Hassan Elanany v. Attorney General United States

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________ Nos. 16-3128 & 16-3656 ________________ HASSAN M. ELANANY a/k/a Hassan Magdy Eltabey Mohamed Ela, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA ________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A058-555-250) Immigration Judge: Roxanne C. Hladylowycz ________________ Submitted under Third Circuit LAR 34.1(a) on May 24, 2017 Before: HARDIMAN, ROTH and FISHER, Circuit Judges (Opinion filed: February 27, 2018) ________________ OPINION * ________________ ROTH, Circuit Judge * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Hassan M. Elanany is a native and citizen of Egypt. He is in removal proceedings and seeks cancellation of removal. He petitioned for review of the agency determination that he does not merit discretionary cancellation of removal. We will deny the petition. I. Background On September 19, 2006, at age 14, Elanany was admitted to the United States from Egypt as a lawful permanent resident. On April 23, 2012, he was convicted of retail theft. On January 22, 2015, he was convicted of terroristic threats, stalking, and possession of a controlled substance. The Department of Homeland Security (DHS) began removal proceedings. Elanany conceded removability but sought cancellation of removal; he submitted evidence of completion of a drug treatment program. On September 29, 2015, the Immigration Judge (IJ) concluded that Elanany was eligible for cancellation of removal but denied relief as a matter of discretion due to Elanany’s criminal history. Elanany appealed the IJ’s decision to the Board of Immigration Appeals (BIA), submitted further evidence of drug treatment, and filed a motion to remand to the IJ. On June 14, 2016, the BIA dismissed the appeal and denied the motion. Elanany filed a motion to reconsider, partly based on the BIA’s failure to consider his evidence of completing a drug treatment program and partly based on new evidence submitted with his motion: a scholarly article relating to remorse. On August 18, 2016, the BIA issued a new decision that evaluated his motion both as a motion to reconsider and a motion to reopen. Granting the motion to reconsider, the BIA took into account the evidence of rehabilitation. However, it denied the motion to reopen and remand, again affirming the 2 IJ’s denial of relief as a matter of discretion. It concluded that Elanany’s extensive criminal history, insufficient showing of remorse, and inadequate rehabilitation outweighed his limited positive equities. Elanany now petitions for review of the denial of the motion to reopen. II. Discussion A. Jurisdiction and Decision Under Review Under 8 U.S.C. § 1252, when we review immigration proceedings, we have jurisdiction to decide constitutional claims and questions of law but not challenges to discretionary determinations. 1 “Because the BIA issued its own decision, we review that decision, and not that of the IJ.”2 However, “we will review the IJ’s . . . opinion to the extent that the BIA relied upon ...

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