Petition for Writ of Certiorari — Porras v. Holder

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091080 MAR 5- 2010

No. OFFICE OF THE CLERK

In the Supreme Court of the United States

Liders Porras

Petitioner,

V.

Eric H. Holder, Jr., United States Attorney General,

Respondent,

On Petition For A Writ of Certiorari to the

United States Court of Appeals for the

Second Circuit

PETITION FOR A WRIT OF CERTIORARI

Glenn L. Formica, Matthew A. Spurlock

Formica, P.C. Immigration Litigation

900 Chapel Street Civil Division

Suite 1200 U.S. Department of Justice

New Haven, CT 06511 P.O. Box 878

203) 787-1946 Ben Franklin Station

Washington, D.C. 20044

(202) 514-1903

Questions Presented for Review

To establish eligibility for Cancellation of

Removal, 8 U.S.C. §1229b(b), Mr. Porras testified to

the hardship that will be faced by his United States

Citizen children if he is removed to Boliva. Mr.

Porras spoke of abandoning his children and wife in

the United States because the living conditions in

Bolivia are among the worst in the world. The

Immigration Judge found that the standard for

“exceptional and extremely unusual hardship” was

not met and the Board of Immigration Appeals

affirmed. The United States Court of Appeals for

the Second Circuit denied review based on precedent

that the hardship requirement is a discretionary

determination. However, the plain _ statutory

language does. not make hardship discretionary, and

the courts have jurisdiction to review hardship as

they do for the other eligibility requirements of

cancellation of removal.

The First Question Presented is:

1. Whether the “exceptional and

extremely unusual hardship” requirement for

cancellation of removal, 8 U.S.C. 1229b, is subject to

judicial review.

Table of Contents

Questions Presented for Review.................. a

Table of Comtents,.«<eccccevciccssvsvsi eee

Table of Authoritses: ~...<cccccovsscoresceesaeal

Opinions BebowW... .+<+0«esssecsssssesseee

Jurisdiction.............. 1 sos ecenneeiemaann eaeee

Constitutional and Statutory Provisions.........

Statement of tise CaSO.e. cs0sssncsesstekaeee eee

Reasons for Granting the Writ............ ioeeaeumes

[. This Court should grant certiorari to

consider whether “exceptional and extremely

unusual hardship” is reviewable as an

eligibility requirement for cancellation of

removal under 8 U.S.C.1229b...................0002-

A. The Courts have judicial review

over questions of law relating to

cancellation of removal including

whether the alien is eligible for

COTO... 0c ccnevs teenies

B. A plain reading of the statue

shows that the hardship

requirement 1s not a

discretionary determination........

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es Junbabeuneenseose

Appendix A (Summary Order of the U.S.

Court of Appeals for the Second Circuit filed

i i - iucussvasendabeneneeens

Appendix B (Decision of the Board of

Immigration Appeals filed on March 24,

Appendix C (Oral Decision of the Immigration

Judge filed on September 26, 2006)................

Appendix D (Order on Petition for Rehearing

en “anc filed on December 07, 2009)..............

11}

23a

30a

39a

Table of Authorities

Cases

Barco-Sandoval v. Gonzales, 516 F.3d 35

oe as dawg bavievowunts 10

Bermudez v. Holder, 586 F.3d 1167 (9th

SRR DR ae ga aE ace oe 9

Davis v. Michigan Dept. of Treasury, 489

es iuamupwaeebioete 11

Fernandez v. Gonzales, 439 F.3d 592 (9th

Cir.2006)............ a igmancadudea ihe eGiee das ote 11

Flores v. Gonzales, 439 F.3d 614 (9th

(AIR SERIE psp acinar enone tc mea 9

Hashish v. Gonzales, 442 F.3d 572 (7th

¢ Seen picnic inca siete mana 9

Heckler v. Chaney, 470 U.S.C 821 105

S.Ct. 1649, 84 L.Ed.2d. 714 (1985)............ 11

INS v. St. Cyr, 533 U.S. 289, 121 S.Ct.

2271, 150 L.Ed.2d 347 (2001).................... 4-6, 7-

10

Jay v. Boyd, 351 US. 345, 76 S.Ct. 919,

fe ft eer eee eee 8

Kucana v. Holder, - S.Ct. --, 2010 WL

173368, (Docket No. 08-911) January 20,

iV

Martinez v. U_S. Att'y Gen., 446 F.3d 1219

Sey ene, cw ucceasane cab aislens

Mendez v. Holder, 566 F.3d 316, (2d

ct ae Seo NN OREN 1 AION Pie ee

Mireles-Valdez v. Ashcroft, 349 F.3d 213

OD ieee ee

Pinos-Gonzalez v. Mukasey, 519 F.3d 436,

et alte racdsne wera

Reno v. Catholic Social Services, Inc., 509

ances

Rodriguez v. Gonzales, 451 F.3d 60 (2d

RIO ae. Sec ama AA.

Russello v. United States, 464 U.S. 16, 104

S.Ct. 296, 78 L.Ed.2d 17 (1983).................

Sepulveda v. Gonzales, 407 F.3d 59, (2d

Cir.2005)...... ei en AN Ro

Sung v. Keisler, 505 F.3d 372 (5th

REE ckateciaicostekbids tues ielciaouinadwenSauunesoes

United States ex rel <Accardi v.

Shaughnessy, 347 U.S. 260, 74 S.Ct. 499,

OB TREE; GB CG occccccccavccvececccscscavceccces

1]

14

11

Administrative Decisions

Matter of Gonzalez Recinas, 23 I&N 467

i i) eae teas aacuucupeemesen 11-12

Matter of Monreal 23 1&N Dec. 56 (BIA

Statues and Regulations

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10-13

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9, 12

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LL canes 2

Opinions Below

The opinion of the United States Court of

Appeals for the Second Circuit denying the Petition

for Rehearing en Banc was not published in the

Federal Reporter but may be found at VPorras vy.

Holder, No. 08-1857-ag (2d Cir. Dec. 7, 2009),

reprinted at Petitioner's Appendix (hereinafter

"P_A.”) 25a.

The opinion of the United States Court of

Appeals for the Second Circuit, denying Mr. Porras's

Petition for Review on his claims for Cancellation of

Removal, was not published in the Federal Reporter

but may be found at Porras v. Holder, No. 08-1857-

ag (2d Cir. Aug. 28, 2009), P.A. 1a.

The decision of the Board of Immigration

Appeals dismissing the appeal may be found at Jz re

Liders Porras, No. A74 911 641 (B.I.A. March 24,

2008), affg No. A74 911 641 (Immig. Ct. Hartford,

Conn. Sept. 26, 2006), P.A. 9a. The order of the

Executive Office for Immigration Review, Hartford,

Connecticut, denying Mr. Porras’ applications for

Cancellation of Removal may be found at Jn re

Liders Porras, No. A74 911 641 (Immig. Ct.

