                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-24-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2245




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                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                      No. 08-2245
                                      ___________

                          ABDEL KAREEM ADNAN KAWAS,
                                                 Petitioner

                                            v.

                  ATTORNEY GENERAL OF THE UNITED STATES
                     ____________________________________

                          Petition for Review of an Order of the
                              Board of Immigration Appeals
                                (Agency No. A79-130-693)
                      Immigration Judge: Honorable Alan Vomacka
                       ____________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   December 17, 2008

                 RENDELL, FUENTES and NYGAARD, Circuit Judges

                                (Filed: December 24, 2008)
                                        ___________

                               OPINION OF THE COURT
                                    ___________

PER CURIAM

       Abdel Kareem Adnan Kawas petitions for review of a final order of removal

issued by the Board of Immigration Appeals (“BIA”). For the reasons that follow, we

will deny the petition for review.
                                              I.

       Kawas, a native and citizen of Jordan, entered the United States in 1989 as a non-

immigrant visitor. In April 2003, he was served with a notice to appear charging him as

removable pursuant to INA § 237(a)(1)(B). In response, Kawas sought cancellation of

removal under INA § 240A(b) and a waiver of inadmissibility under § 212(h).

       A removal hearing was scheduled to take place on March 3, 2004 before

Immigration Judge (“IJ”) Alan Vomacka in Newark. Kawas, however, failed to appear.

As a result, IJ Vomacka issued an order in absentia removing him to Jordan. The United

States District Court for the Southern District of New York subsequently vacated the IJ’s

order, and the matter was remanded. Upon remand, the IJ found that Kawas was not

eligible for relief under either § 240A(b) or § 212(h).

       Kawas then submitted a motion to reopen arguing that he was eligible to adjust his

status to that of a lawful permanent resident under INA § 245 on the ground that his wife

was the beneficiary of an approved employment-based visa petition. By order entered

November 22, 2005, the IJ denied the motion to reopen. Kawas appealed. Meanwhile,

Kawas was taken into custody by the Department of Homeland Security.

       Upon review of the IJ’s order denying the motion to reopen, the BIA found that

Kawas was entitled to a hearing on his claim for waiver of inadmissibility under § 212(h),

and, by order entered March 3, 2006, remanded the matter back to the IJ. It appears that

IJ Vomacka then conducted several evidentiary hearings to take testimony from Kawas’s



                                              2
family.1 At one such hearing on June 16, 2006, Kawas’s wife apparently revealed that

she had never actually worked for the establishment that had been the basis for her labor

certification in the United States, which, as noted above, was the basis for Kawas’s

application for adjustment of status. At that time, the IJ adjourned the hearing so that

Kawas’s attorney could provide proof of income for the family as well as several other

supporting documents. When the subsequent hearing took place, Kawas was not present

because the state of New Jersey had taken him into custody on criminal charges. As a

result, on August 4, 2006, the IJ “administratively closed” the removal case until Kawas

could appear.2

       Four months later, on December 4, 2006, Kawas’s attorney contacted the

immigration court in Manhattan and requested that the case be reopened. Kawas’s

attorney reported to the court that Kawas had been convicted on the New Jersey criminal

charges and was willing to accept removal at that time. An IJ in Manhattan attempted to

conclude the matter, but Kawas then repudiated his willingness to be removed. As a

result, the matter was transferred back to IJ Vomacka to be fully resolved on the merits.

       On October 12, 2007, IJ Vomacka denied Kawas’s applications for cancellation of



   1
     Although the BIA’s March 3, 2006 remand order directed the IJ to hold a hearing on
Kawas’s application for a waiver under § 212(h) only, it appears that the IJ reconsidered
all three of Kawas’s applications.
   2
     At this hearing, Kawas’s attorney informed IJ Vomacka that Kawas’s wife would not
be providing any additional testimony because she was uncomfortable with the IJ’s “tone”
at the prior hearing.

                                             3
removal under § 240A(b), adjustment of status under § 245, and waiver of inadmissibility

under § 212(h). The IJ also reviewed Kawas’s complaints about various other aspects of

the removal proceedings, and found them to be without merit. By order entered February

20, 2008, the BIA dismissed Kawas’s appeal from the IJ’s decision.

       On March 20, 2008, Kawas filed in the United States District Court for the District

of New Jersey a document entitled “Motion for Notice of Entry of Equitable

Estoppels/and or Constitutional Estoppels Claim.” (Civ. No. 08-1458.) Because this

motion challenged the BIA’s February 20, 2008 order of removal, the District Court

transferred the matter to this Court.3 See 8 U.S.C. § 1252(a)(5). We will construe

Kawas’s motion as a petition for review.

                                             II.

