The Honor able Ha rold A. Ac kerma

n, Senior United States District J udg e for the District * of Ne w J erse y , sitti ngby

desig nation. 1 NO T REC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION File Na me: 08a0365n.06 Filed: June 23, 2008 No. 07-3079 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT
AB DUL SANEH, Claim ant-Appellant,
v. MI CHAEL

MUKASEY, ATTORNEY G ENERAL Defendan t-Appellee.

______________________________ _________ )

) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE BO ARD OF I MMI GRATI ON A P P E A LS

OP IN ION Before: K

EITH and S UTTON, Circuit Judges; ACK ERMAN, D istrictJudge. * HAROLD A. ACK

ERMAN, D istrictJudge. Cla ima nt A bd ul S ane h w a s f

ound e lig ibl e for r emoval fr om the United States, and subseque ntly ag ree d to voluntarily

depar t with the condition that he waive appea l. Saneh now cha lleng es the Immigration J udg e’s f inding that Saneh’s wa iver wa s proper ly made, a nd that Saneh wa s ineligible f or adjustment of status or
canc ellation of re moval. For the re asons stated be low, we hold that Saneh’ s appea l is without merit bec ause he fails to show prejudice resultingfrom an a lleg edly improper wa iver.2 I. Abdulraouf

Saneh, born in 1954, is a native and citizen of L ebanon. Sane h first enter ed the United States in 1984, with his wife Aicha , on an F -1 student visa. The c ouple has two children, Chaf

ic and Mohamed, both United States citizens. On September

16, 2003, the Depa

rtment of Homela

nd Security

(“D HS”) c ommenced
re mov a l pr oc e e din g s a g a ins t hi m a ft e r D HS a lle g e d th at Sa ne h h a d f a ile d to pr op e rl y

ma int a in his re sid e nc y

status . D HS c ha

rg e d Sa ne h w ithre mov a

bil ity un de r 8 U. S.C. § 1 22 7( a )( 1) (C )( i) for f ailing to c omply

with the conditions of his visa. Saneh had a

n initial calendar

hear ing be fore the Immigration Court on November 20, 2003. His nexthear ing w as sche duled to occur in May 2004. In the interim, Saneh a pplied for two related immigration petitions : an I -140 Immigra nt Petiti on for Alien Worke r application and an I -485 Application to AdjustStatus to P erma nent Resident. B oth were filed on Oc tober 8, 2003. Saneh then moved to c ontinue his May 2004 hear ing to a llow more time for his I -140 petition to be approve d. On April 15, 2004, the Immigration J udg e (“ I J ”) de nied Saneh’ s motion. Saneh also filed a

n Application for Ca

ncellation of Remova l on J anuar y 6, 2004. O nF e b r u ar y 2 3 , 2 0 0 6 , S an e ha

p p e ar e d , w i thc o un s e l , ath i s r e m o v a l h e ar i n g . T h e IJ hear d testimony

and re ceive d evidenc e conc erningSaneh’s visa violation and his re quest for
c anc e llatio n o f r e mov a l. T he I J ultim ate ly de te rm ine d th at Sa

ne h w a s r e mov a

ble and ine lig ibl e for r elief, inc luding c ance llation of removal. ( J A at 350.) Immediately there afte r, howe ver, the I J voided his order

and g rante d a stipulation ag ree d upon betwee n the par ties that Saneh be allowed 120 da

y s to voluntarily

depar t the United States in lieu of re moval, pursuant to the I mmigration and Nationality Act (“ I NA”) § 240B; 8 U.S.C. § 1229. (JA at 350-51.) The grant of3

voluntary depar ture wa s conditioned upon Saneh not filinga motion to reopen his ca se or a n appea l of the I J ’s dec ision. ( Id. ) Ha d Saneh not agree d to voluntarily depar t, he would have been subject to compulsory

