In the united states court of appeals
for the ninth circuit
Benjamin CABRERA )
Londy CABRERA, ) Case No. 03-73811
Petitioners, )
) INS Docket Nos. A75 710 964
v. ) A75 710 965
)
John
Ashcroft, )
Attorney
General, )
Immigration
Services, )
Respondents )
)
Petitioners reply to respondent’s motion to dismiss
This Court has jurisdiction to review
the Board of Immigration Appeals’ (Board’s) Final Order reversing the
Immigration Judge’s grant of Petitioners’ applications for cancellation of
removal.
Respondent
incorrectly cites Montero-Martinez, 277 F.3d 1137 (9th Cir. 2001) for
the proposition that this Court lacks jurisdiction in this case. See, Respondents’ Opposition, p.
1. In Montero, the Court
concluded that INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i), “eliminates
jurisdiction only over
decisions by the BIA that involve the exercise of discretion.
First, this
court has held that it retains jurisdiction to review constitutional claims,
“even when those claims address a discretionary decision.” Ramirez-Perez v. Ashcroft, 336 F.3d
1001, 1004 (9th Cir. 2003). The instant
case presents the issue of whether the Board’s disregard of applicable case law
denied the Cabreras their constitutional right to due process of law under the
Fifth Amendment.
Moreover,
this Court stated in Hernandez v. Ashcroft, 345 F.3d 824, 846 (9th Cir.
2003), that “a nonprecedential decision by the BIA in defiance of its own
precedential case law simply cannot be classified as discretionary.” In the instant case, the Board’s
nonprecedential decision is in direct conflict with its own binding precedents
which hold that the hardship factors in a cancellation of removal case must be
considered “in the aggregate” and “cumulatively”. See, Matter of Monreal, 23 I&N
Dec. 56 (BIA 2001), Matter of Recinas, 23 I&N Dec. 467 (BIA
2002).
Despite
this mandate, the Board considered only one factor in reversing the Immigration
Judge’s decision - the impact that their removal would have on the education of
their elder daughter, Diana. In the
instant case, the Cabreras have five qualifying relatives – two
In
addition, Respondent misstates the issue as involving merely the “weight the
Board accorded to the various factors in reaching their discretionary
decision.” See Respondent’s
Opposition, p. 8. By its focus on the
single factor of Diana’s educational needs, the Board accorded no weight at
all to the numerous relevant factors considered by the Immigration
Judge. Again, this was in clear
disregard of the Board’s own precedent, and therefore contrary to law. As stated in Hernandez, the Board “has
no discretion to make a decision that is contrary to 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, 345 F.3d at 846- 847
(internal citations omitted).
This petition for review involves serious legal
issues over which this Court does retain jurisdiction. Moreover, the balance of hardships tips
sharply in favor of the petitioners. A
stay of removal and stay of the voluntary departure is therefore warranted
while the Court considers the issues presented.
In light of
the above, this Court should grant the petition for review, and issue a stay of
removal and stay of the voluntary departure period.
Dated: January 29, 2004 Respectfully submitted,
________________________
Carl Shusterman
Law Offices of Carl Shusterman
Attorneys for Petitioners
600 Wilshire Boulevard, Suite 1550
Los
Angeles, CA 90017
Tel.
(213) 623 - 4592
Certificate
of Compliance
Pursuant to Federal Rules of Appellate Procedure (FRAP) 32(e)(4), the undersigned submits this Certificate of Compliance. The attached “Petitioners Reply to Respondent’s Motion to Dismiss” is double spaced pursuant to FRAP 32(b), and has a typeface of Times New Roman, point size 14, and is a total of 4 pages.
Dated: January 29, 2004 _____________________________
Carl
Shusterman
Law
Offices of Carl Shusterman
Attorneys
for Petitioners
600
Wilshire Blvd., Suite 1550
Los
Angeles, CA 90017
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: January
29, 2004 __________________________
Carl Shusterman
Law
Offices of Carl Shusterman
Attorneys
for Petitioners
600
Wilshire Blvd., Suite 1550
Los
Angeles, CA 90017
Tel.
(213) 623 - 4592
Certificate
of service
I hereby certify that on this day of
January 28, 2004 two copies of “Petitioners Reply to Respondent’s Motion to Dismiss” the were served upon Counsel for the
Respondents, by placing it in a United States mailbox, first class postage
paid, addressed to:
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
Christopher C. Fuller
William C. Minick
Office of Immigration Litigation
Civil Division
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Dated: January 29, 2004 __________________________
Carl
Shusterman
Law Offices
of Carl Shusterman
Attorney
for Petitioners
600 Wilshire Blvd., Suite 1550
Los
Angeles, CA 90017
Tel. (213)
623 - 4592