Hartford, Conn. Sept. 26, 2006), P_A. 15a.

Jurisdiction

The United States Court of Appeals for the

Second Circuit denied Mr. Porras’s Petition for

Review on August 28, 2009. P.A. la. On December

7, 2009, the Court of Appeals denied Mr. Porras’s

motion for rehearing en banc. P.A. 25a. The

jurisdiction of this Court 1s invoked pursuant to 28

U.S.C. §1254(1).

Constitutional and Statutory Provisions

Title 28, United States Code §2350 provides in

relevant part:

An order’ granting or denying = an

interlocutory injunction under section

2349 (b) of this title and a final judgment of

the court of appeals in a proceeding to

review under this chapter are subject to

review by the Supreme Court on a writ of

certiorari as provided by section 1254 (1) of

this title. Application for the writ shall be

made within 45 days after entry of the

order and within 90 days after entry of the

judgment, as the case may be. The United

States, the agency, or an aggrieved party

may file a petition for a writ of certiorari.

Statement of the Case

Mr. Porras was born in Bolivia on February 9, 1966.

He entered the United States as a visitor on

September 17, 1989. P.A. 17a. Mr. Porras has five

United States Citizen children, two of whom live

with he and his wife, and three children that live

with their mother. On September 26, 2006 Mr.

Porras appeared before the Executive Office for

Immigration Review in Hartford, Connecticut and

requested relief in the form of cancellation of

removal, 8 U.S.C. 1229b(b)(1), as well as a

continuance for a visa number to become available.

P_A. 16a -24a.

2

Eligibility for cancellation of removal requires: (1)

physically presence in the U.S. for not less than 10

years immediately preceding the date of the

application; (2) good moral character; (3) no

convictions for an offense under section 1182(a)(2),

1227(a)(2), or 1227(a)(3); and (4) establishing that

removal would result in exceptional and extremely

unusual hardship to the alien’s spouse, parent or

child who is a United States Citizen or lawful

permanent resident. See 8 U.S.C. §1229b(b)(1).

At the hearing of September 26, 2006, the central

issue before the Immigration Judge was whether Mr.

Porras established that his removal would result in

“exceptional and extremely unusual hardship” to his

United States Citizen children. P.A.16a-24a. Mr.

Porras provided documents showing that Bolivia is

one of the least developed countries in South

America, with almost two-thirds of its people living

in poverty. P.A.20a. He testified that there is a high

occurrence of assaults and kidnapping. P.A.19a.

Mr. Porras further testified that his family in Boliva

has difficulty making enough money to feed their

children or buy medicines. P.A.20a. However, in the

United States Mr. Porras works as a night shift

supervisor for a cleaning company and is able to

provide his children with a modest, happy life.

P.A.19a. As a result, Mr. Porras indicated that he

would be forced to leave his wife and children in the

United States if he was ordered removed to Bolivia.

The Immigration Judge found that Mr. Porras did

not meet the hardship standard under 8 U.S.C.

§1229b(b) because “this is the hardship that

necessarily happens when anyone or child is

separated from their parent.” P.A.22a. The BIA

affirmed the I[J’s decision. P.A.10a. Mr. Porras

appealed the decision to the United States Court of

Appeals for the Second Circuit, arguing that the IJ

held him to higher standard than required by statue.

The Second Circuit dismissed the Petitioner's

appeal, relying on 8 U.S.C. 1252(a)(2)(B)@ which

precludes judicial review of “any judgment regarding

the granting of relief under _.. . 8 U.S.C. §1229b.”

However, in JNS v. St. Cyr, this Court held that the

courts are not precluded from reviewing whether an

alien is e/igib/e for discretionary relief. 533 U.S. 289,

121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). In line with

St. Cyr, the Second Circuit has held that “[olbtaining

cancellation of removal is a two-step process.

First, an alien must prove eligibility by showing that

he meets the statutory eligibility requirements.

Second, assuming an alien satisfies the statutory

requirements, the Attorney General in his discretion

decides whether to grant or deny relief.” Rodriguez

v. Gonzales, 451 F.3d 60, 62 (2d Cir.2006)(per

curiam)(citiations omitted); see also, Sepulveda v-.

Gonzales, 407 F.3d 59, 62-63 (2d Cir.2005).

However, despite the legal and statutory authority

providing for review of eligibility determinations, the

Second Circuit, and each of its sister circuit courts,

has held that the requirement of “exceptional and

extremely unusual hardship” is not subject to

judicial review. The IJ’s decision that the children

would not suffer exceptional and extremely unusual

hardship is a determination as to eligibility for

cancellation of removal. Therefore, the Second

Circuit’s decision is contrary to this Court’s finding

that there is a “distinction between eligibility for

discretionary relicf, on the one hand, and the

favorable exercise of discretion, on the other hand.”

St. Cyr, 533 U.S. at 307. The requirement of

“exceptional and extremely unusual hardship” is an

eligibility requirement for the discretionary relief of

Cancellation of Removal and is subject to judicial

review. See, /d.

Reasons for Granting the Writ

I. This Court should grant certiorari to consider

whether “exceptional and extremely unusual

hardship” is reviewable as an eligibility requirement

for cancellation of removal under 8 U.S.C.1229b.

In the recent decision of Aucana v. Holder,

this Court held that 8 U.S.C. 1252(a)(2)(B)’s

proscription of judicial review applies only to the

Attorney General's determinations made

discretionary by statute. Kucana v. Holder, -- S.Ct.

--, 2010 WL 173368, *9 (Docket No. 08-911)(anuary

20, 2010). However, the U.S. Court of Appeals for

the Second Circuit dismissed the underlying Petition

for Review based on circuit precedent that the

hardship requirement for cancellation of removal

was a discretionary determination, and therefore

beyond the Court’s jurisdiction to review. See 8

U.S.C. §1229b(b)(1)(D); 8 U.S.C. §1252(a)(2)(B). The

statute creating cancellation of removal contains

four requirements that must be established in order

for an alien to be eligible for such relief. Once an

alien has established eligibility, then the statute

provides that the Attorney General may exercise his

discretion to grant or deny relief. See 8 U-S.C.

§1229b(b)(1). The requirements for cancellation,

including whether the alien 23 established

hardship, are non-discretionary; the statutory

language does not indicate that hardship is

discretionary, other sections of the Immigration and

Nationality Act specifically use language indicating

discretion, and the BIA has created a legal standard

for determining hardship. Therefore the Petition for

Writ of Certiorari must be granted to interpret the

statutory language of 8 U.S.C. 1229b(b)(1) and the

requirement of “exceptional and extremely unusual

hardship.”

