Appendix — Henry v. Mukasey (No. 08-68)
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~~ OFFICE OF THE CLERK
IN THE Witiam K. Suter, Clerk
Supreme Court of the Gnited States
bee
JENNY LEE HENRY, a/k/a Karen Allen, a/k/a Karen Henry,
a/k/a Annette Williams, a/k/a Andrea Scantlebury,
a/k/a Williams Sherlly, a/k/a Jenny lee Henry,
a/k/a Lorna Williams, a/k/a Sharon Smith,
a/k/a Jennymary Henry,
a/k/a Shelly Williams, a/k/a Williams,
Petitioner,
v.
MICHAEL B. MUKASEY,
Attorney General of the United States,*
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Second Circuit
APPENDIX
Lewis J. Liman
Counsel of Record
CLEARY GOTTLIEB STEEN
& HAMILTON LLP
One Liberty Plaza
New York, New York 10006
(212) 225-2000
Counsel for Petitioner
* Attorney General Michael B. Mukasey was automatically substituted below
as the respondent for the former Attorney General, Alberto Gonzales, under
Federal Rule of Appellate Procedure 43(b)(2).
i /
TABLE OF CONTENTS
Page
Appendix A:
Summary Order,
dated February 11, 2008................. la
Appendix B:
Order Granting Stay of the Issuance of
Mandate, dated June 10, 2008........ 8a
Order Denying Rehearing,
Gaba By Tey BO bcc ctcscvinedoductchaws 13a
Decision of the Board of Immigration
Appeals, dated April 26, 2007.......... 15a
Decision and Order of the Immigration
Judge, dated December 9, 2005........ 3la
Appendix C:
Statutes and Constitutional Provisions.... 75a
Appendix D:
Motion to Stay Issuance of Mandate,
dated May 30, 2006 q..........csscccescses: 90a
Petition of Petitioner-Appellant
Jenny Lee Henry for Pane] Rehearing
and Rehearing En Banc,
dated March 27, 2006--<. .........ccceces 108a
Transcript of Oral Argument,
dated February 1, 2008 .................. 128a
-
Brief of Petitioner-Appellant Jenny Lee
Henry, dated August 16, 2007.......... 144a
Reply Brief of Petitioner-Appellant
Jenny Lee Henry,
dated November 5, 2007 ................. 182a
Respondent’s Jenny Lee Henry Appeal
Brief (Board of Immigration Appeals),
dated September 21, 2006............... 214a
Opinion of the Honorable Denny Chin
in Henry v. Ashcroft, et al.,
decided November 30, 2001 ............. 254a
Opinion of Board of Immigration Appeals,
in Matter of Sanchez,
decided January 15, 1980 ............... 273a
Opinion of Board of Immigration Appeals,
in Matter of Parodi,
decided December 23, 1980 ............. 285a
Opinion of Board of Immigration Appeals,
in Matter of Mendez-Moralez,
decided April 12, 1996.................... 293a
Opinion of Board of Immigration Appeals,
in Matter of Abosi,
decided June 19, 2007.................... 333a
U.S. Court of Appeals for the Second
Circuit Docket Sheet....,.............-20: 339a
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRE-
CEDENTIAL EFFECT. 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).” A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF THAT SUMMARY ORDER TOGETHER
WITH THE PAPER IN WHICH THE SUMMARY ORDER IS
CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN
ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSI-
BLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATA-
BASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/).
IF NO COPY IS SERVED BY REASON OF THE AVAIL-
ABILITY OF THE ORDER ON SUCH A DATABASE, THE
CITATION MUST INCLUDE REFERENCE TO THAT DATA-
BASE AND THE DOCKET NUMBER OF THE CASE IN
WHICH THE ORDER WAS ENTERED.
2a
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 11th
day of February, two thousand and eight.
Present: ROSEMARY S. POOLER,
DEBRA ANN LIVINGSTON,
Circuit Judges,
LEWIS A. KAPLAN,!
District Judge.
07-1884-ag
JENNY LEE HENRY, also known as KAREN ALLEN,
also known as KAREN HENRY, also known as
ANNETTE WILLIAMS, also known as ANDREA
SCANTLEBURY, also known as WILLIAMS SHERLLY,
also known as JENNYLEE HENRY, also known as
LORNA WILLIAMS, also known as SHARON SMITH,
also known as JENNYMARY HENRY, also known as
SHELLY WILLIAMS, also known as WILLIAMS,
Petitioner,
1 Hon. Lewis A. Kaplan, of the United States District
Court for the Southern District of New York, sitting by desig-
nation.
3a
MICHAEL B. MUKASEY,
ATTORNEY GENERAL of the UNITED STATES,”
Respondent.
Appearing for Petitioner:
Tanisha L. Massie, Cleary Gottlieb
Steen & Hamilton LLP, New York, New
York.
Appearing for Respondent:
Sarah Maloney, Office of Immigration
Litigation, U.S. Department of Justice,
Washington, D.C.
SUMMARY ORDER
UPON DUE CONSIDERATION of this petition for
review of a Board of Immigration Appeals (“BIA”)
decision, it is hereby ORDERED, ADJUDGED, AND _
DECREED that the petition for review is DENIED.
Jenny Lee Henry seeks review of a fina] order of
the BIA, issued April 26, 2007, dismissing her
appeal of an immigration judge’s (“IJ”) decision
ordering her removed. Henry conceded removabili-
ty and seeks review of the BIA’s discretionary
denial of her applications for cancellation of
2
Pursuant to Federai Ruie of Appeliate Procedure
43(c)(2), Attorney General Michael B. Mukasey is automati-
cally substituted for former Attorney General Anthony Gon-
zales as the respondent in this case.
4a
removal under Section 240A of the Immigration
and Nationality Act (“INA”), 8 U.S.C. § 1229b, and
for a waiver of inadmissibility under INA § 212(h),
8 U.S.C. § 1182(h). Because we conclude that we
lack jurisdiction to review her claims, we dismiss
the petition. We assume the parties’ familiarity
with the underlying facts and procedural history in
this case.
When, as here, the BIA adopts the decision of the
IJ and supplements and revises the IJ’s decision,
we review the decision of the IJ as supplemented
and revised by the BIA. See Ming Xia Chen v. BIA,
435 F.3d 141, 144 (2d Cir. 2006).
In general, we lack jurisdiction to review the
agency’s denial of an application for cancellation of
removal. See Barco-Sandoval v. Gonzaies, 496 F.3d
132, 135 (2d Cir. 2007) (“[T|]he BIA’s discretionary
determinations concerning whether to grant can-
cellation of removal constitute ‘judgment(s] regard-
ing the granting of relief under ... section 1229b’
within the meaning of 8 U.S.C. § 1252(a)(2)(B)(i)
and therefore the review of such determinations
falls outside our jurisdiction.”) (internal citations
omitted). Similarly, we lack jurisdiction to review
“any judgement regarding the granting of relief
under section 1182(h).” 8 U.S.C. § 1252(a)(2)(B)Q).
However, with respect to both types of application,
we retain jurisdiction to review “constitutional
claims or questions of law.” Id. § 1252(a)(2)(D); see
Noble v. Keisler, 505 F.3d 73, 77 (2d Cir. 2007).
Accordingly, Henry frames her claims as raising
constitutional questions and other questions of
law.
5a
To determine whether we retain jurisdiction
under section 1252(a)(2)(D) to review challenges to
the agency’s exercise of discretion, we must “study
the arguments asserted ... to determine, regard-
less of the rhetoric employed in the petition,
whether it merely quarrels over the .. . justifica-
tion for the discretionary choices, in which case
[we] ... lack jurisdiction, or whether it instead
raises a ‘constitutional claim’ or ‘question of law”
in which case we retain jurisdiction to review those
particular issues. Xiao Ji Chen v. U.S. Dep’t of Jus-
tice, 471 F.3d 315, 329 (2d Cir. 2006).
Henry first argues that the agency committed
legal error by failing to determine whether her
- removal would create an “extreme hardship” for
her family. Although “extreme hardship” is a statu-
tory prerequisite to section 212(h) relief, Henry
does not argue that the BIA erred by failing to
determine her statutory eligibility for section
212(h) relief. See INS v. Bagamasdad, 429 U.S. 24,
25 (1976) (per curiam) (“[A]bsent an express statu-
tory requirement” to the contrary, the agency need
not rule on issues of statutory eligibility prior to
determining whether to grant a discretionary form
of relief). Henry’s complaint, rather, is that under
BIA precedent. extreme hardship, “once estab-
lished ...is [a] favorable discretionary factor to be
considered.” In re Mendez-Moralez, 21 1. & N. Dec.
296, 301 (BIA 1996). Thus, Henry argues that the
agency was required to determine whether her
removal would create an extreme hardship to her
family in order to weigh all the relevant equities.
The agency, however, expressly considered the
6a
hardship her family would suffer. See, e.g., In re
Jenny Lee Henry, No. A38 619 316, at 17 (Immig.
Ct. N.Y. City Dec. 9, 2005) (“There is strong evi-
dence that the Respondent and her family, includ-
ing her five minor U.S. citizen children and her
mother, would suffer hardship if removal occurs.”).
Henry’s complaint, therefore, is that the agency did
not give her hardship enough weight in balancing
the equities. This is a claim over which we lack
jurisdiction. See Xiao Ji Chen, 471 F.3d at 332 (not-
ing that we lack jurisdiction to review a challenge
to “the balancing of factors in which discretion was
exercised”).?
Second, Henry argues that the agency placed too
much weight on her recent arrests in determining
that she was not rehabilitated. Henry does not con-
tend that agency, as a matter of law, is precluded
from considering her arrests. Rather, Henry con-
tends that the agency erred by giving her arrests
“substantial weight.” See In re Arreguin, 21 1& N.
Dec. 38, 42 (BIA 1995) (noting the Board’s hesitance
“to give substantial weight to an arrest report,
absent a conviction or corroborating evidence of the
allegations”). Because this argument asks us to
3. Bastanipour v. INS, 980 F.2d 1129 (7th Cir. 1992), is
not to the contrary. In Bastanipour, the BIA’s decision was
reviewable for abuse of discretion, “the Board gave no reasons
for its discretionary determination,” and the BIA “assumed
that [the petitioner] lacked a well-founded fear of persecu-
tion.” Jd. at 1131. Here, review is precluded by a jurisdiction-
al bar, and the agency explicitly discussed, and accounted for,
the hardship to her family. Henry’s quarrel, therefore, is with
the agency’s balancing of the equities, which we lack jurisdic-
tion to review.
Ta
review the amount of weight that the BIA placed on
the arrests, we lack jurisdiction to review the merits
of the argument. Henry contends also that the IJ
erred by assuming that her arrests might lead to
imprisonment and abandonment of her children. We
need not decide whether the alleged error would
amount to an error of law because the BIA specifi-
cally disavowed this interpretation of the IJ’s hold-
ing. Thus, in balancing the equities, the BI[A—whose
decision we review—clearly did not rely on this
alleged error. See Noble, 505 F.3d at 78 (“The discre-
tionary portion of an IJ’s decision is .. . reviewed by
the BIA as though it were deciding the issue in the
first instance.”).
Finally, Henry argues that the BIA erred by plac-
ing weight on her refusal to accept guilt for some of
her past convictions in determining that she was not
rehabilitated. In support of the proposition that the
agency may not so rely, Henry cites a decision from
the Seventh Circuit, which, reviewing for abuse of
discretion, held that a refusal to acknowledge guilt
regarding convictions cannot alone negate a finding
of rehabilitation. See Guillen-Garcia v. INS, 999 F.2d
199, 204-5 (7th Cir. 1993). Because the BIA did not
rely solely on Henry’s refusal to accept responsibility
for her past crimes, Guillen-Garcia is inapposite.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By:
8a
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Thurgood Marshall U.S. Courthouse
at Foley Square
40 Centre Street, New York, N.Y. 10007
Telephone: 212-857-8500
MOTION INFORMATION STATEMENT
[UPPER LEFT COLUMN]
Docket Number(s): _07-1884-ag
Motion for: Stay of issuance of the mandate pend-
ing filing petition for certiorari
Set forth below precise, complete statement of relief
sought:
_St fi of the man ing the filin
of a petition for a writ of certiorari with the
Supreme Court of the United States, 28 U.S.C.
§ 2101(f); Fed. R.App. P 41(d)(2)
9a
[UPPER RIGHT COLUMN]
Caption [use short title]
Henry v. Mukasey
[oval stamp of
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
FILED
May 30 2008
Catherine O’Hagan Wolfe, Clerk]
[LEFT COLUMN CONT'D]
MOVING PARTY: _Jenny Lee Henry
O Plaintiff O Defendant
GY Appellant/Petitioner OO Appellee/Respondent
MOVING ATTORNEY: _ Lindsee P. Granfield
[name of attorney, with firm, address,
phone number and e-mail]
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, NY 10006
(212) 225-2000
LENS DOT EIERT
10a
[RIGHT COLUMN CONT'D]
OPPOSING PARTY: _Michael B. Mukasey, Attorney
General of the United States
OPPOSING ATTORNEY: [Name] _Sarah Maloney
[name of attorney, with firm, address,
phone number and e-mail]
U.S. Department of Justice, Civil Division
Office of Immigration Litigation
P.O. Box 878 Ben Fr j ation
Washington, D.C. 20044
(202) 305-2129 sarah.maloney@usdoj.gov.
Court-Judge/Agency appealed from:
Board of Immigration Appeals
[LEFT COLUMN CONT'D]
Please check appropriate boxes:
Has consent of opposing counsel:
A. been sought? O Yes WD No
B. been obtained? 0 Yes W No
Is oral argument requested? O Yes GY No
(requests for oral argument
will not necessarily be granted)
Has argument date of appeal
been set? M Yes @ No
If yes, enter date
lla
[RIGHT COLUMN CONT'D]
FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND
iNJUNCTIONS PENDING APPEAL:
Has request for relief been
made below? 0 Yes GY No
Has this relief been previously
sought in this Court? 0 Yes GY No
Requested return date and explanation of emergency:
Has service been effected? GY Yes O No
[LEFT COLUMN CONT’D]
Signature of Moving Attorney:
/s/ Lindsee P. Granfield Date: May 30, 2008
12a
ORDER
Before: Hon. Rosemary S. Pooler, Hon. Debra Ann
Livingston, Circuit Judges and Hon. Lewis A.
Kaplan, District Judge*
IT IS HEREBY ORDERED that Petitioner Henry is
GRANTED a 30-day stay of the mandate. If a certio-
rari petition is filed within 30 days, the stay is
extended until the Supreme Court disposes of the
certiorari petition.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
by
/s/ JOY FALLEK
Joy Fallek, Administrative Attorney
[oval stamp of
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
FILED
JUNE 10 2008
Catherine O’Hagan Wolfe, Clerk]
Date
* Honorable Lewis A. Kaplan, United States District
Court for the Southern District of New York, sitting by desig-
nation.
13a
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
THURGOOD MARSHALL U.S. COURTHOUSE
40 FOLEY Sc. UARE, NEW YORK, N.Y. 10007
Catherine O’Hagan Wolfe
CLERK OF THE COURT
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
Pear! Street, in the City of New York, on the 23rd
day of May two thousand and eight,
ORDER No. 07-1884-ag
FILED MAY 23, 2008
[OVAL STAMP]
Jenny Lee Henry, also known as Karen Allen, also
known as Karen Henry, also known as Annette
Williams, also known as Andrea Scantlebury, also
known as Williams Sherlly, also known as Jennylee
Henry, also known as Lorna Williams, also known
as Sharon Smith, also known as Jennymary Henry,
also known as Shelly Williams, also known as
Williams,
Petitioner,
l4a
Michael B. Mukasey,
Attorney General of the United States,*
Respondent.
Jenny Lee Henry having filed a petition for panel
rehearing, or, in the alternative, for rehearing en
banc, and the panel that determined the appeal
having considered the request for panel rehearing,
and the active members of the Court having cor.
sidered the request for rehearing en banc,
IT Is HEREBY ORDERED that the petition is denied.
For the Court:
Catherine O’Hagan Wolfe, Clerk
By: FRANK PEREZ
Frank Perez, Deputy Clerk
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Michael B. Mukasey is automati-
cally substituted for former Attorney General Alberto Gonza-
les as the respondent in this case.
15a
[ROUND STAMP] U.S. Department of Justice
Executive Office for
Immigration Review
Board of Immigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041
Kenneth Juan Figueroa, Esq. US. DHS
Cleary Gottlieb Steen Litigation Unit/NYD
& Hamilton 201 Varick,
ONE LIBERTY PLAZA Rm. 1130
New York, NY 10006 New York, NY 10014
Name: HENRY, JENNY LEE A38-619-316
Date of this Notice:
04/26/2007
Enclosed is a copy of the Board’s decision and order in
the above-referenced case.
Sincerely,
/s/ Donna Carr
Donna Carr
Chief Clerk
Enclosure
Panel Members:
HESS, FRED
16a
~. U.S. Department of Justice Decision of the Board cf
Executive Office for Immigration Appeals
Immigration Review
Falls Church, Virginia 22041
File: A38 619 316 - Date: [STAMP]
New York City APR 26, 2007
In re: JENNY LEE HENRY a.k.a. Karen Allen a.k.a. Karen
Henry a.k.a. Annette Williams a.k.a. Andrea
Scantlebury a.k.a. Williams Sherlly
a.k.a. Jennylee Henry a.k.a. Lorna Williams
a.k.a. Sharon Smith a.k.a. Jennymary Henry
a.k.a. Shelly Williams a.k.a. Williams
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT:
Kenneth Figueroa, Esquire
ON BEHALF OF DHS:
Anne E. Gannon
Assistant Chief Counsel
REISSUED DECISION
Due to an apparent error in administrative pro-
ceeding of the Board’s January 19, 2007, decision
in this case, the decision will be reissued and treat-
ed as if entered on today’s date. In light of our deci-
sion to reissue the Board’s previous order in this
case, the respondent’s stay request is moot.
17a
ORDER: The Board’s decision dated January 19,
2007, attached here to, is hereby reissued and shall
be treated as entered as of today’s date.
