Petition for Writ of Certiorari — Rangel-Perez v. Holder

; a ) Supreme Court U.S.

|

No.10- 10-78° DEC 9- 2010

Inti OFFICE OF THE CLERK

Supreme Court of the United States

ROSENDO BENITO RANGEL-PERIEZ,

Petrtioner

ERIC H. HOLDER, JK.,

U.S. ATTORNEY GENICRAL, et al,

Respondent.

On PETITION FOR A Writ OF CERTIORARE TO THE UNITED

Srares Court or APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

CHRISTOPHER W. HE.r, Esq.

Counsel of Record

THE Hetr Law Group, LLC.

1754 West Lunt Avenue

Chicago, Illinois 60626

(888) 739-6794

heltlaw@comeast.net

Counsel for Petitioner

222 R(M5 ce

COUNSEL PRESS

800) 274-8321 © (800) 359-6859

QUESTION PRESENTED

1. Whether the circuit courts of appeal are stripped

of jurisdiction to review cancellation of removal matters

for non-permanent residents under 8 U.S.C.

§ 1229b(b)(1)(D) decided by the Board of Immigration

Appeals?

PARTIES TO THE PROCEEDING

Petitioner is Rosendo Benito Rangel-Perez, the

petitioner below. Respondent is United States Attorney

General Eric H. Holder, Jr, respondent below.

TABLE OF CONTENTS

QUESTION PRESENTED

PARTIES TO THE PROCEEDING ..

TABLE OF CONTENTS

TABLE OF APPENDICES ......

TABLE OF CITED AUTHORITIES

OPINIONS BELOW

JURISDICTION

STATEMENT OF THE CASE

REASONS FOR GRANTING THE

PETITION

. THE ELEVENTH CIRCUIT DID

NOT FOLLOW OTHER CIRCUITS

COURTS OF CONTROLLING

AUTHORITY TO BE ACCORDED

CANCELLATION OF REMOVAL

MATTERS IN IMMIGRATION

PROCEEDINGS

iV

Contents

A. THE QUESTION PRESENTED IS

OF EXCEPTIONAL IMPORTANCE

BECAUSE IT HAS FAR

REACHING IMPLICATIONS FOR

ALL IMMIGRANTS UNDER

THE ELEVENTHCIRCUIT’S

JURISDICTION AND IT IS

LENO ogo ck enh bes cen eee

a

B. THE ELEVENTH CIRCUIT HAD

JURISDICTION TO REVIEW

THE DECISION OF THE BIA .... 9

SME oo a eas sae heave rakes 17

TABLE OF APPENDICES

Page

APPENDIX A— PETITION FOR

REVIEW IN THE UNITED STATES

COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT FILED

SEP ITMBGR 10,2010 ... 2... cee ccc ce cess la

APPENDIX B — DECISION OF THE

BOARD OF IMMIGRATION APPEALS,

U.S. DEPARTMENT OF JUSTICE

jeg Fa eS Sr nner En 5a

APPENDIX C — DECISION OF THE

BOARD OF IMMIGRATION APPEALS

VATED OCTOBER 21, 2006 ...... ccc. cece 9a

vi

TABLE OF CITED AUTHORITIES

Page

CASES

Aburto-Rocha v. Mukasey,

535 F:3d 500 (6th Cir. 2008) ................ 15

Arambula-Medina v. Holder,

572 F.3d 824 (10th Cir. 2009) ..........2000. 10

Arias v. U.S. Att’y Gen,

482 F.3d 1281 (11th Cir. 2007) ............ 5,6, 10

Augustin v. Att’y Gen.,

620 F.aG 264 Ga Cir, BOOB) nw. cc ccc cece es 1]

Barco-Sandoval v. Gonzales,

BIG Foc 36 (le Cie. BOOB) onc ccc cc cc ccccess 10

Bencosme de Rodriguez v. Gonzales,

455 F3q 168 (lat Cir, BO0G) .........0.00005- 10

Carachuri-Rosendo v. Holder,

130 S.Ct. 2577, 09-60 (June 14, 2010) ....... 16

Castillo-Cruz v. Holder,

581 F.3d 1154 (9th Cir. 2009) ............... 10

Figueroa v. Mukasey,

543 F.3d 487 (9th Cir. 2008) .............. 12, 13

Garcia v. Holder,

584 F.3d 1288 (10th Cir. 2009) .............. 10

Cited Authorities

Gomez-Perez v. Holder,

569 F.3d 370 (8th Cir. 2009)

Hernandez v. Ashcroft,

345 F.3d 824 (9th Cir. 2003)

In re O-J-O-,

21 1&N Dec. 381 (BIA 1996)

Leyva v. Ashcroft,

380 F.3d 303 (7th Cir. 2004)

Martinez v. U.S. Att'y Gen.,

446 F.3d 1219 (11th Cir. 2006)

Matter of Almanza-Arenas,

24 IK&N Dec. 771 (BIA 2009)

Matter of Andazola,

23 IK&N Dec. 319 (BIA 2002)

Matter of Monreal,

23 I&N Dec. 56 (BIA 2001)

Matter of Recinas,

23 I&N Dec. 467 (BIA 2002)

Mbea v. Gonzales,

482 F'3d 276 (4th Cir. 2007)

Page

10

Of

VILE

Cited Authorities

Page

Mendez v. Holder,

566 F.3d 316 (2d Cir. 2009) ............. 13, 14, 15

Mireles v. Gonzales,

433 F.3d 965 (7th Cir. 2006) ............6.. 11,18

Vartinez-Rosas v. Gonzales,

424 F.3d 926 (Sth Cir. 2005) ..........cccee 10

Mejia-Rodriguez v. Holder,

S558 F.20 46 (lat Cis, BOUB) 2... ccccccnccreces 11

Mendez-Moranchel v. Ashcroft,

838 F.3d 176 (8d Cir. 2008) ............0006- 10

Obioha v. Gonzales,

431 F.3d 400 (4th Cir. 2005) .............. , 10

Obi v. Holder,

558 F.3d 609 (7th Cir. 2009) ................ 10

Rodriguez v. Gonzales,

451 F.3d GO (2a Cie BOO6) nk cca ve vdsecccsas 13

Rueda v. Ashcroft,

380 F.3d 831 (Sth Cir. 2004) ..........2cece- 10

Santana-Albarran v. Ashcroft,

093 F.3d 699 (6th Cir. 2005) .......... 10

1X

Cited Authorities

Sepulveda v. Gonzales,

407 F.3d 59 (2d Cir. 2005) .............000 es

Singh v. Gonzalez,

451 F'3d 400 (6th Cir. 2006) .......

Tang v. U.S. Att'y Gen.,

578 F.3d 1270 (11th Cir. 2009) .....

Todorovic v. Att'y. General,

09-11652 (11th Cir. Sept. 27, 2010) .

Vasquez-Martinez v. Holder,

564 F.3d 712 (5th Cir. 2009) .....

Zacarias-Velasquez v. Mukasey,

509 F.3d 429 (8th Cir. 2007)

STATUTES

U.S. Const. art. I, § 8, cl. 4 ....

INA § 237(a)(2)(B)(1) .........

are

6) ee

Bree B SAOMLOKI MC) ... cece ccceces:

Page

16

1Q

Sere ; 10

j

( ife@d futhoritia 5

ray

INA § 242(a)(2)(B)Q1) Y

INA § 242(a)(2)(D) g

8 U.S.C. § 1228b >

8 U.S.C. § 1229b(b)(1)

8 U.S.C. § 1252(a)(2)(B)() 9

8 U.S.C. § 1182(a)(6)(A)(1)

8 U.S.C. § 1182(a)7)(a)(1)C) (

8 U.S.C. § 1252(a)(2)(D)

28 U.S.C. § 1254(1)

[Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Division C of Pub

L. No. 104-208, 110 Stat. 3009-546 ... 1]

OPINIONS BELOW

The opinion of the court of appeals is unreported.

The decision of the Board of Immigration Appeals

dismissing Petitioner’s appeal, and the decision of the

immigration judge also is unreported.

JURISDICTION

The jurisdiction of the Supreme Court is invoked

pursuant to 28 U.S.C. § 1254(1). The petition for Writ of

Certiorari is being filed within ninety days of the above-

referenced decision of the Eleventh Circuit Court of

Appeals.

STATEMENT OF THE CASE

Rosendo Benito Rangel-Perez, a native and citizen

of Mexico, entered the United States in May of 1997

and has remained permanently in the United States ever

since. He is married to a United States citizen, Anna

Roque and has a United States citizen step-son, Maury

Roque. His wife owned and operated a grocery store,

La Mexicana, which sold over the counter medications.