A. The Courts have judicial review over

questions of law relating to cancellation of removal

including whether an alien is eligible for relief.

The standard for Cancellation of Removal,

under 8 U.S.C. §1229b, states that the Attorney

General may cancel removal of a nonpermanent

resident if the alien:

(A) has been physically present in the United

States for a continuous period of not less than

10 years immediately preceding the date of

such application;

(B) has been a person of good moral character

during such period;

(C) has not been convicted of an offense under

section 1182 (a)(2), 1227 (a)(2), or 1227 (a)(3)

of this title, subject to paragraph (5); and

(D) establishes that removal would result in

exceptional and extremely unusual hardship

to the alien’s spouse, parent, or child, who is a

citizen of the United States or an alien

lawfully admitted for permanent residence.

See 8 U.S.C. §1229b(b). These requirements must be

met before an Immigration Judge may exercise his

discretion to consider granting Cancellation of

Removal relief. See 8 U.S.C. §1229b(b)(1).

The IJ’s decision is subject to judicial review

as regulated by 8 U.S.C. §1252. The jurisdiction

stripping provision of § 1252(a)(2)(B)(i) states that a

Court does not have jurisdiction to review “any

judgment regarding the granting of relief under ... [8

U.S.C. § 1229b].” However, § 1252(a)(2)(D) also

states,

Nothing in subparagraph (B) or (C), or in any

other provision of this chapter (other than this

section) which limits or eliminates judicial

review, shall be construed as precluding

review of constitutional claims or questions of

law raised upon a petition for review filed

with an appropriate court of appeals in

accordance with this section.

Therefore, the courts have jurisdiction over

questions of law and constitutional claims relating to

orders of removal, despite the fact that jurisdiction is

otherwise precluded for discretionary decisions,

including cancellation of removal.

In INS v. St. Cyr, this Court held that the

courts are not precluded from reviewing whether an

alien 1s eligible for discretionary relief. 533 U.S. 289,

121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). In St Cyr, a

permanent resident alien filed a petition for habeas

corpus, secking review of the BIA’s decision that he

was removable because he pleaded guilty to

aggravated felony and was ineligible to apply for

discretionary relief from deportation. The United

States District Court for the District of Connecticut

determined that it had jurisdiction and the Circuit

Court affirmed. Following a grant of certiorari, the

Supreme Court, Justice Stevens, held _ that

discretionary relief under § 212(c) was available for

aliens whose convictions were obtained through plea

agreements and who would have been eligible for

relief at the time of their plea under the law then in

effect. Jd. at 326. More importantly to the case at

hand, the Court held that the [legal Immigration

Reform and Immigrant Responsibility Act (IIRIRA) —

which includes §1252 - did not deprive courts of

jurisdiction to review the alien's habeas petition. /d.

at 312 — 313.

In arriving at its decision, the Court opined,

“[tlraditionally, courts recognized a_ distinction

between eligibility for discretionary relief, on the one

hand, and the favorable exercise of discretion, on the

other hand.” J/d. at 307. Eligibility for relief, the

Court found, is “governed by specific statutory

standards” and provides for “a right to a ruling on an

applicant's eligibility, even though the actual

granting of relief was .. . a matter of grace.” Jd at

308 (citing Jay v. Boyd, 351 U.S. 345, 353-354, 76

S.Ct. 919, 100 L.Ed. 1242 (1956)). The Court relied

on its opinion in Accardi, where it held that “a

deportable alien had a right to challenge the

Executive's failure to exercise the _ discretion

authorized by the law.” Jd. (citing, United States ex

rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct.

499, 98 L.Ed. 681 (1954)).

Following St. Cyr, the Circuit Courts have

held that 8 U.S.C. §1252 does not strip the courts of

jurisdiction over questions of law relating to

cancellation of removal, including whether an alien

is eligible for relief. In Sepulveda v. Gonzales the

Second Circuit held that “8 U.S.C. § 1252(a)(2)(B)

does not strip courts of jumsdiction to review

nondiscretionary decisions regarding an _ alien's

eligibility for the relief specified in 8 U.S.C. §

1252(a)(2)(B)@.” 407 F.3d 59, 62°63 (2d

Cir.2005)(emphasis added); see also, Rodriguez, 451

F.3d at 62. Other Circuit Courts have agreed. See,

e.g., Pinos-Gonzalez v. Mukasey, 519 F.3d 436, 439

(8th Cir.2008)(Holding that the court retains

jurisdiction to review the _ nondiscretionary

determinations underlying a denial of an application

for cancellation of removal including whether the IJ

properly applied the law to the facts in determining

an individual's eligibility); Hashish v. Gonzales, 442

F.3d 572 (7th Cir.2006)(Holding that the court has

jurisdiction to review nondiscretionary

determinations relating to an alien's eligibility for

relief); Mireles-Valdez v. Ashcroft, 349 F.3d 213 (5th

Cir.2003)(Holding the same); Flores v. Gonzales, 439

F.3d 614, 618 (9th Cir.2006)(Holding that

jurisdiction exists to consider whether an alien

meets the physical presence requirement.);

Bermudez v. Holder, 586 F.3d 1167 (9th

‘ir.2009)(Finding that whether a_ particular

conviction is a deportable offense is a question of law

that the Court reviews de novo). The circuit court

precedent, providing for review of eligibility for

cancellation of removal, squares with the language of

§1252 and the holding in St. Cyr.

As a result, “loJbtaining ... cancellation of

removal is a two-step process. First, an alien must

prove eligibility by showing that he meets the

statutory eligibility requirements. Second, assuming

an alien satisfies the statutory requirements, the

Attorney General in his discretion decides whether

to grant or deny relief.” Rodriguez v. Gonzales, 451

F.3d 60, 62 (2d Cir.2006) (per curiam) (citations

omitted); see also Mendez v. Holder, 566 F.3d 316,

319 (2d Cir.2009)\ citing St. Cyr, 533 U.S. at 307).

The two step process requires an alien establish

eligibility before the Court utilizes its discretion to

grant or deny cancellation of removal. Therefore, an

eligibility decision, which is subject to judicial

review, is distinct from an exercise of discretion.

B. A plain reading of 8 U.S.C. §1229b(b)(1)(D)

shows that the hardship requirement is not a

discretionary determination.

The plain language of the “exceptional and

extremely unusual hardship” requirement shows

that such a determination is not discretionary.

Furthermore, the BIA has created a legal standard

to apply in making a hardship determination — an

indication that such a decision is not discretionary.