/s/ FREDERICK D. HESS
FOR THE BOARD
18a
U.S. Department of Justice Decision of the Board of
Executive Office for Immigration Appeals
Immigration Review
Falls Church, Virginia 22041
File: A38 619 316 - Date: [STAMP]
New York City JAN 19, 2007
In re: JENNY LEE HENRY a.k.a. Karen Allen a.k.a. Karen
Henry a.k.a. Annette Williams a.k.a. Andrea
Scantlebury a.k.a. Williams Sherlly
a.k.a. Jennylee Henry a.k.a. Lorna Williams
a.k.a. Sharon Smith a.k.a. Jennymary Henry
a.k.a. Shelly Williams a.k.a. Williams
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT:
Kenneth Figueroa, Esquire
ON BEHALF OF DHS:
Anne E. Gannon
Assistant Chief Counsel
CHARGE:
Notice: Sec. 237(a)(2)(A)(i1), L&N Act
[8 U.S.C. § 1227(a)(2)(a)(i1)j-
Convicted of two or more crimes
involving moral turpitude
APPLICATION: Waiver of inadmissibility under sec-
tion 212(h); cancellation of removal
under section 240A(a)
19a
The respondent’s application for cancellation of
removal under section 240(a) of the Act, 8 U.S.C.
§ 1229(a), was initially denied on December 12,
2000, by an Immigration Judge who found the
respondent to be statutorily ineligible for the
requested relief. The respondent appealed the
denial and we summarily affirmed the Immigration
Judge’s decision on March 23, 2001. The respon-
dent then filed a motion to reconsider, which we
denied on May 15, 2001. The respondent thereafter
filed a petition for a writ of habeas corpus with the
United States District Court for the Southern Dis-
trict of New York. The District Court determined
that the respondent’s application for cancellation of
removal had been denied due to an impermissible
retroactive application of the stop-time rule found
at Section 240A(d)(1) of the Act, 8 U.S.C. § 1229b(d)(1).
It therefore granted her petition on November 30,
2001, and remanded the record to allow the respon-
dent to reapply for cancellation of removal as well
as apply for a waiver of inadmissibility under sec-
tion 212(h) of the Immigration and Nationality Act,
8 U.S.C. § 1182(n).
Pursuant to the District Court’s order, we vacat-
ed our prior orders in a decision dated June 10,
2002, and remanded the record to the Immigration
Judge for further proceedings. After conducting
lengthy hearings spanning nearly 3 years, in a
decision dated December 9, 2005, the Immigration
Judge determined that the respondent did not
merit cancellation of removal as a matter of discre-
tion. He also found that she was statutorily ineligi-
20a
ble for a waiver of inadmissibility under section
212(h) of the Act and that, irrespective of statutory
eligibility, she did not merit such a waiver in the
exercise of discretion. The Immigration Judge
therefore ordered the respondent removed to
Guyana. The respondent’s appeal from the Immi-
gration Judge’s December 9, 2005, decision is
presently before us. The appeal will be dismissed.
The respondent has an extensive criminal record
that began in 1987 and continued throughout her
removal proceedings, including convictions for
petit larceny, endangering the welfare of a child,
and felony burglary. See I.J. at 2, 8-13, 16-20;
Exhs. 1, 3, 8, 17, 20, 27-29. On appeal, the respon-
dent argues that the Immigration Judge erred in
determining that she did not warrant a discre-
tionary grant of cancellation of removal under sec-
tion 240A(a) of the Act, notwithstanding her
criminal record. Specifically, she asserts that in
balancing the relevant positive and negative fac-
tors, the Immigration Judge gave insufficient
weight to the hardship the respondent’s United
States citizen and lawful permanent resident fami-
ly members would face upon the respondent’s
return to Guyana. We disagree, and find that the
Immigration Judge properly considered the hard-
ship that the respondent’s family will likely face
when she is removed from the United States,
including emotional and economic challenges as
well as possible medical difficulties in relation to
the eczema one of her daughters suffers. See I.J. at
17. Moreover, the respondent’s contention that the
|
I
Zla
Immigration Judge found that “appropriate treat-
ment for her [daughter's] condition is unlikely to be
reasonably accessible in Guyana” is not supported
by the record.’ Jd. In addition, we note that
although the respondent alleges that her United
States citizen daughter has a serious medica! con-
dition, the record is devoid of any medical or other
documentary evidence regarding the seriousness of
her condition. See Exh. 7R; Tr. at 74.
The respondent also asserts on appeal that she
has been rehabilitated and will no longer engage in
criminal behavior. We are unconvinced by her
arguments for the same reasons cited by the Immi-
gration Judge. See 1.J. at 17-19 and cases cited
therein. We also find that the Immigration Judge
properly considered the respondent’s lack of reha-
bilitation when weighing the equities in her favor
against the factors demonstrating her undesirabil-
ity as a lawful permanent resident of the United
States. /Jd. In addition, we disagree with the
respondent’s contention that the Immigration
Judge did not consider the rehabilitative qualities
1 The respondent contends that the Immigration Judge's
acknowledgment of such an inaccessibility of appropriate
treatment is memorialized at page 17 of the transcript. See
Respondent's Bricf at 14. However, it appears that she
intended to cite page 17 of the Immigration Judge's opinion,
as page 17 of the transcript does not contain information rel-
evant to this allegation of error. See 1.3. at 17; Tr. at 17. The
record reveals that the Immigration Judge did in fact
acknowledge that the level of medical treatment available to
the respondent's daughter would likely be inferior in
Guayana, but he did not find that appropriate medical treat
ment would likely be inaccessible to her. See I.J. at 17
22a
of the Shoplifters Alternative program she com-
pleted in 2004 and erroneously compared it to the
program she completed while in Department of
Homeland Security (“DHS”) custody. The Immigra-
tion Judge clearly took into account the respon-
dent’s testimony regarding the Shoplifters
Alternative program and the reasons why she
believed it assisted in her rehabilitation more than
the DHS program had. See I.J. at 9. Nevertheless,
she remained unconvinced that the Shoplifters
Alternative program had led to her rehabilitation,
particularly because after completing the course
she was arrested multiple times in relation to var-
ious charges, including petit larceny. Id. See also
I.J. at 17-19; Exhs. 12, 27-28.
While we find that the Immigration Judge's ulti-
mate determination regarding the respondent's
lack of rehabilitation is sustainable, we do agree
with the respondent that the record does not sup-
port the Immigration Judge’s statement that the
respondent continued to establish a pattern of
arrests and convictions after completing the
Shoplifters Alternative course. See 1.J. at 18. The
record reflects multiple arrests and pending
charges, but no convictions, between the respon-
dent’s completion of the course and the date of her
last removal hearing. See Exhs. 3, 27-29. We find
the Immigration Judge's misstatement to be harm-
less error, however, as the record fully supports his
finding that the respondent's rehabilitative efforts
were insufficient, considering her long criminal
record, her felony conviction shortly before com-
23a
pleting the Shoplifters Alternative program, and
her multiple arrests thereafter. Jd. See also I.J. at
17-19. Moreover, notwithstanding the respondent's
contention to the contrary, the Immigration Judge
did not place undue emphasis on the recent arrests
and charges pending against the respondent at the
time he rendered his decision, much less allow such
unresolved charges to “nullify” the equities in the
respondent’s case, but rather considered the pend-
ing charges within the context of the respondent’s
extensive criminal record as a whole. See I.J. at 18.
Cf. Matter of Arreguin, 21 1&N Dec. 38 (BIA 1995)
(noting the Board’s hesitance “to give substantial
weight to an arrest report, absent a conviction or
corroborating evidence of the allegations contained
therein”) (emphasis added). Nor did the Immigra-
tion Judge rely too heavily on the respondent’s
myriad claims of innocence, but instead factored in
her narrow denials of culpability as one of many
factors belying her claim of rehabilitation. See I.J.
at 9-11, 18-19; Matter of Mendez, 21 I&N Dec. 296
(BIA 1996).
We also disagree with the respondent's argument
that the Immigration Judge relied too heavily on
her convictions related to child endangerment
when balancing the various discretionary factors.
While it is true that these convictions were more
than 10 years old at the time of the respondent’s
last hearing, the Immigration Judge considered
them merely as part of a pattern of criminal behav-
ior covering more than 15 years. See I.J. at 17-20.
Furthermore, her concern with the Immigration
24a
Judge’s failure to take into account the “mitigating
factors” surrounding the convictions does not con-
vince us that the Immigration Judge erred in this
regard, as the record reflects that the Immigration
Judge considered the respondent’s testimony
regarding the events surrounding those convic-
tions, and no corroborative evidence was submitted
in relation to the alleged “mitigating factors”. See
1.J. at 9-10, 18-19; Tr. at 201-11.
The respondent further avers that the Immigra-
tion Judge improperly considered that she could
ultimately be incarcerated as a result of the
charges pending against her, and thus be separat-
ed from her family for her own misdeeds, thereby
reducing the weight accorded to the hardship that
the respondent’s family would face if she were
removed to Guyana. We disagree with this charac-
terization of the Immigration Judge’s decision. The
Immigration Judge stated that the respondent has
an ongoing pattern of crimina! arrests and convic-
tions that have periodically resulted in her tempo-
rary separation from her children in the past, and
that it was thus uncertain whether she would be
able to remain with her children even if she were
not removed to Guyana. See I.J. at 17. He did not
state, as the respondent alleges, that she might be
separated from her children specifically as a result
of the possible outcome of the pending charges. Id.
We thus find that the Immigration Judge did not
erroneously speculate on the outcome of the pend-
ing charges, but instead determined that the
weight to be attributed to the hardship that the
respondent’s family. would face upon her removal
25a
was reduced by the fact that the respondent had
been separated from her children in the past due to
her criminal conduct and by her failure to demon-
strate meaningful rehabilitation that would pre-
vent such separations in the future.
Furthermore, the Immigration Judge’s consider-
ation of the unresolved arrests and pending
charges did not violate the respondent’s procedural
due process rights, as she was not denied a “mean-
ingful opportunity to be heard.” The respondent’s
removal proceedings, on remand alone, spanned
almost 3 years as evidenced by the nearly 500-page
transcript contained in the record. During that
period, the respondent was given ample opportuni-
ty to testify and provide other evidence demon-
strating that it would be in the best interest of the
United States for her to remain in this country, and
throughout that period she continued her pattern
of arrests and criminal convictions. See Exhs. 3, 8,
27-29. See also Tr. at 58-59, 127-71, 435-37. Addi-
tionally, the Immigration Judge granted the
respondent a continuance of approximately 4
months on April 11, 2005, in order for her to obtain
a disposition in relation to her most recent arrest,
as she had indicated that she had a hearing sched-
uled for May 2, 2005, regarding her March 21,
2005, arrest.* See Tr. at 435-41. As the foregoing
demonstrates, the Immigration Judge provided the
respondent with a meaningful opportunity to pres-
2 As of December 9, 2005, the criminal matter related to
the respondent’s March 21, 2005, arrest remained unre-
solved. See I.J. at 12, 18. See also Tr. at 460.
26a
ent her case and did not violate her procedural due
process rights. See I.J. at 17-19.
In addition, the respondent argues that the
Immigration Judge made an adverse credibility
finding that is not supported by the record, and she
cites a precedent asylum case in support of her
argument. The asylum case is inapposite, however,
as an asylum application may be denied solely on
the basis of a valid adverse credibility finding. See
Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.
2003). Conversely, lack of credibility may affect the
weight given to various factors to be considered in
a discretionary grant or denial of cancellation of
removal, and lack of candor may itself serve as an
adverse factor in a discretionary decision, but
incredible testimony may not form the sole basis
for a discretionary denial of such relief. See Matter
of Burbano, 20 I&N Dec. 872 (BIA 1994). See also
Matter of C-V-T-, 22 I&N Dec. 7 (BIA 1998). In
accordance with this standard, the Immigration
Judge gave less weight to the equities that were
weakened by the respondent’s incredible testimo-
ny, but did not make an overall “adverse credibili-
ty finding” and deny her application on that basis.
See 1.J. at 18-19. We find that the Immigration
Judge’s determination that the respondent’s testi-
mony lacked full veracity is supported by inconsis-
tencies evident in the record, including the
respondent’s inconsistent statements regarding the
number of times she had shoplifted without being
detected by the authorities (15 versus 1,000 unde-
tected larcenies: compare Tr. at 254-57 with Tr. at
27a
264-76), her contradictory testimony regarding
whether she had been banned from Macy’s depart-
ment store prior to her burglary conviction (com-
pare Tr. at 136-37 with Tr. at 276-78), and her
denial that she had admitted to committing the key
elements of felony burglary in the course of her
guilty plea for such crime, which conflicted with
the transcript of her plea (compare Tr. at 131-36
with Exh. 17).* We therefore agree with the Immi-
gration Judge that the respondent’s lack of candor
undermined her claims of rehabilitation and gener- |
ally weighed against a discretionary grant of relief.
The respondent also asserts that her 2003 con-
vietion for felony burglary was not more serious
than her prior convictions for petit larceny, and
that the Immigration Judge thus erred in stating
that her convictions had increased in severity. She
does not further expound on this argument. Con-
trary to her assertion, a felony burglary conviction
can properly be found to be more serious than a
misdemeanor petit larceny conviction, and we thus
find her argument lacks mé merit. Overall, we agree
with the Immigration Judge that the respondent’s
extensive, ongoing pattern of criminal behavior
outweighs the equities she has presented, and that
she does not warrant a favorable exercise of discre-
tion with respect to her cancellation application.
See I.J. at 16-20.
4 As these discrepancies are sufficient to support the
Immigration Judge's finding regarding the respondent's lack
of candor. we will not address the other inconsistencies noted
by the Immigration Judge.
28a
We also agree with the Immigration Judge’s dis-
cretionary denial of the respondent’s application
for a waiver of inadmissibility under section 212(h)
of the Act, for the same reasons we agree with the
denial of her cancellation application. See I.J. at
20. See also Matter of C-V-T-, supra; Matter of
Mendez, supra. Any hardship that her family will
face upon her removal to Guyana does not outweigh
her substantial criminal history. See I.J. at 16-20.
Because we agree with the Immigration Judge that
the respondent does not merit a waiver of inadmis-
sibility in the exercise of discretion, we need not
reach the issue of her statutory eligibility for such
a waiver. Finally, we are not persuaded by the
respondent’s appellate argument that our decision
in Matter of Mendez, supra, is incorrect and should
be overturned. Rather, we find that that precedent
decision is clearly applicable to the respondent’s
case and counsels against granting her a waiver of
inadmissibility under section 212(h) of the Act.
Accordingly, the following order shall be entered:
ORDER: The appeal is dismissed.
/s/ ROGER D. PAUL
FOR THE BOARD
29a
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
NEW YORK, NEW YORK
MINA KIM PARK, ESQ.
CLEARY, GOTTLIEB, STEEN & HAMILTON
ONE LIBERTY PLAZA
NEW YORK NY 10006
IN THE MATTER OF FILE DATE:
HENRY, JENNY LEE* A 38-619-316 Dec 9, 2005
UNABLE TO FORWARD — NO ADDRESS PROVIDED
ATTACHED IS A COPY OF THE WRITTEN DECISION OF
THE IMMIGRATION JUDGE. THIS DECISION IS FINAL
UNLESS AN APPEAL IS FILED WITH THE BOARD OF
IMMIGRATION APPEALS WITHIN 30 CALENDAR DAYS
OF THE DATE OF THE MAILING OF THIS WRITTEN
DECISION. SEE THE ENCLOSED FORMS AND
INSTRUCTIONS FOR PROPERLY PREPARING YOUR
APPEAL. YOUR NOTICE OF APPEAL, ATTACHED DOC-
UMENTS, AND FEE OR FEE WAIVER REQUEST MUST
BE MAILED TO:
BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
P.O. Box 8530
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE
IMMIGRATION JUDGE AS THE RESULT OF YOUR FAIL-
URE TO APPEAR AT YOUR SCHEDULED DEPORTATION
30a
OR REMOVAL HEARING. THIS DECISION IS FINAL
UNLESS A MOTION TO REOPEN IS FILED IN ACCOR-
DANCE WITH SECTION 242B(c)(3) OF THE BOARD OF
IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c)(3) IN DEPORTATION PROCEED-
INGS OR SECTION 240(c)(6), 8 U.S.C. SECTION
1229a(c)(6) IN REMOVAL PROCEEDINGS. IF YOU
FILE A MOTION TO REOPEN, YOUR MOTION MUST BE
FILED WITH THIS COURT.
IMMIGRATION COURT
201 VARICK ST., RM 1140
NEW YORK, NY 10014
OTHER:
/s/ [ILLEGIBLE]
COURT CLERK
IMMIGRATION COURT
CC: ASSISTANT DISTRICT COUNSEL,
201 VARICK STREET, ROOM 1130
NEW YORK, NY, 10014
ALH
sla
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
201 VARICK STREET
NEW YORK, NEW YORK
File No. A38-619-316 December 9, 2005
IN REMOVAL PROCEEDINGS
In the Matter of:
HENRY, JENNY LEE,
a.k.a. ALLEN, Karen; Henry, Karen; Williams,
Annette; Scantlebury, Andrea; Sherily; Williams;
Henry, Jennylee; Williams, Lorna; Smith,
Sharon; Henry, Jennymary; Williams, Shelly,
Respondent.
CHARGE: INA § 237(a)(2)(A)(i1)
Multiple Crimes Involving
Moral Turpitude
APPLICATIONS: INA § 212(h)(1)(B)
Waiver of Inadmissibility
INA § 240A(a)
Cancellation of Removal
32a
ON BEHALF OF THE RESPONDENT
Mina Park, Esq.
Cleary, Gottlieb, Steen and Hamilton LLP
1 Liberty Plaza
New York, New York 10006
ON BEHALF OF THE DEPARTMENT
Stan Weber, Esq.
Assistant District Counsel
201 Varick Street
New York, New York 10014
DECISION AND ORDER OF
THE IMMIGRATION JUDGE
I. Facts and Procedural History
Jenny Lee Henry (“Respondent”) is a native and
citizen of Guyana. On Nevember 11, 1984, she
entered the United States at John F. Kennedy Air-
port, Queens, New York, and was admitted as a
Lawful Permanent Resident (“LPR”). [Ex. 1.]
Since 1990, the Respondent has given birth to
five children, all of whom are U.S. citizens. The
current ages of the children, all girls, are: Shanei-
qua Henry, fifteen years old; Oneika Henry, four-
teen years old; Tameika Henry, ten years old;
Alizah Henry, eight years old; and Asha Henry,
seven years old. [Ex. 74.] The Respondent’s moth-
er, Lucille Charles, is a U.S. citizen residing in
Brooklyn, New York. [Ex. 5.] The Respondent has
three brothers, one sister, and one half-sister, all] of
whom are citizens or LPRs and reside in the U.S.