See Appendix C. In 2008, Rangel-Perez was convicted

of a “regulatory offense related to the sale of

prescription drugs.” See Appendix C. Specifically,

petitioner was convicted in the State of Florida for the

delivery of drugs without a prescription, and sale of

contraband. /d. The federal government then detained

him and placed him in removal proceedings on the basis

of his unlawful entry into the United States. On

September 19, 2007, he government sought his removal

under 8 USC § 1182 (a)(6)(A)(i) (present without being

admitted or paroled), 8 USC § 1182 (a)(7)(a)(i)(1)

(Immigrant-no valid visa or entry document), then

amending the charges in May 2008, additionally for

having been convicted of a crime involving moral

turpitude, and for having been convicted of a crime

involving a controlled substance.

At his removal hearing at the Krome Detention

Center in Miami, Florida, Perez-Rangel conceded the

factual allegations for 237(a)(2)(B)QGi) and sought

cancellation of removal under INA removal under INA

§ 240(A)(b). A grant of this relief by the immigration

judge would result in lawful permanent residency to him.

To qualify for cancellation of removal for non-permanent

residents, an alien must demonstrate: (1) that he has

been physically present in the United States

continuously for a period of not less than ten years; (2)

has been a person of good moral character; has not been

convicted of certain offenses; and (3) can establish that

his removal would result in exceptional and extremely

unusual hardship to his spouse, parent or child who is a

citizen or resident of the United States. See

Immigration Judge’s opinion and order, Appendia C

Rangel-Perez testified at his removal hearing that

while he had been formally married his wife for 3 years,

they have lived together and man and wife for much

longer and had raised his wife’s biological son as his own

son since the age of 4. /d. Rangel-Perez, his wife and

step-son all testified that Rangel-Perez cared for his wife

over the course of many years for many serious afflictions

and medical procedures, including assisting with his

wife’s bouts with depression, her obesity, gastric bypass

surgery and ovarian cancer. The immigration judge

found him statutorily eligible for cancellation of removal

for certain non-permanent residents, found he was not

removable as an alien convicted of a crime involving

moral turpitude or one convicted of using a controlled

substance, and ordered him released on bond that same

day. The immigration judge later issued a written

decision entering a removal order against him on

October 21, 2008 and denying his request for

cancellation of removal, as a matter of discretion, inter

alia. Id.

Rangel-Perez appealed the opinion and order to the

Board of Immigration Appeals. Rangel-Perez argued

that he was entitled to cancellation of removal, and

raised a number of statutory and constitutional

arguments. The BIA affirmed the immigration judge’s

decision and dismissed Rangel-Perez’s appeal on July

22, 2009. Petitioner then filed a timely petition for review

with the Eleventh Circuit Court of Appeal!

On September 10, 2010, the Eleventh Cireuit Court

of Appeals denied petitioner’s petition for review. In

doing so, the court relied on the invocation of

jurisdictional bars under 8 U.S.C. § 1228b, which were

acknowledged by the petitioner, but petitioner argued

did not apply in all cases wherein a circuit court reviews

matters involving denials of discretionary relief in

immigration proceedings. Petitioner further submitte:

that the Eleventh Circuit Court nevertheless retained

jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review

constitutional claims and questions of law. Petitioner

further argued that the BIA applied the wrong legal

standard and it erred as a matter of law by failing to

examine the “cumulative hardship” visited upon the

petitioner, much more than the weight the BIA assigned

to his evidence. These issues were never addressed,

however, because the Eleventh Circuit invoked the

jurisdictional bar to hearing these issues. In failing to

review, on the merits, the request by petitioner to apply

the appropriate law in his BIA appeal and rule that the

BIA in fact erred in failing to follow its own precedent

set forth in Jn re O-J-O-, 21 1 & N Dec. 381 (BIA 1996),

the court held it could not did consider what petitioner

felt was critical chronological and legal issues which

supported petitioner’s petition for review. The Eleventh

Circuit finally held that petitioner posited an un

reviewable “abuse of discretion argument” finding

petitioner was requesting the court to “reevaluate the

evidence presented to the IJ about his wife’s depressive

condition, and to review whether the BIA’s hardship was

correct in light of that evidence.” See Eleventh Circuit

Court Opinion, Septemb« r 10, 2010

[In uphelding the BIA’s decision, the Kleventh

Circuit Court also cited the BIA’s brief reference to the

petitioner spouse's health problems finding BIA decision

“was not utterly lacking in evidentiary support.” /d

~

o

REASONS FOR GRANTING THE PETITION

THE ELEVENTH CIRCUIT DID NOT FOLLOW

OTHER CIRCUITS COURTS OF

CONTROLLING AUTHORITY TO BE

ACCORDED CANCELLATION OF REMOVAL

MATTERS IN IMMIGRATION PROCEEDINGS

A. THE QUESTION PRESENTED IS OF

EXCEPTIONAL IMPORTANTACE

BECAUSE IT HAS FAR REACHING

IMPLICATIONS FOR ALL IMMIGRANTS

UNDER THE ELEVENTH CIRCUIT’S

JURISDICTION AND IT IS RECURRING.

The decision of the Eleventh Circuit court must not

stand because that court relied on the government’s

erroneous conclusion that jurisdiction does not exit in

these matters. The Eleventh Circuit Court should not

have made such a conclusion, as the BIA must still review

the cumulative effect of all evidence submitted in

cancellation cases under its own precedent-setting case

of In re O-J-O-, and the failure to do so permitted the

Eleventh Circuit to review said agency’s decision to

dismiss petitioner’s appeal, notwithstanding certain

jurisdictional bars cited by the Eleventh Circuit (the

Eleventh Circuit relying on Anas v. U.S. Att’y Gen.,

482 F.3d 1281 (11" Cir. 2007), for example). The Eleventh

Cireuit certainly had jurisdiction to render a decision

on the merits in this matter as do other courts of appeal

nationwide.

Given the issues presented in Rangel-Perez’ petition

for review, this conclusion does not accurately reflect

6

the prevailing law in other circuits and the decision sets

a dangerous precedent for other immigrants seeking

review of cancellation decisions made by the Board of

Immigration Appeals within that circuit’s jurisdiction’.

In fact, in nearly every other circuit, an identically

situated alien would have an opportunity to obtain

cancellation of removal and remain lawfully in the United

States. There is no justification for permitting that stark

disparity of treatment to continue in the Eleventh

Circuit, particularly in view of the Constitution’s

contemplation of a “uniform Rule of Naturalization.”

U.S. Const. art. [ § 8, el. 4

Cancellation of removal for nonpermanent residents

(“non-LPR cancellation”) allows qualifying individuals

with no ability to adjust status via family or employment

means to obtain permanent residence in the United

States by a federal immigration judge. To become

eligible for non-LPR cancellation, an applicant must

establish, inter alia, that his or her removal would cause

exceptional and extremely unusual hardship to a

qualifying relative. Matter of Monreal, 23 I&N Dec. 56,

60 (BIA 2001). The Eleventh Circuit here as it had done

in other cases such as Arias v. U.S. Att’y Gen., 482 F.3d

1281 (11th Cir. 2007), the court declined to exercise

jurisdiction over many hardship determinations.

However, other circuit courts have found that in certain

instances, the determination whether an alien has

established exceptional and extremely unusual hardship

can present a legal question over which the court has

1. The Eleventh Circuit Court of Appeals has jurisdiction

over all BIA decisions reviewing all immigration judge decisions

made in Alabama, Florida, Georgia North Carolina and South

Carolina.

jurisdiction. Therefore, because the Eleventh Circuit

refuses to apply this standard there is no uniformity

with regard to federal immigration law within this

jurisdiction. Again, there is no justification for

permitting that stark disparity of treatment with

cancellation of removal cases reviewed by the Eleventh

Circuit Court of Appeals.

Obtaining non-LPR cancellation by an immigrant in

removal proceedings requires an applicant to establish

four statutory elements: (A) physical presence in the

United States for a continuous period of 10 years; (B)

good moral character during that period of time; (C) no

convictions for certain criminal offenses; and (D)

exceptional and extremely unusual hardship to the

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

the United States or an alien lawfully admitted for

permanent residence. § 240A(b)(1) of the Immigration

and Nationality Act, 8 U.S.C. § 1229b(b)(1). The statute

states that if these requirements are met, the “Attorney

General may cancel removal of .. . an alien who is

inadmissible or deportable from the United States.” /d.