remova l, but would have re tained a r ight to appe al. On Marc h 24, 2006, Saneh filed a motion to reconsider, a ssertingthat the Gover nment’s tr ia l atto rn e y

fa lse ly re pr e se nte d to Sane h d

ur ingthe he ari ngthat he wo uld be a ble to r e tur

n to the United States in about 14 months once his I -140 bec ame c urre nt, and furthe r, that the Gover nment attorney

had not mentioned that Saneh w ould be subject to a te n-y ear bar on r eentr

y pursuant to 8 U.S.C. § 1182(a)( 9)(B )(i)( I I ), re sulting fr om his ti me of illeg al re sidence in the United States. Saneh c laimed that he “ relied to his detriment on these false r epre sentations b e f o r e b e i n gf

o r c e d i n t o a c c e p t i n gv o l un t ar

y d e p artur e . ” ( J A at3 4 1
. ) H e a l s o ar g u e d th atth e IJ sh ou ld h ave g ra

nte d a c on tin ua nc e of his he ari ngto a llo w f

or Sane h’ s v isa

to b e c ome c ur

re nt, which may

have in turn r ender ed him elig ible for a djustment of status. ( Id. ) The G overnme nt op po se d th e mot ion . It no te d th at Sane h d isc us se d th e op tio n o f v olu nta ry de pa rt ur e wi th h is counsel a nd that Saneh chose voluntary depar ture rather than a

remova l order w ith a rig ht of appea l. (J A at 337-38.) The Gove rnment fur ther a rgued that Saneh w as inelig ible for a djustment of status , a nd that Sane h s ho uld

no t be g ra

nte d c anc e llatio n o f r e mov a l. O nAp r i l 1 2 , 2 0 0 6 , th e IJ d e n i e d S an e h ’ s m o t i o nt o r e c o n s i d e r . ( J A at1 1 7
- 1 8
. ) T h e IJ
rec ounted the fa cts of his Fe bruar y 23, 2006 hear ing. At the outset, he noted that Sane h had stipulated on Fe bruar

y 23, 2006 that “he ha d no proof that a visa was immediately

available .” (JA at 117.) The I J stated that af ter he rec eived the e vidence supporting Sane h’s re moval, the Gover nment offe red Sane h voluntary depar ture in lieu of r emoval. Saneh c onsidered this option with the assistance of counse l for twenty minutes, but “repr esente d to the Court prior to the4

decision that he w as not intereste d in the Gover nment’s offe r.” (

Id. ) The I J then indicated that he denie d Saneh’s a

pplication for c ance llation of removal, f inding that Sane h had fa iled to show the re qu isi te ha

rd sh ip t o a

qu a lif yingre lativ e . T he I J re mark e d th at Sa ne h s ub se qu e ntl y reque sted that DHS rene w its offer of pre -hea

ringvoluntary

depar ture: “When the G overnme nt
a c qu ie sc e d, ” the I J obse rv e d, “ [San e h] th e n a g a in p on de re d th e re ne we d o ff e r a nd the n u lti mate ly
acc epted the of

fer .” ( Id. ) The I J then stated that “ [w] hile the Gover nment argued in its closing argument on canc ellation that [S aneh] might be able to adjust his status in the near future, the re
was ne ver a

ny such promise. . . . [and] there wa s absolutely no duress.” (

Id. at1 1 8
. ) T h e IJ conclude d that Saneh’s stipulation to voluntary withdrawa l was knowing , intelligent, a nd voluntary , and that, eve n in the absenc e of w aiver , he wa s ineligible f or re lief to adjust his status
or c anc e l hi s r e mov a l. Saneh appe aled the I J ’s dec ision to t he B I A. On January 11, 2007, the B I A af

firmed the I J ’s dec ision withoutopinion.