33a
The Respondent’s father, Clarence Boston, was
admitted to the U.S. as an LPR on August 28, 2005,
after having lived in Guyana since the rest of his
family migrated tothe U.S. [Ex. 21.]
On October 5, 1987, the Respondent was convict-
ed of petit larceny in violation of § 155.25 of the
New York Penal Law (“NYPL”). [Ex. 1.] Since then,
the Respondent has been convicted of more than
thirty misdemeanor offenses, including endanger-
ing the welfare of a child, petit larceny, and disor-
derly conduct. [Exs. 1, 3, 8, and 20.] She has also’
been convicted of burglary in the third degree,
which is a felony. [Ex. 17.] When the Court closed
the record for these immigration proceedings, the
Respondent was awaiting trial on two additional
misdemeanor charges. [Ex. 27.]
The Immigration and Nationality Service (“INS”)
issued a Warrant for Arrest of Alien (Form 1-200) on
May 24, 2000. [Ex. 1.] On June 12, 2000, the
Respondent was served with the Notice to Appear
{“NTA”) while in custody, charging her with
deportability pursuant to § 237(a)(2)(A)(Qi) of the
Immigration and Nationality Act (“INA”), as an
admitted alien convicted of two crimes involving
moral turpitude not arising out of a single scheme of
criminal misconduct. [Ex. 1.] The NTA cited two
separate convictions for petit larceny, the judgments
for which were entered on January 10, 2000 and
March 14, 2000, as the basis for this charge. Jd. On
August 17, 2000, the Respondent was served with
Form I-261, lodging an additional factual allegation
against the Respondent that she had been convicted
of petit larceny on October 5, 1987. [Ex. 1.]
34a
The Respondent acknowledged receipt of a Notice
of Custody Determination (INS Form I-286) on
June 12, 2000, the same day that she was served
with the NTA, and she requested a review of the
custody determination by an immigration judge.
[Ex. 1.] As of June 13, 2000, she was detained at
the Avoyelles Women’s Correctional Facility in
Cottonport, Louisiana. [Ex. 1.] She was released
and returned to New York in June 2001. The Respon-
dent is currently under an order of supervision by
the Department of Homeland Security.
On June 13, 2000, the Respondent appeared
before the Immigration Court in Oakdale, Louisiana,
and conceded removability. The Respondent
affirmed to the Oakdale Court that she had sub-
mitted an application for cancellation of removal.
On December 12, 2000, the Oakdale Court denied
her application for cancellation of removal on the
basis that her application was time-barred under
INA § 240A. The Oakdale Court ordered Respon-
dent removed to Guyana.
The Respondent appealed this decision to the
Board of Immigration Appeals (’BIA”). On March
23, 2001, the BIA affirmed, without opinion, the
decision of the Immigration Judge. The Respon-
dent, through counsel, submitted a motion to recon-
sider, arguing that the “stop-time” rule in INA
§ 240A(a), enacted in 1996, could not be applied to
Respondent’s 1987 conviction without violating the
ex post facto clause of Art. I, § 9, Cl. 3 of the U.S.
Constitution. .
On May 15, 2001, the BIA denied the Respon-
dent’s motion to reconsider. The BIA, relying on
35a
Matter of Perez, 22 1.& N. Dec. 689 (BIA 1999),
stated that an offense described in INA § 240A(d)(1)
is deemed to end continuous residence as of the date
of its commission. Therefore, the BIA determined
that the Respondent was ineligible for relief because
she had not resided in the U.S. for seven years
before her 1987 conviction for petit larceny. The BIA
acknowledged the Respondent’s constitutional argu-
ment but noted that neither the Immigration Judge
nor the BIA has the authority to rule on the consti-
tutionality of laws enacted by Congress.
The Respondent appealed to the United States
District Court of the Southern District of New York
(“S.D.N.Y.”), seeking a writ of habeas corpus pur-
suant to 28 U.S.C. § 2241, vacating her order of
removal and declaring her eligible to apply for can-
cellation of removal pursuant to INA § 240A and a
waiver of removal under INA § 212(h).
On November 30, 2001, the S.D.N.Y. granted the
Respondent's petition. The S.D.N.Y. held that the
provisions of INA § 240A that were enacted in 1996
and limit an alien’s ability to seek relief from an
order of removal could not be applied retroactively.
Applying these provisions to a crime committed
before the law was passed, where removal proceed-
ings were not commenced until after the law took
effect, would violate the ex post facto clause of Art. I,
§ 9, Cl. 3 of the U.S. Constitution. Having reached a
decision on the ex post facto issue, the S.D.N.Y.
declined to rule on the equal protection claim regard-
ing INA § 212(h). The S.D.N.Y. remanded the case
and directed the INS to permit the Respondent to file
applications for cancellation of removal pursuant to
36a
INA § 240A and a waiver of removal pursuant to
INAS § 212(h). Henry v. Ashcroft, 175 F. Supp. 2d 688.
In a per curiam order dated June 10, 2002, the BIA
vacated its decisions from March 23, 2001 and May
15, 2001. The BIA remanded the case to this Court
for further proceedings consistent with the S.D.N.Y.’s
decision and order. [Ex. 1.]
On December 26, 2001, the Respondent’s mother,
Lucille Charles, filed an I-130 petition on her behalf.
[Ex. 5.] On August 13, 2002, the Respondent submit-
ted a Motion to Change Venue on July 31, 2002.
[Ex. 2.} On August 13, 2002, the Oakdale Court
granted the Respondent's motion, and ordered venue
changed to New York, New York. [Ex. 2.] Hearings at
this Court commenced on January 29, 2003.
On April 2, 2003, the Respondent filed Form EOIR-
42A: Application for Cancellation for Removal for
Certain Permanent Residents. [Ex. 4.] On April 3,
2003, the Respondent filed Form I-601: Application
for Waiver of Ground of Excludability. [Ex. 6.}
The Respondent testified in support of her applica-
tions on May 28, 2004; November 1, 2004; April 11,
2005; and August 8, 2005. On November 1, 2004,
Denise Adler, a friend of the Respondent, testified on
her behalf. After the last hearing, on August 8, 2005,
the Court left the record open until October 7, 2005,
in order to give the parties time to submit additional
evidence. When the record of these proceedings was
closed on October 7, 2005, the Respondent had three
criminal charge pending, and in addition, was sched-
uled to appear for probation violation [Ex. 14.]
37a
Il. Exhibits
Group Exhibit 1: Record from below, including:
— Notice to Appear
(served June 12, 2000)
— Form I-261: Additional
Grounds of Inadmissibility/
Deportability
(served August 17, 2000)
— Criminal conviction records
for the convictions alleged
in the Notice to Appear
— Warrant for Arrest of Alien
(issued May 24, 2000)
— Notice of Custody Determi-
nation (determined June 9,
2000)
— Transcript of oral decision
issued by Immigration
Court in Oakdale, LA, on
December 12, 2000
— BIA Decision of
March 23, 2001
— BIA Decision of
May 15, 2001
— §.D.N.Y. Decision of
November 30, 2001
— BIA Decision of
July 10, 2002
Group Exhibit 2:
Group Exhibit 3:
Exhibit 4:
Exhibit 5:
Exhibit 6:
Group Exhibit 7:
7B
7C
7D
7E
7F
7G
38a
— Motion to Change Venue
(submitted July 31, 2002)
— Order of the Immigration
Judge granting change of
venue (August 13, 2002)
Materials related to Respon-
dent’s criminal arrests and
convictions
Form EOIR-42A: Application
for Cancellation of Removal for
Certain Permanent Residents
(filed April 2, 2003).
Form I-797C: Immigration
Petition for Relative, Fiancé(e)
or Orphan (filed by Lucille
Charles on December 26,
2001).
Form I-601: Application for
Waiver of Ground of Exclud-
ability (filed April 3, 2003).
Summary sheet of respondent's
exhibits
— Additional responses to
Form EOIR-42A
— Form G-325A: Biographic
Information Form
— Respondent’s [-551 Perma
nent Residence Card
— Passport pages of the
Respondent
— Respondent’s Social Securi
ty Card
— Respondent’s birth certificate
7H
7I
7J
7K
7L
7M
7N
70
7Q
39a
— Respondent’s employee
identification card from
Cabrini Care at Home
— Respondent’s tax returns
from 1998, 1999, 2001,
2002, 2003, and 2004
— Pictures of the Respondent’s
children (Spring 2001 and
Spring 2003)
— Birth certificates for all five
of Respondent’s children
— Social Security Cards for all
five of Respondent’s children
— Report cards for the 2002-
2003 school year for four of
Respondent’s five children:
Shanequia, Tameika,
Alizah, and Asha
— Medical and immunization
records for Respondent’s
youngest three children:
Tameika, Alizah, and Asha
— New York State benefit
identification cards for four
of Respondent’s five chil-
dren: Shanequia, Tameika,
Alizah, and Asha
— Local health benefit identifi-
cation cards for all five of
Respondent’s children
Respondent’s lease
7R
7S
tg 3
7U
Group Exhibit 8:
40a
Proof of bank account for
Oneika Henry, Respondent’s
second child, evidencing her
receipt of Supplemental
Security Income (SSI)
Earnings statement of
Respondent
Mail to Respondent’s home
address from the New York
City Board of Education
Proof of Respondent’s com-
pletion of various training
programs for parenting
skills and home health care
Certificate of Disposition
showing that Respondent
pled guilty to Petit Larceny
on October 16, 2002, related
to March 26, 2002 arrest
Certificate of Disposition
showing that the charge of
Petit Larceny related to
November 3, 2002 arrest
was dismissed and case
sealed on August 7, 2003
Certificate of Disposition
showing that the charge of
Petit Larceny related to
November 22, 2002 arrest
was dismissed and case
sealed on July 10, 2003
Group Exhibit 9:
Exhibit 10:
4la
Certificate of Disposition
showing that the charges
for robbery related to July
30, 2002 arrest were dis-
missed and case sealed on
March 5, 2003
Certificate of Disposition
showing that the charges
for harassment and aggra-
vated harassment related to
December 8, 2001 arrest
were dismissed on Septem-
ber 9, 2002
Letters from Goodwill
Industries certifying
Respondent’s participation
in a Skills Assessment and
Job Placement program
Letter of support from
Shanequia Henry, Respon-
dent’s eldest child
Letter of support from Onei-
ka Henry, Respondent’s sec-
ond child
Letter of support from
Tameika Henry, Respon-
dent’s third child
Letter of support from
Lucille Charles, Respon-
dent’s mother (undated)
U.S. Department of State,
County Reports on Human
Rights Practices: Guyana (2002)
Exhibit 11:
Exhibit 12:
Exhibit 13:
Group Exhibit 14:
Exhibit 15:
Exhibit 16:
Group Exhibit 17:
42a
Respondent’s application for
GED testing (dated December
9, 2003)
Letter from Shoplifters Alter-
native certifying Respondent’s
participation in the SA Course
(dated January 30, 2004)
Rider to Form EOIR-42A,
Question 41 and 45 and sup-
porting documents
— Materials from Respon-
dent’s file with the City of
New York Department of
Probation
— Respondent’s order of
protection against
Carol Rodriguez
(dated July 29, 2004)
— Letter from Kings’ County
probation officer,
dated October 7, 2005
Updated photographs of
Respondent’s children
Respondent’s Immigrant
Visa and Alien Registration
(dated November 11, 1984)
— Certificate of Disposition
showing that Respondent
pled guilty to burglary in
the third degree on Septem-
ber 19, 2003 in relation to a
November 23, 2002 arrest,
and was sentenced to five
43a
years probation and $200
surcharge on November 18,
2003
— Indictment in the above
case accusing Respondent of
committing burglary in the
third degree on November
29, 2002
— Transcript of plea process in
the above case
Exhibit 18: Respondent’s report from the
City of New York Department
of Probation
Exhibit 19: Respondent’s Social Security
earnings statement
(dated October 4, 2004)
Group Exhibit 20: — Complaint from the Crimi-
nal Court of the State of
New York charging Respon-
dent with endangering the
welfare of a child (dated
July 11, 1993)
— Complaint from the Crimi-
nal Court of the City of
New York charging Respon-
dent with endangering
the welfare of a child
(dated December 8, 1995)
Exhibit 21: Copy of passport pages of
Clarence Arthur Boston, evi-
dencing LPR status of Respon-
dent’s father
Group Exhibit 22:
Group Exhibit 23:
Exhibit 24:
Group Exhibit 25:
Exhibit 26:
Exhibit 27:
Exhibit 28:
Exhibit 29:
44a
— Respondent’s letter of termi-
nation from Cabrini Care at
Home (dated July 21, 2004)
— Certified copy of Respon-
dent’s application for
employment at Cabrini Care
at Home
Letters from various employers,
including home health care
organizations, indicating
Respondent’s employment his-
tory
Immigration records for Andre
Scantlebury, father of Respon-
dent’s three youngest children
Materials relating to Andre
Scantlebury’s criminal record
Record of proceedings from
Respondent’s eviction case in
Housing Court
Criminal Court of the City of
New York document charging
Respondent with committing
Petit Larceny on March 21,
2005
Complaint charges relating to
June 2005 assault arrest
Letter from Greg Gomez, Legal
Aid Attorney, dated October 3,
2005, regarding outstanding
arrest warrant in Hempstead,
NY
& & ®
45a
Exhibit A: Letter from Respondent’s
(non-evidentiary): counsel stating she is eligible
for direct relief under § 212(h)
(dated May 13, 2003)
III. Testimony
A. Testimony of the Respondent
On May 28, 2004, the Respondent testified as fol-
lows: :
The Respondent. is a thirty-eight-year-old LPR
who entered the U.S. when she was nineteen years
old, in November 1984. She has never been mar-
ried, and currently lives in Brooklyn, New York.
She has five female children, all of whom are under
eighteen years old and all of whom currently live
with the Respondent. All five children are U.S. cit-
izens, and all are currently attending school. Four
of the Respondent’s children receive public assis-
tance in the form of welfare benefits. Oncika
Henry, the Respondent’s second child, has received
Supplemental Security Income (“SSI”) since birth
because she has eczema, an on-going medical con-
dition.
The Respondent has a number of other family
members in the U.S. Her sixty-year-old mother,
Lucille Charles, is a naturalized U.S. citizen, and
currently lives in Brooklyn, New York. The Respon-
dent has three brothers, one sister, and one half-
sister in the U.S., all of whom are citizens or LPRs,
and all of whom live in New York. The Respondent
talks regularly on the phone with her mother and
all her siblings, and sees each of them at least once
46a
a month. The Respondent’s maternal grandfather,
who is eighty-nine years old, lives in Queens, New
York, and she sees him approximately once every
two months.
The Respondent has almost no family remaining
in Guyana. She has one aunt, who is approximate-
ly 50 years old, living in Georgetown, but the
Respondent has not seen her since 1984, and
speaks to her on the phone only twice a year. When
this testimony was given, the Respondent’s father
was still in Guyana; however, he has since emi-
grated to the U.S. as an LPR. The Respondent has
not visited Guyana since she arrived in the U.S. in
1984, and her five children have never visited
Guyana.
While living in Guyana, the Respondent complet-
ed the equivalent of high school. However, she has
not yet obtained a general educational develop-
ment (GED) credential in the U.S. The Respondent
testified that she hopes to take the GED examina-
tion in August 2004, and aims to submit the appli-
cation in the near future. The Respondent claims
that she came to the U.S. to work, provide for her
family, and to get an education. She wanted a bet-
ter environment and a better standard of living
than she thought was available in Guyana.
The Respondent testified that she has been
employed in fifteen or more different positions
since she came to the U.S. At the time of this testi-
mony, she was employed full-time as a home health
aide by Cabrini Care at Home, a home health care
organization. The Respondent worked between 20-60
hour per week; her hours were variable because her
47a
employer frequently gave her extra shifts. On days
when she worked extra shifts, she started work at
9a.m. and did not finish until 11:30 p.m. The
Respondent’s duties included administering medi-
cine and changing dressings. Previously, she had
been employed by other home health care organi-
zations, had been a self-employed hairdresser, and
had held various administrative positions. The
Respondent testified that all her positions were
“on-the-books” employment. She has filed tax
returns every year since 1985, except for the period .
during which she was detained by the INS.
The Respondent is the only adult in her house-
hold, and she lives with her five children. During a
period of about one year, from June 2000 until
June 2001, when the Respondent was incarcerated
in Louisiana by INS, the Respondent’s five children
lived with Andre Scantlebury, the father of the
youngest three children. The Respondent testified
that the children did not receive welfare benefits
during this period.
The Respondent testified that since her release
from INS custody, she has been very involved in
her children’s education. She helps her children
with their homework, by assisting them with read-
ing and understanding problems. Her children
receive As and Bs in school. She goes to appoint-
ments at their schools, and gives them snacks for
school trips. Her eldest daughter, Shanequia. had
problems in junior high school, so the Respondent
fought to get her transferred to another school.
Shanequia’s grades have improved and she started
high school in September 2004.
48a
When the- Respondent first arrived in the U.S.,
she had trouble making ends meet from her wages.
She started accompanying friends to retail estab-
lishments, where she and her friends would
shoplift. The Respondent had been arrested and
convicted of petit larceny three times before her
first child was born. She then continued to shoplift
after each child was born. The Respondent pled
guilty to more than twenty charges of petit larceny
from 1987-2000. She stated that she was not actu-
ally guilty in three or four of these occasions. She
testified that she pled guilty to crimes she did not
commit so that she would not serve jail time, and
she claimed that on at least one occasion she was
not required to admit to the elements of the crime
during her plea. The Respondent testified that she
has never been barred from a retail store.
The Respondent was detained in Louisiana by
INS from June 2000 until June 2001. She testified
that it was very hard to be separated from her chil-
dren during this period. The Respondent claimed
that the time she spent in INS custody was a
“wake-up call” that urged her to give up shoplifting
and take better care of her children. She states
that her life has changed. She has stopped socializ-
ing with her friends who shoplift, and she now just
spends time with her children. She found a full-
time job as a home health care aide, and worked
long hours. She then moved to a different home
health care organization so that she could have
more time to stay with her children and help them
complete their homework. Nonetheless, the
Respondent admitted that she had been arrested at
49a
least three times since her release from custody.
She claims that these arrests were cases of mistak-
en identity, or that she was in the wrong place at
the wrong time.
She testified that she was arrested in December
2001 and charged with harassment. A neighbor-
hood woman was making abusive phone calls, so
Respondent complained to the police. According to
the Respondent, the woman then lied to the police
and claimed that Respondent had tried to burn
down her house. The case against the Respondent
was ultimately dismissed.