There are only three decisions, however, published by

the Board of Immigration Appeals to guide that agency

in reviewing cancellation cases. See Matter of Recinas,

23 I&N Dec. 467 (BIA 2002); Matter of Andazola, 23

I&N Dec. 319 (BIA 2002); Matter of Monreal, 23 1&N

Dee. 56 (BIA 2001). In denying the respondent’s

application for non-LPR cancellation in Matter of

Monreal (citation znfra), the BIA determined that the

hardship the respondent’s children would face if the

respondent were removed to Mexico would not rise to

the level of exceptional and extremely unusual hardship.

The BIA noted that the children were in good health,

8

that the oldest child could speak, read, write, and

understand Spanish, and that they would be reunited

with family upon their return. Similarly, in Matter of

Andazola (citation infra), the BIA denied the

application of a 30-year-old Mexican single mother of

two United States citizen children. In that case, the

mother had been in the United States for 16 years, had

no family in Mexico, and expressed concerns about

discrimination and the limited opportunities she and her

children would face if removed. In vacating the decision

of the Immigration Judge granting her application, the

BIA stated that “the hardships the respondent...

outlined are simply not substantially different from

those that would normally be expected upon removal to

a less developed country.” Matter of Andazola, 23 I&N

Dec. at 324. Matter of Recinas, 23 I&N Dec. at 470, on

the other hand, identified “the outer limit of the narrow

spectrum of cases in which the exceptional and

extremely unusual hardship standard will be met.” In

finding that a Mexican applicant had shown the

requisite level of hardship, the BIA highlighted the fact

that the respondent was a 39-year-old single mother of

six children, four of whom were United States citizens.

In addition, the applicant’s family had been in the

United States for 14 years, and her entire family,

including her siblings, resided lawfully in the United

States. /d. Moreover, the children spoke little Spanish,

the applicant relied heavily upon her family to care for

the children while she worked, and no similar support

existed in Mexico. The BIA emphasized 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.” Jd. Thus there are clear ground rules

9

and guidance to decide these immigration applications

by aliens.

B. THE ELEVENTH CiRCUIT HAD

JURISDICTION TO REVIEW THE

DECISION OF THE BIA.

Petitioner acknowledged before the Eleventh Circuit

that § 242(a)(2)(B)(i) of the Act, 8 U.S.C. § 1252(a)(2)(B Xi),

that, notwithstanding other provisions of the law, the

circuit courts may not retain jurisdiction to review “any

judgment regarding the granting of relief under”

several provisions of the INA, including section 240A,

which governs cancellation of removal. Petitioner further

acknowledged that § 242(a)(2)(B)(i) bars circuit courts

from reviewing “any other decision or action of the

Attorney General ... the authority for which is specified

under this title to be in the discretion of the Attorney

General,” except for asylum. However, judicial review

of legal and constitutional, as opposed to factual

determinations, is permitted under § 242(a)(2)(D), which

states that no provision of the Act “shall be construed

as precluding review of constitutional claims or questions

of law.” Jd.

In general, circuit court decisions reviewing the

merits of non-LPR cancellation determinations have

been rare and clearly the BIA has characterized non-

LPR cancellation as a discretionary form of relief from

removal. Matter of Almanza-Arenas, 24 I&N Dec. 771,

774 (BIA 2009). In addition, petitioner is also aware that

every circuit court has held that in at least certain

instances, the determination whether an alien has met

his or her burden to establish the requisite hardship is

considered a discretionary determination outside of a

.

10

circuit court’s jurisdiction to review. See, e.g., Arambula-

Medina v. Holder, 572 F.3d 824, 828 (10th Cir. 2009);

Barco-Sandoval v. Gonzales, 516 F.3d 35, 38-39 (2d Cir.

2008); Zacarias-Velasquez v. Mukasey, 509 F.3d 429, 434

(8th Cir. 2007); Martinez v. U.S. Att’y Gen., 446 F.3d

1219, 1222-23 (11th Cir. 2006); Bencosme de Rodriguez

v. Gonzales, 433 F.3d 163, 164 (1st Cir. 2005); Obioha v.

Gonzales, 431 F.3d 400, 405 (4th Cir. 2005); Martinez-

Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005);

Santana-Albarran v. Ashcroft, 393 F.3d 699, 703 (6th

Cir. 2005); Rueda v. Ashcroft, 380 F.3d 831, 831 (5th Cir.

2004); Leyva v. Ashcroft, 380 F.3d 303, 305-06 (7th Cir.

2004); Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179

(3d Cir. 2003).

However, jurisdiction does exist to review certain

legal determinations with respect to applications for

cancellation of removal, despite the Eleventh Circuit

Court’s reliance on Arnas v. U.S. Att'y Gen., 482 F.3d

1281 (11" Cir. 2007). Other circuits clearly disagree with

the Eleventh Circuit’s position: Garcia v. Holder, 584

F'3d 1288, 1289 n.2 (10th Cir. 2009) (concluding that the

alien’s conviction for third-degree assault rendered him

ineligible for cancellation of removal); Castillo-Cruz v

Holder, 581 F.3d 1154, 1157 (9th Cir. 2009) (remanding

from a determination that the alien’s crimes rendered

him ineligible for cancellation of removal); Vasquez-

Martinez v. Holder, 564 F.3d 712, 717-19 (5th Cir. 2009)

(holding that the alien’s Texas conviction for possession

of cocaine with intent to deliver was for an aggravated

felony, rendering the alien ineligible for cancellation of

removal); Obi v. Holder, 558 F.3d 609, 612 (7th Cir. 2009)

(holding that INA § 240A(b)(1)(C) is not impermissibly

retroactive when applied to a conviction that occurred

1]

prior to the passage of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996, Division C of

Pub. L. No. 104-208, 110 Stat. 3009-546); Mejia-

Rodriguez v. Holder, 558 F.3d 46 (1st Cir. 2009) (finding

the alien not eligible for the petty offense exception and

therefore ineligible for cancellation of removal);

Augustin v. Att’y Gen., 520 F.3d 264 (3d Cir. 2008)

(finding that the BIA did not err in refusing to impute

the father’s years of continuous residence to his son for

purposes of establishing the requisite continuous

residence for cancellation of removal); Mbea v. Gonzales,

482 F.3d 276, 278 n.1 (4th Cir. 2007) (finding that the

malicious burning of property in violation of the D.C.

criminal code is a crime of violence, rendering the alien

ineligible for cancellation of removal); Singh v. Gonzalez,

151 F.3d 400, 406-07 (6th Cir. 2006) (remanding after the

BIA imputed to the minor petitioners certain fraudulent

actions of their parents).

Nationwide, circuit courts have found jurisdiction

to examine an Immigration Judge’s determination

whether a qualifying relative will suffer exceptional and

extremely unusual hardship if the petitioner is removed.

The Eleventh Circuit, therefore, was flatly incorrect.

Specifically, other circuit courts have found jurisdiction

to examine whether the immigration judge or the BIA

either: (1) used an incorrect legal standard in this

determination; or (2) misapplied the Board’s precedent.

In Mireles v. Gonzales, 433 F.3d 965 (7th Cir. 2006), the

petitioner argued that the immigration judge made a

legal error in understanding the meaning of exceptional

and extremely unusual hardship. The United States

Court of Appeals for the Seventh Circuit determined

that it retained jurisdiction to review the petitioner’s

12

argument. /d. at 969. In Gomez-Perez v. Holder, 569 F.3d

370, 371 (8th Cir. 2009), the petitioner, a native and citizen

of Guatemala, argued before the Immigration Court that

his removal would result in exceptional and extremely

unusual hardship to his United States citizen children.

In denying the petitioner’s application, the Immigration

Judge noted that the hardship to the children would be

largely economic, since the petitioner said his children

would remain with their mother in this country. On

appeal, the petitioner claimed that the Immigration

Judge erred by applying an incorrect standard in

determining whether his children would suffer

exceptional and extremely unusual hardship and argued

that the Immigration Judge looked at the children’s

present circumstances, instead of looking to future

hardship. The Eighth Circuit held that whether an

Immigration Judge has applied the correct legal

standard is a question of law within the court’s

jurisdiction to review. The petitioner also claimed that

the Immigration Judge and the Board “applied an

licorrect legal standard by failing to adequately consider

certain factors [regarding hardship] that have been

considered relevant in other BIA decisions.” /d. at 373.

