In the united states court of appeals
for the ninth circuit
Benjamin CABRERA )
Londy CABRERA, ) Case No. ____________________________
Petitioners, )
) INS Docket Nos.
A75 710 964
v. ) A75 710 965
)
John
Ashcroft, )
Attorney
General, )
Respondent
)
)
petition for review and motion for stay of
removal and for stay of voluntary departure
Petitioners, Mr. Benjamin Cabrera and
Mrs. Londy Cabrera, hereby petition this Court for
review of the Final Order of the Board of Immigration Appeals (Board), entered
on
In support of their motion,
Petitioners state through Counsel as follows:
JURISDICTION
Jurisdiction over these removal
proceedings is governed by 8 U.S.C. § 1252.
This Court has jurisdiction to determine constitutional claims pursuant
to 8 U.S.C. § 1252; see also Jimenez-Angeles v. Ashcroft, 291 F.3d 594,
599 (9th Cir. 2002); Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1004 (9th
Cir. 2003). In addition, this Court
retains jurisdiction to determine whether it has jurisdiction. See, Murillo-Salmeron v. INS, 327 F.3d
898, 901 (9th Cir. 2003);
Hernandez v. Ashcroft, 2003
VENUE
Venue is properly before this Court
pursuant to 8 U.S.C. § 1252(b) because Mr. and Mrs. Cabrera reside in this jurisdiction, and the immigration judge completed
proceedings
REQUEST FOR RELIEF
To obtain a Stay of Removal, a
petitioner must show either 1) a probability of success on the merits and the
possibility of irreparable injury, or 2) that serious legal questions are
raised and the balance of hardships tips sharply in petitioner’s favor. Abbassi v. INS, 143
F.3d 513, 514 (9th Cir. 1998).
The standards for obtaining a Stay of Removal also apply to Stays of
Voluntary Departure. El Himri v.
Ashcroft, No. 03-71152, 2003
Ordinarily, the balance of hardships
will weigh heavily in the applicant's favor.
Important factors include separation from family members, medical needs,
and potential economic hardship. Andreiu v. Ashcroft, 253 F.3d 477, 484 (9th Cir. 2001).
The balance of hardships in this case
weighs sharply in favor of Mr. and Mrs. Cabrera Denying their
request for a stay of removal and voluntary departure would substantially harm
Mr. and Mrs. Cabrera. The couple has
lived in the
This case involves important matters
and raises serious legal issues concerning the authority of the Board in
removal proceedings, as well as procedures of the Board, which if permitted to
go unchecked will result in the denial of due process and fair application of
the laws.
Petitioners will demonstrate that the
Board acted beyond the scope of their authority by making a decision contrary
to law and denied them a full and fair hearing in violation of their due
process rights.
Granting their request for a stay of
removal and voluntary departure would not substantially harm the United States
Citizenship and Immigration Services (“USCIS”), nor would it negatively affect
the public interest.
For these reasons, Mr. and Mrs.
Cabrera seek the protection of this Court and ask that the Court issue an Order
granting a Stay of Removal and a Stay of Voluntary Departure during its
consideration of the issues presented herein.
Issues
Presented
I.
Whether the Board acted contrary to law by rendering a
decision which failed to consider the hardship factors cumulatively.
II.
Whether the Board’s disregard of applicable case law denied
Petitioner’s right to due process of law.
FACTS
Benjamin Cabrera and Londy
Hidalgo-Cabrera are a married couple. 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. 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 come from 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 is seriously ill with diabetes.
She stays with the family several days a week, and Benjamin supports
her, along with his siblings. After a
surgery to amputate three toes, she stayed with Benjamin and Londy for three
weeks during her recovery.
Benjamin obtained a high school
diploma in
ARGUMENTS
I.
The Board acted contrary to law by
rendering a decision which failed to consider the hardship factors
cumulatively.
On
Petitioners recognize that this Court
is without jurisdiction to determine whether the requisite showing of hardship
has been made, or whether the Board’s interpretation of the hardship standard
is itself proper. However, in
interpreting IIRIRA’s jurisdictional limitations, restrictions on jurisdiction
should be construed narrowly. Hernandez
v. Ashcroft, No. 02-70988, 2003 U.S. App. LEXIS 20364 at 18 (9th Cir.
This Court recently determined that
it retained jurisdiction to review a denial of an application for adjustment of
status on discretionary grounds. The
Court said that the Board has no discretion to make a decision which is
contrary to the law. Because the denial
was made in reliance on an impermissible basis, this Court looked beyond the
discretionary label, and stated that “a nonprecedential decision by the BIA in
defiance of its own precedential case law simply cannot be classified as
discretionary.” Hernandez v. Ashcroft,
No. 02-70988, 2003
The Court went on to explain that:
The regulations themselves
limit the BIA’s discretion to operating within the law…We emphasize that we are
not applying an abuse of discretion standard; if a decision is not within the
power of the BIA, it cannot be construed as discretionary…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).