The Respondent claimed not to remember being
arrested on March 26, 2002. However, at a later
point in her testimony she recalled the March 26th
arrest, and explained that it occurred because she
was trying to return a damaged bottle of hairspray
to a retail store, and she “got into a scuffle” when
the private security officers asked for a receipt.
The Respondent was arrested in July 2002. She
stated that it was a case of “self-defense” and that
the charges were ultimately dismissed. She said
that two separate charges from 2002 and 2003 were
also dropped.
The Respondent was arrested on November 23,
2002, and charged with burglary in the third
degree. She pled guilty on September 19, 20038,
though she claims she was innocent. She stated
that she never actually admitted committing the
crime while in the courtroom. She was under the
impression that she would not be able to prevail at
trial, because she was “already in the system.” Con-
50a
sequently, she pled guilty in order to avoid a more
severe punishment.
The Respondent has been through two separate
rehabilitation programs for theft-related offenses
in the last twelve years. She testified that, in 1994,
a criminal court ordered her to attend a rehabilita-
tion program, and that she completed that course
as directed. However, she found the course to be
ineffective because it was not tailored for shoplift-
ing; Many participants had drug convictions unre-
lated to shoplifting. In 2004, at the suggestion of
her counsel, the Respondent completed a course
offered by the non-profit Shoplifters Alternative
designed to rehabilitate chronic shoplifters. She
stated that she gained a lot from this program, in
part because she participated in the program vol-
untarily and approached it with a positive attitude.
The program taught her to think about the conse-
quences and realities of shoplifting, and offered her
a helpline for on-going support. According to the
Respondent, this caused her to rethink her habitu-
al shoplifting, and she states that she will not
shoplift again. The Respondent claims to have
made an appointment with the Caribbean Mental
Health Center, located in Crown Heights, Brook-
lyn, in order to reinforce the lessons of Shoplifters
Alternative.
In addition to her convictions for theft, the
Respondent was arrested and convicted of endan-
vering the welfare of a child on two separate occa-
sions. In 1993, she left her two eldest children,
aged two years old and three years old, in the care
of an adult friend. She claims that her friend left
5la
the girls in the care of a nine year old, and all three
children were found alone when the fire depart-
ment came to the building on an unrelated matter.
The Respondent lost custody of her children for
about a year after this incident, and attended
court-mandated parenting classes. In 1995, the
Respondent left her six-month old and her four-
year-old alone while she went across the street to
pick up the five-year-old from school. The Respon-
dent testified that it was a very cold day, and she
felt it was better to leave the little girls in the
house than expose them to the cold weather. When
the building maintenance people knocked on the
door, the four-year-old opened the door. The main-
tenance people called the police. Regardless of
these two incidents, the Respondent feels she is a
good mother and stated that since 1995, she has
never left the children alone.
On cross-examination, the Respondent testified
as follows:
Andre Scantlebury is the father of the Respon-
dent’s youngest three children. He lived in Respon-
dent’s household on-and-off from 1992 until 2003.
He was arrested during this period for domestic
violence and for urinating by the garbage cans. He
provided some child support, but stopped in March
2003, when he was arrested. At the time of this tes-
timony, he was being held without bond on harass-
ment and drug trafficking charges. The Respondent
states that he is no longer a part of her life. Her
children know that Mr. Scantlebury is in jail.
Patrick Dillon is the father of the eldest two chil-
dren. Since June 2001, he has brought approxi-
52a
mately $150 to the house every two weeks, but he
is not under a court order to provide child support.
The Respondent admitted that, in addition to her
period in INS custody, she has spent time in jail
away from her children. The longest period was
from March 2, 2000 to June 7, 2000, when she was
incarcerated on Rikers Island. During this period,
her children were with Andre Scantlebury, and she
had no contact with them. She testified that Andre
Scantlebury was a good parent during this period;
for example, he made svre the children went to
school. The Respondent has told her children about
her problems with shoplifting. She said that they
understand, but they do not like her being locked
up. Her second child, Oneika Henry, was deeply
affected by her absence and underwent psychiatric
counselling at her school.
The Respondent stated that she is rehabilitated
and would not be arrested again. A neighbor who
provoked fights has moved away. Even though the
Respondent received at least four disciplinary
write-ups while in jail, and has been arrested for
domestic violence, she states that she has no prob-
lems with anger or violence now.
The Respondent asserted that neither her
employer, Cabrini Care at Home, nor her home
care patients, are aware of her criminal record. She
testified that when she sought employment with
Cabrini in January of 2003 she was not asked
whether she had been arrested. When asked for a
copy of her employment application, the Respon-
dent produced the application, which indicated
that she was asked whether she had ever been con-
53a
victed of a felony or other serious offense (other
than a minor traffic violation). [Ex. 22.] The
Respondent had answered “no” to this question on
her application ([Jd.], even though she had been
convicted of a number of misdemeanor offenses by
this date [Exs. 3, 8, and 20]. While it is true that
the Respondent had not been convicted of a felony
by January 2003, her misdemeanor convictions for
petit larceny and endangering the welfare of a
child could be considered serious offenses, and
especially in the aggregate, should have prompted
a more forthright response.
The Respondent initially stated that she had got-
ten away with shoplifting around fifteen times. She
started stealing in 1987, and from 1987 until 1990,
she made her living by shoplifting. She admitted
that she stole on a daily basis during this period.
When pressed by opposing counsel, she admitted
that this amounted to over 1,000 incidents where
she had shoplifted and had not been caught. She
agreed that she was very successful at shoplifting.
The Respondent admitted that she had been barred
from entering Macy’s store, even though on direct
she stated that she had never been barred from a
retail establishment.
The Respondent did not list all of [the] children
on her 2003 income tax returns. She admitted that
an acquaintance, Eustice Scantlebury, claimed her
eldest two children on his tax returns. She states
that he had never discussed with her that it would
be a great advantage to him to claim the children
on his tax returns. Furthermore, the Respondent
listed her income as a self-employed hairdresser on
54a
her 2003 returns, but admitted that she did not
have a licence [sic] to operate as a hairdresser in
New York.
The Respondent admitted that she took a trip to
New Jersey in 1990 for the express purpose of
shoplifting. She admitted that she was arrested
and sentenced to thirty days in jail when her first
child was only three months old, and that during
this period her sister Vonetta took care of the child.
She admitted that she later took a vacation to
Miami, and got involved in a shoplifting incident
while she was there. She also admitted that she
was arrested and spent one night in jail in
Philadelphia while her children were very young.
The Respondent stated that she is rehabilitated
and she will not steal again. She claims that being
arrested is embarrassing, and she no longer wishes
to be embarrassed. She states that the Court
should know she is serious about relinquishing
shoplifting because she spent $400 on her outfit for
court instead of shoplifting the clothes.
On redirect, the Respondent stated that she has
not been arrested since November 2002, and that
she is focusing on keeping her children together.
xk * €
On November 1, 2004, the Respondent testified
as follows:
The Respondent’s employment at Cabrini Care at
Home was terminated on June 21, 2004, because
she had too many absences. Since then, she applied
to a program at Goodwill, and is supporting her
55a
family with public assistance. She has an assign-
ment to a school for GED classes, but she did not
yet have a scheduled date for the test.
The Respondent was arrested on July 24, 2004,
when she got into a fight with a neighbor. The
Respondent claimed that she missed her probation
appointment on October 18, 2004, because she was
caught up with a program at Goodwill, in which she
started participating on September 21, 2004.
Even though Andre Scantlebury has a lengthy
criminal record and was ordered removed from the
U.S. in 1997, the Respondent stated that she had
no other choice but to leave her children with him
while she was in INS custody in 2000-2001.
* * *
On April 11, 2005, the Respondent testified as
follows:
The Respondent started working part-time as a
receptionist in March 2005. She works for 35 hours
per week, and is paid $250-300 per week, “on the
books.” She and her children are still receiving a
rent subsidy and food stamps. The Respondent still
did not have a date to take the GED examination,
but she was still preparing for the test.
The Respondent was arrested on March 21, 2005,
and charged with petit larceny. No disposition had
been entered at the time of this testimony.
x & F
56a
On August 8, 2005, the Respondent testified as
follows:
The Respondent was laid oft from her last job as
a receptionist in May 2005. She is presently work-
ing part-time for K&W Glass Co., where she fixes
windows and doors. She has worked there for two
months. She works twenty-five hours per week and
is paid $9.50 per hour. She and her family are still
receiving food stamps, but their rent subsidy was
cut off in March 2005 because of on-going eviction
proceedings.
As of the date of this testimony, the Respondent
had not obtained a letter from Goodwill confirming
her participation in a program on October 18, 2004,
the day she missed her probation appointment.
However, she later submitted a letter from Good-
will indicating that her dates of service were
August 2nd until August 12th, 2004; September
30th until October 21, 2004; and March 9 until
March 17, 2005. Though she was scheduled to
appear in court regarding the probation violation
on September 27, 2005, the matter was adjourned
until November 29, 2005 [Ex. 14].
When this testimony was given, the Respondent
had .aree pending matters in criminal court. She
was scheduled to appear on an assault charge on
September 13, 2005 and on a petit larceny charge
related to the March 21, 2005 arrest on September
22, 2005. She had an additional petit larceny
charge pending; this charge apparently relates to a
June 30, 1997 arrest for which a bench warrant
was issued sometime in late 1997. The warrant
57a
was vacated and she was scheduled to appear in
court on October 19, 2005.
B. Testimony of Denise Adler
On November 1, 2004, Denise Adler testified as
follows:
Ms. Adler is a close friend of the Respondent. She
is thirty-five years old, and like the Respondent,
she is a native of Guyana. She emigrated to the
U.S. in 1991 as an LPR. She is employed as a cook
at a senior center in Brooklyn. Ms. Adler has been
arrested twice, once for shoplifting and once for
fighting, but both charges were dropped. Ms. Adler
has known the Respondent for eleven years, and
she sees her three times per week. Ms. Adler’s chil-
dren attend school with the Respondent’s children.
Ms. Adier and the Respondent frequently attend
St. Gabriel’s church in Brooklyn. The Respondent
started to go to church when she was released from
INS custody in 2001, and she has attended servic-
es once weekly for about two years.
Ms. Adler is aware of the Respondent’s history of
shoplifting, but she acknowledges that they do not
discuss it much. She stated that she knew some of
the Resp ndent’s friends personally, and they led
the Respondent “into destruction.” Ms. Adler has
tried talking to the Respondent about her associa-
tion with these friends. Ms. Adler did not think
that the Respondent was still “in trouble with the
law” at the time of this testimony. She stated that
the Respondent stopped shoplifting in 2001, when
she was released from INS custody. However, she
58a
acknowledged that sometime in 2002 or 2003, the
Respondent called Ms. Adler and asked her to
watch the Respondent’s children, as the Respon-
dent was being held by a retail store’s security offi-
cers. Ms. Adler knows of only one time that the
Respondent was arrested after leaving INS cus-
tody.
Ms. Adler stated that the Respondent had
changed when she was released from INS custody.
She now spends more time with her children, cook-
ing for them, and taking them to movies. Ms. Adler
noticed that the Respondent’s children suffered
while the Respondent was in INS custody.
Ms. Adler stated that with a man instead of a
woman looking after the children, they did not
have the proper care. If the children were to
remain in the U.S. after the Respondent’s removal,
Ms. Adler has no idea who would take care of them.
On cross-examination, Ms. Adler admitted that
she came to know the Respondent through Andre
Scantlebury, the father of three of the Respon-
dent’s children. Ms. Adler was aware that
Mr. Scantlebury is in prison, but did not know why.
Ms. Adler stated that she had never seen the
Respondent get into fights.
IV. Legal Standard
A. Cancellation of Removal
Section 240A(a) of the Act provides that an alien
is eligible for cancellation of removal if she: (1) has
lawfully been admitted for permanent residence for
not less than five years; (2) has resided in the
59a
United States continuously for seven years after
having been admitted in any status; and (3) has not
been convicted of an aggravated felony. Pursuant
to INA § 240A(d)(1) (the “stop-time” rule), any period
of continuous residence in the United States shall
be deemed to end when the applicant is served with
an NTA, or when the applicant commits an offense
that renders her inadmissible to the United States
under INA § 212(a)(2) or removable under INA
§ 237(a)(2) or § 237(a)(4). See also Matter of Mendoza-
Sandino, 22 I. & N. Dec. 1236 (BIA 2000); Matter of
Campos-Torrea, 22 1. & N. Dec. 1289 (BIA 2000).
The BIA has held that the “stop-time” rule enu-
merated in INA § 240A(d)(1) applies retroactively. In
re Perez, 221. & N. Dec. 689 (BIA 1999); In re Nolas-
co, 22 I.& N. Dec. 632, 637 (BIA 1999). The U.S.
Court of Appeals for the Second Circuit held that
retroactive application of the stop-time rule does not
violate due process when applied to suspension or
deportation cases pending on April 1, 1997. Rojas-
Reyes v. INS, 235 F.3d 115, 123-24 (2d Cir. 2000).
However, the U.S. District Court for the Southern
District of New York (“S.D.N.Y.”), upon review of this
case, found that the stop-clock rule is impermissibly
retroactive when applied to respondents who com-
mitted crimes before § 240A went into effect, but
whose removal proceedings were commenced after
§ 240A’s effective date. Henry v. Ashcroft, 175
F.Supp.2d 688, 693 (S.D.N.Y. 2001). The S.D.N.Y.
found that the clock-stopping provision attaches new
legal consequences to events completed before the
provision’s enactment, and because these conse-
quences impair important rnghts, the provision vio-
60a
lates the ex post facto clause of Art. I., § 9, Cl. 3 of the
U.S. Constitution. Id. at 694-95. Consequently, the
stop-clock rule cannot be applied to crimes committed
before April 1, 1997 by a respondent who is placed
into removal proceedings after April 1, 1997. Id.
In addition to demonstrating statutory eligibility,
an applicant for cancellation of removal bears the
burden of showing that relief is warranted in the
exercise of discretion. INA § 240A(a); see also Matter
of C-V-T-, 22 I. & N. Dec. 7 (BIA 1998). The BIA has
held that the general standards developed for the
exercise of discretion under former § 212(c) of the Act
are also applicable to the exercise of discretion
under INA § 240A(a). Matter of C-V-T-, 22 1 & N.
Dec. at 10; In re savier Sotelo-Sotelo, 23 1. & N. Dec.
201 (BIA 2001). In keeping with the general stan-
dards under former § 212(c), the Court should con-
sider the record as a whole and balance the adverse
factors evidencing the alien’s undesirability as a per-
manent resident with the social and humane consid-
erations presented on her behalf. Matter of C-V-T-, 22
I. & N. Dec. at 11; Matter of Buscemi, 19 1. & N. Dec.
628, 633 (BIA 1988); Matter of Marin, 161. & N. Dec.
581, 985 (BIA 1978). In cancellation of removal
cases, there is no threshold standard of unusual or
outstanding equities; rather the Court must weigh
favorable and adverse factors to balance the “total-
ity of the evidence before us.” Sotelo-Sotelo, 23
I. & N. Dec. at 204. More serious misconduct neces-
sarily weighs more heavily against an exercise of dis-
cretion than does less serious misconduct; therefore
the applicant must present additional favorable evi-
dence to counterbalance an adverse factor such as
6la
serious criminal activity. Jd. at 203; see also Matter of
Marin, 161. & N. Dec. at 585.
When exercising discretion in a cancellation of
removal case, positive factors to be considered
include, but are not limited to, family ties in the
United States, residence of long duration in this
country, evidence of hardship to the applicant and
her family if removal occurs, a history of employ-
ment, existence of property or business ties, proof
of genuine rehabilitation if a criminal record exists,
and other evidence attesting to the applicant’s good
moral character. Matter of C-V-T-, 22 I. & N. Dec. at
11; Matter of Edwards, 20 |. & N. Dec. 191, 194 (BIA
1990); Matter of Marin, 16 I. & N. Dec. at 584-585.
Adverse factors include the nature and underlying
circumstances of the removal ground at issue and any
other evidence that could be indicative of an appli-
cant’s bad character or undesirability as a perma-
nent resident of this country. Matter of C-V-T-, 22
I. & N. Dec. at 11; Matter of Marin, 161. & N. Dec. at
584; see also Matter of M-, 3 1. & N. Dec. 804 (BIA
1949).
B. Waiver of Inadmissibility pursuant to INA
§ 212(h)
Pursuant to INA § 212(h), the Attorney General
may, in his discretion, waive various grounds of
inadmissibility which would otherwise preclude
adjustment of status, including: (1) crimes involving
moral turpitude; and (2) multiple criminal convic-
tions. INA §§ 212(a)(2)(A)(i)(1), and (B); see also Mat-
ter of Sanchez, 17 I. & N. Dec. at 218 (BIA 1980).
62a
These grounds of inadmissibility may be waived in
the case of an alien who demonstrates that her
removal would result in extreme hardship to a U.S.
citizen or lawfully resident parent, spouse, son, or
daughter. INA § 212(h)(1)(B). In evaluating extreme
hardship to a qualifying relative, factors to be consid-
ered include, but are not limited to: whether the qual-
ifying relative has family ties to this country; the
extent of the qualifying relative’s family ties outside
the United States; conditions’ in the country of
removal; financial impact of departure from this
country; and significant health conditions, particu-
larly when tied to an unavailability of suitable med-
ical care in the country to which the qualifying
relative would relocate. In Re Cervantes, 22 1.&N.
Dec. 560, 566 (BIA 1999); see also INS v. Jong Ha
Wang, 450 U.S. 139 (1981); Gutierrez-Centeno v. INS,
99 F.3d 1529 (9th Cir. 1994). Further, even if the
applicant demonstrates that she merits a grant of
discretion under the waiver, she must also establish
that she meets the terms, conditions, and procedures
of the regulations promulgated by the Attorney Gen-
eral. INA § 212(h)(2).
Aliens already in the United States, who have not
left and reentered, must submit applications for relief
under § 212(h) in conjunction with an application for
adjustment of status. 8 C.F.R. § 1245.1(f); see also In
re Michel, 21 1. & N. Dec. 1101, 1102-1103 (BIA 1998)
(an application for adjustment of status accompanies
relief under § 212(h)). The benefits of § 212(h) ave not
available in removal proceedings unless granted in
conjunction with adjustment of status. Matter of
Balao, 20 I. & N. Dec. 440, 446 (BIA 1992); Matter of
63a
Parodi, 171. & N. Dec. 608, 612 (BIA 1980); Matter of
Bernabella, 13 1. & N. Dec. 42, 43-44 (BIA 1968).