In Figueroa v. Mukasey, 543 F.3d 487, 491-92 (9th

Cir. 2008), petitioner asserted that the Immigration

Judge misapplied the legal standard in evaluating the

hardship for non-LPR cancellation, in that he required

petitioners to show hardship that was “unconscionable.”

The petitioner also argued that the Immigration Judge

further erred in only considering the present medical

conditions (Attention Deficit Hyperactivity Disorder,

depression, ocular disorder, astigmatism) experienced

by the petitioner’s children and failed to analyze

whether the children would suffer future hardship. In

reaching a decision that it retained jurisdiction, the

Ninth Cireuit looked to the Seventh Circuit’s decision

in Mireles v. Gonzales (citation supra), for guidance on

whether to assume jurisdiction. The Ninth Circuit also

looked to other areas of immigration law where a circuit

court has jurisdiction over the analysis of a legal issue,

even when the overarching decision is a discretionary

one, as in this matter. In ruling that it had jurisdiction

to review the hardship determination, the Ninth Circuit

stated in Figueroa that even if an Immigration Judge’s

decision is discretionary, it is not outside a court’s

purview to review the agency’s decision if the agency

misapplies the law. Id. at 495-96 (citing Hernandez v

Ashcroft, 345 F.3d 824, 846-47 (9th Cir. 2003) (the BIA

“must exercise its discretion within the constraints of

the law’”’)). In Mendez v. Holder, 566 F.3d 316 (2d Cir

2009), the Second Circuit declined to find the hardship

determination reviewable as a matter of law but

remanded the case to the Board on account of other

legal errors. In its decision, that court referenced tw

prior Second Circuit cases, Rodriguez v. Gonzales, 451

K.3d 60, 62 (2d Cir. 2006), and Sepulveda v. Gonzales,

407 F.3d 59, 62-63 (2d Cir. 2005), which described the

adjudication of a non-LPR cancellation application as a

two-part process. That is, the Immigration Judge must

first determine whether an individual is statutorily

eligible for the relief and, second, he or she must

determine whether the alien merits that relief as an

exercise of discretion. In Rodriguez, the court found it

had jurisdiction to evaluate whether the petitioner had

committed certain crimes that would render him

ineligible for non-LPR cancellation. The Mendez court

found that it retained jurisdiction to review the

14

petitioner’s application because the Immigration Judge

erred as a matter of law in analyzing his claim. The court

found that the Immigration Judge failed to address

certain evidence presented by the petitioner, including:

(1) the specialized piece of medical equipment the

petitioner’s United States citizen daughter used; (2) the

number of asthma attacks the daughter experienced

yearly; (3) the long-term prognoses of the daughter's

asthma; (4) the specialized medical doctor the

petitioner’s son visited annually; (5) the unavailability

of a specialized medical doctor for the petitioner’s son

in Mexico; and (6) the petitioner’s ability to pay for

highly specialized care in Mexico. The court also found

that the Immigration Judge failed to evaluate all the

evidence submitted and therefore did not appropriately

address whether the petitioner’s removal would result

in exceptional and extremely unusual hardship to hi:

two United States citizen children. The court stated

We readily acknowledge that the agency doe

not commit an “error of law” every time ar

item of evidence is not explicitly considered

or is described with imperfect accuracy, but

where, as here, some facts important to the

ubtle determination of ‘exceptional and

extremely unusual hardship’ have been

totally overlooked other and have been

eriously mischaracterized, we conclude that

an error of law has occurred

hat court noted that the immigration judge had not

made an adverse credibility finding and stated that 11

was “not confident that, after taking the overlooked

evidence into account and describing it accurately,” the

agency would again conclude that the petitioner failed

to establish exceptional and extremely unusual

hardship. /d. Therefore, the court remanded the case

to the BIA for a new determination on the question of

hardship. In this case, the petitioner cited to a plethora

of instances wherein the IJ failed to examine hardship

evidence. All examples were also brought to the

attention of the Eleventh Circuit which also fell on deat

ear

In yet another case clearly demonstrating a

circuit court’s jurisdiction to review cancellation o!

removal cases, the Sixth Circuit, in Aburto-Rocha

Mukasey, 535 F.3d 500 (6th Cir. 2008), held that it had

jurisdiction to review whether the BIA incorrectly

applied its own precedent regarding exceptional and

extremely unusual hardship. In accepting jurisdiction,

the court stated that “the choice by the BIA to disregard

its own binding precedent—even when deciding an issu

that is within its discretion—is not itself a discretionary

decision Congress has excluded from review.” /d. at 503

The court went on to say that because it did not want to

econd guess” how the BIA weighed the evidence, if

would only look to whether the Board “reasonably

construed and applied its own precedents.” /d. In thi

precedent setting case, the BIA also erroneously

concluded that petitioner here “waived appeal” on

challenging the adverse creditability finding. Here,

while the petitioner clearly demonstrated that he did

not waive any issues, the KJeventh Circuit was silent on

this issue as well, which petitioner believed was critical

to his petition for review. Thus petitioner's testimony

16

as addressed by the BIA, should have also been

addressed by this Eleventh Circuit. The Eleventh

Circuit is well aware that, based on its own precedent,

“Ifan alien’s testimony is credible, it may be sufficient,

without corroboration, to satisfy [his] burden of proof

in establishing [his] eligibility for relief from removal.”

Todorowme v Att'y Cie neral, O09 11652 ( | he Coir. sept <p

2010), citing Tang v. U.S. Att'y Gen., 578 F.3d 1270, 1

Lith Cir. 2009). C

276

edibility determinations made by an

|.J must rest on substantial evidence. /d. at 1276,

ine entire issue was side-stepped by invoking

ilurisdiction bar bars which do not

exist in other

circuits. This Court has recently

reversed the decision

f the circuit court, holding that

an alien may seek

ancellation of removal and thereby pote ntially avoid

r

ie harsh consequence of mandatory rem¢

(aracnur Reo f ndo } Hold y. (4 60

Here, an alien rightfully

Val ll

June 14, 2010

0 Should have the right te

‘view of his BIA decision DY tne Circuit Court, as «

ve done in every other circuit. Immigration law

are

ederal | »uUe and hould rhe

uniformly appli (]

regardle Of which circuit an alien resid It}

America s national interest to have a uniform approac!

review of cancellation of removal case ind tt U!

ion of the Eleventh Circuit t t not

ind

CONCLUSION

For the above mentioned reasons, we ask the Court

to grant the petition for a writ of certiorari.

Respectfully submitted,

CHRISTOPHER W. HELT, Esa.

Counsel of Record

THE HELT Law Group, LLC.

1754 West Lunt Avenue

Chicago, Illinois 60626

(888) 739-6794

heltlaw@comceast.net

Counsel for Petitioner

December 9, 2010

APPENDIX

la

APPENDIX A — PETITION FOR REVIEW OF A

DECISION IN THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

FILED SEPTEMBER 10, 2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 09-13934

Non-Argument Calendar

Agency No. A094-809-903

ROSENDO B. RANGEL-PEREZ,

Petitioner,

Versus

U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review of a Decision of the

Board of Immigration Appeals

Before BARKETT, HULL and MARCUS, Circuit

Judges.

PER CURIAM:

Rosendo Benito Rangel-Perez seeks review of the

Board of Immigration Appeals’ (“B1A”) order affirming

the Immigration Judge’s (“IJ”) denial of cancellation of

9.

2a

Appendix A

removal under 8 U.S.C. § 1229b, and ordering him

removed. In his petition, Rangel-Perez acknowledged

that this Court generally does not have jurisdiction to

review the BIA’s order denying him cancellation of

removal, but contends that we can review the BIA’s

affirmance of the IJ’s order, because it constituted a

complete factual error so egregious that it violated

Rangel-Perez’s right to due process. After careful

review, we dismiss the petition.

When examining a petition for review, we “must first

consider whether we have subject matter jurisdiction

to hear the petition at all.” Resendiz-Alcaraz v. U.S.

Att’y Gen., 383 F.3d 1262, 1264 (11th Cir. 2004). We

review subject matter jurisdiction de novo. Sanchez

Jimenez v. U.S. Att'y Gen., 492 F. 3d 1228, 1231 (11th

Cir. 2007).

Under 8 U.S.C. § 1229b, the Attorney General may

cancel the removal of a nonpermanent resident who

establishes, zmter alia, that removal would cause

“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).

