denied

Rahman’s application for cancellation of removal and granted his application for

voluntary departure.

       On appeal before the BIA, Rahman argued that he did not present the requisite

evidence because he was ineffectively assisted by his former attorney, who failed to

develop a record to demonstrate the significant suffering his children would endure if

forced to return with Rahman to Bangladesh. Rahman submitted to the BIA evidence that

included a social worker’s psychological assessment, stating that the inferior healthcare

system, severe pollution, and prevalence of AIDS would put the children at risk

(particularly the oldest son, who suffers from asthma and allergies). The BIA noted that,

even if Rahman had satisfied all the requirements of Matter of Lozada, 19 I. & N. Dec.

637 (BIA), aff’d, 857 F.2d 10 (1st Cir. 1998) (governing ineffective assistance claims),

none of the evidence submitted on appeal demonstrated that the children suffered from

any serious medical condition or that the health and medical resources in Bangladesh are

so deficient as to create for the children a hardship so severe to qualify as extremely

unusual. As the prejudice prong was not met, Rahman was not entitled to relief on the



                                              4
merits or on an ineffective assistance of counsel claim.

       For the reasons stated by the IJ and the BIA, we deny the petition for review. We

also dismiss the motion to waive oral argument as moot.3




       3
         There is a final observation worth mentioning about the advocacy here. We
normally would overlook the myriad typographical errors in the Government’s Brief.
E.g., Govt’s Br. at 3 (“he wanted to withdrawal [sic]”), 4 (“Rahman also admitted that his
oldest song [sic] spoke Bengali”), 6 (“Rahman also submittede [sic] a document that
asked his eldest son’s school toexcuse [sic] him”), 8 (“failing to . . . offer thgat [sic]
counsel an opportunity to respond dooms Rahman’s claim). Of particular concern here is,
in addition to the typographical errors, the incorrect reference to the petitioner Rahman as
“Chung.” We expect a higher standard from attorneys practicing at our bar and for them
to take more care with their written submissions, especially when they come from the
Department of Justice. We trust that in the future this admonition will be heeded.

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