On its face, INA § 212(h) waives only grounds of
inadmissibility, not grounds of removability. Howev-
er, aliens who are already present in the United
States and subject to removal proceedings can apply
for an adjustment of status; the respondent is then
treated as an alien seeking entry. See Matter of Alar-
con, 20 I. & N. Dec. 557, 562 (BIA 1992). If the appli-
cation is granted, which requires, inter alia, that the
alien be admissible to the United States for perma-
nent residence, the adjustment of status effectively
waives the grounds of removability. See Tibke v. INS,
335 F.2d 42 (2d Cir. 1964); Snajder v. INS, 29 F.3d
1203, 1207 (7th Cir. 1994). Arriving aliens (including
LPRs reentering the country) need not file an appli-
cation for adjustment of status in conjunction with an
application for relief under § 212(h), because they are
already, by definition, aliens seeking entry.
1 Prior to the enactment of IIRIRA in 1996, the Eleventh
Circuit found that distinguishing between permanent resi-
dent aliens merely on the narrow factual distinction of
whether or not the alien departed and reentered the country
prior to applying for § 212(h) relief constitutes an arbitrary dis-
tinction, and that is without a fair and substantial relation to
the object of the legislation. Yeung v. INS, 76 F.3d 337, 340
(11th Cir. 1995); see also Maria v. McElroy, 68 F.Supp. 2d
206, 213 (E.D.N.Y. 1999), overr’d on other grounds, Restrepo
v. McElroy, 369 F.3d 627 (2d Cir. 2004). However, the Second
Circuit found no violation of equal protection in post-IITIRIRA
case on a related matter. Jankowski-Burczyk v. INS, 291 F.3d
172 (2d Cir. 2002) (rejecting an equal protection challenge to
the aggravated felon bar to § 212(h) eligibility, which permits
non-residents with aggravated felony convictions to apply for
64a
V. Analysis
A. Cancellation of Removal
To establish eligibility for cancellation of removal,
the Respondent must demonstrate that she: (1) has
been lawfully admitted for permanent residence for
not less than five years; (2) has resided in the U.S.
continuously for seven years after admission; and
(3) has not been convicted of an aggravated felony.
INA § 240A(a).
The Respondent was admitted as an LPR in 1984,
more than five years ago. [Exs. 7D and 7E.] The
Respondent has resided in the U.S. continuously
since then. On October 5, 1987, the Respondent
was convicted of petit larceny, in violation of NYPL
§ 155.25. In an earlier appeal of this case, the South-
ern District of New York held that the Respondent’s
convictions dated prior to the enactment of INA
§ 240A, in April 1, 1997, cannot be used to “stop the
clock” and prevent the accrual of seven years of con-
tinuous residence. Henry v. Ashcroft, 175 F.Supp.2d
688, 693 (S.D.N.Y. 2001). In addition, the Respon-
dent has never been convicted of an aggravated
felony. [Exs. 3, 14, 17, 18, 20, and 27.| Consequent-
ly, this Court finds that the Respondent is eligible
§ 212(h) relief, but does not allow LPRs with aggravated felony
convictions to do the same). However, the Court does not have
the authority to rule on the constitutional questions in this case.
See, e.g., U.S. v. Gonzalez-Roque, 165 F.Supp. 2d 577, 583
(S.D.N.Y. 2001) rev'd on other grounds, 301 F.3d 39 (2nd Cir.
2002); Matter of Fuentes-Campos, 21 1. & N. Dec. 905, 912 (BLA
1997).
65a
for cancellation of removal pursuant to INA
§ 240A(a).
In addition to demonstrating statutory eligibility,
the Respondent bears the burden of showing that
relief is warranted in the exercise of discretion. INA
§ 240A(a); see also Matter of C-V-T-, 22 1. & N. Dec. 7.
The Court has reviewed the record as a whole and
balanced the adverse factors evidencing the Respon-
dent’s undesirability as a permanent resident with
the social and humane considerations presented on
her behalf. See Matter of Marin, 16 I. & N. Dec. at
584. The Court finds that the Respondent has not
met her burden of demonstrating that granting relief
would be in the best interests of this country. See id.
When exercising discretion in the Respondent’s
case, the Court considered various positive factors
including: family ties in the United States, residence
of long duration in this country, evidence of hardship
to her family if removal occurs, a history of employ-
ment, and proof of genuine rehabilitation given the
Respondent’s criminal record. See Matter of Marin,
16 I. & N. Dec. at 584-585. Adverse factors consid-
ered by the Court included: the nature and underly-
ing circumstances of the removal ground at issue and
any other evidence that could be indicative of an
applicant’s bad character or undesirability as a per-
manent resident. Id.
The Respondent has strong family ties in the Unit-
ed States, and almost no family ties to Guyana. She
has five minor U.S. citizen children. [Ex. 7K.] Her
U.S. citizen mother and her five siblings have all
lived in the United States for years. Her father was
admitted as an LPR on August 28, 2005. [Ex. 21.] She
66a
has only one family member remaining in Guyana,
an aunt with whom she is not particularly close. In
addition, the Respondent has lived in the U.S. for her
entire adult life, having left Guyana at the age of 19.
She has not returned to Guyana, or in fact traveled
abroad at all, during this entire period.
There is strong evidence that the Respondent and
her family, including her five minor U.S. citizen chil-
dren and her mother, would suffer hardship if
removal occurs. The Respondent is currently the sole
caretaker for her children. They have never visited
Guyana, and their opportunities there would be far
more limited than their opportunities in the United
States. The Respondent’s second daughter, Oneika
Henry, suffers from eczema and receives SSI.
[Ex. 7R.] It is unlikely that Oneika would receive the
same level of medical treatment if she moved to
Guyana with her mother. The eldest three children
submitted letters of support indicating that they
missed their mother greatly during the period when
she was in INS custody from June 2000 until June
2001. [Ex. 9.] Nonetheless, the Court notes that the
Respondent has frequently been separated from her
children during short periods of incarceration follow-
ing arrests or convictions for petit larceny and other
misdemeanors, and that when the record was closed
in this case, she was awaiting trial for two separate
misdemeanor charges. It is hard to conclude, with any
certainty, that even if the Respondent were to remain
in the United States, she would be able to remain
with her children. In addition, the Respondent has
two criminal convictions for endangering the welfare
of a child, received when her oldest children were
67a
approximately the same age as her youngest children
are now. [Ex. 20.] There is no doubt that the Respon-
dent’s removal could cause severe emotional and eco-
nomic hardship to the Respondent’s family, even
though the Respondent has not always been able to
provide for her children, relying occasionally on wel-
fare, and has demonstrated an on-going pattern of
criminal] behavior.
The Respondent has a sporadic history of employ-
ment. She testified that since her release from INS
custody in June 2001, she has made a more concrete
effort to find reliable employment. [Exs. 9, 19, and
23.] To that end, she completed several training pro-
grams in home health care assistance. [Ex. 7U.} She
has applied to sit for the GED examination [Ex. 11],
but when the record was closed in this case, she had
not yet been assigned a date. She has held full- and
part-time jobs with a small handful of organizations
since June 2001.
The Respondent, who has an extensive criminal
record, testified that she has made some attempts at
rehabilitation since her release from INS custody in
June 2001. At the suggestion of her counsel, she vol-
untarily completed a Shoplifters Alternative course.
[Ex. 12.] However, in her testimony, she failed to give
a persuasive explanation of why she felt the
Shoplifters Alternative was a more effective rehabili-
tation program than the court-mandated program
she completed in 1994. Following both programs, the
Respondent continued to establish a pattern of
arrests and convictions. She admitted under oath
that she was arrested at least six times during the
years of 2002 and 2003, though she initially remem-
tik
68a
bered only three instances. She pled guilty to burgla-
ry in the third degree on September 19, 2003.
[Ex. 17]. When the record was closed in this case, the
Respondent was awaiting trial on two separate
charges. The Respondent, relying on Sotelo-Sotelo,
argues that the Court cannot consider these pending
charges as adverse factors. 23 I. & N. Dec. at 205.
This case, however, can be distinguished from Sotelo-
Sotelo, because the Respondent has been formally
arrested and charged in the United States, whereas
Sotelo-Sotelo had only an outstanding warrant in a
foreign jurisdiction. Consequently, this Court has
considered the Respondent’s pending trials as
adverse factors indicating lack of rehabilitation.
However, even without these two pending charges,
and given her on-going pattern of criminal behavior,
the Court would find that the Respondent is not
rehabilitated. Given her on-going pattern of criminal
behavior, the Court finds it hard to give much cre-
dence to the Respondent’s claims of rehabilitation.
The Respondent’s claims of rehabilitation are fur-
ther weakened by the lack of remorse for her shoplift-
ing arrests and convictions shown during her
testimony. Taking responsibility and showing
remorse for one’s criminal behavior constitutes some
evidence of rehabilitation in a § 212(h) case. In re
Jose Mendez-Moralez, 21 l. & N. Dec. 296, 304 (BIA
1996). This is not to say that a respondent who claims
innocence and does not express remorse could never
present persuasive evidence of rehabilitation by
other means. /d. But the fact remains that in the case
before us, the Respondent repeatedly asserted that
many of her shoplifting convictions were cases of
69a
“mistaken identity,” or occurred when she was in “the
wrong place at the wrong time.” She maintains that
she was innocent of burglary in the third degree,
although she pled guilty on September 19, 2003.
While testifying before this Court, the Respondent
stated under oath that she never admitted to com-
mitting the crime of burglary in the third degree.
However, the transcript of the plea indicates clearly
that she did. [Ex. 17.] Given the Respondent’s lack of
remorse, this Court cannot conclude at this point in
time that she has exhibited evidence of genuine reha-
bilitation, a factor that should be considered in cases
involving convicted aliens. Matter of Edwards, 20
I. & N. Dec.at 198. The Court is well aware that gen-
uine rehabilitation is not a pre-requisite for discie-
tion in cases involving criminal aliens, but in cases
such as this it is a factor that should be considered, in
view of the Respondent’s lengthy criminal history of
arrests and convictions.
Another factor mitigating against a favorable exer-
cise of discretion is the Respondent’s lack of credibil-
ity under oath. Lack of candor in itself serves as an
adverse factor weighing against a favorable exercise
of discretion in an INA § 212(c) case. Matter of Bur-
bano, 20 I. & N. Dec. 872, 876 (BIA 1994). Standards
developed for the exercise of discretion under INA
§ 212(c) are also applicable to the exercise of discre-
tion under INA § 240A(a). Matter of C-V-T-, 22
I. & N. Dec.at 11. This Court found the Respondent to
be an incredible witness on the stand, where portions
of her testimony were both internally inconsistent,
and inconsistent with the evidence she submitted.
For instance, on cross-examination, the Respondent
70a
testified that her former employer, Cabrini Care at
Home, did not ask her about her criminal record
when she applied for a job in 2003; when the Respon-
dent later submitted a copy of her application at the
Court’s request, the submission indicated that Cabri-
ni asked whether she had ever been convicted of a
felony or other serious offense (other than a minor
traffic violation), and the Respondent had indicated
that she had no such convictions. Perhaps the biggest
disparity in her testimony is her initial assertion that
between 1987 and 1990, she had shoplifted without
being caught approximately fifteen times; under
cross-examination she admitted that there were, in
fact, more than 1,000 such occasions. She also tried to
convince this Court that many of her convictions were
a result of being in the wrong place at the wrong
time, in spite of the fact that she pled guilty, another
indication of her lack of candor. In addition, the
Respondent’s lack of credibility regarding her crimi-
nal convictions further undermines her claims of
rehabilitation. See Matter of Khalik, 17 I. & N. Dec.
518, 520 (BIA 1980).
Turning now to additional negative discretionary
factors articulated in Marin, this Court finds consid-
erable evidence to weigh against the Respondent’s
request for relief. First, the nature and circumstances
of the underlying grounds for removal reflect
extremely negatively on the Respondent. The original
grounds for removal cited in the NTA are two petit
larceny convictions from 2000. [Ex. 1.] Petit larceny
cow’ itutes a crime involving moral turpitude. See
Mater of de la Nues, 18 1. & N. Dec. 140, 145 (BIA
1992); In re Scarpulla, 15 1. & N. Dec. 139, 140-141
7la
(BIA 1974) (“It is well settled that theft or larceny,
whether grand or petty, has always been held to
involve moral turpitude.”). The additional factual
allegation for removal, lodged on August 17, 2000
[Ex. 1j, is a 1987 conviction for petit larceny. The
Respondent conceded under oath that she received
this conviction during a period of chronic, almost
daily shoplifting. The Respondent admitted that from
1987 until 1990, she shoplifted without being caught
more than 1,000 times, in two different states. Given
this admission, this Court considers the circum-
stances of the underlying grounds for removal to be a
weighty negative factor in this discretionary analy-
sis.
Second; the Respondent’s lengthy criminal record,
which stretches for more than fifteen years and
across three states, constitutes additional evidence of
bad character. The Respondent has more than thirty
criminal misdemeanor convictions, many of them for
petit larceny. She has been arrested in New York,
New Jersey, and Pennsylvania, and she admitted
under oath that she was involved in a shoplifting
incident in Florida. Not only did the Respondent
admit to continuing to shoplift after the birth of each
of her children, but she continued to accrue criminal
convictions after she was served with a notice to
appear on June 12, 2000, when she was on notice that
the government was trying to deport her. Her crimes
have increased.in severity: she pled guilty to burgla-
ry in the third degree in 2003 [Ex. 17], also a crime
involving moral turpitude. See de la Nues, 181. & N.
Dec. 140. Her criminal record includes a wide variety
of crimes: in addition to her petit larceny convictions,
72a
she has two convictions for endangering the welfare
of a child. [Ex. 20.] This extensive and varied crimi-
nal record evidences bad character and tilts the scale
of discretion sharply away from the Respondent.
The Court finds that the evidence indicative of the
Respondent’s bad character and undesirability as
a{n] LPR outweighs any social and humane consider-
ations presented on her behalf or on the behalf of her
five U.S. citizen children. See Matter of Marin, 16
I. & N. Dec. 584-585. The Court therefore concludes
that granting relief is not in the best interests of this
country, and denies the Respondent’s application for
removal under INA § 240A(a) as a matter of discre-
tion.
B. Waiver of Inadmissibility Pursuant toINA
§ 212(h)
Rehef under INA § 212(h) is available to aliens in
the United States only in conjunction with an appli-
cation for adjustment of status. 8 C.F.R. § 1245.1(f);
Matter of Bernabella, 13 1. & N. Dec. at 43-44. The
Respondent, as an LPR placed in removal proceed-
ings and found to be removable, would be eligible to
apply for § 212(h) relief only if she were to have
applied for adjustment of status in order to establish
a new qualifying visa petition. See In re Mendez-
Moralez, 21 1. & N. Dec. at 299. The Respondent did
not submit an application for adjustment of status.
This Court is bound by precedent decision of the BIA;
consequently, this Court must deny the Respondent’s
§ 212(h) petition as a matter of law.
73a
The Respondent, through counsel, argues that her
application for § 212(h) relief is not premised on her
eligibility to apply for adjustment of status. Rather,
she claims direct eligibility for relief under § 212(h)
based on her entitlement to equal protection of the
laws under the Fifth Amendment. [Ex. A.] However,
this Court cannot rule on the constitutionality of laws
enacted by Congress. See, e.g., U.S. v. Gonzalez-
Roque, 165 F. Supp. 2d 577, 583 (S.D.N.Y. 2001) rev’d
on other grounds, 301 F.3d 39 (2nd Cir. 2002); Maiter
of Fuentes-Campos, 21 I. & N. Dec. 905, 912 (BIA
1997); Matter of C-, 20 1. & N. Dec. 529, 532 (BIA
1992). Because the Court cannot comment on the con-
stitutionality of INA § 212(h) and its implementing
regulations, and because the Respondent did not sub-
mit an application for adjustment of status as
required under 8 C.F.R. § 1245.1(f), the Court denies
Respondent’s § 212(h) petition as a matter of law.
Assuming arguendo that the Respondent meets her
burden with reference to her § 212(h) application, the
Court would deny the application as a matter of dis-
cretion for the reasons indicated in this decision.
VI. Conclusion
The Respondent’s application for cancellation of
removal under INA § 240A(a) is denied as a matter of
discretion. The Court finds that the evidence of the
Respondent’s bad character and undesirability as an
LPR outweighs any social and humane considera-
tions presented on her behalf. The Respondent’s
application for waiver of inadmissibility under INA
74a
§ 212(h) is denied as a matter of law, because she
failed to file application for adjustment of status.
ORDER
IT IS HEREBY ORDERED that the Respondent’s
application for cancellation of removal under Section
240A(a) of the Immigration and Nationality Act be
denied.
IT IS FURTHER ORDERED that the Respondent’s
application for waiver of inadmissibility under Sec-
tion 212(h) of the Immigration and Nationality Act be
denied.
IT IS FURTHER ORDERED that the Respondent be
removed to Guyana, based upon the charges con-
tained in the Notice to Appear.
12/9/05 /si__ ALAN L. PAGE
Date Alan L. Page
U.S. Immigration Judge
75a
Constitutional Provisions:
U.S. Const. Amend. V
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases aris-
ing in the land or naval forces, or in the Militia,
when in actual service in time of War or public
danger; nor shall any person be subject for the
same offense to be twice put in jeopardy of life or
limb; nor shal] be compelled in any criminal case to
be a witness against himself, nor be deprived of
life, liberty, or property, without due process of
law; nor shall private property be taken for public
use, without just compensation.
U.S. Const. Amend. XIV
Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction there-
of, are citizens of the United States and of the State
wherein they reside. No State. shall make or
enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to
any person within its jurisdiction the equal protec-
tion of the laws.
76a
Statutory provisions:
8 U.S.C, § 1101(a)(13); INA § 101(a)(13) -
(A) The terms “admission” and “admitted” mean,
with respect to an alien, the lawful entry of the
alien into the United States after inspection and
authorization by an immigration officer.
(B) An alien who is paroled under section 212(d)(5)
[8 USCS § 1182(d)(5)] or permitted to land tem-
porarily as an alien crewman shall not be consid-
ered to have been admitted.