Likewise, Congress has used specific language to

invoke the Attorney General’s discretion in other

sections of the Immigration and Nationality Act

(INA), and such language is purposefully excluded

from the requirement of “exceptional and extremely

unusual hardship.”

The Second Circuit has incorrectly held that

the hardship requirement is not reviewable. See,

e.g., Barco-Sandoval v. Gonzales, 516 F.3d 35, 39 (2d

Cir.2008)(Holding that whether exceptional and

extremely unusual hardship is present is committed

to the discretion of the Attorney General and is

beyond the court's jurisdiction to review; see also

10

Fernandez v. Gonzales, 439 F.3d 592, 603-04 (9th

Cir.2006)(holding the same); Sung v. Keisler, 505

F.3d 372 (5th Cir.2007)(holding the same); Martinez

v. US. Atty Gen, 446 F.3d 1219 (11th

Cir.2006)(holding the same). The Second Circuit

bases its decision on a finding that exceptional and

extremely unusual hardship is discretionary.

To the contrary, the language of §1229b does

not indicate that hardship is a_ discretionary

determination. The plain language of §122b does not

differentiate between each of the four requirements.

See Davis v. Michigan Dept. of Treasury, 489 U.S.

803, 809(1989)(“[Tlhe words of a statute must be

read in their context and with a view to their place

in the overall statutory scheme.”) As with the other

statutory requirements, a decision as to hardship

must be decided using the applicable legal

standards.

Under the Administrative Procedure Act, 5

U.S.C. 701(a)(2), a decision is committed to agency

discretion when there is “no law to apply.” See

Heckler v. Chaney, 470 U.S.C 821, 830, 105 S.Ct.

1649, 84 L.Ed.2d. 714 (1985)Gnternal quotations

omitted). However, the BIA has created a legal

standard for reviewing a hardship determination.

The legal standard was set forth by the Board of

Immigration Appeals in a trifecta of decisions. See

and compare, In Re: Gonzalez Recinas, 23 1&N 467

(BLA 2002); Matter of Monreal, 23 1&N Dec. 56 (BIA

2001); and Matter of Andazola, 23 1&N Dec. 319

(BIA 2002).

In Hecinas, the BIA issued a detailed decision

that analyzed its past precedents on the issue of

Cancellation of Removal and determined that it was

not "so restrictive that only a handful of applicants,

11

such as those qualifying relatives with a serious

medical condition, will qualify for relief.” /d. at 470.

The BIA emphasized that “the ahen need not show

that such hardship would be unconscionable." /d. at

468 (citations and quotations omitted). In

contrasting the factual situations of its prior

decisions, Monrea/ and Andazola, the BIA

determined that an IJ should nod toward granting

Cancellation where it is not practicable for the

United States Citizen child to live in the foreign

country because it would mean living in poverty, not

being able to communicate in the native language,

and separation from family and established support

networks. Hecinas, 23 I&N at 471. The Board also

recognized the importance of considering whether

the United States Citizen would ever be able to have

his parent visit again in the United States. Jd. at

472. Im a very balanced decision, the BIA

distinguished between situations where denying an

application for cancellation would mean a simple

relocation for the United States Citizen child and a

lateral relocation. Therefore, the hardship

requirement is not a purely’ discretionary

determination because there is law to apply.

As this Court recently held in Kucana v.

Holder, section 1252(a)(2)(B)’s_ proscription of

judicial review applies only to Attorney General

determinations made discretionary by statute.

Kucana v. Holder, -- S.Ct. --, 2010 WL 173368, *9

(Docket No. 08-911)(VJanuary 20, 2010). The

requirement of exceptional and extremely unusual

hardship in 8 U.S.C. §1229b is not made

discretionary by the language of the statute. The

alien must establish hardship, under the legal

standard articulated by the BIA, and then, if all the

12

requirements are met, the statute provides that the

Attorney General may use his discretion to grant or

deny relief.

Other areas of the INA use language that

specifically implicates the Attorney General’s

discretionary authority. “In contrast, other sections

of the INA require that an alien establish extreme

hardship ‘in the opinion of the Attorney General’ or

‘to the satisfaction of the Attorney General.’ This

language was used for suspension of deportaion, the

predecessor of the current cancellation of removal

law. But it was not included with respect to

cancellation. See 8 U.S.C. 1254(a)(1)(suspension of

deportation)(repealed 1996); 8 U.S.C.

§1182(D(1)(§212G) relief).” Mendez v. Holder, 566

F.3d 316, 321 (2d Cir.2009). On the other hand, the

hardship requirement simply states that an alien

must “establish{] that removal would result in

exceptional and extremely unusual hardship to the

alien’s spouse, parent, or child, who is a citizen of the

United States or an alien lawfully admitted for

permanent residence.” 8 U.S.C. §1229b(b)(1)(D).

This Court has held that where Congress specifically

includes particular language in one section of a

statue but omits it in another “it is generally

presumed that Congress acts intentionally an

purposely in the disparate inclusion or exclusion.”

See Russello v. United States, 464 U.S. 16, 23, 104

S.Ct. 296, 78 L.Ed.2d 17 (1983); see also, Mendez,

566 F.3d at 321 (Citing the decision of Russello for

the proposition that the language which is lacking as

to cancellation of removal suggests a difference

between the statutes.) In addition, the Court

generally entertains a “presumption favoring

interpretations of statutes [to] allow judicial review

13

of administrative action.” Reno v. Catholic Social

Services, Inc., 509 U.S. 43, 63-64 (1993)(Gnternal

quotations omitted).

In Mendez, the Second Circuit opined, “Were

we operating on a clean late, we would be inclined to

hold that the question of whether an alien has

established exceptional and extremely unusual

hardship is a determination that we have

jurisdiction to review ... We are, however, bound by

prior decisions of our Court.” 566 F.3d at 322.

Therefore, the Petitioner respectfully requests that

the Court grant his Petition for Writ of Certiorari to

resolve whether “exceptional and extremely unusual

hardship” is a _ non-discretionary determination

subject to judicial review.

Conclusion

The Petition for writ of certiorari should be

granted.

Respectfully submitted,

P r Liders Porras

By counsel,

Glenn L. Formica

Formica, P.C.

