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


7-17-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3636




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                                                   NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT




                      No. 05-3636


               MEDHAT M. SHAYBOB,
                          Petitioner

                            v.

               ATTORNEY GENERAL
              OF THE UNITED STATES,
                          Respondent


          Petition for Review of an Order of the
           United States Department of Justice
              Board of Immigration Appeals
                 (BIA No. A70-850-459)


       Submitted Under Third Circuit LAR 34.1(a)
                    July 14, 2006

Before: SLOVITER, McKEE and RENDELL, Circuit Judges.

                 (Filed: July 17, 2006 )




              OPINION OF THE COURT
RENDELL, Circuit Judge.

       Petitioner Medhat Shaybob petitions for review of the Board of Immigration

Appeals (“BIA”)’s affirmance of Immigration Judge (“IJ”) Daniel Meisner’s denial of his

application for cancellation of removal under § 240A(b) of the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1229b(b). For the reasons set forth below, we will

deny the petition for review.

                                            I.

       Shaybob, a native and citizen of Egypt, entered the United States in 1991 as a non-

immigrant visitor. He remained in the United States longer than permitted, subjecting

himself to deportation as an overstay visitor. In 1998 Shaybob had a daughter, Manal,

with legal permanent resident Jamail Eisenberg, whom he married in 2000. They later

separated, but Shaybob remained a part of Manal’s life.

       The IJ entered a final order of removal against Shaybob on February 2, 2004.

Before the IJ, Shaybob sought cancellation of removal pursuant to § 240A(b) of the INA,

8 U.S.C. § 1229b(b). The IJ found that Shaybob met the first three requirements of

§ 240A(b). However, the IJ held that Shaybob failed to establish that his removal would

work “an exceptional and extremely unusual hardship” on his daughter under

§240A(b)(1)(D) of the INA, 8 U.S.C. § 1229b(b)(1)(D), and accordingly, denied his

application for cancellation of removal.




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         Shaybob appealed the denial of the cancellation of removal to the BIA, which

affirmed and adopted the IJ’s decision. In his appeal, Shaybob also made a claim of

ineffective assistance of his prior counsel and a constitutional claim that certain

provisions of the immigration laws, specifically the Special Call-In Registration Program

(“Call-In Program”), violated the Equal Protection component of the Due Process Clause

of the Fifth Amendment.1 The BIA denied Shaybob’s ineffective assistance of counsel

claim because it found that he had not complied with the requirements of In re Lozada,

19 I&N Dec. 637 (BIA 1988), aff’d, 857 F.2d 10 (1 st Cir. 1988). It did not rule on

Shaybob’s constitutional claim, stating that it lacked authority to “rule on the

constitutionality of laws enacted by Congress.” We review both the IJ’s and the BIA’s

rulings because the BIA adopted the opinion of the IJ and rendered its own opinion on the

ineffective assistance of counsel claim. See Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.

2002).

                                                II.

         Shaybob first contends that he satisfied the statutory requirements of § 240A(b) of

the INA, 8 U.S.C. § 1229b, and, thus, was entitled to cancellation of removal. The



  1
    The Call-In Program is part of the National Security Entry/Exit Registration System
("NSEERS") and requires certain aliens from countries identified by the Attorney General as
constituting elevated national security concerns to report for registration, fingerprinting, and
photographing by the Department of Homeland Security. See 8 C.F.R. § 264.1(f)(4); 8 U.S.C.
§§ 1303, 1305. Removal proceedings were instituted against Shaybob after he self-reported in
compliance with the Call-In Program requirements, thereby bringing the overstay of his visa to
the attention of immigration authorities.

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government, on the other hand, argues that we lack jurisdiction to review the IJ’s

dispositive “exceptional and extremely unusual hardship” determination. INA

§ 242(a)(2)(B)(i); 8 U.S.C. § 1252(a)(2)(B)(i). We have jurisdiction to review final

orders of removal pursuant to 8 U.S.C. § 1252(a)(1), but we may not review denials of

discretionary relief, INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B). Yet we have held that

the jurisdiction-stripping provision of § 1252(a)(2)(B) does not preclude us from

reviewing non-discretionary aspects of discretionary decisions, such as constitutional

claims or questions of statutory interpretation. Mendez-Moranchel v. Ashcroft, 338 F.3d

176, 178 (3d Cir. 2003). In Mendez-Moranchel, we held that whether an alien has

demonstrated the “exceptional and extremely unusual hardship” required to qualify for

cancellation of removal is a discretionary determination that we lack jurisdiction to

review. Id. at 178-79.