Notably, section 1252 limits our jurisdiction over denials

of discretionary relief in immigration proceedings. See

8 U.S.C. § 1252(a)(2)(B). Specifically, “[n Jotwithstanding

any other provision of law (statutory or nonstatutory)

. no court shall have jurisdiction to review ... any

judgment regarding the granting of relief under” 8

U.S.C. § 1229b. 7d. § 1252(a)(2)(B)(i).

3a

Appendix A

We have held that the “exceptional and extremely

unusual hardship determination is a discretionary

decision not subject to review.” Martinez v. U.S. Att’y

Gen., 446 F.3d 1219, 122. (11th Cir. 2006) (quotation

omitted). Notwithstanding this jurisdictional bar, we

have held that Ҥ 1252(a)(2)(B) allows review of

substantial constitutional challenges to the

[Immigration and Naturalization Act].” Gonzalez-

Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1833 (11th

Cir. 2003). Section 1252(a)(2)(D) also expressly permits

us to review “constitutional claims or questions of law.”

8 U.S.C. § 1252(a)(2)(D). However, we lack jurisdiction

“over abuse of discretion claims merely couched in

constitutional language.” Arias v. U.S. Att’y Gen., 482

F.3d 1281, 1284 (11th Cir. 2007).

In this petition, Rangel-Perez contends that the IJ

and BIA made a Discretionary decision — that Rangel-

Perez’s wife and stepson would suffer hardship, but the

hardship did not reach the level required for cancellation

of removal — based on a completely false assessment of

the underlying facts, which constitutes a due process

violation. In reaching its decision, however, the BIA

pointed out that the record showed that Rangel-Perez’s

wife had endured health problems, but she was currently

in good health and was financially independent. Thus,

the BIA’s decision was not utterly lacking in evidentiary

support.

As aresult, Rangel-Perez is effectively asking us to

reevaluate the evidence presented to the IJ about his

wife’s depressive condition, and to review whether the

4a

Appendix A

BIA’s hardship decision was correct in light of that

evidence. Rangel-Perez’s argument is exactly the sort

of abuse of discretion argument that we do not have

jurisdiction to consider. See Arias, 482 F.3d at 1284.

Because Rangel-Perez does not raise a colorable

constitutional issue, we lack jurisdiction to consider his

argument.

PETITION DISMISSED.

Sa

APPENDIX B — DECISION OF THE BOARD

OF IMMIGRATION APPEALS,

U.S. DEPARTMENT OF JUSTICE

DATED JULY 22, 2009

U.S. DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR

IMMIGRATION REVIEW

FALLS CHURCH, VIRGINIA 22041

Decision of the Board of Immigration Appeals

File: A094 809 903 —- Miami, FL

Date: JUL 22 2009

Inre: ROSENDO BENITO RANGEL-PEREZ

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT:

Christopher W. Helt, Esquire

ON BEHALF OF DHS: Maria M. Lopez-Enriguez

Assistant Chief Counsel

CHARGE:

Notice: Sec. 212(a)(6)(A)(i), IGN Act [8 U.S.C.

§ 1182(a)(6)(A)G)I-

Present without being admitted or

paroled

6a

Appendix B

212(a)(7)(A)C), I&N Act [8 U.S.C.

§ 1182(a)(7)(A)G)D-

Immigrant - no valid immigrant visa or

entry document

APPLICATION: Cancellation of removal under

section 240A(b); voluntary

departure

By an order dated October 21, 2008, an Immigration

Judge denied the respondent’s application for

cancellation of removal under section 240A(b) of the

Immigration and Nationality Act, 8 U.S.C. § 1229b(b).'

The respondent has filed a timely appeal of that decision.

The appeal will be dismissed.

This Board reviews the findings of fact, including

the determination of credibility, made by the

Immigration Judge under a “clearly erroneous”

standard. See 8 C.F .R. § 1003.1(d)(3)(i); Matter of A-S-

B-, 24 I&N Dec. 493 (BIA 2008). We review all other

issues, such as whether the parties have met the

relevant burden of proof, and issues of discretion, under

a de novo standard. See 8 C.E.R. § 1003.1(d)(3)(ii); Matter

of A-S-B-, supra; see also Matter of V-K-, 24 I&N Dec.

500 (BIA 2008).

1. The respondent filed his application for cancellation of

removal after May 11, 2005. See Exh. 5; see also Exh. 8. As such,

his case is governed by the REAL ID Act. See Matter of

Almanza-Arenas, 24 1&N Dec. 771, 774 (BIA 2009); Matter of S-

B-, 24 1&N Dec. 42 (BIA 2006).

~

la

Appendix B

Although the respondent contests the denial of his

application for cancellation of removal under section

240A(b) of the Act, he has not addressed the Immigration

Judge’s adverse credibility finding.

In view of this failure, we consider the issue to have

been waived on appeal.* As for the merits of the

respondent’s application, while his wife and stepchild

will suffer some hardship upon his removal, the record

does not reflect that it rises to the exceptional and

extremely unusual level required for cancellation of

removal. See, e.g. Tr. at 71-93, 101-05, 108-09, 113-14,

128-24, 126-28, 204-39, 275-347, 352-61, 373-74

(discussing the health problems from which the

respondent’s wife previously suffered, but

acknowledging that she is currently well and financially

independent); see also Exh. 6; Exh. 9; Exh. 10; Exh. 11.

Cf Matter of Recinas, 23 I&N Dec. 467, 470 (BIA 2002);

Matter of Andazola, 23 I&N Dec. 319, 322 (BIA 2002);

Matter of Monreal, 23 I&N Dec. 56, 63-64 (BIA 2001).

There is simply no evidence from which we can conclude

the hardship the respondent’s family would suffer is

2. The record also reflects that the respondent’s testimony

regarding his children did conflict with that of his supporting

witnesses. Compare, e.g., Tr. at 62-63, 128-32, with Tr. at 221-26,

238-39, 309-12, 316-20. These discrepancies were cited by the

Immigration Judge and furnished a sound basis for his

determination that the respondent is not credible. See I.J. at 17;

see also section 240(c)(4)(C) of the Act. Thus, there is no clear

error in the Immigration Judge’s factual findings, including

his negative credibility determination.

8a

Appendix B

distinguishable from that which would ordinarily be

expected. Accordingly, we will affirm the Immigration

Judge’s decision.

We will now turn to the respondent’s apparent

request for a remand in order to establish his eligibility

for voluntary departure pursuant to section 240B(b) of

the Act, 8 U.S.C. § 1229c(b). Given the facts of this case,

we conclude that there is no cause to remand the matter

in order to afford the respondent an opportunity to seek

this discretionary form of relief. See generally Matter

of Coelho, 20 1&N Dec. 464, 472 (BIA 1992) (holding that

this Board may deny a motion to remand where the

ultimate relief is discretionary, if the relief would not be

granted in the exercise of discretion).

Based on these considerations, the following order

will be entered.

ORDER: The appeal is dismissed.

/[s/

FOR THE BOARD

Qa

APPENDIX C — DECISION OF THE BOARD

OF IMMIGRATION APPEALS DATED

OCTOBER 21, 2008

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

OFFICE OF THE IMMIGRATION JUDGE

KROME SERVICE PROCESSING CENTER

MIAMI, FLORIDA

In the Matter of:

RANGEL-PEREZ, Rosendo Benito (A094 809 903),

Respondent.

IN REMOVAL PROCEEDINGS

Charges:

Section 212(a)(7)(A)(i)(1) of the Immigration and

Nationality Act as amended, as an immigrant who, at

the time of application for admission, is not in possession

of a valid unexpired immigrant visa, reentry permit...

or other valid entry document required by law.

Section 212(a)(2)(6)(i)(1) of the Immigration and

Nationality Act as amended in that you are an alien

present in the United States without being inspected

or admitted.

Section 212(a)(2)(6)(i)(1) of the Immigration and

Nationality Act as amended in that you have been

convicted of a crime involving moral turpitude.

1Qa

4ppendix

Section 212(a)(2)(A)(il) of the Immigration and

Nationality Act as amended in that you have been

convicted of a crime involving a controlled substance.

Applications:

Cancellation of Removal Section 240A(b)

On Behalf of the Respondent On Behalf of The DHS

Christopher W. Helt Esquire Maria Lopez Esquire

162 West Grand Ave Assistant Chief Counsel

Chicago, Illinois 60601 Krome SPC

Miami, Florida 33194

lla

Appendix C

DECISION OF THE IMMIGRATION JUDGE

The respondent is a native of Mexico, who entered

the United States in May 1997, by crossing the border

illegally. An NTA was issued, September 19, 2007

charging the respondent pursuant to sections

212(a)(7)(a)(DC1), and 212(a)(6)(A)(i) of the Act. A 1-261

was issued May 15, 2008, charging the respondent

pursuant to sections 212(a)(2)(A)(i)(I1), and

212(a)(2)(A)G)(I1) of the Act based on his conviction

March 19, 2008 for Wholesale Delivery of Pedigree

Papers, Sale Dispensing of Drugs Without a

Prescription pursuant to FS. 499.0051, and 465.015(2c).