900 Chapel Street

Suite 1200

New Haven, CT 06510

(203) 787-1946

14

APPENDIX A

08-1857-ag

Porras v. Holder

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE

PRECEDENTIAL EFF “CT. CITATION TO

SUMMARY ORDERS FILED AFTER JANUARY 1,

2007, IS PERMITTED AND IS GOVERNED BY

THIS COURT'S LOCAL RULE 32.1 AND FEDERAL

RULE OF APPELLATE PROCEDURE 32.1. IN A

BRIEF OR OTHER PAPER IN WHICH A

LITIGANT CITES A SUMMARY ORDER, IN EACH

PARAGRAPH IN WHICH A CITATION APPEARS,

AT LEAST ONE CITATION MUST EITHER BE TO

THE FEDERAL APPENDIX OR BE

ACCOMPANIED BY THE NOTATION:

"(SUMMARY ORDER).". UNLESS THE SUMMARY

ORDER IS AVAILABLE IN AN ELECTRONIC

DATABSE HICH IS PUBLICLY ACCESSIBLE

WITHOUT PAYMENT OF FEE (SUCH AS THE

DATABASE AVAILABLE AT

HTTP://WWW.CA2.USCOURTS.GOV/),THE PARTY

CITING A SUMMARY ORDER MUST FILE AND

SERVE A COPY OF THAT SUMMARY ORDER

TOGETHER WITH THE PAPER IN WHICH THE

SUMMARY ORDER IS CITED. IF NO COPY IS

SERVED BY REASON OF THE AVALABILITY OF

THE ORDER ON SUCH A DATABASE, THE

CITATION MUST INCLUDEE REFERENCE TO

THAT DATABASE AND THE DOCKET NUMBER

OF THE CASE IN WHICH THE ORDER WAS

ENTERED.

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Daniel

Patrick Moynihan United States Courthouse, 500

Pearl Street, in the City of New York, on the 28th

day of August, two thousand nine.

Seal:

United States Court of Appeals

Second Circuit

Filed

August 28, 2009

Catherine O’Hagan Wolfe, Clerk

PRESENT:

AMALYA L. KEARSE,

ROBERT D. SACK,

DEBRA ANN LIVINGSTON,

Circuit Judges.

LIDERS PORRAS,

16a

Petitioner,

Vv. 08-1857-ag

ERIC H. HOLDER JR., * ATTORNEY GENERAL,

Respondent.

: Pursuant to Federal Rule of Appellate

Procedure 43(c)(2), we have substituted Attorney

General Eric H. Holder, Jr., for former Attorney

General Michael B. Mukasey as the respondent in

this case.

Appearing for the: Glenn Formica,

New Haven, CT.

Appearing for Apellee: Matthew Spurlock,

(Gregory Katsas,

Assistant Attorney

General, Barry J.

Pettitano, Assistant

Director, Jennifer

Levings, Senior

Litigation Counsel

Office of

Immigration

Litigation, of

counsel) U_S.

Department of

l7 a

Justice,

Washington, DC.

Petition for review of an order of the Board of

Immigration Appeals ("BIA") denying petitioner's

motion to remand, and affirming an Immigration

Judge's ("IJ") denial of petitioner's application for

cancellation of removal and for a continuance in

order to adjust status.

UPON DUE CONSIDERATION, IT IS

HEREBY ORDERED, ADJUDGED AND

DECREED that the petition be, and it hereby is,

DISMISSED in part, and DENIED in part.

Petitioner Liders Porras, a native and citizen of

Bolivia, petitions for review of a March 24, 2008,

BIA decision, No. A74-911-641, denying Porras's

motion to remand, and affirming the decision of an

IJ dated September 26, 2006, denying his

application for cancellation of removal under section

241(b) (1) of the Immigration and Nationality Act,

("INA") 8 U.S.C. § 1229b(b)(1) and his request for a

continuance in order to pursue adjustment of his

status under section 245 of the INA, 8 U.S.C. § 1255.

We assume the parties' familiarity with the facts and

procedural history of this case, and the issues

presented by this petition.

We have held that “obtaining = either

adjustment of status or cancellation of removal is a

two-step process. First, an alien must prove

18a

eligibility showing that he meets the statutory

eligibility requirements. Second, assuming an alien

satishes the statutory requirements, the Attorney

General in his discretion decides whether to grant

or deny relief." Rodriquez v. Gonzales, 451 F.3d 60,

62 (2d Cir. 2006) (per curiam) (citations omitted).

We have no jurisdiction to review an IJ's

discretionary determination’ regarding’ either

cancellation of removal or adjustment of status. See 8

U.S.C. § 1252 (a) (2) (B) ; see_also Rodriguez, 451

F_3d at 62; Sepulveda v. Gonzales, 407 F.3d 59, 62-

63 (2d Cir. 2005).

In order to demonstrate eligibility for

cancellation of removal, an alien must show, inter

alia, that ‘his "removal would result in exceptional

and extremely unusual hardship to [his] spouse,

parent, or child, who is a citizen of the United States

...."8 U.S.C. § 1229b (b) (1) (D). We have held that

the determination of whether exceptional and

extremely unusual hardship is present for the purpose

of cancellation of removal is committed to the

discretion of the Attorney General, and _ that,

accordingly, we have no jurisdiction to review such a

determination. Barco-Sandoval v. Gonzales, 516 F.3d

35, 38-40 (2d Cir. 2008); see also De La Vega v.

Gonzales, 436 F.3d 141, 144 (2d Cir. 2006).

The IJ denied Porras’s application for

cancellation of removal because he determined that

Porras's United States-citizen children would not

suffer the requisite exceptional and extremely unusual

19 a

hardship to grant him cancellation of removal.

Because this is a discretionary decision, we have no

jurisdiction to review it. See Barco-Sandoval, 516

F.3d at 38-40.

Even if we viewed Porras's petition as presenting a

question of law, we would still lack jurisdiction as

Porras's contention is frivolous. See id. at 40. Porras

argues that the IJ applied an incorrect legal standard

by relying on the BIA's analysis in In re Monreal-

Aduinaga, 23 I. & N. Dec. 56 (BIA 2001), which he

argues has been replaced with a less stringent

standard in In re Gonzalez Recinas, 23 I. & N. Dec.

467 (BIA 2002). But the IJ's finding was consistent

with both Recinas and Monreal in finding that Porras

has failed to show adequate hardship. See Barco-

Sandoval, 516 F.3d at 40-41 (rejecting as “not even

reaching] the level of being colorable" the assertion

that Gonzalez Recinas constituted a departure from,

rather than an _- application of, Monreal-

Aguinaga).The IJ.also denied Porras's motion for a

continuance in order to apply for adjustment of

status. The IJ stated that he would deny the

application for adjustment of status, inter alia, in the

exercise of his discretion, apparently based on views

the IJ had about the potentially fraudulent nature of

Porras's first marmage. He therefore denied the

motion for a continuance. We have found "no basis

for obligating the agency to grant continuances

pending adjudication of an immigrant visa petition

when there is a reliable basis to conclude that the visa

petition or the adjustment of status will ultimately be

20 a

denied.” Pedreros v. Keisler, 5038 F.3d 162, 166 (2d

Cir. 2007). Because the IJ would have denied the

application for adjustment of status even if the

continuance had been granted, the BIA did not err in

upholding the IJ's denial of the motion for a

continuance.