       Kawas’s primary argument on appeal is that he was denied due process because he

and his family were not given an opportunity to testify to the hardship they would face

should he be removed to Jordan. Although it appears that Kawas was able to present

testimony and witnesses during at least one hearing in June 2006, he now argues that his

family was denied an opportunity to testify in support of his application for a waiver of

inadmissibility under § 212(h). See 8 U.S.C. § 1182(h) (providing that the Attorney

General may, in his discretion, waive inadmissibility under section 212(a)(2)(A)(i)(I) if




   3
    The District Court properly retained jurisdiction over claims raised in the petition that
pertained to Kawas’s detention.

                                              4
the alien’s departure would cause “extreme hardship” to a United States citizen that is his

spouse, parent or child).

       This Court has jurisdiction over Kawas’s due process claim under 8 U.S.C. §

1252(a)(2)(D). See Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006) (holding

that constitutional claims raised in a petition for review elude the jurisdiction-stripping

provisions of the INA). Due process in this context requires that an alien be provided

with a full and fair hearing and a reasonable opportunity to present evidence.

Romanishyn v. Attorney General, 455 F.3d 175, 185 (3d Cir. 2006). To prevail on a

procedural due process challenge to a decision by the BIA, an alien must make an initial

showing of substantial prejudice. See Bonhometre v. Gonzales, 414 F.3d 442, 448 (3d

Cir. 2005). Thus, in order for Kawas to prevail here, he must make a strong showing that,

if IJ Vomacka had taken additional testimony from Kawas’s wife and children, he likely

would have found “extreme hardship” and granted Kawas’s application for a waiver of

inadmissibility under § 212(h).

       Kawas does not, however, indicate how his wife’s or children’s testimony would

have demonstrated such hardship. Indeed, Kawas does not give any indication

whatsoever of the subject of the hypothetical testimony. Therefore, even assuming that

the IJ erred in ruling on the application without taking additional testimony, Kawas has

failed to show that he was prejudiced by that decision. For this reason, Kawas is not




                                              5
entitled to relief on his due process claim.4

       Next, Kawas argues that IJ Vomacka violated his Sixth Amendment right to

counsel by allowing one of his attorneys to withdraw representation in March 2007. As

the BIA explained, however, the Sixth Amendment right to counsel does not attach in

immigration proceedings. Xu Yong Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001)

(citing INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984)). Therefore, Kawas’s

constitutional rights were not implicated by the IJ’s decision allowing counsel to

withdraw.

       Kawas also complains of several other aspects of the underlying proceedings.

Although his arguments are rather difficult to follow, Kawas appears to claim that: (1) he

was improperly removed on the basis of his criminal convictions rather than on the

overstay charge alleged in the Notice to Appear; (2) the Immigration Court in Newark has

ignored his three recent requests for a “Joseph hearing”; and (3) the BIA improperly

refused to consider the new evidence that he submitted in support of his administrative

appeal. First, with respect to Kawas’s argument about the basis of his removal, we note

that, contrary to Kawas’s contention, the IJ based the removal order on the overstay




   4
    To the extent that Kawas argues that he himself was denied an opportunity to testify,
here too he fails to identify any resulting prejudice. In addition, to the extent that
Kawas’s due process claim includes an allegation that IJ Vomacka was biased and unfair
during the proceedings, we agree with the BIA that the record does not reveal any
misconduct. See Wang v. Attorney General, 423 F.3d 260, 268-69 (3d Cir. 2005);
Abdulrahman v. Ashcroft, 330 F.3d 587, 596 (3d Cir. 2003).

                                                6
charge stated in the Notice to Appear. As for Kawas’s complaint that the Immigration

Court has failed to respond to certain letters that he submitted after the docketing of this

appeal, those letters are not properly before this Court. Finally, the BIA’s refusal to

review new evidence submitted in support of the administrative appeal was proper. See 8

C.F.R. § 1003.1(d)(3)(IV) (“Except for taking administrative notice of commonly known

facts such as current events or the contents of official documents, the Board will not

engage in factfinding in the course of deciding appeals.”)

       Kawas’s remaining arguments challenge the length of his detention. This Court

does not, however, have jurisdiction to review these claims, as they are part of the habeas

petition that was filed in the District of New Jersey.5 See Zadvydas v. Davis, 533 U.S.

678, 688 (2001) (holding that habeas proceedings are the forum for statutory and

constitutional challenges to post-removal-period detention).

                                             III.

       For the reasons set forth above, we will deny the petition for review.




   5
     Among Kawas’s other complaints about his detention, he repeatedly claims that his
detention is illegal because he had been released on bail in May 2003. Kawas’s argument
appears to be that, because he was released at that time, it was illegal for him to have been
later re-detained on the ground that he had been convicted of two crimes involving moral
turpitude. See INA § 236(c)(1)(B), 8 U.S.C. § 1226(c)(1)(B). To the extent that Kawas
is arguing that the IJ’s 2003 bond order should have some sort of preclusive effect on a
subsequent custody order, this argument is clearly without merit. To the extent that
Kawas means to challenge his detention under § 236(c), we find that this argument is
moot given that he is currently being detained pursuant to a final order of removal.

                                              7
