239 F. App'x 732

Azam RAHMAN, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 05-3487.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) July 10, 2007.

Opinion filed July 16, 2007.

*733Jorge Dej. Guttlein, Aranda & Guttlein, New York, NY, for Petitioner.

William C. Peachey, United States Department of Justice Office of Immigration Litigation, Washington, DC, for Respondent.

Before: RENDELL and AMBRO, Circuit Judges, SHAPIRO,* District Judge.

OPINION

AMBRO, Circuit Judge.

Azam Rahman is a native of Bangladesh who seeks review of a Board of Immigration Appeals decision that adopted and affirmed an Immigration Judge’s denial of discretionary cancellation of removal and denied Rahman’s motion to reopen his removal proceedings on claims of ineffective assistance of counsel. Rahman has failed to demonstrate that he suffered prejudice by counsel’s performance, and we lack jurisdiction to review the discretionary denial of relief. Accordingly, we deny the petition for review.1

Rahman is father to two children, ages four and one, both U.S. citizens. In 2002, he was served with a notice to appear and charged with removability as an alien who entered the United States without inspection. Rahman claims that if he is removed, he will be forced to take his children with him to Bangladesh, where they *734will not receive adequate healthcare. Because of substandard healthcare in Bangladesh, he argues, the removal will result in “exceptional and extremely unusual hardship” to his children, for which he is eligible for discretionary cancellation of removal under 8 U.S.C. § 1229b(b)(1).2 He also argues that his counsel’s failure to develop a record to demonstrate that his children would suffer this type of hardship in Bangladesh prejudiced his application for cancellation.

The IJ found that Rahman failed to demonstrate that he was eligible for cancellation because he failed to prove that he would have to take his children with him. According to the IJ, Rahman failed to elicit testimony from his wife or in-laws, with whom he and his children lived, to convince the IJ that the children must accompany him to Bangladesh if he were removed. Nevertheless, assuming that Rahman would have to take them, he did not demonstrate that his children would suffer hardship in Bangladesh, much less “exceptional and extremely unusual hardship,” because he presented no evidence that the medical system in Bangladesh is subpar. The IJ therefore denied Rah-man’s application for cancellation of removal and granted his application for voluntary departure.

On appeal before the BIA, Rahman argued that he did not present the requisite evidence because he was ineffectively assisted by his former attorney, who failed to develop a record to demonstrate the significant suffering his children would endure if forced to return with Rahman to Bangladesh. Rahman submitted to the BIA evidence that included a social worker’s psychological assessment, stating that the inferior healthcare system, severe pollution, and prevalence of AIDS would put the children at risk (particularly the oldest son, who suffers from asthma and allergies). The BIA noted that, even if Rah-man had satisfied all the requirements of Matter of Lozada, 19 I. & N. Dec. 637(BIA), aff'd, 857 F.2d 10 (1st Cir.1988) (governing ineffective assistance claims), none of the evidence submitted on appeal demonstrated that the children suffered from any serious medical condition or that the health and medical resources in Bangladesh are so deficient as to create for the children a hardship so severe to qualify as extremely unusual. As the prejudice prong was not met, Rahman was not entitled to relief on the merits or on an ineffective assistance of counsel claim.

For the reasons stated by the IJ and the BIA, we deny the petition for review. We *735also dismiss the motion to waive oral argument as moot.

Rahman v. Attorney General of the United States
239 F. App'x 732

Case Details

Name
Rahman v. Attorney General of the United States
Decision Date
Jul 16, 2007
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239 F. App'x 732

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United States

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