II. An undocumente d resident may file a motion to rec onsider an I J ’s dec ision based on an
e rr or of law o r f a c t. 8 U. S.C. § 1 22 9a (c )( 6) (A ), (C ). “ Th e purp os e of a mot ion to r e c on sid e r i s not to present new

evidenc e[.] ” Alizoti v. Gonzales , 4 77 F .3 d 4 48 , 4 52 (6 th C ir . 2 00 7) ; se e als o Dada v. M

ukasey , 5 54 U. S. – , 2 00 8 WL 24 04 06 6, at *8 (Jun e 16 , 2 00 8) . Wh e n th e B I A a do pts the I J ’s dec ision withoutopinion under 8 C.F.R. § 1003.1(e )(4) (ii), we r eview the I J ’s dec ision upon appea l. De nk

o v . I NS , 351 F.3d 717, 726 ( 6th Cir. 2003). The I J ’s denial of

a motion to reconsider

a re moval order

is reviewe d under a

n abuse ofAn exemption to removal may be g rante d for a

n undocumented r esident who is “the 1 spouse or son or da

ug hter of a

United States citizen or of an a lien lawfully admitted for perma nent re sidence , if it is established to the satisfaction of the A ttorney Gene ral that the r efusa l of admission . . . would result in ext reme hardship to the citizen or lawf ully resident spouse or pare nt of such alien.” 8 U.S.C. § 1182(a)(9) (B )(v) . Saneh does not qua lify for this exemption beca use neither

his parents nor his spouse a re United States citiz ens or law ful perma nent residents. F urther, while Saneh wa s not formally order ed re moved due to his voluntary depar ture ag ree ment, had he be en, he still would have be en bar red f or 10 y ear s. See 8 U.S.C. § 1182(a) (9)( A)(ii) ( detailingthat an alien or dere d remove d may not seek re admission within 10 y ear s of the date of depa

rture or remova l). 5 discretion standa

rd. Sanusi v. Gonzales , 474 F.3d 341, 345 ( 6th Cir. 2007). Abuse of discr etion
c an b e sh own whe n th e I J’s d e c isi on is “ ma de wi tho ut a

ratio na l e xplanatio n, ine xplic a bly depar ted from e stablished policies, or re sted on an impermissible basis such a s invidious discrimination ag ainst a par ticular ra ce or

g roup.” Ba lan i v . I

NS , 669 F.2d 1157, 1161 ( 6th Cir. 19 82 ); se e als o B ab ai v . I NS , 985 F.2d 252, 255 ( 6th Cir. 1993) (observingthat the B I A abuse s its discretion when it ac ts arbitrar ily , irrationally , or contra ry to law). “ That a diff

ere nt decision
wo uld a lso have be e n w ith in t

he [B I A]’ s d isc re tio n c ann ot s uf fi c e to r e nd e r [a ] de c isi on an a bu se of discre tion.” Al izo ti , 477 F.3d at 453. Saneh first c halleng es his ag ree ment to voluntarily depar t, arguing that his waiver of rig hts acc ompanying his a g ree ment was improper ly obtained. Saneh’ s essential ar g ument is that his wa ive r o f a

pp e a l w a s n ot k

no wi ngbe c a

us e he wa s mi sin fo rm e d th at he wo uld be a ble to return in a

pproxi mately

14 months, when his visa would supposedly become curr ent. In fac t, he is barre d from re turning for 10 year s. See 8 U.S.C. § 1182(a)(9) (B )(i)( I I ) (“ Any alien [] who . . . has bee n unlawfully

prese nt in the United States for one y ear or more, a

nd who ag ain see ks admission within 10 y ear s of the date of such a lien’s depa rture or remova l from the United State s, is i na dmi ssi ble .” ). Ho we ve r, we ne e d n ot r e a c h th is i ssu e be c a us e Sane h f

a ils to 16

demonstrate that he has be en pre judiced by

this alleg ed improper

waiver
.