(C) An alien lawfully admitted for permanent
residence in the United States shall not be regard-
ed as seeking an admission into the United States
for purposes of the immigration laws unless the
alien—
(i) has abandoned or relinquished that status,
(ii) has been absent from the United States for
a continuous period in excess of 180 days,
(11) has engaged in illegal activity after having
departed the United States,
(iv) has departed fror the United States while
under legal process seeking removal of the alien
from the United States, including removal proceed-
ings under this Act and extradition proceedings,
(v) has committed an offense identified in sec-
tion 212(a)(2) [8 USCS § 1182(a)(2)], unless since
such offense the alien has been granted relief
under section 212(h) or 240A(a) [8 USCS §§ 1182(h)
or 1229b(a)], or
77a
(vi) is attempting to enter at a time or place
other than as designated by immigration officers or
has not been admitted to the United States after
inspection and authorization by an immigration
officer.
8 U.S.C. § 1182; INA § 212(a)(2) — Criminal and
related grounds of inadmissibility
(A) Conviction of certain crimes.
(i) In general. Except as provided in clause (11),
any alien convicted of, or who admits having com-
mitted or who admits committing acts which con-
stitute the essential elements of—
(I) a crime involving moral turpitude (other
than a purely political offense) or an attempt or
conspiracy to commit such a crime, or
(II) a violation of (or a conspiracy or attempt
to violate) any law or regulation of a State, the
United States, or a foreign country relating to a
controlled substance (as defined in section 102 of
the Controlled Substances Act (21 U.S.C. 802)),
is inadmissible.
(ii) Exception. Clause (i)(1) shall not apply to
an alien who committed only one crime if—
(1) the crime was committed when the alien
was under 18 years of age, and the crime was com-
mitted (and the alien released from any confine-
ment to a prison or correctional institution imposed
for the crime) more than 5 years before the date of
application for a visa or other documentation and
78a
the date of application for admission to the United
States, or
(II) the maximum penalty possible for the
crime of which the alien was convicted (or which
the alien admits having committed or of which the
acts that the alien admits having committed con-
stituted the essential elements) did not exceed
imprisonment for one year and, if the alien was
convicted of such crime, the alien was not sen-
tenced to a term of imprisonment in excess of 6
months (regardless of the extent to which the sen-
tence was ultimately executed).
(B) Multiple criminal convictions. Any alien con-
victed of 2 or more offenses (other than purely
political offenses), regardless of whether the con-
viction was in a single trial or whether the offens-
es arose from a single scheme of misconduct and
regardless of whether the offenses involved moral
turpitude, for which the aggregate sentences to
confinement were 5 years or more, is inadmissible.
(C) Controlled substance traffickers. Any alien
who the consular officer or the Attorney General
knows or has reason to believe—
(i) is or has been an illicit trafficker in any con-
trolled substance or in any listed chemical (as
defined in section 102 of the Controlled Substances
Act (21 U.S.C. 802)), or is or has been a knowing
aider, abettor, assister, conspirator, or colluder
with others in the illicit trafficking in any such con-
trolled or listed substance or chemical, or endeav-
ored to do so; or
79a
(ii) is the spouse, son, or daughter of an alien
inadmissible under clause (i), has, within the pre-
vious 5 years, obtained any financial or other ben-
efit from the illicit activity of that alien, and knew
or reasonably should have known that the financial
or other benefit was the product of such illicit
activity,
is inadmissible.
(D) Prostitution and commercialized vice. Any
alien who—
(i) is coming to the United States solely, princi-
pally, or incidentally to engage in prostitution, or
has engaged in prostitution within 10 years of the
date of application for a visa, admission, or adjust-
ment of status,
(ii) directly or indirectly procures or attempts
to procure, or (within 10 years of the date of appli-
cation for a visa, admission, or adjustment of sta-
tus) procured or attempted to procure or to import,
prostitutes or persons for the purpose of prostitu-
tion, or receives or (within such 10-year period)
received, in whole or in part, the proceeds of pros-
titution, or
(iil) is coming to the United States to engage in
any other unlawful commercialized vice, whether
or not related to prostitution,
is inadmissible.
¢
aim
i
80a
(E) Certain aliens involved in serious criminal
activity who have asserted immunity from prosecu-
tion. Any alien—
(i) who has committed in the United States at
any time a serious criminal offense (as defined in
section 101(h) [8 USCS § 1101(h)]).
(ii) for whom immunity from criminal jurisdic-
tion was exercised with respect to that offense,
(iii) who as a consequence of the offense and
exercise of immunity has departed from the United
States, and
(iv) who has not subsequently submitted fully
to the jurisdiction of the court in the United States
having jurisdiction with respect to that offense,
is inadmissible.
(Ff) Waiver authorized. For provision authorizing
waiver of certain subparagraphs of this paragraph,
see subsection (h).
8 U.S.C. §1182(h); INA § 212(h) —- Nonapplica-
bility of subsec. (a)(2)(A)(i)(D, (ID, (B),
(D), and (E).
The Attorney General may, in his discretion, waive
the application of subparagraphs (A)(i)(1), (B), (D),
and (EF) of subsection (a)(2) and subparagraph
(A)Q)(II) of such subsection insofar as it relates to
a single offense of simple possession of 30 grams or
less of marijuana if—
8la
(1)
(A) in the case of any immigrant it is estab-
lished to the satisfaction of the Attorney General
that—
(i) the alien is inadmissible only under sub-
paragraph (D)Q) or (D)(ii) of such subsection or the
activities for which the alien is inadmissible
occurred more than 15 years before the date of the
alien’s application for a visa, admission, or adjust-
ment of status, and
(ii) the admission to the United States of
such alien would not be contrary to the national
welfare, safety, or security of the United States,
(i11) the alien has been rehabilitated; or
(B) in the case of an immigrant who is the
spouse, parent, son, or daughter of a citizen of the
United States or an alien lawfully admitted for per-
manent residence if it is established to the satis-
faction of the Attorney General that the alien’s
denial of admission would result in extreme hard-
ship to the United States citizen or lawfully resi-
dent spouse, parent, son, or daughter of such alien;
or
(C) the alien is a VAWA self-petitioner; and
(2) the Attorney General, in his discretion, and
pursuant to such terms, conditions and procedures
as he may by regulations prescribe, has consented
to the alien’s applying or reapplying for a visa, for
admission to the United States, or adjustment of
status.
82a
No waiver shall be provided under this subsec-
tion in the case of an alien who has been convicted
of (or who has admitted committing acts that con-
stitute) murder or criminal acts involving torture,
or an attempt or conspiracy to commit murder or a
criminal act involving torture. No waiver shall be
granted under this subsection in the case of an
alien who has previously been admitted to the
United States as an alien lawfully admitted for
permanent residence if either since the date of such
admission the alien has been convicted of an aggra-
vated felony or the alien has not lawfully resided
continuously in the United States for a period of
not less than 7 years immediately preceding the
date of initiation of proceedings to remove the alien
from the United States. No court shall have juris-
diction to review a decision of the Attorney Gener-
al to grant or deny a waiver under this subsection.
8 U.S.C. §1229b; INA § 240A - Cancellation of
removal; adjustment of status
(a) Cancellation of removal for certain perma-
nent residents
The Attorney General may cancel removal] in the
case of an alien who is inadmissible or deportable
from che United States if the alien—
(1) hac heen an alien lawfully admitted for per-
manent. residence for not less than 5 years,
(2) has resided in the United States continu-
ously for 7 years after having been admitted in any
status, and
83a
(3) has not been convicted of any aggravated
felony.
(b) Cancellation of removal and adjustment of
status for certain nonpermanent residents.
(1) In general. The Attorney General may can-
cel removal of, and adjust to the status of an alien
lawfully admitted for permanent residence, an
alien who is inadmissible or deportable from the
United States 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 appli-
cation;
(B) has been a person of good moral charac-
ter during such period;
(C) has not been convicted of an offense
under section 212(a)(2), 237(a)(2), or 237(a)(3) [8
USCS § 1182(a)(2), 1227(a)(2), or 1227(a)(3)], sub-
ject 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.
84a
8 U.S.C. § 1252 - Judicial review of orders of
removal
(a) Applicable provisions
(1) General orders of removal
Judicial review of a final order of removal
(other than an order of removal without a hear-
ing pursuant to section 1225(b)(1) of this title)
is governed only by chapter 158 of Title 28,
except as provided in subsection (b) of this sec-
tion and except that the court may not order
the taking of additional evidence under section
2347(c) of Title 28.
(2) Matters not subject to judicial review
(A) Review relating to section 1225(b)(1) of
this title
Notwithstanding any other provision of law
(statutory or nonstatutory), including section
2241 of Title 28, or any other habeas corpus
provision, and sections 1361 and 1651 of
such title, no court shall have jurisdiction to
review—
(i) except as provided in subsection (e) of
this section, any individual determination
or to entertain any other cause or claim
arising from or relating to the implementa-
tion or operation of an order of removal
pursuant to section 1225(b)(1) of this title,
(ii) except as provided in subscction (e) of
this section, a decision by the Attorney
85a
General to invoke the provisions of such
section,
(iii) the application of such section to
individual aliens, including the determina-
tion made under section 1225(b)(1)(B) of
this title, or
(iv) except as provided in subsection (e)
of this section, procedures and policies
adopted by the Attorney General to imple-
ment the provisions of section 1225(b)(1) of
this title.
(B) Denials of discretionary relief
Notwithstanding any other provision of law
(statutory or nonstatutory), including section
2241 of Title 28, or any other habeas corpus
provision, and sections 1361 and 1651 of
such title, and except as provided in sub-
paragraph (D), and regardless of whether the
judgment, decision, or action is made in
removal proceedings, no court shall have
jurisdiction to review—
(i) any judgment regarding the granting
of relief under section 1182(h), 1182),
1229b, 1229c, or 1255 of this title, or
(ii) any other decision or action of the
Attorney General or the Secretary of
Homeland Security the authority for which
is specified under this subchapter to be in
the discretion of the Attorney General or
the Secretary of Homeland Security, other
86a
than the granting of relief under section
1158(a) of this title.
-(C) Orders against criminal aliens
Notwithstanding any other provision of law
(statutory or nonstatutory), including section
2241 of Title 28, or any other habeas corpus
provision,:and sections 1361 and 1651 of
such title, and except as provided in sub-
paragraph (D), no court shall have jurisdic-
tion to review any final order of removal
against an alien who is removable by reason
of having committed a criminal offense cov-
ered in section 1182(a)(2) or 1227(a)(2)(A)(iii),
(B), (C), or (D) of this title, or any offense cov-
ered by section 1227(a)(2)(A)(ii) of this title
for which both predicate offenses are, with-
out regard to their date of commission, oth-
erwise covered by section 1227(a)(2)(A)(i) of
this title.
(D) Judicial review of certain legal claims
Nothing in subparagraph \B) or (C), or in any
other provision of this chapter (other than
this section) which limits or eliminates judi-
cial 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.
87a
(3) Treatment of certain decisions
No alien shall have a right to appeal from a
decision of an immigration judge which is
based solely on a certification described in sec-
tion 1229a(c)(1)(B) of this title.
(4) Claims under the United Nations Conven-
tion
Notwithstanding any other provision of law
(statutory or nonstatutory), including section
2241 of Title 28, or any other habeas corpus
provision, and sections 1361 and 1651 of such
title, a petition for review filed with an appro-
priate court of appeals in accordance with this
section shall be the sole and exclusive means
for judicial review of any cause or claim under
the United Nations Convention Against Tor-
ture and Other Forms of Cruel, Inhuman, or
Degrading Treatment or Punishment, except
as provided in subsection (e) of this section.
(5) Exclusive means of review
Notwithstanding any other provision of law
(statutory or nonstatutory), including section
2241 of Title 28, or any other habeas corpus
provision, and sections 1361 and 1651 of such
title, a petition for review filed with an appro-
priate court of appeals in accordance with this
section shall be the sole and exclusive means
for judicial review of an order of removal
entered or issued under any provision of this
chapter, except as provided in subsection (e) of
this section. For purposes of this chapter, in
88a
every provision that limits or eliminates judi-
cial review or jurisdiction to review, the terms
“judicial review” and “jurisdiction to review”
include habeas corpus review pursuant to sec-
tion 2241 of Title 28, or any other habeas cor-
pus provision, sections 1361 and 1651 of such
title, and review pursuant to any other provi-
sion of law (statutory or nonstatutory).
ee a
(d) Review of final orders
A court may review a final order of removal only
if—
(1) the alien has exhausted all administrative
remedies available to the alien as of right, and
(2) another court has not decided the validity of
the order, unless the reviewing court finds that
the petition presents grounds that could not
have been presented in the prior judicial pro-
ceeding or that the remedy provided by the
prior proceeding was inadequate or ineffective
to test the validity of the order.
8 U.S.C. § 1255; INA § 245 - Adjustment of sta-
tus of nonimmigrant to that of person
admitted for permanent residence
(a) Status as person admitted for permanent res-
idence on application and eligibility for immigrant
visa. The status of an alien who was inspected and
admitted or paroled into the United States or the
status of any other alien having an approved peti-
is?
89a
tion for classification as a VAWA self-petitioner
may be adjusted by the Attorney General, yn his
discretion and under such regulations as he may
prescribe, to that of an alien lawfully admitted for
permanent residence if (1) the alien makes an
application for such adjustment, (2) the alien is eli-
gible to receive an immigrant visa and is admissi-
ble to the United States for permanent residence,
and (3) an immigrant visa is immediately available
to him at the time his application is filed.
28 U.S.C. § 1254. Courts of appeals; certiorari;
certified questions
Cases in the courts of appeals may be reviewed
by the Supreme Court by the following methods:
(1) By writ of certiorari granted upon the petition
of any party to any civil or criminal case, before or
after rendition of judgment or decree;
(2) By certification at any time by a court of
appeals of any question of law in any civil or crim-
inal case as to which instructions are desired, and
upon such certification the Supreme Court may
give binding instructions or require the entire
record to be sent up for decision of the entire mat-
ter in controversy.
90a
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Appeal No. 07-1884-AG
JENNY LEE HENRY, a.k.a. Karen Allen, a.k.a.
Karen Henry, a.k.a. Annette Williams, a.k.a.
Andrea Scantlebury, a.k.a. Williams Sherlly,
a.k.a. Jennylee Henry, a.k.a. Lorna Williams,
a.k.a. Sharon Smith, a.k.a. Jennymary Henry,
a.k.a. Shelly Williams, a.k.a. Williams,
Petitioner-Appellant,
Vv
MICHAEL B. MUKASEY,
Attorney General of The United States,
Respondent-Appellee.
MOTION TO STAY ISSUANCE OF THE
MANDATE PENDING THE FILING
OF A PETITION FOR
A WRIT OF CERTIORARI
CLEARY GOTTLIEB STEEN & HAMILTON LLP
One Liberty Plaza
New York, New York 10006
212-225-2000
Attorneys for Petitioner Jenny Lee Henry
Of Counsel:
Lindsee P. Granfield
9la
TABLE OF CONTENTS
Page(s)
Tease OF AUTHORIELEBO 0 cccccccccccccceccces il
iv esivces aksatscvesbensaowaneeees 6
is oOo 6 ice sels selelaadevadoetears 7
I. MS. HENRY’S CASE RAISES
SU[B]STANTIAL QUESTIONS
WARRANTING SUPREME COURT
ee ee 7
A. Ms. Henry’s Section 212(h) Claim
Presents A Substantial Question
OF BAUR! FEOSRCEION 6c cccccccccscccceees 7
B. Section 212(h) And Due Process
Require A Finding Whether
Ms. Henry’s United States Citizen
Children Would Suffer Extreme
Hardship If Ms. Henry Were
ioe ae etek ee LUIUCL oes oteiea 11
II. MS. HENRY’S CASE PRESENTS
GOOD CAUSE FOR A STAY PENDING
FILING OF A PETITION FOR
Er cbh bed vkaseesp¥eckeveesesetesecs 12
SM EPEPENERIE ss sccccvevcgscveveccesevepeceseseeses 15
92a
TABLE OF AUTHORITIES
Rules and Statutes Page(s)
Pe BE cccccccceccccvcdcseeesssedcdeen passim
Pie fo ae 4
ee is eusennneousncasvesens 7
Es re a
ks de cieeentetsueneun es 3
ek. os euecedeneeweuween 1
I I oc ouucdacanvanséens covaweboabakie l
Cases
Bastanipour v. INS,
980 F.2d 1129 (7th Cir. 2007) .............. 12
Blake v. Carbone,
489 F.3d 88 (2d Cir. 2007) .................. passim
Bridges v. Wixon,
ee Pcie NP ROU oc caves coccssccvctcovecctes 12
Brown Shoe Co. v. U.S.,
Se i I CUED o cvrckcsévccses seuvcccuctens 10
Francis v. INS,
532 F.2d 268 (2d Cir. 1976)................. passim
Henry v. Ashcroft,
175 F.Supp. 2d 688 (S.D.N.Y. 2001) ...... 6
Henry v. Mukasey,
No. 07-1884-ag, 2008 WL 376389
> ee ll ee:
93a
Page(s)
Henry v. Mukasey,
No. 07-1884-ag (2d Cir. May 23, 2008)... 3, 10
Hartford Underwriters Ins. Co. v. Union
Planters Bank, 530 U.S. 1 (2000).......... 12
In re Mendez-Moralez,
211. & N. Dec. 296 (BIA 1996)............. 11
Klementanovsky v. Gonzales,
601 F.3d 788 (7th Cir. 2007)............000. 2,9
Malagon de Fuentes v. Gonzales,
462 F.3d 498 (5th Cir. 2006)................ 2, 8-9
Ofosu v. McElroy,
98 F.3d 694 (2d Cir. 1996).........ccccccecces 14
United States v. Gonzalez-Roque,
165 F. Supp. 2d 577 (S.D.N.Y. 2001)....4, 10-11
United States v. Williams,
ie ee kee cuseeeees 11
Yeung v. INS,
76 F.3d 337 (11th Cir. 1995)................ passim
94a
Pursuant to Federal Rule of Appellate Procedure
41(d)(2), Petitioner-Appellant Jenny Lee Henry
respectfully moves this Court to stay the issuance
of the mandate for 90 days in the above-captioned
appeal pending the filing of a petition for a writ of
certiorari in the United States Supreme Court.!
Ms. Henry’s petition for certiorari will present at
least two substantial questions worthy ef a grant of
certiorari.