Similarly, the BIA was not required to grant the

motion to remand to the IJ based on Porras's

attaining a viable visa priority date in support of his

application for adjustment of status. The IJ made it

clear that he would have denied the application for

adjustment of status on the basis of his discretion in

any event.

Porras argues that the IJ erred by finding --

without the full record needed to make a proper

determination -- that Porras engaged in marriage

fraud. But the IJ did not err im relying on his

understandable doubts about the nature of Porras's

first marriage in deciding that he would not exercise

his discretion to grant Porras's adjustment of status.

Because the denial of cancellation of removal

was based on a finding that there was no exceptional

or extremely unusual hardship, we have no

jurisdiction to review this finding, and dismiss the

petition, in relevant part. Because the denial of the

motion for a continuance was based on the IJ's

determination that if the continuance were granted,

the application for adjustment of status would be

denied in the exercise of discretion, we deny the

2la

petition for review, in relevant part. Simularly,

because the BIA did not err in declining to grant a

motion to remand the case to the IJ to determine

adjustment of status, because the IJ would have

denied the application, we deny the petition, in

relevant part.

For the foregoing reasons, the petition for

review of the order of the BIA is hereby DISMISSED

in part, and DENIED in part. Having completed our

review, the petitioner's pending motion for a stay of

removal is DISMISSED as moot.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

22a

APPENDIX B

Seal U.S. Department of Justice

Department of Justice Executive Office for

Executive Office for Immigration Review

Immigration Review

Board of Immigration

Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

GLENN L. FORMICA, Esquire U.S. DHS/HAR

27 Elm Street 450 Main St,

New Haven, CT 06510-000 Room 483

Hartford, CT

06103-3060

Name: PORRAS, LIDERS

A74-911-641

Date of this notice: 3/24/2008

Enclosed is a copy of the Board’s decision and order

in the above-referenced case.

Sincerely,

S/

Donna Carr

Chief Clerk

Enclosure

Panel Members:

PAULEY, ROGER

23a

U.S. Department of Justice Decision of the

Executive Office for Board of

Immigration Review Immigration

Appeals

Falls Church, Virginia 22041

File: A74 911 641 - Hartford, CT

Date: MAR 24 2008

In re: LIDERS PORRAS

IN REMOVAL PROCEEDINGS

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Glenn L. Formica,

Esquire

APPLICATION: Cancellation of removal under

section 240A(b) of the Act; Adjustment of Status

The respondent, a 42-year-old native and

citizen of Bolivia, appeals from the Immigration

Judge's decision of September 26, 2006, denying his

application for cancellation of removal under section

240A(b) of the Immigration and Nationality Act, 8

U.S.C. § 1229b(b). During the pendency of the appeal,

the respondent filed a motion to remand seeking to

apply for adjustment of status as the beneficiary of a

third-preference employment-based immigrant visa

petition with a current priority date. See 8 C.F.R. §

1003.2(c)(4). The Department of Homeland Security

(DHS) has not responded to the respondent's motion.

24a

See 8 C.F.R. § 1003.2(g)(3): The respondent's request

for oral argument will be demied. See 8 C.F.R. §

1003.1(e)(7). The respondent's appeal will be

dismissed, and his motion to remand will be denied.

On appeal, the respondent argues that his

removal will cause his five United States citizen

children, now 5, 6, 10, and 12 years old, exceptional

and extremely unusual hardship. The respondent

has identified no clear error in the factual findings of

the Immigration Judge on appeal. See 8 C.F.R. §

1003.1(d)(3)@). Instead, the respondent argues that

the Immigration Judge applied a more rigorous

hardship standard than the exceptional and

extremely unusual hardship standard articulated in

section 240A(b)(1)(D) of the Act. In addition, the

respondent appears to argue that the facts of this

case are analogous to Matter of Recinas, 23 1&N Dec.

467 (BIA 2002). We disagree.

In Matter of Recinas, supra, the respondent

was a single mother who provided the sole support for

her six children and had no immediate family

remaining in Mexico. Here, the record reflects that

the respondent is a married man with two United

States citizen children, ages 5 and 6, who he testified

would remain in the United States with their mother

if he is ordered removed to Bolivia, where two of his

sisters and a brother still live (Tr. at 26, 31, 41). The

record reflects that the respondent also has three

United States citizen children, ages 6, 10, and 12,

from a previous relationship (Tr. at 31). Contrary to

the respondent's assertion on appeal, the record

reflects that the respondent has not seen these

children since at least March 2003, and while he

maintains that he makes weekly child support

2D)a

payments, he provided no proof of such (Compare

Resp. Br. at 2 wrth Tr. at 31-33, 40, 45-47). Thus,

this case does not present the question of how a

lower standard of living or adverse country

conditions would affect the respondent's children in

Bohvia, but rather what financial and emotional

hardship they would face in the United States. When

we consider all of the potential hardship factors in the

aggregate, we affirm the Immigration Judge's

conclusion that the respondent failed to establish that

his children would suffer hardship that is

substantially beyond the ordinary hardship that

1

A 74-°911-641

would be expected when a close family member leaves

the country. See Matter of Monreal, 23 I&N Dec. 56

(BIA 2001); see also Matter of Andazola, 23 1&N

Dec. 319 (BIA 2002). Cf Matter of Recinas, supra.

Accordingly, we affirm the Immigration Judge's

decision, for the reasons stated therein, denying the

respondent cancellation of removal under section

240A(b) of the Act.

