                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                 Nos. 16-3128 & 16-3656
                                   ________________

                                HASSAN M. ELANANY
                       a/k/a Hassan Magdy Eltabey Mohamed Ela,
                                                         Petitioner

                                             v.

                            ATTORNEY GENERAL OF THE
                            UNITED STATES OF AMERICA
                                 ________________

                          On Petition for Review of an Order of the
                              Board of Immigration Appeals
                               (Agency No. A058-555-250)
                        Immigration Judge: Roxanne C. Hladylowycz
                                   ________________

                       Submitted under Third Circuit LAR 34.1(a)
                                   on May 24, 2017

               Before: HARDIMAN, ROTH and FISHER, Circuit Judges

                            (Opinion filed: February 27, 2018)

                                   ________________

                                       OPINION *
                                   ________________



ROTH, Circuit Judge

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Hassan M. Elanany is a native and citizen of Egypt. He is in removal proceedings

and seeks cancellation of removal. He petitioned for review of the agency determination

that he does not merit discretionary cancellation of removal. We will deny the petition.

                                      I. Background

       On September 19, 2006, at age 14, Elanany was admitted to the United States

from Egypt as a lawful permanent resident. On April 23, 2012, he was convicted of retail

theft. On January 22, 2015, he was convicted of terroristic threats, stalking, and

possession of a controlled substance. The Department of Homeland Security (DHS)

began removal proceedings. Elanany conceded removability but sought cancellation of

removal; he submitted evidence of completion of a drug treatment program. On

September 29, 2015, the Immigration Judge (IJ) concluded that Elanany was eligible for

cancellation of removal but denied relief as a matter of discretion due to Elanany’s

criminal history. Elanany appealed the IJ’s decision to the Board of Immigration Appeals

(BIA), submitted further evidence of drug treatment, and filed a motion to remand to the

IJ. On June 14, 2016, the BIA dismissed the appeal and denied the motion. Elanany

filed a motion to reconsider, partly based on the BIA’s failure to consider his evidence of

completing a drug treatment program and partly based on new evidence submitted with

his motion: a scholarly article relating to remorse. On August 18, 2016, the BIA issued a

new decision that evaluated his motion both as a motion to reconsider and a motion to

reopen. Granting the motion to reconsider, the BIA took into account the evidence of

rehabilitation. However, it denied the motion to reopen and remand, again affirming the


                                             2
IJ’s denial of relief as a matter of discretion. It concluded that Elanany’s extensive

criminal history, insufficient showing of remorse, and inadequate rehabilitation

outweighed his limited positive equities. Elanany now petitions for review of the denial

of the motion to reopen.

                                       II. Discussion

                       A. Jurisdiction and Decision Under Review

       Under 8 U.S.C. § 1252, when we review immigration proceedings, we have

jurisdiction to decide constitutional claims and questions of law but not challenges to

discretionary determinations. 1 “Because the BIA issued its own decision, we review that

decision, and not that of the IJ.”2 However, “we will review the IJ’s . . . opinion to the

extent that the BIA relied upon [it].” 3 After a motion to reconsider/reopen, we primarily

focus our review on the second BIA decision; when the BIA’s second decision employed

the same reasoning as the first, we have no need to refer to the first, and when the second

employed different reasoning, the first is without effect. 4

                 B. Failing to Consider Evidence and Provide Analysis

       Elanany first argues that the BIA failed to consider and analyze all material

evidence. This is a question of due process: An alien facing removal is entitled to due

process, including an individualized determination considering “the evidence and



1
  Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006).
2
  Sheriff v. Attorney Gen. of U.S., 587 F.3d 584, 588 (3d Cir. 2009) (citing Ezeagwuna v.
Ashcroft, 301 F.3d 116, 126 (3d Cir. 2002)).
3
  Wang v. Attorney Gen. of U.S., 423 F.3d 260, 267 (3d Cir. 2005).
4
  See Thomas v. Attorney Gen. of U.S., 625 F.3d 134, 140 (3d Cir. 2010).
                                              3
argument that [the alien] presents.” 5 Elanany faults the BIA’s decision because he claims

that it mentions only one item of evidence that it considered—the scholarly article related

to remorse—and summarily treats the other evidence by referring to it as “the remaining

evidence.” However, he mischaracterizes the BIA’s decision, which also refers to “a

February 2016 drug treatment completion certificate” and states that Elanany’s

“rehabilitative efforts . . . are laudable[.]” 6 Moreover, the evidence of rehabilitation that

Elanany faults the BIA for failing to mention showed that Elanany had completed some

drug treatment and was continuing further drug treatment. Thus, we have no basis to

conclude that the BIA did not consider the evidence that Elanany presented.

                        C. Applying the Wrong Legal Standards

       Elanany next argues that the BIA applied the wrong legal standards in its decision

denying the motion to reopen. 7 The BIA may deny a motion to reopen or remand for

several reasons, two of which are that the movant has not made out a prima facie case

and that the movant does not merit discretionary relief. 8 Here, Elanany refers to the

sentence in the BIA’s decision stating, “The remaining evidence does not change our




5
  Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001) (quoting Llana-Castellon v.
I.N.S., 16 F.3d 1093, 1096 (10th Cir. 1994)) (internal quotation marks omitted). We
review the denial of a motion to reopen for abuse of discretion, but “we review de novo
the Board’s determination of an underlying procedural due process claim.” Fadiga v.
Attorney Gen. U.S., 488 F.3d 142, 153 (3d Cir. 2007).
6
  App. 6.
7
  We review “whether the BIA applied the correct legal standard in considering the
motion to reopen” de novo. Fadiga, 488 F.3d at 153-54.
8
  I.N.S. v. Abudu, 485 U.S. 94, 104-05 (1988); Huang v. Attorney Gen. of U.S., 620 F.3d
372, 389 (3d Cir. 2010); Matter of Coelho, 20 I. & N. Dec. 464, 472 (BIA 1992).
                                               4
conclusion that the respondent does not merit discretionary relief[,]” 9 and observes that

the BIA then cites cases that, among other things, describe the elements of a prima facie

case. He argues that this juxtaposition indicates that the BIA may have confused the

factors for discretionary relief with the elements of a prima facie case.

       We do not agree. The cases cited following the quoted sentence explain that the

BIA may skip discussion of the prima facie case if it decides that, in its discretion, it

would deny relief in any event. 10 Here, the BIA did precisely that and the citation

supports the proposition that it had the authority to do so. We see no confusion about

standards in the BIA’s decision.

       Elanany further argues that the BIA’s decision considered only rehabilitation, even

though there are many factors to consider in deciding whether to grant cancellation of

removal. 11 Elanany concedes, however, that the BIA considered his positive equities as

well. Moreover, the BIA expressly relied on the IJ’s decision, which balanced the

equities at length. The BIA addressed only those factors that it was revisiting from the

IJ’s decision, and there was no need for it to do more. Hence, we find no error. 12

                                      III. Conclusion

       For the foregoing reasons, we will deny the petition.



9
  App. 6.
10
   This is true both for a motion to reopen and a motion to remand. Abudu, 485 U.S. at
105; Huang, 620 F.3d at 389; Coelho, 20 I. & N. Dec. at 472-73.
11
   See In re C-V-T-, 22 I. & N. Dec. 7, 11 (BIA 1998) (listing factors).
12
   Elanany raises a third claim, that the BIA should have granted his motion to reopen
because it was supported by substantial evidence, but this is a challenge to the BIA’s
exercise of discretion and, as discussed above, we lack jurisdiction to address it.
                                              5