First, Ms. Henry’s case raises a substantial and
far-reaching issue of equal protection that is cur-
rently the subject of an inter-Circuit conflict—
namely, whether the Immigration and Nationality
Act (“INA”) can exclude certain categories of Law-
ful Permanent Residents (“LPRs”) from discre-
tionary relief from removal solely on the basis of
whether their request for relief is brought in exclu-
sion or deportation proceedings. The Second and
Eleventh Circuits have made clear that such a dis-
tinction, based on no more than that individual’s
physical location, violates the Equal Protection
Clause; the Fifth and Seventh Circuits have taken
the contrary position. Compare Francis v. INS, 532
1 Federal Rule of Appellate Procedure 41(d)(2) provides
that the stay “must not exceed 90 days, unless the period is
extended for good cause or unless the party who obtained the
stay files a petition for the writ and so notifies the circuit
clerk in writing within the period of the stay. In that case, the
stay continues until the Supreme Court’s final disposition.”
Ms. Henry intends to file a petition for certiorari within the
prescribed 90-day period from the entry of judgment denying
rehearing and will notify the clerk of the Court once she has
done so. Sup. Ct. Rs. 13.2 & 12.3.
95a
F.2d 268, 272-73 (2d Cir. 1976) (equal protection
requires that INA Section 212(c) relief apply to
LPRs in deportation as well as exclusion proceed-
ings) and Yeung v. INS, 76 F.3d 337, 339-41 (11th
Cir. 1995) (applying Francis to hold that a
deportable alien who has not traveled abroad and
who is ineligible to apply for adjustment of status
is eligible for a Section 212(h) waiver) with
Malagon de Fuentes v. Gonzales, 462 F.3d 498, 503-
06 (5th Cir. 2006) (finding no equal protection vio-
lation in limiting Section 212(h) relief to those in
exclusion proceedings or those applying for adjust-
ment of status); and Klementanovusky v. Gonzales,
501 F.3d 788, 791-94 (7th Cir. 2007) (same). As
fully presented in her opening brief and at oral
argument, as well as through her petition for
rehearing/rehearing en banc, Ms. Henry was
denied equal protection when the IJ held that she
was ineligible for a Section 212(h) waiver simply
because she had not departed and reentered the
country subsequent to becoming deportable, or
filed a concurrent application for an adjustment of
status, a burden that would not have applied had
she sought relief while in exclusion proceedings.
See Pet’r Br. at 16-22; Reply Br. at 13-16; Rehear-
ing Br. at 4-8.2 Under the well-established law of
* Unless otherwise indicated, capitalized terms and
acronyms are as defined in the Brief of Petitioner-Appellant
Jenny Lee Henry, dated August 16, 2007 (“Pet’r Br.”). The
Brief for Respondent, dated October 17, 2007, is referred to
herein as “Resp’t Br.” and the Reply Brief of Petitioner-Appel-
lant, dated November 5, 2007, is referred to as “Reply Br.”
Ms. Henry's Petition for Panel Rehearing and Rehearing En
Banc, dated March 28, 2008. is referred to as “Rehearing Br.”
96a
this Circuit, it is impermissible to draw such a dis-
tinction based on nothing other than whether an
LPR seeks discretionary relief in deportation pro-
ceedings versus eaclusion proceedings.? See Fran-
cis, 532 F.2d at 272-73; Blake v. Curbone, 489 F.3d
88, 103 (2d Cir. 2007) (Section 212(c) waiver must
be made available to an LPR whose crime renders
her deportable as long as the same crime would
render her excludable).
Ms. Henry’s petition for certiorari will provide
the Supreme Court with an opportunity to recon-
cile the disparate Circuit decisiuns on this impor-
tant question. Moreover, her petition will raise a
substantial question of equal protection, impacting
not only her own case but potentially thousands of
similarly situated LPRs, whose ability to seek
relief from removal turns on the outcome of the
question presented here.‘
3 The denial of equal protection inherent in the Board of
Immigration Appeals’ denial of Section 212(c) relief here was
fully briefed in Ms. Henry’s petition for review and again in
her petition for rehearing/rehearing en banc. Although this
Court did not address the equal protection issue in its sum-
mary order denying a petition for review, Henry v. Mukasey,
No. 07-1884-ag, 2008 WL 376389 (2d Cir. Feb. 11, 2008), or in
its denial of a petition for rehearing/rehearing en banc, Henry
v. Mukasey, No. 07-1884-ag (2d Cir. May 23, 2008), if it had
addressed the equal! protection issue, the well-established law
of this Circuit would have required a reversal or remand in
Ms. Henry’s case under Francis and Biake, and consistent
with the Eleventh Circuit in Yeung.
4 Petitions for writs of certiorari that present issues
about which the Courts of Appeals disagree are one of the
enumerated categories of petitions that warrant Supreme
Court review. See Sup. Ct. R. 10(a).
97a
As a related matter, Ms. Henry’s petition will
also present the question of whether a Court of
Appeals violates a petitioner’s due process rights
when it fails to address a key issue a* the heart of
a petition for review—here, the equal protection
question squarely presented but never considered
by the panel, which denied a petition for review
and, later, a petition for rehearing/rehearing en
banc without ever addressing the equal protection
raised in the briefs and during oral argument. Not
only does the Circuit’s well-established jurispru-
dence warrant a ruling in Ms. Henry’s favor, but
the panel’s failure to address the issue constitutes
a violation of Ms. Henry’s due process right to have
this Court consider the legal issues presented in
her petition for review. That concern is heightened
here, as this forum constitutes the sole opportunity
for Ms. Henry to bring her case before a federal
forum.°
Second, Ms. Henry’s petition for certiorari will
present the question of whether an IJ is required to
make a finding on the issue of extreme hardship
> Indeed, only federal courts—the the agencies—can con-
sider questions of constitutional law. See, e.g., United States
v. Gonzalez-Roque, 165 F.Supp. 2d 577, 583 (S.D.N.Y. 2001)
rev'd on other grounds, 301 F.3d 39 (2d Cir. 2002). The panel,
exclusively charged with addressing Ms. Henry’s equal pro-
tection claim, did not address the issue because it treated the
entirety of her petition as a challenge to the IJ's discretion.
Henry, 2008 WL 376389, at *1. But equal protection is a con-
stitutional claim (and, a fortiori, a question of law) that the
Court clearly has jurisdiction to review under 8 U.S.C. Sec-
tion 1252(a)(2)(D).
98a
under Section 212(h) prior to deciding whether a
waiver is warranted as a matter of discretion. See
Pet’r Br. at 22-26; Reply Br. at 16-19. The issue is
one of constitutional and federal law—whether the
IJ must address the issue of extreme hardship
before applying his discretion under Section
212(h)—and is a substantial question warranting
Supreme Court review because foregoing the
extreme hardship analysis contravenes congres-
sional intent and constitutes a violation of due
process.
Finally, there is good cause for a stay, as the bal-
ance of equities tips in favor of granting a stay of
the issuance of the mandate. In particular, once the
mandate issues, the Office of Immigration and Cus-
toms Enforcement may execute Ms. Henry’s order
of removal and deport her to Guyana immediately,
causing severe hardship to her and her five United
States citizen daughters (four of whom are still
minors). Ms. Henry has been continuously present
in the United States for 24 years and has no fami-
ly or other significant connections to Guyana. For
its part, the United States government would not
suffer any significant inconvenience or hardship if
Ms. Henry remained in the country pending the
outcome of her petition for certiorari, particularly
where, as here, the petitioner is under incarcera-
tion.
For these reasons, the motion to stay the issuance
of the mandate should be granted.
: 99a
BACKGROUND®
Upon being charged with deportability pursuant
to Section 237(a)(2)(A)(ii) of the Immigration and
Nationality Act (“INA”) as an admitted alien con-
victed of two crimes involving moral turpitude not
arising out of a single scheme of criminal miscon-
duct, Ms. Henry, a native and citizen of Guyana,
unsuccessfully sought (on timeliness grounds) an
application for cancellation of removal under INA ©
Section 240(A)(a). After the BIA denied her appeal
and subsequent motion to reconsider, she success-
fully sought a writ of habeas corpus from the Unit-
ed States District Court of the Southern District of
New York, which vacated her order of removal and
remanded the case so that Ms. Henry could file
applications for cancellation of removal pursuant
to INA Section 240(A)(a) and for a waiver of inad-
missibility pursuant to INA Section 212(h). See
Henry v. Ashcroft, 175 F.Supp.2d 688 (S.D.N.Y.
2001).
On December 9, 2005, the IJ denied Ms. Henry’s
application for cancellation of removal under INA
Section 240(A)(a) and Ms. Henry’s application for
waiver of inadmissibility under INA Section
212(h). The IJ also ordered Ms. Henry removed to
Guyana. On September 21, 2006, Ms. Henry
appealed the IJ decision to the BIA. The BIA dis-
6
The factual background and procedural history is set
forth in full in Ms. Henry’s principal brief on appeal. See Pet’r
Br. at 5-14. In the interest of avoiding unnecessary repeti-
tion, only the most pertinent facts are recited here.
100a
missed Ms. Henry’s appeal of the IJ’s decision, and
Ms. Henry brought a petition for review in this
Court. A three-judge panel denied Ms. Henry’s
petition for review on February 11, 2008, and her
petition for panel rehearing and rehearing en banc
was denied on May 23, 2008.
ARGUMENT
This Court has the power to stay the issuance of
the mandate pending the filing of a petition for a
writ of certiorari. 28 U.S.C. § 2101(f). A stay pend-
ing the filing of a petition for a writ of certiorari
may be granted where “the certiorari petition
would present a substantial question and there is
good cause fora stay.” Fed. R. App. P. 41(d)(2).
I. Ms. Henry’s Case Raises Substantial Ques-
tions Warranting Supreme Court Review
A. Ms. Henry’s Section 212(h) Claim Presents
A Substantial Question of Equal Protection
Ms. Henry’s petition for certiorari will argue that
to distinguish between classes of LPRs such that
those in exclusion proceedings are eligible for dis-
cretionary relief, while those (like Ms. Henry) in
deportation proceedings are not, violates equal pro-
tection. That conclusion flows naturally from this
Circuit’s previous decisions in Francis, 532 F.2d at
272-73, and Blake, 489 F.3d at 100-01, and was
specifically so held by the Eleventh Circuit in
Yeung, 76 F.3d at 339-41.
10l1a
In Francis, this Court held that INA Section
212(c)}—a statutory provision that, like INA Section
212(h), was intended to provide an opportunity for the
Attorney General, in his discretion, to waive certain
grounds for excludability for aliens seeking entry into
the United States—applies to LPRs regardless of
whether they are in exclusion or deportation proceed-
ings. Francis rejects the proposition that eligibility for
relief can turn on the simple fact of whether the indi-
vidual seeking relief happens to be in deportation pro-
ceedings or exclusion proceedings. See Francis, 532
F.2d at 272. In Blake, the Second Circuit extended
Francis by allowing LPRs deportable as aggravated
felons to apply for discretionary relief under INA Sec-
tion 212(c) so as not to prevent those individuals from
seeking relief otherwise available to similarly situat-
ed LPRs in exclusion proceedings. The Blake court
made clear that it was “bound by Francis’s mandate to
ensure that ‘permanent residents who are in like cir-
cumstances, but for irrelevant and fortuitous factors,
be treated in a like manner.” 489 F.3d at 104.
Relying heavily on this Court’s decision in Fran-
cis, the U.S. Court of Appeals for the Eleventh Cir-
cuit held, similarly, that a distinction under Section
212(h) based solely on an alien’s decision to travel
outside of the United States violates equal protec-
tion. Yeung, 76 F.3d at 339-41. In that case, the
Eieventh Circuit rejected the proposition that a peti-
tioner who had neither left the country nor applied
for adjustment of status was ineligible to apply for a
Section 212(h) waiver. Jd. The Second Circuit’s deci-
sions in Francis and Blake and Eleventh Circuit’s
decision in Yeung conflict the law of the Fifth and
102a
Seventh Circuits. See Malagon de Fuentes, 462 F.3d
at 504 (limiting Section 212(h) relief to those in
exclusion proceedings or those applying for adjust-
ment of status does not violate equal protection);
Klementanousky, 501 F.3d at 791-94 (same).
Ms. Henry will urge the Supreme Court to resolve
the split by adopting the rules of the Second and
Eleventh Circuits to hold that an LPR need not leave
the country or file a concurrent application for
adjustment of status to be eligible for a Section
212(h). In this case, the decision that Ms. Henry was
ineligible for Section 212(h) relief because she was
neither in exclusion proceedings nor had applied for
a concurrent application for adjustment of status
upon being placed in removal proceedings under-
mines the well-settled equal protection law of this
Circuit. Under the IJ’s interpretation of INA Section
212(h), had Ms. Henry left the United States after
the convictions that rendered her deportable and
later sought readmission, she would have been eligi-
ble for Section 212(h) relief without an application
for adjustment of status. Indeed, the sole basis for
finding that Ms. Henry was ineligible for a Section
212(h) waiver was-that she had not departed the
United States before she applied for this relief. This
ruling stands in stark contradiction to Francis and
Blake, and there is a likelihood that the Supreme
Court will grant certiorari to resolve the issue in Ms.
Henry’s favor because, as this Court has made clear,
“{rleason and fairness would suggest that an alien
whose ties with this country are so strong that
{[s]he has never departed since [her] initial entry
should receive at least as much consideration as an
103a
individual who may leave and return from time to
time.” Francis, 532 F.2d at 273.
Although Ms. Henry fully presented her equal pro-
tection claim both in briefing and during oral argu-
ment, see, e.g., Petr Br. at 16-22; Reply Br. at 13-16,
the panel failed to address the argument in its sum-
mary order denying her petition for review, see Henry,
2008 WL 376389, at **1-2, and again when it denied
her petition for rehearing/rehearing en banc. Henry v.
Mukasey, No. 07-1884-ag (2d Cir. May 23, 2008).
The panel’s failure to address the equal protection
issue is itself a basis for seeking Supreme Court
review, as Courts of Appeals must consider all seri-
ous issues presented in a petition for review. See
Brown Shoe Co. v. U.S., 370 U.S. 294, 355 (1962)
(Clark, J., concurring) (the “function of a Court of
Appeals” is “to examinfe] the whole record and
resolv[e] all questions”). This is especially important
where, as here, (i) the petition for review presents an
immigration petitioner’s sole opportunity for federal
review of questions incident to an order of removal
and (ii) only the federal court (not the agency) can
address the constitutional question raised herein.
See, e.g., Gonzalez-Roque, 165 F. Supp. 2d at 583. As
in all federal appeals, but especially here, Ms. Henry
must receive a full and fair opportunity to litigate all
legal issues relevant to her case.‘
7 The fact that this Court did not address the equal pro-
tection issue does not preclude Supreme Court review of the
question. See United States v. Williams, 504 U.S. 36, 41
(1992) (“Our traditional rule ... precludes a grant of certio-
rari only when ‘the question presented was not pressed or
passed upon below.””).
104a
B. Section 212(h) And Due Process Require A
Finding Whether Ms. Henry’s United
States Citizen Children Would Suffer
Extreme Hardship If Ms. Henry Were
Deported
In addition to Ms. Henry’s equal protection
claim, she also argues that Section 212(h) and due
process require that the IJ address the statutory
eligibility requirement of extreme hardship before
turning to any discretionary factors. See Pet’r Br.
at 22-26; Reply Br. at 16-19. Because a finding of
extreme hardship by the IJ is a factor that would
tilt the balance of equities in an applicant’s favor,
squarely addressing that issue is a legal requisite
before turning to the discretionary analysis under
the statute. See In re Mendez-Moralez, 21 1. & N.
Dec. 296, 301 (BIA 1996). The question of whether
an IJ must first address the issue of extreme hard-
ship, as required by the statute, INA § 212(h);
8 U.S.C. § 1182(h), is a substantial legal issue merit-
ing Supreme Court review. Indeed, allowing an IJ
to proceed directly to the balance of equities (which
the IJ effectively did here) would undermine Con-
gress’s intent and grant the IJ unfettered discre-
tion to deny Section 212(h) relief without review of
the question of extreme hardship even where such
hardship was present.
Here, the panel relied on the IJ’s dicta address-
ing the separate “severe” hardship finding in rela-
tion to Ms. Henry’s cancellation of removal petition.
However, the IJ’s discussion of Ms. Henry’s “severe”
hardship did not satisfy his obligation to address
105a
“extreme” hardship under Section 212(h). See Bas-
tanipour v. INS, 980 F.2d 1129, 1130-31 (7th Cir.
2007) (IJ may not import findings from one appli-
cation for relief from removal in order to “fill the
gap” in another). The Supreme Court has empha-
sized that “Congress ‘says in a statute what it
means and means in a statute what it says there,”
and here Ms. Henry’s certiorari petition will argue
that when Congress said in Section:-212(h) that an
IJ must determine “extreme hardship” it meant
just that. See Hartford Underwriters Ins. Co. uv.
Union Planters Bank, 530 U.S. 1, 6 (2000).
Il. MS. HENRY’S CASE PRESENTS GOOD CAUSE
FOR A STAY PENDING FILING OF A PETI-
TION FOR CERTIORARI
Ms. Henry also meets the “good cause” require-
ment for a stay, as the balance of equities tips in
favor of granting a stay of the issuance of the man-
date. Courts have recognized that removal carries
great hardship. See Bridges v. Wixon, 326 U.S. 135,
154 (1945) (“[Dleportation ... visits a great hard-
ship on the individual and deprives him of the right
to stay and live and work in this land of free-
dom... . Meticulous care must be exercised lest the
procedure by which he is deprived of that liberty
not meet the essential standards of fairness.”).
Removal here would result in Ms. Henry’s separa-
tion from her family (all but one of whom currently
reside in the United States), and in particular from
her five U.S. citizen daughters for whom she has
been the sole caretaker. Moreover, Ms. Henry
106a
would be forced to leave her adopted country of 24
years and return to a country where she has no
ties, no employment, and no place to live.
Ms. Henry’s removal would also result in severe
hardship for her five daughters (four of whom are
minors), who would be faced with the choice of
remaining in the United States without a mother
and possibly being separated in foster care (a sce-
nario that both the IJ and the government recog-
nized as likely, JA 000483 (Tr. at 305), or returning
to a country they have never visited and where, as
the IJ recognized, their opportunities would be sig-
nificantly limited. JA 000167 (JJ Dec. at 17)). To
this effect, the IJ found that” [t]here is strong evi-
dence that [Ms. Henry] and her family, including
her five U.S. citizen children and her mother,
would suffer hardship if removal occurs.” Id. Simi-
iarly, the IJ noted, “There is no doubt that [Ms.