On appeal, the respondent also argues that

the Immigration Judge abused his discretion in

refusing to grant a further continuance in this

matter. We disagree. A decision to grant or deny a

continuance is within the discretion of the

Immigration Judge if good cause is shown. See 8

C.F_R: § .1003.29; see also Matter of Silva-Rodriguez,

20 I&N Dec. 448 (BIA 1992); Matter of Perez-

Andrade, 19 I&N Dec. 433 (BIA 1987); Matter of

Sibrun, 18 I1&N Dec. 354 (BIA 1983). We review

26 a

discretionary determinations de novo. See 8 C.F.R. §

1003.1(d)(3) GO. In this case, the record reflects that

the respondent is the beneficiary of a third-preference

employment-based immigrant visa petition with a

priority date of March 13, 2003 (Exh. 3). On

September 26, 2006, when the Immigration Judge

denied the respondent's request for a _ further

continuance in this matter, third-preference

employment-based immigrant visas were available

only to applicants whose priority date was earlier

than March 1, 2002 (iJ. at 7; Tr. at 22). See

Department of State Visa Bulletin, Vol. VIII, No. 97

(September 2006). On appeal, the respondent argues

that the Immigration Judge was "far to ([/sic/

pessimistic as to the productivity of both the

Department of Homeland Security or the Congress in

authorizing additional visa numbers." (Resp. Br. at

6). Be that as it may, the record reflects that the

Immigration Judge also indicated that he would

deny the respondent adjustment of status as a matter

of discretion (I.J. at 7-8). In the United States Court

of Appeals for the First Circuit, in whose jurisdiction

this matter arises, it not an abuse. of discretion for

an Immigration Judge to deny a request for a

continuance based on his determination that the

adjustment application would be denied on statutory

grounds or in the_ exercise of discretion,

notwithstanding the approval of the visa petition. See

Oluyemi v. INS, 902 F.2d 1032 (15t Cir. 1990).

Finally, the respondent argues on appeal that

the removal proceedings were unfair and violated his

right to due process. Whiie it 1s well-established that

under the Fifth Amendment, ahens are entitled to

due process of law in removal proceedings, in this

case, the respondent appears to be seeking to cloak

Zia

his abuse of discretion arguments in due process

garb. See Reno v. Flores, 113 S. Ct. 1439 (1993);

Yamataya v. Fisher, 189 U.S. 86 (1903). However,

mischaracterizing a discretionary determination as a

constitutional violation does not necessarily make it

so. In this case, we see no evidence that the

respondent was denied a full and fair opportunity to

present his claim for cancellation of removal under

section 240A(b) of the Act.

Turning to the respondent's motion, we note

that he asserts that he is prima facie eligible for

adjustment of status as the beneficiary of a third-

preference employment-based immigrant visa

petition with a current priority date. See Matter of

Coelho, 20 1&N Dec. 464, 471-72 (BIA 1992); see also

INS v. Doherty, 502 U.S. 314 (1992). However, a

motion to remand will not be granted unless the new

facts alleged, together with facts already of record,

indicate a reasonable hkelihood of success on the

merits, so as to make it worthwhile to develop the

issues at a hearing. See Matter of L-O-G- 21 I&N

Dec. 413 (BIA 1996). Here, contrary to the

respondent's assertion in his motion to remand(Resp.

Mot. at 3), the Immigration Judge indicated that he

would deny the respondent adjustment of status as a

matter of discretion based on certain irregularities in

the record relating to his previous attempt to adjust

2

A 74-911-641

his status based on his, marriage to a United States

citizen (IJ. at 1-3, 7-8: Tr. at 41-43, 47-48, 49-50, 57-

61, 63-67; Exh 5, at pp. 172-174, 178-179, Exhs. 7-9 ).

28 a

We see no error in the Immigration Judge's exercise

of discretion, and accordingly, find no basis _ to

remand. See Matter of L-O-G-, supra.

ORDER: The respondent's appeal is dismissed

and his motion to remand is denied.

S/ of Roger Pauley

FOR THE BOARD

>

29a

APPENDIX C

U.S. Department of Justice

Executive Office for Immigration Review

Immigration Court

Hartford, Connecticut

File A 74 911 641 September 26, 2006

In the Matter of

LIDERS PORRAS In Removal Proceedings

Respondent

Charge: Section 267 (a)Q)(B) of the

Immigration and Nationality Act —

nonimmigrant overstay;

Application: Cancellation of removal under

Section 240A(b) of the Act;

Motion for Continuance for

availability of visa number.

On Behalf of the Respondent: On Behalf of DHS:

Glenn Formica, Patricia Flanagan,

27 Elm Street Assistant District

New Haven, CT 06510 Counsel,

Hartford, Connecticut

ORAL DECISION OF THE IMMIGRATION

JUDGE

30a

The respondent admits the allegations in

the Notice to Appear and concedes removability.

Respondent seeks a continuance based on an

approved 1-140 petition as well as cancellation of

removal for non-permanent residents.

Statement of the Facts

The respondent was born in Bolivia

on February 9, 1966. He entered the United

States as a visitor on September 17, 1989. He

apparently had a relationship with a Bobvian

native named Carmen Garcia. They had a

child born on May 12, 1995, in the United

States. The respondent indicates he was at

the hospital when the child was born, and

his name appears on the birth certificate.

He indicates that Carmen was his then

girlfriend. However, the next day on May

13, 1995, he married a Sonia Cruz who is a

U.S. citizen. Sonia Cruz filed a visa petition

on behalf of the respondent in November of

1996. They were interviewed by CIS in July of

1997, and then they issued a notice of intent to

deny, stating that there were inconsistencies

and discrepancies between their two

testimonies.

Then the respondent had another

child born with Carmen Garcia, not his wife,

on September 8, 1997. Then they had another

child born on February 17, 2001. Respondent

sla

was asked why he married this US. citizen

when he had a daughter born with

another woman the day before, and his

answer was that they had already set a day

but the respondent claims it was nota

marriage enterea into for Immigration

benefits.

The respondent claims that he had lived

with Ms. Cruz, but the record frankly says

very little about how long and under what

circumstances. The witness, Mr. Burgos, did

not even know his first wife's name and met

her five or six times, and did not know how

long they lived, but stated that it was a good

marriage that had its ups and downs. The

respondent indicated that he may have been

living on and off between both Ms- Garcia and

Ms. Cruz.

The respondent then apparently then met

his current wife and had a child with her on

July 25, 2001, which led to the breakdown of

this relationship with Ms. Garcia. Curiously,

there is nothing about his relationship with his

then wife. He divorced his wife on May 27,

2003.

The respondent claims that he has last

seen his three oldest children born to Ms.

Garcia about four years ago. He claims that

he makes child support payments and has a

visitation order but provided no proof to the

Court. He states that he sends them $142 per

week. He states that Ms. Garcia's husband

32a

does not want him to see the children, and

they make excuses.

The respondent then has two children

born in 2001 and 2002 to his current wife that

he married in October of 2003. His current

wife is Bolivian and apparently out of status.

The respondent states that he lives with his

wife and two children. He claims that he does a

lot of things together with his children.

The respondent states that he has two sisters

and one brother in Bolivia, and apparently, a

sister lives in the United States who is a

permanent resident. He states that the

economic situation is poor in Bolivia, and that

it is hard to make a living. He states that he

sometimes sends money to his siblings to help

them out in Bolivia. The respondent indicates

that he supervises a cleaning crew and works

late afternoons and nights and sometimes

during the day. He earns around $12 an hour.