Counsel conceded all the factual allegations, and the two

charges relating to his illegal entry. Counsel denied the

two charges relating to criminal offense.

The Court made a finding that the while the

respondent had been convicted as noted above, and was

sentenced to 166 days in jail, that he was not subject to

removal pursuant to sections 212(a)(2)(A)(i)(1), or

212(a)(2)(A)G)(IT) of the Act. The respondent was

convicted for a regulatory offense relating to sale of

prescriptions drugs. In order to be subject to removal

pursuant to section 212(a)(2)(A)(i)(II) of the Act one

must have been convicted for an offense relating to a

narcotic drug as defined in 21 U.S.C. 102. There is no

contest as to the fact that the respondent’s conviction

does not relate to a drug covered under this section.

The respondent’s offense, while serious does not render

him removable as charged. Counsel for the respondent

waived all forms of relief, other than Cancellation of

Removal pursuant to section 240A(b) of the Act.

l2a

Ippendix (

The respondent testified as did his wife, his stepson,

a detective, and a doctor. The respondent testified that

he is 44 years old, and is married to Ana Roque. He was

married two years ago but they have lived together in

Naples Florida for eight or nine years. They were unable

to marry until he was divorced from his first wife who

live sin Mexico. They have no children, but his wife has

two children, one Maury, who is now 14 years old, and,

therefore qualifies as his stepson for immigration

purposes. The respondent’s first wife was Rozia Del

Pillar, and they had four children, all born in Mexico.

The children live in Mexico. He testified that he

considers Maury to be his son. Maury’s father lives in

Costa Rica. Maury was born in the United States, and

he has known Maury since Maury was 4 years old. His

wife Ana who was born in Costa Rica, and has been a

citizen since 1998.

The respondent testified that he met his wife at her

business, a supermarket in Naples. He was working

construction at that time, having entered by crossing

the border in May 1997. He has lived with Ana since

1998, and they live in a house which they purchased

under her name. They do everything together, and even

work together. His wife had no health problems when

they met, except being a little over weight. She did,

however contract cancer while married, but she is in

remission, needing check-ups once a year. He is her

moral support. He would help her when she was unable

to walk. He would take Maury to school, and drive her

around after her operations. She had gastric bypass

surgery because she was morbidly obese, and lost 60

l3a

Appendix C

pounds. While she is recovered he still drives Maury to

school. Maury goes to Seacrest School.

The respondent testified that his wife would fall

asleep, anywhere, walking, watching T.V., and could not

drive. She is okay today.

The respondent worked with his wife, at La

Mexicana, in Fort Meyers, a store owned by his wife.

He has all his meals with his wife, and her son, and he

taught Maury to swim, ride a bike, and helps him with

his homework. Maury likes to play the guitar. He talks

to Maury about life in Mexico, and tells him that things

here are better. He testified that Maury never met his

four children, although Maury, and Ana testified that

they did meet. He loves Maury. They take trips together

going to New York, California, Atlanta, and Las Vegas.

Maury was sad during his parent’s divorce. Ana’s life

with her first husband was difficult, and Maury is much

happier now. Ana was depressed, and gained weight.

She lost weight after her operation, and is doing good

now. If deported the family would suffer. It would be a

bad situation. While he has been detained, his wife has

moved in with her daughter. However, she still has her

house. She still works at her business. The business is

still doing well. He worked at the store 3 or 4 times a

week, for maybe 4 or six hours a day.

He does not know if his wife would move to Mexico

because of Maury, and her business. She would find it

difficult to get a job in Mexico being over forty years

old. The respondent speaks limited English, but Maury

is fluent in Spanish, and English. Maury would have

l4a

Appendix C

difficulty in school in Mexico because he is accustom to

school in the United States.

The respondent was arrested in Fort Meyers in

2007, and was accused of many things including money

laundering, false lottery tickets, and trafficking in

medical drugs. While he did nothing wrong he pled to

the sale of prescription drugs. His wife was also arrested.

While he testified that his wife was not found guilty, she

did receive one year probation. He testified that all

allegations were false, and that there was no evidence.

He testified that during the investigation they seized

1.8 million dollars, but the money was returned to his

wife. He testified that they returned one million to much,

and his wife gave it back.

He testified that he sees his wife weekly while

detained, and Maury does visit him. Maury is now with

his father on vacation. Maury has a good relationship

with his father, who lives in Costa Rica. Maury goes there

during the summer. The respondent has contact with

Natalie, his wife's daughter who is 31 years old, and lives

with her husband. She has one child.

On cross examination he testified that they did not

return all the money. The State kept $90,000. While they

said he was selling medicine illegally, the business cashed

checks, and did have 1.8 million dollars. He did admit

that the business sold Pentrexal (Mexican name),

Ampacellinin United States. He does not know anything

about the sale, it was the manager of the store. He does

not know if the drugs required a prescription. Drugs

5a

Appendix C

were sold to people without prescription. He does know

that Ana, and Maury took medicine which they bought

with a prescription. They did buy medicine from a

distributer, but he did not know a prescription was

required. He thought it was the same as Tylenol or other

over the counter drugs. The medicine was behind the

counter. The manager was responsible for buying the

drugs even though his wife owned the store. The

manager’s name was Mr. Rodriguez, but he was not

arrested. The respondent testified that he did not sell

the drugs. He was the maintenance man for the store,

and earned $1000 per week. He did not know when he

last filed income taxes, his wife takes care of this. He

sends $300 per week to his children in Mexico. He made

less money when he first came to the United States,

and sent less money. Based on his statements it appears

that in 2005 he earned $10,654 but sent $15,000 to his

children in Mexico. When asked about this he said that

he sends different amounts of money each month. He

also testified that he sent money to his brother once.

He testified that since he met Ana he has been able to

send more money. He testified that did have a Workman’s

Compensation claim when he was hurt at work. Ana

helped file the claim, he knows nothing about it. He was

unable to tell the Court how much money his wife earns.

They live in a house which they paid $380,000 for. He

thinks that he filed a joint tax return with his wife, but

he is not sure. He left four children in Mexico. He last

saw pictures of them on the internet in 1997. The

children range in age from 14 to 24 years of age.

l6a

Appendix C

The trial attorney asked him about the fact that he

left his children at a young age, and he said it is difficult

for a son to lose his parents. He testified that he loves

his children, but he, and his ex-wife did not get along.

He does not need to see the children now as the oldest

is married, and even has children of his own. He has

nothing in Mexico, as the children live with their

grandparents, and he would have to fight their mother.

He has six full brothers, four half brothers, and one

sister in Mexico. He has no family in the United States

other than his wife, and step-children.

He testified that he, and his wife made a trip to

Texas, and his wife went to see his children.

Interestingly, his wife testified that she was taking the

children back to Mexico, after they had lived with them

for a period of time. He stayed at a hotel in Texas while

she continued to Mexico because he had no papers. The

children lived in Reynosa near the border. There is a

statement that Ana went to Mexico City in 2004. The

respondent was stopped at a checkpoint in 2004 in

Texas, and was given voluntary return, but he says he

never left. The papers he received were i: English, and

he did not admit that he signed a statement. He

admitted that he told the Border Patrol that Ana was

his wife, when they were not in fact married at that time.

He testified that his wife went to Reynosa, and then

Mexico City, to see his children. His wife testified that

the children had been with them in the United States.

He does not know where she met his children, but they

did go to Mexico City.

L7a

Appendix C

He testified that he had two arrests for Driving

Without a License, and he could not get a license

because he had no social security card. He did have a

license in 1997, when no social security card was

required. He admitted driving with a suspended license,

but now says he only drove when necessary. He had

testified that he drove his stepson to school, but on cross

examination, he testified that Ana was with him.

The respondent testified that he did file income

taxes starting in 1998, but all the returns submitted

appear to have been filed in 2008.

On redirect he testified that his highest level of

education was 9" grade at age 16. He never left the

United States to go to Mexico. He did have insurance

when driving w/o license. If he returned to Mexico, his

children in Mexico would suffer, because they need his

support to continue in school. He also would not be able

to continue to support Maury.