“ [I ]n or de r t o p re va il o n a pr oc e dura l du e pr oc e ss c ha lle ng e ,” Sane h mu st d e mon str ate “pre judice.” Graham v. M

ukasey , 519 F.3d 546, 549 ( 6th Cir. 2008). “Indeed, w e nee d not addre ss the merits of a c laim if there is no de monstration of prejudice [,] ” id. at 54 9, be c a us e “[s] uch proof

of pre judice is nec essar

y to establish a due pr ocess violation in an immigr ation hear ing,” W

ar ne r v . A sh c ro

ft , 381 F.3d 534, 539 ( 6th Cir. 2004). To establish prejudice , Saneh must show that the alleg ed wa iver violation “would have cha ng ed the outcome of the c ase.” Garza-More no v. Gonzales , 489 F.3d 239, 242 ( 6th Cir. 2007) (interna l quotation marks and citation omitted). Ev e n w e re his wa ive r o f a pp e a l f ound imp ro pe r, Sane h f

a ils to s ho w that th e I J abu se d h is discretion whe n he found that Saneh was not e ntitled to adjustm ent of status or c ance llation of
remova l. First, re g ardingSaneh’s a pplication for a djustment of status, the I J rec ounted that Saneh “stipulated he could not demonstrate the re w as a visa immediate ly available [,] ” (JA at 117), a ne cessa

ry prer equisite for a

n I -485 adjustment of status application. Further , to this date, Saneh is still unable to show that his vis a is curr ent. Without a cur rent visa, Sane h does not qualify for a djustment of status. See M atovski v. G onzales , 492 F.3d 722, 727 ( 6th Cir. 2007) (summarizing the pr ere quisites to approval for adjustment of status applications, includingthat “an immig rant visa [must be] immediately available to him at the time his application is filed.”) (interna l quotation omit ted). Sane h a rgue s th at th e I J abu se d h is d isc re tio n b e c a us e he sh ou ld h ave de lay e d h is decision on adjustment of status until Saneh’s visa bec ame available. Sane h relies on “ Section s.245 operations inst ructions” whic h states that “[w]hen a prope rly filed application cannot beTh e Go ve rnme nt a sse rt s, wi tho ut d isp ute fr om S ane h, that D HS “ fi le d a No tic e to 2 Ap pe ar w iththe I mmi g ratio n Co ur t on Se pte mbe r 1 6, 20 03 ,” c ha rg ing“ Sane h w ithre mov a bil ity . . . for f ailing to c omply

with the conditions of his visa.” (Gov’ t Br. a t 3-4.) F urther, in a

Notice to A pp e ar d ate d Jan

ua ry 15 , 2 00 3, the Go ve rnme nt a sse rt e d th at Sa ne h “ fa ile d to c omp [l]y

wi th the conditions of [his] status beca use [he] completed [hi s] progra m and did not depar

t the United 7 completed solely

beca use visa number s beca

me unava ilable subsequent to the f iling, the application will be held in abe y ance until a visa number is allocated.” ( Saneh’s B r. at 17-18.) This Court believes that Saneh’ s cursory citation ref

ers to Ope rations Instructions 245.4(a) (6), which re g ulates DHS interna l proce dures. The BIA has he ld, and some sister cir cuits have commented, that a

beyance under instruc tion 245.4(a)( 6) may be g rante d if issuing a

visa depe nds only on the ava ilability

of the undoc umented immigr ant’s assig ned number
. In re Ho , 15 I . & N
. De c . 6 92 , 6 94 , 1 97 6 WL

32 35 6 ( B I A 1 97 6) ; se e als o Merc hant v. U.S. Attorney G en. , 461 F.3d 13 75 , 1 37 9 n .7 (1 1th