The respondent claims that he bought a house

with his sister in March of 2005), but did not

list it on the cancellation of removal

application. He claims he owns it jointly, but

did not provide any evidence that he owns the

house.

He claims that if he had to be deported,

his wife and two children would remain in the

United States. He claims that the children

would have a difficult time in Bolivia, and that

they would have to live in his sister's small

house. He claims that there is a lot of crime

33a

and especially kidnapping, and he could not

afford medical care for his children in Bolivia.

A witness names Jorge Burgos testified

that he has known the respondent for around

ten years, considers the respondent a good

friend. He indicated that his first wife, Sonia,

had a lot of problems when the respondent had

children with another woman, but it is really

unclear how long they lived together if at all.

He indicates that he met his first wife at social

events five or six times.

The, respondent provided a number of

documents in the record including employment

letter. He provided a few rental documents

relating to his marriage to Sonia. He also

showed that he has paid tax returns since 2001.

He also provided a few documents regarding

background conditions in_ Bolivia. These

articles say almost nothing about the economic

conditions in Bolivia. It indicates that Bolivia

is one of the least developed countries in South

America, and almost two-thirds of its people

live in poverty. It states that Santa Cruz is the

commercial industrial hub of the eastern

lowlands and is experiencing rapid population

and economic growth. It says that economic

growth was estimated at four percent for 2005.

Statement of Law

To qualify for cancellation of removal under

Section 240A(b) (1), the respondent must

establish 10 years physical presence, good

34a

moral character, and that his removal would

result in exceptional and extremely unusual

hardship to his U.S. citizen children.

Analysis and Findings

The respondent appears to meet the

physical presence and good moral character

requirements. The main issue is whether the

respondent has established exceptional and

extremely unusual hardship and the issue of

discretion. The first issue is hardship to his

three oldest children who were born to Carmen

Garcia. The respondent indicates that he has

not seen them for the last four years but sends

them child support. He claims he has a

visitation order but apparently has not seen the

children. The respondent failed to provide the

Court with the visitation order. He has also

not provided a child support order or evidence

that he paid child support. The Court has little

information about what Carmen Garcia's

economic status is. However, the Court finds

that there is nothing close to exceptional and

extremely unusual hardship if the respondent

were to be deported to those three children.

The court finds that the fact that he might not

send $100 to them a week does not in itself

establish exceptional and extremely unusual

hardship. The Court tried to ask the

respondent questions about what his ties are to

these children, and the answer simply was not

very clear. The Court simply finds that there is

no evidence of exceptional and extremely

35a

unusual hardship to these three children if the

respondent were to be deported.

The next determination is whether there

would be exceptional and extremely unusual

hardship to his two younger children if he were

to be deported. Respondent claims that if he

were sent back to Bolivia, his wife and the two

children would remain in the United States.

The Court would note that the standard for

exceptional and extremely unusual hardship is

a very high one. The Board in Matter of

Monreal, 23 I&N Dec. 56 (BIA 2001) held that

the standard of exceptional and extremely is

something considerably above the hardship

normally found when a-close family member is

sent back to their native country. The Court

does not find anything close to exceptional and

extremely unusual hardship in this case. It

appears that this would result in separation

from their father. However, the Court finds no

evidence that this is particularly exceptional or

extremely unusual. This is the hardship that

necessarily happens when anyone or child is

separate? from their parent. In addition, the

Court would not find any exceptional and

extremely unusual hardship if the children had

to come with the respondent and their mother

back to Bolivia where both of their parents are

from. The Court again would find that there is

no evidence that removal, although albeit to a

country with lower living standards, does not

rise to the level of exceptional and extremely

unusual.

The Court would also deny this

application in the exercise of discretion. The

Court finds has serious doubts about the bona

fides of his marriage to Sonia Cruz. This was

expressed in the denial of the 1-130 petition,

and it is not clear whether CIS was even aware

or clued in to the fact that he had three

children with a different woman during that

marriage. However, listening to the

respondents testimony, the Court is not

convinced at all that this was a bona fide

marriage. In fact, he indicated when

he had a child with his current wife, he said

that that ended his relationship with Ms.

Garcia, but made absolutely no statements

about his then wife Sonia. Based on the facts

of this case, there is a high probability that this

was not a bona fide marriage. This record

simply does not establish that it was a bona

fide marriage. The Court finds that a

fraudulent marriage to a U.S. citizen is a

serious adverse factor. And the Court would

also deny the application in the exercise of

discretion.

The respondent also seeks a continuance

for a visa petition, visa number to become

available. It appears that that visa number is

nowhere close. That priority date is in 2003,

and the cutoff date for the category is in 2002.

Furthermore, the Court finds that the court

would also deny his adjustment in the exercise

of discretion. The Court finds that there is no

reason to continue the matter any further

pending the potential availability of a visa

37a

number. The respondent has not applied for

any other relief from removal, and accordingly,

the Court must order removal to Bolivia.

Orders

IT IS HEREBY ORDRED that the respondent’s

application for cancellation of removal under

Section 241(b)(1) of the Act is denied.

IT IS FURTHER ORDERED tthat the

respondent’s motion for continuance for

availability of an immigrant visa number is

denied.

IT IS FURTHER ORDERED that _ the

respondent be removed to Bolivia.

MICHAEL W. STRAUS

Immigration Judge

38 a

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

08-1857-ag

Porras v. Mukasey

December 07, 2009

12/7/09 Order FILED DENYING Petition for

rehearing and petition for rehearing en

banc by Petitioner Liders' Porras,

endorsed on motion dated 10/16/2009.

By FP, CD. [Entry date Dec 7 2009]

[AB]

39 a

Certificate of Compliance

No.

Liders Porras

Petitioner

Vv.

Eric H. Holder, Jr., Umited States Attorney General

Respondent

As required by Supreme Court Rule 33.1(h), I certify

that the petition for a writ of certiorari contains

5,401 words, excluding the parts of the petition that

are exempted by Supreme Court Rule 33.1(d).

I declare under penalty of perjury that the foregoing

is true and correct.

Executed arch 4, 2010.

Certificate of Service

No.

Liders Porras

Petitioner

Vv.

Eric H. Holder, Jr., United States Attorney General

Respondent

As required by Supreme Court Rule 29.5, I certify

that all parties required to be served have been

served with three copies of the petition for a writ of

certiorari that:

Matthew A. Spurlock

Office of Immigration Litigation

Civil Division

U.S. Department of Justice

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

(202) 514-0179

Solicitor General of the United States

Room 5614, Department of Justice

950 Pennsylvania Ave., N. W.

Washington, DC 20530-0001.

I declare under penalty of perjury that the foregoing

is true and correct.

Executed on March Dy. : | ne

‘ a