Carl Shusterman NOT DETAINED
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Tel. (213) 623-4592
UNITED STATES DEPARTMENT OF
JUSTICE
DEPARTMENT OF
JUSTICE
BOARD OF IMMIGRATION
REVIEW
In the matter of:
)
Benjamin
CABRERA ) File No. A75 710 964
) A75 710 965
Londy
CABRERA )
)
Removal
Proceedings )
______)
RESPONDENTS’ MOTION TO
RECONSIDER
MOTION FOR SUA SPONTE
EN BANC REVIEW
AND MOTION FOR STAY OF
REMOVAL
In
accordance with 8 C.F.R. § 1003.2(b), this Motion to Reconsider is filed within
thirty days of the Board’s decision dated September 22, 2003, and is based on
the clear error of law in the Board’s decision.
Pursuant
to 8 C.F.R. § 1003.1(a)(5), the Board may on its own
motion or by a majority vote of Board members consider any case en banc. The regulations explain that en banc
proceedings are appropriate where necessary to maintain consistency of Board’s
decisions. Because the Board’s decision
in this case is in direct conflict with established precedent, Respondents
request that this motion to reconsider be reviewed en banc.
Respondents request a Stay of Removal pursuant to 8 C.F.R. §1003.2(f), which provides the Board with authority to grant a Stay pending resolution of a case.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The respondents,
Mr. Benjamin Cabrera (“Benjamin”) and Ms. Londy Hidalgo-Cabrera (“Londy”), are
a married couple. Tr.
13. Benjamin is a native and
citizen of
The former
Immigration and Naturalization Service (“the Service”) issued Notices to Appear
(“NTA”) to both, placing them in removal proceedings. Both Benjamin and Londy conceded removability
and made applications for cancellation of removal before the Immigration Judge
(“IJ”). On
Benjamin and Londy
have two (2)
Diana and Jocelyn
have visited their parent’s birth countries only once, seven years ago. The children accompanied their mother to
Benjamin and Londy
are citizens of two different countries, and would thus be removed to
The family has a
close relationship with their relatives here in the
Benjamin helps to care for his mother, who has serious problems with diabetes. Tr. 39. She stays with the family several days a week, and Benjamin supports her, along with his siblings. Tr. 37, 39. After a surgery to amputate three toes, she stayed with Benjamin and Londy for three weeks during her recovery. Tr. 40.
Benjamin obtained
a high school diploma in
ISSUE
Whether
The Board Followed Its Precedent Decisions Holding That All Relevant Factors
Must Be Considered In The Aggregate In Deciding Whether The Hardship Standard
Has Been Met.
ARGUMENT
To date, the Board has issued three precedent decisions regarding cancellation of removal for nonpermanent residents. Those decisions are Matter of Monreal, 23 I&N Dec. 56 (BIA 2001), Matter of Andazola, 23 I&N Dec 319 (BIA 2002), and Matter of Recinas, 23 I&N Dec 467 (BIA 2002). The Board has held that in analyzing the hardship that removal would cause to the qualifying relative, consideration should be given to the following:
1) Age,
2) Health, and
3) Circumstances of the qualifying family members, including how a lower standard of living or adverse country conditions in the country of return might affect those relatives. Monreal, at 20.
Moreover, the Board has emphasized that the hardship factors must be considered in the aggregate. In Monreal, the Board explained that, “…all hardship factors should be considered in the aggregate when assessing exceptional and extremely unusual hardship.” Monreal, at 22. This directive was confirmed in Recinas, which relied on the decisions of Monreal and Andazola and stated that, “Part of [the hardship] analysis requires the assessment of hardship factors in their totality, often termed a ‘cumulative’ analysis.” Recinas, at 15 (emphasis added). In Recinas, the Board found the requisite level of hardship had been met after explicitly considering the cumulative impact of the hardship factors presented.
The Ninth Circuit
has held that the Board exceeds its authority when it acts in contrary to its
own precedent case law[1]. Hernandez v. Ashcroft, No. 02-70988,
2003
The regulations themselves limit the BIA’s discretion to operating within the law… As we have explained before, “[t]he BIA must exercise its discretion ‘within the constraints of law.’” …When the BIA acts where it has no legal authority to do so, it does not make a discretionary decision…and such a determination is not protected from judicial review. Hernandez, at 20-21, (internal citations omitted).
In the Cabrera’s case, despite the clear mandate of the Board’s own precedent decisions to consider the hardship factors “cumulatively”, only one hardship factor to one qualifying relative was considered. The panel’s decision focused exclusively on the educational achievements of the Cabrera’s eldest daughter, Diana. The Board’s decision states that:
We have held that the fact that educational opportunities for a child are better in the United States than in an alien’s homeland does not satisfy the extreme hardship standard relevant to suspension of deportation let alone the higher exceptional and extremely unusual hardship standard applicable to cancellation of removal…[We have noted] that to equate diminished educational opportunities with exceptional and extremely unusual hardship would result in the grant of cancellation of removal to virtually all cases involving respondents from developing countries with qualifying small children. Board’s decision, at p. 2 (citations omitted).
