Abdelhadi ABUSHEIKH, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent.

No. 05-5130.United States Court of Appeals, Third Circuit.Submitted Under Third Circuit LAR 34.1(a) September 28, 2006.
Filed January 31, 2007.

Page 57

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

On Petition for Review of an Order of The Board of Immigration Appeals (No. A72-433-013), Initially docketed as an Appeal from the United States District Court for the District of New Jersey prior to the enactment of the Real ID Act (Civ. No. 05-cv-01819), District Judge: Honorable Dennis M. Cavanaugh.

Asian T. Soobzokov, Paterson, NJ, for Petitioner.

Peter G. O’Malley, Office of United States Attorney, Newark, NJ, for Respondent.

Before: McKEE, and AMBRO, Circuit Judges and RESTANI, [*]
Chief Judge.

[*] Honorable Jane A. Restani, Chief Judge, United States Court of International Trade, sitting by designation.

OPINION
AMBRO, Circuit Judge.

Abdelhadi Abusheikh petitions for review of an order issued by the Board of Immigration Appeals (“BIA”) affirming the denial of his application for cancellation of removal. We have jurisdiction to consider the petition under Section 242(b) of the Immigration and Nationality Act (“INA”), codified at 8 U.S.C. § 1252(b). For the reasons set forth below, we deny the petition.

I.
We highlight only those facts that are pertinent to our analysis. Abusheikh is a native and citizen of Jordan who moved to the West Bank when he was a child, at a time when the land was under Jordanian control. Following the Six-Day War in 1967, this territory was under the control of Israel. Abusheikh came to the United States with an Israeli travel document as a non-immigrant visitor on October 3, 1989, and was authorized to stay until April 3, 1990. However, he overstayed his visa, and in 2002 he was arrested and charged with removal. Abusheikh conceded the charge of removal and was released after posting bond. He proceeded to apply for cancellation of removal under 8 U.S.C. § 1229b(b)(1).

After a hearing on the merits, the immigration judge (“IJ”) denied Abusheikh’s petition, designated Jordan and Israel as

Page 58

removal countries, and granted him voluntary departure. In response to Abusheikh’s allegation that he would not be able to return to Jordan because of his status as a Palestinian, the IJ noted that he failed to provide any documentation to support this claim. In addition, the IJ concluded that any hardship Abusheikh would face if he had to return to the West Bank would not rise to a level requiring cancellation of removal See 8 U.S.C. § 1229b(b)(1) (governing cancellation of removal for non-permanent residents).

Abusheikh appealed the IJ’s decision and the BIA affirmed without opinion. He then applied for travel documents with the Jordanian and Israeli authorities. Before receiving a response, he filed a motion with the BIA to reopen his case, expressing concern that he would not be accepted by either of the removal countries designated by the IJ. The BIA denied this motion, stating that it did not have the authority to cancel removal on the ground that no country was willing to accept Abusheikh. After being refused travel documents by the Jordanian embassy, but prior to having received word from the Israeli embassy, Abusheikh filed yet another motion to reopen, which was denied by the BIA for lack of jurisdiction because his removal order became final upon his failure to depart voluntarily.

Following his detention, Abusheikh filed a petition for a stay of removal and a writ of habeas corpus under 28 U.S.C. § 2241 with the United States District Court for the District of New Jersey, which transferred his claim (now treated as a petition for review) to us pursuant to 8 U.S.C. § 1252(b)(2).[1]

II.
Under 8 U.S.C. § 1252(a)(2)(B)(I), we do not have jurisdiction to review a discretionary decision to deny cancellation of removal under § 1229b. However, we do retain jurisdiction to review “constitutional claims or questions of law” notwithstanding this jurisdictional limit. See 8 U.S.C. § 1252(a)(2)(D); Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 189 (3d Cir. 2005).

Abusheikh argues that the IJ’s refusal to cancel his removal has resulted in unequal treatment on the basis of national origin in violation of the Fifth and Fourteenth Amendments because, as a stateless Palestinian, he can neither depart the United States nor work or live here legally. This claim fails. To prove an equal protection violation, Abusheikh must first demonstrate “disparate treatment of different groups.”DeSousa v. Reno, 190 F.3d 175, 184 (3d Cir. 1999). However, Abusheikh fails to establish the basis for such a claim. In addition, to the extent that Abusheikh contends that we should set aside his order of removal because he purports to be stateless, we note that statelessness alone is an insufficient basis on which to grant a petition for asylum or withholding of removal without additional factors present See, e.g., Ahmed v. Ashcroft, 341 F.3d 214, 218 (3d Cir. 2003).

* * * * * *
Accordingly, we deny Abusheikh’s petition for review.

[1] Abusheikh erroneously contends that we have jurisdiction to consider his petition under 28 U.S.C. § 2241. However, the relief he requests — specifically, to be permitted to remain in the United States — is not encompassed by that statute. Rather, 8 U.S.C. § 1252(b)(2) clarifies that a petition for review to the courts of appeals is the exclusive means of review of an administrative order of removal.

Page 59