Cir . 2 00 6) ; He rn an de

z v . A sh c ro

ft , 345 F.3d 824, 844 n.21 ( 9th Cir. 2003). Had Sane h been e ligible f or adjustment of status, this operations inst ruction may have merited fur

ther re view. Howe ver, unde r 8 U.S.C. § 1255(c), Sane h is statutorily ineligible f

or adjustment of status, which in turn re nders instruction 245.4(a )(6) inopera tive. ( SeeOper ations Instruction 245.4(a) (6), JA at 94 (“When a pr operly filed application cannot be c ompleted so le ly becausevisa numbers be cameunavailable su bs e qu e nt t o th e fi lin g , th e a pp lic atio n w ill be he ld in a be y anc e un til a

vis a numbe r i s a llo c ate d. ” ) ( e mph a sis a dd e d) .) Un de r § 12 55 (c ), an a lie n is ineligible f

or adjustment of status if he “ is in unlawful immigration status on the date of filingthe application for

adjustment of status or [ ] has fa iled . . . to maintain continuously a lawf ul status since e ntry

into the United States[.] ” 8 U.S.C. § 1255(c) . I t is undisput ed that Saneh f iled an application for

adjustment of status on October 8, 2003, afte r his lawful immigr ant status had lapsed. Saneh off

ers no a rgument or evide nce he re indica ting that he was, c ontrary to the I J ’s 2States.” (JA at 335.) 8

finding , in “lawf

ul status” when he filed an a djustment of status application. Thus, the I J did not
err when he found Saneh ine ligible f or an a djustment “beca

use he is out of status” unde r § 1255(c)
. In his moti on for r econside ration, Saneh a lso sought, alter natively , to canc el his removal. Th e I NApr ov ide s: (1) []The Attorney

Gene ral may

canc el re moval of, and a djust to t he status of an alien lawfully admitted for perma nent re sidence , an alien who is inadmissibl e or de portable f rom the Unit ed S tates i f t he alien- (A) has been phy sically prese nt in the United States for a continuo u s p eriod of not less than 10 y ear s imm e diate ly

pr e c e din gthe date of

su c h a pp lic atio n; (B ) has bee n a person of g ood moral cha rac ter during such pe ri od ; (C) has not bee n convicted of an off ense . . .a nd (D) establishes that removal would re s u l t in exc eptional and extre mely unusual hardship to the al ien’s spouse, parent, or child, who is a citizen of the United States or an alien lawf

u lly admitted for permanent residence

. I NA § 240A( b), 8 U.S.C. § 1229b(b) (e mphasis added) . Her e, the I J did not abuse his discretion to deny Saneh’s motion. Followingtestimony from Saneh’ s family , the I J found that Saneh failed to qua lify

for c ance llation of removal be cause Saneh did not prove “ exceptional and extremely unusual hardship” to Saneh’s childre n, both of whom are United States citizens. The
rec ord is reple te with over 140 pa g es bespe akinghis children’s a cade mic and extracur ricular
acc omplishm ents. (JA at 174-321.) Saneh a lso asserts that his son Mohamed suff ers f rom ty pe-9

1 d i ab et es . (J A a t5 7 , 5 9 -6 0
. ) N ev erth el es s , we d o n o tre v i ew th e IJ ’s fi n d i n g de novo , but rather
un de r a highly -d e fe re nti a l a

bu se of dis c re tio n s tand ard . T he I J expla ine d th at Sa ne h f a ile d to prove the extreme circ umstances ne cessa ry to rise to the level r equire d for c ance llation of
remova l under § 240A( b). Saneh pr esents no evide nce, a nd we f ind no basis to support, that the I J acte d arbitra

rily , irrationally , or contra ry to law. See B abai , 985 F.2d at 255. Thus, we ca nnot find that the I J abused his discre tion to deny Saneh’s a

pplication to canc el his removal. As the I J noted, Saneh “ was g iven the choic e of two unple asant a lternatives ( 1) a r emoval order with the rig ht of appe al or (2) a fina l order of voluntary

depar ture.” (JA at 118.) Even had he not agree d to voluntary depar ture, Sane h would still have be en found r emovable. Acc ording ly , Saneh fa ils to show that he would have be en pre judiced by

the alleg edly

improper waiver
. III . F or the fo re g oin gre a so ns , w e he re by a ff ir m.