It is clear that the panel failed to consider the numerous additional factors presented in this case:
1. Diana and Jocelyn’s parents will be removed to separate countries, thus the girls will not only have to leave their home country, but they may also be separated from one of their parents;
2. Diana and Jocelyn have a close relationship to their grandparents, aunts, uncles and cousins who reside lawfully in the United States, a factor which has been considered significant in a prior precedent decision regarding cancellation of removal[2];
3. Jocelyn has experienced anxiety regarding her parent’s situation resulting in a recurrent loss of bladder control[3];
4. Benjamin and Londy provide care for Benjamin’s lawful permanent resident mother who suffers from diabetes;
5. Both of Londy’s parents and Benjamin’s mother, all of whom are lawful permanent residents, would face indefinite separation from their children and grandchildren;
6.
Diana and Jocelyn have visited
7.
The impact that conditions in
Most of these additional factors were explicitly considered by the IJ, and formed part of his well-reasoned and thorough decision to grant Benjamin and Londy cancellation of removal. The IJ’s decision was consistent with the Board’s precedent cases regarding cancellation of removal. In Monreal, the Board reasoned that “[a] strong applicant might have a qualifying child with very serious health issues, or compelling special needs in school.” Monreal, at 22. When, as in this case, the special needs in school combine with numerous other compelling circumstances, the result is in fact a very uncommon situation where cancellation of removal is merited.
The panel’s
decision in this case mischaracterized the educational issue as involving
merely a lessening of educational opportunities. However, it is not simply that educational
opportunities are less in Mexico or Guatemala, but rather that on the basis of
Diana’s achievements and test scores, she has been accepted (and given a
scholarship) to the Johns Hopkins program for a minimum of four summers. If forced to leave the
Thus, the panel’s
reliance on Matter of Ige, 20 I & N Dec. 880, 883 (BIA 1994) and Matter
of Kim, 15 I & N Dec. 88 (BIA 1974) is misplaced. In both cases the respondents failed to meet
the former “extreme hardship standard” for suspension of deportation. In Ige, the respondent presented a
letter from his son’s first grade teacher “praising his academic and social
adjustment” in support of his hardship claim.
In Matter of Kim, the respondents made “several general
statements…to the effect that their children would have better economic and
educational opportunities in the
The IJ did not base his decision on the lack of comparable educational opportunities alone. Rather, he stated that:
The documentary evidence of record, the testimony of Diana’s principal, the information on country conditions...the representations of Diana herself, clearly reveal that Diana’s removal from the United States, or her separation from her parents in the United States, would cause severe damage to her present and future educational prospects, and to the support system which has enabled her to excel in a truly exceptional fashion. Oral decision of the Judge, p. 13.
Furthermore, the facts presented in this case are not typical or common. Diana and Jocelyn’s educational needs are exceptional. Diana in particular has tested in the 99th percentile on her standardized exams. Their parents come from two separate countries, a fact over-looked by the Board, but not the IJ who stated that “the respondents face removal but not together to the same nation.” Oral decision of the IJ at 6. Jocelyn’s stress-related problems indicate that she is extremely vulnerable to further emotional and psychological harm which her parent’s removal would surely cause.
By failing to consider all existing hardship factors in the aggregate, the Board can effectively eliminate the relief of cancellation of removal altogether. To quote the panel in their decision, “Such was not the intent of Congress.” Board’s decision, at p. 2. In Recinas, the Board stated that “the exceptional and extremely unusual hardship standard is not so restrictive that only a handful of applicants will qualify for relief.” Recinas, at 9. Yet “only a handful of applicants” would be able to establish the requisite hardship on the basis of one factor alone.
Conclusion
In light of the above, we respectfully request that the Board reconsider its decision. We also believe that the Board should grant sua sponte review this case en banc. The respondents request that all the factors in their case be considered cumulatively pursuant to this Board’s legal precedent. Respondents are entitled to a full and fair hearing and a proper assessment of their hardship factors in their totality. Respondents additionally request a stay of removal pending resolution of this case.
Dated:
_______________________
Carl Shusterman
The Law Offices of Carl Shusterman
Attorneys for the Respondents
In the Matter of
Benjamin Cabrera, A75 710 964
Londy
PROOF OF
SERVICE
On
Office of the District Counsel
via First Class Mail.
Signed: ______________________
Carl Shusterman
The Law Offices of Carl Shusterman
(213) 623-4592
Dated:
[1] It should be noted that Respondents have also filed a
Petition for Review with the
[2] In Matter of Recinas, the Board explained
that:
Unlike
the situation in Monreal
and Andazola, all of the
respondent's family, including her siblings, reside lawfully
in the
[3] In fact, the panel’s decision essentially overlooks
Jocelyn altogether. The single reference
to Jocelyn’s existence is at the end of the panel’s decision, where they state
that, “while we recognize that the respondent’s children will suffer some hardship resulting from their parent’s
removal, we find that it does not rise to the level of exceptional and
extremely unusual hardship.” Board’s
decision, at 2 (emphasis added).
Obviously, the panel failed to analyze the hardships that Jocelyn would
experience if her parents were forced to leave the