Ahmed Afifi v. Atty Gen USA

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3342
___________
AHMED SHAWKY FARAG AFIFI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A098-496-718)
Immigration Judge: Honorable Mirlande Tadal
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 12, 2010
Before: MCKEE, FUENTES and VAN ANTWERPEN, Circuit Judges
(Opinion filed: June 30, 2010)
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OPINION
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PER CURIAM
Ahmed Shawky Farag Afifi petitions for review of a decision of the Board of
Immigration Appeals (BIA). For the reasons below, we will dismiss the petition.
Afifi, a citizen of Egypt, entered the United States in February 1999, with
authorization to remain until August 1999. In 2007, he was charged as removable for
overstaying his admission period. Afifi conceded removability and applied for special
cancellation of removal as a battered spouse. After a hearing, an Immigration Judge (IJ)
denied the application and ordered Afifi removed to Egypt.
On appeal to the BIA, Afifi argued that the IJ’s decision was correct but that he
had been poorly represented by his former counsel because he failed to present the
testimony of Afifi’s mother as a qualifying relative for his application of cancellation of
removal. The BIA denied the motion to remand and dismissed the appeal. It concluded
that Afifi had not satisfied any of the requirements for an ineffective assistance of counsel
claim set forth in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). The BIA also agreed
with the IJ that Afifi had not demonstrated that he was battered by his spouse. Afifi filed
a pro se petition for review.
We need not decide whether we have jurisdiction to review the denial of Afifi’s
application made pursuant to 8 U.S.C. § 1229b(b)(2) for cancellation of removal as a
battered spouse because Afifi does not challenge the BIA’s decision.1 In his brief, Afifi
simply states that his wife became a citizen in July 2008 and he has an approved petition
for a “green card.” He asserts that he and his wife are on good terms now. He notes that
1
See 8 U.S.C. § 1252(a)(2)(B); see Stepanovic v. Filip, 554 F.3d 673, 679 (7th Cir.
2009); Wilmore v. Gonzales, 455 F.3d 524, 528 (5th Cir. 2006); Perales-Cumpean v.
Gonzales, 429 F.3d 977, 982-84 (10th Cir. 2005); but see Hernandez v. Ashcroft, 345
F.3d 824, 833-35 (9th Cir. 2003). We would have jurisdiction to review constitutional
claims or questions of law. 8 U.S.C. § 1252(a)(2)(D).
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he has lived in the United States for over ten years, his mother is a citizen, and he has no
criminal record. He requests that we send his case back to the IJ to adjudicate the
petition.
Afifi did not raise and exhaust these issues before the BIA or file a motion to
reopen with the BIA.2 Under 8 U.S.C. § 1252(d)(1), we may review a final order of
removal only if the petitioner has exhausted all administrative remedies. See James v.
Mukasey, 522 F.3d 250, 258-59 (2d Cir. 2008) (Court lacked jurisdiction to consider
claim of eligibility of adjustment of status when application was not filed before the IJ).
Moreover, we may decide the petition only on the administrative record on which the
order of removal was based. 8 U.S.C. § 1252(b)(4)(A). The documents Afifi has
submitted on appeal are not part of the administrative record.
For the above reasons, we will dismiss the petition for review for lack of
jurisdiction. Afifi’s second motion for an extension of time to file a reply brief is denied.
Afifi’s motion to stay removal and to reverse and remand is denied.
2
If Afifi’s wife became a citizen in July 2008, it appears arguable that Afifi’s counsel
before the BIA was ineffective for failing to file a motion to reopen pursuant to In re
Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002). Afifi may wish to consider filing a
motion to reopen in the BIA on those grounds. We express no opinion on the merit of
such a motion.
3