Mensah v. Attorney General of the United States
Opinion of the Court
OPINION
Samuel Mensah petitions for review of an order of the Board of Immigration Appeals (“BIA”), which dismissed his appeal from an Immigration Judge’s (“IJ”) final order of removal. We will deny the petition for review.
The IJ analyzed the requirements for cancellation of relief pursuant to 8 U.S.C. § 1229b(b). The IJ found that Mensah met the 10-year continuous physical presence requirement and the good moral character requirement for cancellation of removal, but found that Mensah did not establish that his removal would result in exceptional and extremely unusual hardship to his U.S.-citizen spouse or children. The IJ found that Mensah testified credibly regarding his claim for asylum
On appeal, the BIA agreed with the IJ that Mensah had failed to establish that any fear he has of returning to Ghana has a nexus to a protected ground, and that he failed to establish a probability that he will be harmed. The BIA noted that Mensah’s dispute with his uncle appeared to be a personal matter. The BIA also agreed that Mensah failed to establish a likelihood that he would be tortured. The BIA found “insufficient reasons to reverse” the IJ’s denial of cancellation of removal, given the fact that Mensah’s children had lived with their maternal grandmother since birth and he had not seen his wife since July 2009.
We must first consider which of Mensah’s claims are properly before this Court for review. We generally have jurisdiction to review a final removal order pursuant to 8 U.S.C. § 1252, but section 1252(a)(2)(B)® removes jurisdiction for denials of discretionary relief under 8 U.S.C. § 1229b (cancellation of removal). Men
Mensah argues that his constitutional rights were violated because he was not provided with an attorney in his removal proceedings. However, he was advised of his right to obtain counsel at no cost to the government, and was provided with a list of lawyers. A.R. 127. He was also granted a continuance to find counsel. His right to a fundamentally fair hearing pursuant to the Due Process clause was not violated simply because he was unable to obtain counsel (despite being given ample opportunity to do so). Ponce-Leiva v. Ashcroft, 331 F.3d 369, 376 (3d Cir. 2003); cf. Leslie v. Att’y Gen., 611 F.3d 171, 182 (3d Cir. 2010) (alien showed due process violation where IJ failed to inform him of availability of free legal services and failed to give him list of such programs).
Mensah also appears to argue that his removal would violate the equal protection component of the Fifth Amendment’s Due Process clause because he has a U.S.-citizen spouse and children. As the Government notes, Mensah’s equal protection claim fails, as he has not identified any class of similarly situated persons who are treated differently than him. Mathews v. Diaz, 426 U.S. 67, 79-80, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) (fact that government treats aliens differently from citizens not sufficient to show that such disparate treatment is “invidious”). Further, Mensah has not identified any constitutional or statutory right to remain in the United States simply because members of his family are U.S. citizens. Morales-Izquierdo v. Dep’t Homeland Sec., 600 F.3d 1076, 1091 (9th Cir. 2010). We also reject Mensah’s claim of an Eighth Amendment violation, as removal is not criminal punishment. Sukwanputra v. Gonzales, 434 F.3d 627, 632 (3d Cir. 2006).
Mensah’s brief refers to his claims for asylum, withholding of removal and protection under the CAT, but he does not explain why the BIA’s decision to deny him relief was in error. Mensah does not address the BIA’s finding that he failed to meet his burden of showing that he had been persecuted in the past or that he has a well-founded fear of being persecuted in the future. His brief contains only conclusory statements regarding the possibility of torture in Ghana, which are insufficient to warrant a grant of his petition.
For the foregoing reasons, we will deny the petition for review.
. Mensah was originally charged with entering without inspection, but he was able to establish in removal proceedings that he entered with a visitor’s visa.
. The IJ recognized that Mensah’s asylum claim was not timely filed, but adjudicated the claim on the merits. A.R. 45. The BIA affirmed, however, solely on the grounds that the asylum claim was untimely.
.The record reflects that the July 2009 contact was actually by letter.
. The Government’s motion to dismiss is denied.
Reference
- Full Case Name
- Samuel MENSAH v. ATTORNEY GENERAL OF THE UNITED STATES
- Status
- Published