To date, the Board has issued three
precedent decisions regarding cancellation of removal. 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 additionally
emphasized that the hardship factors should 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 in that particular case.
Despite this clear mandate, only one
factor was considered by the Board in this case. The Board’s decision focused exclusively on
the educational achievements of the Cabrera’s eldest daughter, Diana. Diana is a gifted student who has was awarded a scholarship to attend a special four-year
program sponsored by
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).
This analysis does not acknowledge the extraordinary nature
of Diana’s educational achievements.
Furthermore, it is clear that the
Board failed to consider the numerous additional factors presented in this
case:
1. Diana and Jocelyn’s
parents will be removed to separate countries, thus they will not only have to
leave their home country, but they may also be separated from at least one of
their parents;
2. Diana and Jocelyn have
a close relationship to their grandparents, aunts and uncles who reside
lawfully in the United States, a factor which has been considered significant
in prior BIA precedent decision regarding cancellation of removal;
3. The hardship that the
three lawful permanent resident parents of Benjamin and Londy would suffer if
they were separated from both their children and grandchildren for an indefinite
period of time;
4. Jocelyn has experienced
anxiety regarding her parent’s situation resulting in a recurrent loss of
bladder control[1];
5. Benjamin and Londy
provide care for his lawful permanent resident mother who suffers from diabetes
and has undergone surgery for this condition;
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 Board’s own precedent
decisions require that they consider these factors as well.
II.
The Board’s disregard of applicable case
law denied Petitioners’ right to due process of law.
The Fifth Amendment guarantees due
process of law in deportation proceedings.
Reno v. Flores, 507
Recently, this Court stated that “if
the BIA interpreted ‘exceptional and extremely unusual hardship’ to mean that
no hardship showing would ever be sufficient, its interpretation would be so
divorced from Congress’ mandate as to violate the Constitution. Ramirez-Perez v.
Ashcroft, 336 F.3d 1001, 1005 (9th Cir. 2003). In fact, by refusing to consider hardship
factors in their aggregate, the Board can
effectively eliminate the relief of cancellation of removal entirely. In Recinas, the Board stated that,
“the hardship standard is not so restrictive that only a handful of applicants,
such as those who have a qualifying relative with a serious medical condition,
will qualify for relief.” Recinas, supra at 9.
Yet only a handful of applicants would be able to establish the
requisite hardship on the basis of one factor alone.
As a predicate to obtaining relief
for a violation of procedural due process rights in immigration proceedings, a
non-citizen must show that the violation caused prejudice to his or her
case. This standard is met under
circumstances in which an alien’s rights are violated in such a way as to
affect potentially the outcome of their deportation proceedings.
It is clear that Mr. and
Mrs. Cabrera were prejudiced by the Board’s actions. The Board’s reversal of the Judge’s decision
deprives them of the opportunity to live and work in the
CONCLUSION
Based on the foregoing, we
respectfully request that this Court grant Mr. and Mrs. Cabrera’s petition for
review. Furthermore, because this
petition raises serious legal issues, and because the balance of hardships tips
sharply in their favor, petitioners request this Court order a Stay of Removal
and Stay of the Voluntary Departure period.
Respectfully submitted,
________________________
Carl Shusterman
Law Offices of Carl Shusterman
Attorneys for Petitioners
Certificate
of Compliance
Pursuant to Federal Rules of
Appellate Procedure (FRAP) 32(e)(4), the undersigned
submits this Certificate of Compliance.
The attached “Petition for Review, and Motion for Stay of Removal and
for Stay of Voluntary Departure” is double spaced pursuant to FRAP 32(b), and
has a typeface of Times New Roman, point size 14, and is a total of ___ pages.
Dated: _____________________________
Carl
Shusterman
Law
Offices of Carl Shusterman
Attorneys
for Petitioners
Tel.
(213) 623 – 4592
Statement of
Related Cases
Pursuant to Ninth Circuit Rule 28 – 2.6, counsel for the
Petitioners is not aware of any related cases currently pending before the
Court.
Dated: __________________________
Carl Shusterman
Law
Offices of Carl Shusterman
Attorneys
for Petitioners
Tel.
(213) 623 - 4592
Certificate
of service
I hereby certify that on this day of
October 20, 2003, two copies of the “Petition for Review and Motion for Stay of
Removal and for Stay of Voluntary Departure” and all attachments thereto were
served upon Counsel for the Respondent, by placing it in a United States
mailbox, first class postage paid, addressed to:
John Ashcroft
Attorney General
Office of Immigration Litigation
Civil Division
Dated: __________________________
Carl
Shusterman
Law Offices
of Carl Shusterman
Attorney
for Petitioners
Tel. (213)
623 - 4592
[1] 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 meaningfully analyze the hardship that Jocelyn may
experience if her parents are removed from the