The respondent’s stepson Maury Roque then

testified, that he is 14 years old, and that he knows the

respondent for 10 years. They lived together with his

mom, since about age 4. He now lives with his mom, and

his 31 year old sister. They still have their house, because

the 2 dogs, 11 cats, and the fish are still there. His mother

does not want to sleep there, but they go everyday. He

attends Seacrest County School, and is in 8" grade. His

stepfather helped him with his homework, math, and

science. He also attended teacher conferences. They

would travel together to Orlando, Las Vegas, and

California.

18a

Appendix C

He testified that he had a good relationship with

his stepfather, and that he never saw his parents

arguing. His stepfather help his mother especially when

she was hospitalized with cancer. He misses him a lot,

and he has visited him while he has been detained.

On cross examination he testified that he has another

brother from a different mom. His real father lives in

Costa Rica, and he last saw him 2 or 3 months ago. He

spends summer vacations with his real father. They sleep

at his sister’s house, because his mom does not want to

stay at her house. He testified that he has received

medicine when prescripted form a pharmacy.

He knows that his stepfather has four children in

Mexico, two of them are about his age. He saw them

about four years ago. He was at their house when his

mom took them home to Mexico. His grades are not so

good, because he feels bad about his stepfather not

being there.

Natallie Pagani, his wife’s daughter testified, that

she lives in Fort Meyers. The respondent has been with

her mom since 1998, and her mom needed someone after

her divoree. He is a nice guy, and they have a good

relationship. He daughter calls him grandpa.

On cross examinations he testified that she is a

resident through her mother. She was raised by her

grandmother, because her mother was 17 when she was

born. She moved to the United States in 2000 when her

grandparents died. The respondent has four children,

and she met three of them at her mom’s house.

19a

Appendix C

John Miehle then testified that he is a retired police

officer from California. He now lives in Fort Meyers. He

gave a written statement. See exhibit #11 page 262. He

testified that he saw the story about the respondent,

and his wife on the news, and thought something was

wrong. He was then talking to his son who knew the

confidential informant. His son did construction for the

respondent’s wife. He testified that received all the

documents in the criminal case, from the respondent’s

wife. His son claimed that Ana was persecuted by Sheriff

Scott, and that she was being forced into bankruptcy

illegally. He talked to former Sheriff Rob Shoap who was

not involved in the case, but told him things were not

handled right. He testified that when he saw the money

that had been seized displayed on T.V., that he knew by

the way it was wrapped, that it was not drug money. As

part of the campaign for Sheriff between Scott, and

Shoap comments were made about this case. Most of

the money seized was returned to Ana with interest. In

fact they paid her too much, and she returned the

excess.

The respondent’s wife Ana Roque testified that she

was born in Costa Rica, and she lives in Naples, Florida.

She has two children, ages 14, and 31. She owns a

grocery store call La Mexicana. She has been married

three times. The first marriage was in 1981, and lasted

about one year. In 1990 she was married, and had a son.

She was divorced in 1997. She then married the

respondent in 2(06. Her family was poor in Costa Rica,

and she came to the United States at age 19. She

testified that she has had serious medical problems. She

20a

Appendix C

has a panic disorder since she was a child. She has a lot

of fears, and a weight problem. She had weighed 300

pounds, but she now weighs 130 pounds, after having

gastric bypass surgery two or three years ago. She had

sleep apnea prior to this surgery. She is doing well today.

She testified that she had cancer in 2004, which required

surgery. She is checked every year, and there is a 10%

change that it may return.

She met the respondent at work, when he came to

her store. She bought the store from her ex-husband.

She has lived with the respondent since 1998. They did

not marry until 2006, because he was not able to obtain

a divorce until 2005. He has been her companion for over

10 years, and helped raise her son. He spends time with

Maury, and helps him with his homework. She has one

grandchild, and the respondent has helped her daughter

with the baby. They always go on family trips together.

Her son, Maury considers the respondent to be a father

figure. It has been difficult for him, not having the

respondent around. She does not feel comfortable at

her house without her husband being there. The

respondent has given her life stability. He took care of

her, and the business when she had eancer. She runs

the business, and he has nothing to do with it.

On cross examination she testified that she had the

bypass surgery in 2006, and it was elective surgery. She

knew that he was illegally in the United States, and had

a wife and children in Mexico when she met him. She

always knew that he night be deported. She has gone

to Mexico three times. In 2004 she took his children to

Mexico. They had been living with them starting in 2002

21a

Aependix C

for over one year. She does not know how they came

into the United States, but believes they were illegal.

Her husband stayed in Texas, when she went to take

the children home. On the way back to Florida, they were

ste; .ved at a checkpoint, some distance from the border.

Her husband was questioned, and released, but she does

not know what he was told. To her knowledge he has

never returned to Mexico. She testified that she pays

all the bills, and that her husband did have a taxpayer

I.D.

The respondent’s attorney call Dr. Stephen Reich,

a licensed psychologist as a witness. He testified that

there are two kinds of depression, one that exists within,

and one that he calls situational. Situational depression

is caused by outside stimulus. This can be treated by a

change in relationships. He testified that Ana had

abusive relationships, and was lonely after her second

divorce. She would be depressed, if her husband were

deported but not suicidal. She would not respond to

treatment if her husband were deported.

When questioned by the Government he stated that

he met her only once for one hour forty-five minutes,

and that everything he said was based on what she said

to him. He went on to say, that this is how things are

done. He said that he has testified in a number of cases

always for the alien. However, he has refused to testify

in cases where he believes that he si being mislead by

the alien. He was paid $10,000 for his testimony. Based

his training, and experience, he can tell when someone

is conning him, and he believes the respondent has been

truthful with him.

22a

Appendix C

Counsel in his summation argues that the

respondent has demonstrated that Ana and Maury,

would suffer exceptional, and extremely unusual

hardship if the respondent were deported to Mexico.

He has been a father to Maury since he was four years

old. Ana’s life was not good until he came into her life.

Ana has medical problems, and he has helped her cope.

She would suffer depression without him, and even now

she can not live in her house because he is not there.

Counsel further argues that he was not actually involved

with the sale of prescription drugs, and that he deserves

to be granted Cancellation of Removal as a matter of

discretion based on his length of residence, and family

ties.

The DHS opposes the application, first arguing tha‘

he has not even established statutory eligibility in that

he did not submit evidence of having resided in this

country for 10 years. The DHS points out that he may

have left the United States in 2004, after he was granted

voluntary return by the DHS. The DHS also argues that

the respondent has failed to demonstrate the required

hardship to his wife and/or stepson. DHS states that

there is no economic hardship as his wife is financially

independent, and actually supports him. While he has a

good relationship with his wife, and stepson, they

presently have no serious medical problems, and the

evidence does not establish that his wife or stepson

would suffer exceptional or extremely unusual hardship.

The DHS then argues that while respondent’s conviction

may technically not subject him to removal does not

mean that the Court can not find him to lack Good Moral

23a

Appendix C

Character pursuant to section 101(f), which allows the

Court to find a lack of Good Moral Character even if

one does not fall within the enumerated classes set out

int hat section. Finally, the DHS points out that the

respondent was not credible, and does not merit the

relief as a matter of discretion.

The respondent has requested Cancellation of

Removal pursuant to section 240A(b) of the Act, which

requires that the respondent demonstrate that he has

been physically present in the United States for a

continuous period of not less than 10 years, has been a

person of good moral character, has not been convicted

of certain offenses, and can establish that his removal

would result in exceptional and extremely unusual

hardship to his spouse, parent, or child who is a citizen

or resident of the United States. Pursuant to section

240A(d)(1), the period of residence ends when the NTA

is issued.

The Court will find based on the testimony that the

respondent entered the United States illegally in May

1997, and that he has meet the ten year residency

requirement in that the NTA was issued September 19,

2007. The DHS believes that he may have left the United

States in 2004, but there is no evidence of this. Pursuant

to section 240A(d)(2), the respondent may still have

qualified to be considered for said relief, even if he had

departed the United States, if he could show that his

absence was less than 90 days.

This Court has already made a finding that the

respondent is not subject to removal pursuant to

sections 212(a)(2)(A)(i), and 212(a)(2)(A)(ii) of the Act.

24a

Appendix C

He is therefore not barred from relief pursuant to

section 240A(b)(1)(C).