       Shaybob attempts to avoid the effect of this holding by claiming that the IJ erred as

a matter of law because he did not consider all of the hardships that Shaybob’s removal

would cause for his United States citizen child. We examined and rejected an analogous

argument in Sanchez v. Ashcroft, 94 F. App’x 885 (3d Cir. 2004). There, the petitioner

argued that the IJ applied an incorrect legal standard in assessing petitioner’s cancellation

of removal claim. Id. at 886. We stated that we could not “successfully determine

whether the IJ applied the correct legal standard . . . without analyzing the merits of the

IJ’s decision to deny [the] request for cancellation.” Id. at 888 (citing Carriche v.



                                              4
Ashcroft, 350 F.3d 845, 854 (9 th Cir. 2003)). Addressing the merits of the IJ’s decision

would entail a review of the final decision denying cancellation of removal, which is

discretionary and, thus, outside of our jurisdiction. Id. at 887-88. Similarly, Shaybob’s

claim that the IJ did not examine all of the hardship factors would require us to consider

the merits of the IJ’s decision. Thus, as in Sanchez, we lack jurisdiction over this aspect

of Shaybob’s petition for review. See INA § 242(a)(2)(B)(i); 8 U.S.C. § 1252(a)(2)(B)(i).

       Second, Shaybob argues that his application for cancellation of removal should be

granted because his ineffective assistance claim satisfied the Lozada criteria. We have

jurisdiction to review Shaybob’s ineffective assistance of counsel claim because aliens

“in deportation proceedings enjoy Fifth Amendment Due Process protections,” which

entail a right to counsel. Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001). However,

Shaybob’s claim is without merit because, as the BIA found, he failed to comply with the

requirements of In re Lozada, 19 I&N Dec. 637 (B.I.A. 1988), aff’d, 857 F.2d 10 (1 st Cir.

1988). To comply with Lozada, a petitioner must (1) support his ineffective assistance of

counsel claim with an affidavit “attesting to the relevant facts”; (2) inform counsel of the

allegations and provide him with an opportunity to respond; and (3) file a complaint with

the appropriate disciplinary authorities or explain why he did not file such a complaint.

Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir. 2005) (citing Lozada, 19 I&N Dec. at 639).

We have held that the BIA’s Lozada test is not an abuse of the BIA’s discretion. Lu, 259

F.3d at 133. Although strict adherence to Lozada is not necessary, id. at 135, Shaybob



                                              5
failed to comply with any of the requirements. We will not grant a petition to review on

this basis.

       Finally, Shaybob argues that the Call-In Program, part of the National Security

Entry-Exit Registration System (NSEERS), violates equal protection because it targets

aliens based on their country of origin. We have jurisdiction to review substantial

constitutional claims, including equal protection and due process claims, raised in

immigration proceedings. 8 U.S.C. § 1252(a)(2)(D); Zafar v. Att’y Gen., 426 F.3d 1330,

1336 (11 th Cir. 2005). However, Shaybob’s claim lacks merit.

       The Call-In Program does not violate the Equal Protection guarantee of the Fifth

Amendment. In Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471

(1999), the United States Supreme Court established that the Attorney General has wide-

ranging discretion to initiate removal proceedings against aliens who violate immigration

laws. Id. at 491. Removal proceedings instituted as a result of information gleaned

through an alien’s compliance with the Call-In Program have repeatedly been upheld as a

legitimate exercise of this prosecutorial discretion. See Zafar, 426 F.3d at 1336; Ahmed v.

Gonzales, 447 F.3d 433, 439-40 (5 th Cir. 2006); Ali v. Gonzales, 440 F.3d 678, 681 n.4

(5 th Cir. 2006); Roudnahal v. Ridge, 310 F. Supp. 2d. 884, 892 (N.D. Ohio 2003). The

power to exclude or expel particular classes of aliens is historically within the province of

the political branches and “largely immune to judicial control.” Fiallo v. Bell, 430 U.S.

787, 792 (1977). We will join the courts that have rejected such equal protection claims.



                                              6
                                   III.

We will deny Shaybob’s petition for review.




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