# Petition for Writ of Certiorari — Porras v. Holder > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1704%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 559 U.S. 1087 ## Text . peo 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,.« 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1704%3A1. Public record. Not legal advice.