The respondent bears the burden of proof pursuant

to section 240(c)(4)(A) of the Act. It is therefore, the

respondent’s burden to establish that he is a person of

Good Moral Character (GMC). Section 101(f)(6) of the

Act specifies certain classes of individuals who can not

be found to have established GMC. The respondent does

not appear to fall within any of these classes. Section

101(f)(7) states that one can not establish GMC if

confined as the result of a conviction to a penal

institution for more than 180 days. It appears that the

respondent was incarcerated for a total of 166 days.

Section 101(f) goes on to say, “The fact that any person

is not within any of the foregoing classes shall not

preclude a finding that for other reasons such person is

or was not of good moral character.”

The respondent has been convicted for Delivery of

Drugs w/o prescription, and sale of contraband. He also

failed to maintain pedigree papers as required by law.

The respondent has violated a law in this country with

respect to the sale of drugs, but not a controlled

substance as defined in Title 21 section 802. While he is

not subject to removal for this conviction, it is a factor

to be considered in determining if he has established

GMC.

The respondent has also admitted that he has been

arrested on two occasions for driving without a license,

and he has had his license suspended. The respondent

submitted tax returns for the years 1998 to 2004, all

25a

Appendi “a &

dated October 38, 2007, after he was placed into

proceedings. This means that he had not filed his taxes

each year as required. These tax returns show income

of between $9000 and $10,000 per year, but he testified

that he sends $300 per week to his children in Mexico.

He was unable to explain this other than at one point to

say that after he met Ana he was able to send more

money. There is therefore a question as to his

truthfulness with the Court. In Matter of Locicero, 11

I&N Dee. 805 (BIA 1996), the Board found that under

reporting of income for purposes of avoiding a

substantial tax bill precluded a finding of GMC. The

Locicero case deals with the filing of false tax returns,

and not with simply a failure to file, and the Board stated

that they need not reach that issue.

Kinally while the respondent testified that he had

not seen his children who live in Mexico since he came

to the United States, both his wife, and Maury testified

that the children lived in the United States illegally, with

them for over six months. His wife even testified that

she drove them to Mexico, and the respondent was in

the car, but he stayed in Texas. The fact that his children

were in the United States was confirmed by the

testimony of Natallie Pagani, Ana’s daughter who

testified that she met three of respondent’s children at

her mother’s house.

The Court has a lot of concerns about the

respondent’s testimony, and his disregard for the laws

of this country, which place in doubt respondent’s GMC.

However, since the respondent is not statutorily barred

26a

{ippendix ©

from demonstrating GMC pursuant to section 101(/) of

the Act, and the Court has sufficient grounds unrelated

to the respondent’s GMC to deny the respondent’s

application for relief, the Court will make no finding with

regard to respondent’s GMC.

The Court must now decide if the respondent has

established that his removal from the United States will

cause his wife, and/or stepson to suffer exceptional, and

extremely unusual hardship. The respondent must

demonstrate that if he is deported from the United

States his qualifying relatives, “would suffer hardship

that is substantially different from, or beyond that which

would normally be expected from the deportation of an

alien with close family members here.” Matter of

Monreal, 23 I&N Dec. 56, 65 (BIA 2001). The factors

that the Court should consider include the age, health

and the circumstances of the qualify relatives. Matter

of Andazola, 23 I&N Dec. 319 (BIA 2002). The Court

must weight all the factors.

In the instant case the respondent has not

established any financial hardship to his wife or his

stepson if he is deported. The respondent’s wife owns a

business, in which she earns in excess of $300,000 per

year. The record contains tax returns confirming this

fact. It is interesting to note that the joint tax returned

filed by the respondent, and his wife for 2006 was not

submitted to the [RS until June 13, 2008 after he was

placed in proceedings. See Page 159 of exhibit 11. It is

clear that he does not support his wife or Maury. In fact

by his own testimony he has been able to send more

money to his children in Mexico, since he has been living

he

Zid

Appendix C€

with his wife since she pays all the bills. The respondent

testified that if deported he his four children in Mexico

would suffer because they need his support to continue

in school. They, however, are not qualifying relatives.

The instant case is on par with Monreal, where the

Board found that hardship to family members without

a qualifying relative is insufficient. In that case the

Board also found that simply having a close family

relationship was insufficient to establish extreme

hardship. The respondent’s wife testified that she is not

sure if she would return to Mexico, although there does

not seem to be a financial hardship if she did.

The respondent argues that his wife had cancer,

although she appears to be in remission. She even

testified that she is checked out once a year just to see

if the cancer is coming back. Dr. Stephen Reich testified

that he is a psychologist, and that he feels that Ana

suffers depression because of prior abusive

relationships, and that she would not respond to

treatments if the respondent were deported. His report

is in evidence as exhibit #10. He states in that report

that neither antidepressant medicine, nor supportive

psychotherapy will help her. He also testified that Maury

will suffer the lose of a second parent, having already

lost his real father. Dr. Reich admitted on cross

examination that he reached this result based on one

hour and forty-five minute conversation with her, but

that he has refused to testify in cases where he believes

that the individual is trying to mislead him. He believes

she was truthful with him. He has testified before, and

it has always been for the alien.

28a

Appendix C

The respondent's wife in her testimony testified how

they travel together, and how her husband helps Maury

with his homework. The respondent’s English is limited

although Maury does speak Spanish. She did testify that

the respondent has nothing to do with the operation of

her business. She testified that Maury considers the

respondent to be his father, although Maury does spend

his summers in Costa Rica with his real father. Maury

testified that he would miss his step-father if he were

deported. Ana has another child age 31, and she testified

that the respondent calls her daughter calls him

grandpa.

The Court after listening to all the evidence must

agree with the Government that the respondent has

failed to establish that his deportation would result in

exceptional and extremely unusual hardship to the

qualifying relatives. They have been married for only

two years, and his wife is doing well at the present time

both physically, and financially. She testified that she is

upset that the respondent is detained to the point of

having to live with her daughter. She still goes to her

house everyday. She is still able to function, even running

her business successfully. The Court does not believe

that this is even a close case, as any hardship is limited

to the normal emotional hardship involved with

separation from a spouse. This hardship is less than

what is seen in most Cancellation cases in that there is

absolutely no financial hardship.

Even if this respondent had established the

required hardship he clearly does not merit relief as a

matter of discretion. First the respondent’s testimony

29a

Appendix C

has not been credible. Section 240(c)(4)(c) states that

the Judge may base a eredibility finding on the

respondent's demeanor, candor, and on any

inconsistencies between his testimony, and that of his

witnesses. The respondent testified that he had only

seen his children on the internet after leaving Mexico

children, yet his wife, and Maury testified that the

children were in the United States and lived at their

house in 2004. He also testified that when they were

returning to Florida after his wife took the children to

Mexico, that they were stopped, and he was given a

voluntary return to Mexico. He says that they simply

told him to leave, and he did not. For all we know he

may have returned to Mexico. The respondent denies

any involvement with the sale of prescription drugs,

testifying that, Mr. Rodriguez, the manager was

responsible. Interesting he was not even arrested, but

the respondent was, and he plead guilty. The respondent

testified that he sends $15,000 a year to his children in

Mexico, but he earned less than that amount. He

testified that he paid his income taxes, but he filed his

tax returns in 2008. See exhibit #11 pages 119 to 180.

The Court can not find the respondent to be credible.

The respondent does not merit Cancellation of

Removal as a matter of discretion. He has been

convicted of the illegal sale of prescription drugs. While

respondent presented a witness John Miehle a retired

police who testified that he knew something was wrong

with the seizure of the money, and the allegations against

the respondent, and his wife, the fact remains that they

both plead guilty. It is true that most of the money was

30a

Appendix C

returned, but there was still a payment of $90,000. The

respondent appears to have lived in the United States

with his Mexican children, while they were illegal. If we

believe the respondent that he did not leave the United

States in 2004, then he knowingly disregarded a order

from the DHS to depart voluntarily, which he agreed

to. The respondent equities include the fact that he has

resided in this country for over 10 years, and that he

has a wife, and stepson. However, he owns no property,

his wife does, his employment is spotty, and he has done

nothing to support the community. Unlike many

Cancellation cases the respondent does have a criminal

conviction, which shows his disregard for the laws of this

country. He does not merit relief as a matter of discretion.

Accordingly the following order will be entered:

It is ORDERED that the respondent’s application

for Cancellation pursuant to section 240A(b) of the Act

be DENIED.

It is FURTHER ORDERED that the be

REMOVED from the United States to Mexico pursuant

to sections 212(a)(7)(A)(i)(D), and 212(a)(6)(A)(i) of the

Act.

Dated: October 21. 2008

Kenneth S. Hurewitz

Immigration Judge