Henry’s| removal could cause severe emotional and
economic hardship to [Ms. Henry’s] family... .” Jd.
In contrast to the hardship that Ms. Henry would
suffer upon removal, the U.S. Government would
not suffer any significant injury if Ms. Henry were
permitted to remain in the United States while her
petition for certiorari remains pending, not least
because she remains incarcerated in immigration
detention at this time. Indeed, the Second Circuit
has held that “[o]rdinarily ... it is deemed that
[removal] is an irreparable harm, and that the
[government] suffers no offsetting injury.” Ofosu v.
McElroy, 98 F.3d 694, 699 (2d Cir. 1996). Under
the circumstances, good cause is certainly estab-
lished here.
107a
CONCLUSION
For the foregoing reasons, Ms. Henry respectful-
ly requests that the Court grant this motion for a
stay of the issuance of the mandate pending the fil-
ing of a petition for a writ of certiorari with the
Supreme Court.
Dated: New York, New York
May 30, 2008
Respectfully submitted,
CLEARY GOTTLIEB STEEN & HAMILTON LLP
/s/ LINDSEE P. GRANFIELD
By: Lindsee P. Granfield
A Member of the Firm
One Liberty Plaza
New York, New York 10006
(212) 225-2000
Attorneys for Petitioner-Appellant
Jenny Lee Henry
Of Counsel:
Tanisha L. Massie
Joseph Landau
Rahul Mukhi
108a
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
07-1884-AG
JENNY LEE HENRY, a.k.a. Karen Allen, a.k.a.
Karen Henry, a.k.a. Annette Williams, a.k.a.
Andrea Scantlebury, a.k.a. Williams Sherlly,
a.k.a. Jennylee Henry, a.k.a. Lorna Williams,
a.k.a. Sharon Smith, a.k.a. Jennymary Henry,
a.k.a. Shelly Williams, a.k.a. Williams,
Petitioner-Appellant,
Vv
MICHAEL B. MUKASEY,
Attorney General of The United States,
Respondent-Appellee.
ON APPEAL FROM
THE BOARD OF IMMIGRATION APPEALS
PETITION OF PETITIONER-APPELLANT
JENNY LEE HENRY FOR PANEL
REHEARING AND REHEARING EN BANC
109a
CLEARY GOTTLIEB STEEN & HAMILTON LLP
One Liberty Plaza
New York, New York 10006
212-225-2000
Attorneys for Petitioner-Appellant
Of Counsel:
Lindsee P. Granfield
Tanisha L. Massie
Joseph Landau
Rahul Mukhi
110a
TABLE OF CONTENTS
Page
TABLE OF AUTTRORET Ge «22.00. ccceccececees 1l
STATEMENT PURSUANT TO
POs, Bee Es Be BOI) 65 sieve cc cescceses 1
eS Gy el sy yl, 4
Py eis oa ies iendacinoues sacs 4
I. MS. HENRY IS ELIGIBLE FOR A
SECTION 212(H) WAIVER AS A
MATTER OF EQUAL PROTECTION ... 4
II. SECTION 212(H) AND DUE PROCESS
REQUIRE A FINDING WHETHER
MS. HENRY’S UNITED STATES
CITIZEN CHILDREN WOULD SUFFER
EXTREME HARDSHIP IF MS. HENRY
Wey Bee ora ss Se vctisnsoenecnecase as 8
A. The Panel Failed To Address Whether
The IJ Was Required To Make A Find-
ing On The Issue Of “Extreme Hard-
ship” Under Section 212(h) Before
Weighing Discretionary Factors ....... 8
B. The IJ’s Dicta On Hardship In The
Context Of Cancellation Of Removal
Is Not Sufficient Under Section
I ee eco ni esata Deh e GaSe ecu sak cx 9
C. Bagamasbad Is Distinguishable....... 11
CS chica s Cac hn uid cease keh ee euaawanee 14
CERTIFICATE OF COMPLIANCE WITH
RULES 32(a), 35(b)(2) AND 40(b) 15
llla
TA BLE OF AUTHORITIES
Statutes and Regulations Page(s)
SD Es BS Banas ists ab coicowacsecs ene passim
6 U2 Be ss vwkd cv cenwaapo dessa eae 9
ESTA. TA oisesvissavaccciccessanvieones 10
8 UEC. § PRN... «eee 2, 6,9
Cases
Bastanipour v. INS,
980 F.2d 11289 (7th Cir. 10098) «.....¢.c650003 11-12
Blake v. Carbone,
489 F.3a G6 (246 Cir. 2007). ... ccseci cae Ry
Francis v. INS,
632 F.2d 268 (2d Cir. 1076)......062cccnsccescvs 2, 6-8
Hartford Underwriters Ins. Co. v. Union
Planters Bank, 530 U.S. 1 (2000).......... 10
Henry v. Mukasey,
No. 07-1884-ag, 2008 WL 376389
(Za Cae Fem: Fh; De oicaksccceeveuseee passim
In re Abosi,
241.&N. Dec. 204 (BIA 2007)............. 5
In re Mendez Morales,
211. & N. Dec. 296 (BIA 1996) ............ 3, 9. 12
INS v. Bagamasbad,
S29 U.S. Ba, BE Clr vcccccescssecusenacaene 11,12
112a
Page(s)
Klementanousky v. Gonzales,
met #.o0 766 (7th Cir. 2007)... .....0 0005005. 3.8
KP Permanent Make-Up, Inc. v. Lasting
Impression I, Inc., 543 U.S. 111 (2004)... 11
Li v. INS,
463. F.3a 129 (2d Cir. 2006)..............000. 13
Malagon de Fuentes v. Gonzales,
462 F.3d 498 (5th Cir. 2006)................ 2-3, 8
Yeung v. INS,
pe 7.08 oot CT1th Cir. 19906)...... 0600000054 A
1l3a
STATEMENT PURSUANT TO
FED. R. APP. P. 35(B)(1)
Petitioner-Appellant Jenny Lee Henry, through
her undersigned counsel, seeks panel rehearing
and rehearing en banc of her petition for review,
which was denied by summary order on February
11, 2008. See Henry v. Mukasey, No. 07-1884-ag,
2008 WL 376389 (2d Cir. Feb. 11, 2008) (appended
hereto). Ms. Henry’s petition should be reheard on
the grounds that the panel denied Ms. Henry’s
petition without addressing two issues of excep-
tional] importance that were briefed in her moving
papers and discussed at oral argument: (i) whether
she was denied equal protection because the IJ
held that she was ineligible for a Section 212(h)
waiver of inadmissibility based on her failure to
concurrently apply for adjustment of status; and
(ii) whether the IJ was statutorily required under
INA Section 212(h) to address the issue of “extreme
hardship” before balancing discretionary factors. !
First, as presented in her opening brief,
Ms. Henry was denied equal protection when the IJ
held that she was ineligible for a Section 212(h)
waiver simply because she had not departed and
reentered the country subsequent to becoming
deportable and also had not made a concurrent
Unless otherwise indicated, capitalized terms and
acronyms are as defined in the Brief of Petitioner-Appellant
Jenny Lee Henry, dated August 16, 2007 (“Pet’r Br.”). The
Brief for Respondent, dated October 17, 2007, is referred to
herein as “Resp't Br.” and the Reply Brief of Petitioner-Appel-
e
lant, dated November 5, 2007, is referred to as “Reply Br.”
114a
application for an adjustment of status. See Pet’r
Br. at 16-22; Reply Br. at 13-16. This was legal
error, as the Second Circuit has held that similar
distinctions between lawful permanent residents
(“LPRs”)—based on whether the LPR was inside
the United States challenging deportation as
opposed to outside the country challenging exclu-
sion—are arbitrary and without rational basis. See
Francis v. INS, 532 F.2d 268, 272-73 (2d Cir. 1976)
(equal protection requires that INA Section 212(c)
relief apply to LPRs in deportation as well as exclu-
sion proceedings); Blake v. Carbone, 489 F.3d 88,
103 (2d Cir. 2007) (Section 212(c) waiver must be
made available to an LPR whose crime renders her
deportable as long as the same crime would render
her excludable). Here, the panel did not address
Ms. Henry’s equal protection argument because it
treated the entirety of her petition as a challenge to
the IJ’s discretion. Henry, 2008 WL 376389, at *1.
But equal protection is a constitutional claim and a
question of law that the Court clearly has jurisdic-
tion to review under 8 U.S.C. § 1252(a)(2)(D). More-
over, the particular equal protection claim here is of
exceptional importance given the current lack of con-
sensus by those circuits that have previously consid-
ered the identical issue. Compare Yeung v. INS, 76
F.3d 337 (11th Cir. 1995) (holding that a deportable
alien who has not traveled abroad and who is ineligi-
ble to apply for adjustment of status is eligible for a
Section 212(h) waiver) with Malagon de Fuentes v.
Gonzales, 462 F.3d 498 (5th Cir. 2006) (limiting Sec-
tion 212(h) relief to those in exclusion proceedings or
those applying for adjustment of status does not
115a
violate equal protection); Klementanousky v. Gonza-
les, 501 F.3d 788 (7th Cir. 2007) (same).
Second, Ms. Henry argued that the IJ was required
to make a finding on the issue of extreme hardship
under Section 212(h) prior to deciding whether a
waiver was warranted as a matter of discretion.
See Pet’r Br. at 22-26; Reply Br. at 16-19. Address-
ing extreme hardship as a threshold issue is
required by the statute and due process because, if
extreme hardship is established, it is a favorable
factor to be considered by the IJ when exercising
his discretion. See In re Mendez Morales, 211. & N.
Dec. 296, 301 (BIA 1996). Like Ms. Henry’s equal
protection claim, the Court did not address this
issue of statutory construction and due process and
instead characterized the argument as a challenge
to the IJ’s discretion. See Pet’r Br. at 22-26; Reply
Br. at 16-19. But the unaddressed question is one
of constitutional and federal law—whether the IJ
must address the issue of extreme hardship before
applying his discretion under Section 212(h)—and
it is of exceptional importance because foregoing
the extreme hardship analysis contravenes Con-
gressional intent and constitutes a violation of due
process.
In short, Ms. Henry’s case presents two questions
of exceptional importance to the immigration laws
of the United States, which should be reconsidered
by the panel or, in the alternative, reheard by the
entire Court.
116a
ISSUES PRESENTED
1. Whether the Court erred in failing to address
and failing to hold that equal protection under the
Fifth Amendment to the U.S. Constitution requires
Ms. Henry to be eligible for relief under INA Sec-
tion 212(h) (8 U.S.C. § 1182(h)) without filing a con-
current application for adjustment of status.
2. Whether the Court erred in failing to address
and failing to hold that the IJ and the BIA committed
legal error and violated Ms. Henry’s procedural due
process rights under the Fifth Amendment to the
U.S. Constitution by not addressing “extreme hard-
ship” under INA Section 212(h) (8 U.S.C. § 1182(h)).
ARGUMENT
TI. MS. HENRY IS ELIGIBLE FOR A SECTION
212(H) WAIVER AS A MATTER OF EQUAL
PROTECTION
Under well-established precedents of this Court,
Ms. Henry must be statutorily eligible for a Section
212(h) waiver as a matter of equal protection.’
2 Pursuant to INA Section 212(h), the Attorney General
may, in his discretion, waive certain grounds of exclusion,
including convictions for crimes of moral turpitude, if: “In the
case of an immigrant who is the spouse, parent, son, or
daughter of a citizen of the United States or an alien lawful-
ly admitted for permanent residence ... it is established to
the satisfaction of the Attorney General that the alien’s
lexclusion] would result in extreme hardship to the United
States citizen or lawfully resident spouse, parent, son, or
daughter of such alien.” INA § 212(h)(1)(B); 8 U.S.C.
§ 1182(h)(1)(B).
117a
Nevertheless, the IJ held that Ms. Henry was inel-
igible for Section 212(h) relief because she had not
applied for a concurrent application for adjustment
of status. JA 000170 (IJ Dec. at 20) (citing Jn re
Bernabella, 13 I. & N. Dec. 42, 43-44 (BIA 1968)).
Ms. Henry, a citizen of Guyana and admitted into
the United States as an LPR in 1984, had applied
for a Section 212(h) waiver after she was placed in
removal proceedings following misdemeanor con-
victions for shoplifting. JA at 000151-53 (IJ Dec. at
1-3). Under the IJ’s interpretation of INA Section
212(h), had Ms. Henry left the United States after
the convictions that rendered her deportable and
later sought readmission, she would have been eli-
gible for Section 212(h) relief without an applica-
tion for adjustment of status. See In re Abosi, 24
I.& N. Dec. 204, 205 (BIA 2007) (holding that a
returning LPR seeking to overcome a ground of
inadmissibility is not required to apply for adjust-
ment of status in conjunction with a Section 212(h)
waiver). As a result, the sole basis for the finding
that Ms. Henry was ineligible for Section 212(h)
waiver was that she had not departed the United
States when she applied for this relief.
Ms. Henry argued on appeal that the IJ’s finding
that she was ineligible for Section 212(h) relief on
this basis was a violation of equal protection. See
3
The factual background and procedural history of Ms.
Henry’s application for a Section 212(h) waiver and her peti-
tion for review before the Court is set forth in full in her prin-
cipal brief on appeal. See Pet’r Br. at 5-14. In the interest of
avoiding unnecessary repetition, only the most pertinent
facts are recited here.
118a
Pet’r Br. at 16-22; Reply Br. at 13-16. Nevertheless,
the panel’s summary order failed to address the
argument, Henry, 2008 WL 376389, at **1-2,
notwithstanding that the Court plainly had juris-
diction to address Ms. Henry’s constitutional claim.
8 U.S.C. § 1252(a)(2)(D). And the issue is of particu-
lar significance because there is Second Circuit
authority that requires reversal of the IJ’s decision.
As this Court held in Francis, 532 F.2d at 272-73,
and recently reaffirmed in Blake, 489 F.3d at 100-01,
a distinction premised solely on whether an alien has
departed and returned to the country (the same dis-
tinction made by the IJ here) violates equal protec-
tion because it is without rational basis.* In Francis,
this Court examined INA Section 212(c), a statutory
provision that, like INA Section 212(h), was intended
to provide an opportunity for the Attorney General,
in his discretion, to waive certain grounds of exclud-
ability for aliens seeking entry into the United
States. See Francis, 532 F.2d at 272 (noting Con-
gress’s concern that “there be some degree of flexibil-
ity to permit worthy returning aliens to continue
their relationships with family members in the Unit-
ed States despite a ground for exclusion”). As with
Section 212(h), the INS had expanded the reach of
Section 212(c) to deportable aliens, based on its
4
Federal classifications of aliens are subject to a ration-
al basis standard of review. See Francis, 532 F.2d at 272. Pur-
suant to such scrutiny, “distinctions between different classes
of persons must. be reasonable, not arbitrary, and must rest
on some ground of difference having a fair and substantial
relation to the object of the legislation so that all persons sim-
ilarly circumstanced shall be treated alike.” /d.
119a
recognition “that these considerations apply with
equal force to an alien who has already reentered.”
Id. In Francis, this Court held that once the benefits
of this statute were expanded to deportable individu-
als, the government could not hinge eligibility on ran-
dom factual distinctions such as whether the alien
had traveled outside of the country. Id. at 273 (“Fun-
damental fairness dictates that permanent resident
aliens who are in like circumstances, but for irrele-
vant and fortuitous factors, be treated in a like man-
ner.”).
The Court recently reaffirmed the equal protection
principle embodied by Francis and Blake. 489 F.3d at
100 (holding that the BIA’s “comparable grounds” for
granting Section 212(c) relief to aliens in deportation
proceedings failed to comport with Francis). In that
case, the Second Circuit made clear that it was
“bound by Francis’s mandate to ensure that ‘perma-
nent residents who are in like circumstances, but for
irrelevant and fortuitous factors, be treated in a like
manner.” /d. at 104 (citation omitted).
The Court’s reasoning in the Section 212(c) cases
applies with equal force to the Section 212(h) context
here. Indeed, relying heavily on this Court’s decision
in Francis, the U.S. Court of Appeals for the Eleventh
Circuit squarely held that a distinction under Section
212(h) based on an alien’s decision to travel outside of
the United States violates equal protection. Yeung,
76 F.3d at 339-41. In that case, the Eleventh Circuit
found that a petitioner who had neither left the coun-
try nor applied for adjustment of status was eligible
for a Section 212(h) waiver. Jd. As Ms. Henry has
120a
argued on appeal, the Second Circuit should adopt
the same application of Francis here.®
Il. SECTION 212(H) AND DUE PROCESS
REQUIRE A FINDING WHETHER MS.
HENRY’S UNITED STATES CITIZEN CHIL-
DREN WOULD SUFFER EXTREME HARD-
SHIP IF MS. HENRY WERE DEPORTED
A. The Panel Failed To Address Whether The IJ
Was Required To Make A Finding On The
Issue Of “Extreme Hardship” Under Section
212(h) Before Weighing Discretionary Factors
In denying Ms. Henry’s petition for review, the
panel did not address whether principles of statutory
construction and due process require an IJ to address
the threshold issue of “extreme hardship” prior to
exercising his or her discretion to grant a waiver
under INA Section 212(h). See Petr Br. at 22-26;
Reply Br. at 16-19. Instead, in holding that it lacked
jurisdiction, the panel stated that “Henry does not
argue that the BIA erred by failing to determine her
statutory eligibility for Section 212(h) relief.” Henry,
2008 WL 376389, at *1. In fact, Ms. Henry does argue
that Section 212(h) and due process mandate that the
IJ address the statutory eligibility requirement of
° As discussed above, there is a Circuit split between the
Eleventh Circuit holding in Yeung and the Fifth and Seventh
Circuits. Cf. Malagon de Fuentes, 462 F.3d-at 504; Klemen-
tanousky, 501 F.3d at 794. For this reason, among others, it is
of exceptional importance that the Court rehear its decision
and hold that Francis requires that an LPR who has not left
the country is eligible for a Section 212(h) waiver without a
concurrent application for adjustment of status
12la
extreme hardship before turning to any discretionary
factors. See Pet’r Br. at 22-26; Reply Br. at 16-19.
It is of course true that a finding of extreme hard-
ship in the context of statutorily eligibility would be
one factor that would affect the balance of equities in
Ms. Henry’s favor. See In re Mendez-Moralez, 21
I. & N. Dec. at 301. Nevertheless, the issue whether
the LJ was required to address extreme hardship as a
threshold issue is distinct from a challenge to the IJ’s
actual balance of all discretionary factors. The former
issue is p
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