                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-7-2005

Abdel-Whab v. Secretary Homeland
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1880




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"Abdel-Whab v. Secretary Homeland" (2005). 2005 Decisions. Paper 1054.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1054


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BPS-232                                                NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                              NO. 05-1880
                           ________________

                    USAMA SADIK ABDEL-WHAB,
                                       Appellant

                                    v.

                   SECRETARY OF DEPARTMENT
                     OF HOMELAND SECURITY;
                 (BICE) BUREAU OF IMMIGRATION
                 & CUSTOMS ENFORCEMENT (DHS)
                         ________________

              On Appeal From the United States District Court
                 For the Eastern District of Pennsylvania
                       (D.C. Civ. No. 04-cv-05386)
                District Judge: Honorable J. Curtis Joyner
                            ________________

                 Submitted For Possible Summary Action
               Under Third Circuit LAR 27.4 and I.O.P. 10.6
                               May 5, 2005

    Before: RENDELL, FISHER and VAN ANTWERPEN, CIRCUIT JUDGES

                           (Filed: June 7, 2005)

                       _______________________

                              OPINION
                       _______________________
PER CURIAM

       Appellant, Usama Sadik Abdel-Whab, appeals the order of the United States

District Court for the Eastern District of Pennsylvania dismissing his petition for writ of

habeas corpus filed pursuant to 28 U.S.C. § 2241. In his habeas petition, Abdel-Whab

sought review of the Board of Immigration Appeals (“BIA”) order of removal, release

from detention, adjustment of resident status and a waiver of inadmissibility under the

Immigration and Naturalization Act. Because Abdel-Whab had previously filed a

consolidated § 2241 habeas petition in the United States District Court for the Middle

District of Pennsylvania challenging his detention and the decisions of the Immigration

Judge (“IJ”) and the BIA, as well as attacking the underlying convictions entered against

him in the United States District Court for the Southern District of New York, see Abdel-

Whab v. Ridge, et al., M.D. Pa. Civ. No. 04-cv-00787, the District Court concluded that

appellant’s petition constituted an abuse of the writ. The District Court dismissed the

petition accordingly.1 This timely appeal followed.

       Abdel-Whab argues that the District Court erred in dismissing his petition because

the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) does not apply to § 2241

petitions. Contrary to appellant’s assertion, the District Court acknowledged our holding


       1
        In that same order, the District Court also dismissed Abdel-Whab’s § 2241
petition docketed at E.D. Pa. Civ. No. 05-cv-00059, which challenged his convictions of
passport fraud. Although Abdel-Whab filed a notice of appeal from that decision, see
C.A. No. 05-1964, he allowed the appeal to be procedurally terminated for failure to pay
the necessary appellate docket and filing fees.

                                              2
in Zayas v. INS, 311 F.3d 247, 255 (3d Cir. 2002), that the stricter AEDPA gatekeeping

provision set forth in 28 U.S.C. § 2244(b) is applicable only to habeas petitions filed

pursuant to 28 U.S.C. § 2254 and motions filed under § 2255. However, the court

further noted our conclusion in Zayas that § 2241 petitions are still within the ambit of the

abuse of the writ doctrine as set forth by the Supreme Court in McCleskey v. Zant, 499

U.S. 467, 491-92 (1991). We can find no fault with the abuse of the writ analysis

conducted by the District Court. Moreover, after careful review of the record together

with the § 2241 petition filed at M.D. Pa. Civ. No. 04-cv-00787, we agree with the

District Court’s conclusion that the underlying petition is nearly identical to the one

dismissed on the merits (including the merits of appellant’s challenges to the decisions of

the IJ and BIA) by the Middle District of Pennsylvania. While Abdel-Whab asserts that

he added “new constitutional violations” and “new memo [sic] of laws and arguments” to

the underlying petition, see Motion for Summary Action at ¶ 3, he fails to clearly indicate

just what those new claims are, or to provide any explanation as to his reasons for failing

to raise such issues with the District Court in the Middle District of Pennsylvania in his

first habeas petition. Having thus failed to show any cause or prejudice for this failure, or

that a fundamental miscarriage of justice will occur absent review, the underlying § 2241

petition was properly dismissed as an abuse of the writ. See Zayas v. INS, 311 F.3d at

258.




                                              3
      Accordingly, because it clearly appears that no substantial question is presented by

this appeal, see 3d Cir. LAR 27.4 and I.O.P. 10.6, we will summarily affirm the District

Court’s judgment. Appellant’s motion for summary reversal is therefore denied, as is his

“Emergency Request for Humanitarian and Emergency Relief.”




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