# Appendix — Henry v. Mukasey (No. 08-68) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1122%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2008 ## Text ™Y —~J 5 ri] FY : Cc w” ) FILED eee 08-69 JUL 10 2008 ~~ 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-- 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 plainly a question within the Court’s juris- diction, see 8. U.S.C. § 1252(a)(2)(D), and the panel should have addressed it. B. The IJ’s Dicta On Hardship In The Context Of Cancellation Of Removal Are Not Suffi- cient Under Section 212(h) While the IJ made no finding as to extreme hard- ship when addressing Ms. Henry’s application for a - Section 212(h) waiver, in the context of Ms. Henry’s application for cancellation of removal—which, notably, does not include extreme hardship as an ele- ment of statutory eligibility or as a discretionary fac- tor—the IJ merely observed that Ms. Henry’s five American citizen daughters would suffer “hardship,” as well as “severe” hardship, if she were removed. JA 000167 (IJ Dec. at 17); INA § 240A(a); 8. U.S.C. § 1229(a).© The panel relied upon these dicta, in the 6 Specifically, the IJ recognized that it was unlikely that one of Ms. Henry's daughter's would receive the same level of medical treatment in Guyana and further recognized that the opportunities for all of Ms. Henry's daughters would be far 122a context of the cancellation of removal application, to conclude that the IJ made a finding of extreme hard- ship before weighing the discretionary component of Ms. Henry’s application for Section 212(h) relief. Henry, 2008 WL 376389, at *1. However, the IJ’s dicta in the cancellation of removal context under INA Section 240A(a) were no substitute for address- ing extreme hardship under INA Section 212(h). As an initial matter, “severe” hardship is not even a standard contemplated by the provisions of the INA. See, e.g., INA § 212(h) (requiring a finding of “extreme” hardship); INA § 240A(b); 8 U.S.C. § 1229b(b) (referring to “exceptional and extremely unusual” hardship). That C ngress intentionally chose specific levels of hardship for particular forms of relief from removal therefore belies the panel's con- clusion that the IJ’s finding of hardship or “severe” hardship in the context of cancellation of removal was the equivalent of a finding of “extreme” hard- ship. See Hartford Underwriters Ins. Co. v. Union Planters Bank, 530 U.S. 1, 6 (2000) (“Congress ‘says in a statute what it means and means in a statute what it says there”). Indeed, the Supreme Court has affirmed that “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is gen- more limited than opportunities in the United States. /d.; see also JA 000283 at (Tr. at 105); JA at 000566 (Tr. at 387). Moreover, during the administrative proceedings, both the IJ and the Government admitted that if Ms. Henry’s daughters remained in the United States, the likely outcome would be that they would be separated in foster care. JA 000483 (Tr. at 305). 1440 The concern underlying the holding in Hagamaa had ie that an agency should not be required ta rule on extraneous queetions This seus ie not implioated here because not only ie addressing extreme hardehip necessary to determine whether Mae Henry ie eligible for Heetion 2120) relief but aleo a finding of extreme hardehip ie a fortior: a favorable factor in the Ide die cretionary analysis INA § 212th, # UO § Limon), In re Mendes Morales, 211 & Nh Dew at WO) In contrnet, the petitioner in Magamuahad comehed that the application would have heen denied even i the Id hed made a finding of etatu tory eligihility 4270 US at 26 Here, Me Henry argued, and continues to argue, that the LI's dew won on her HBeetion 214th) waiver might heave reathed « different result had the ld addressed the seeue Of extreme hardehip Pinally, te worth noting that because the ld'« dis cretwonary enalyem cannot be reviewed, Uf he ie able to forego Che etatutory eligtility analyeia under INA Nection 717). where « favorable finding will neces early unpect the discretionary analysis, the entire application ie rendered unreviewable even when the petitioners statutory and conatitational nghte may have been violated Nuch « result ie inconsie tent with the Courts juriediction under the INA and basic principles of due process Whether the lJ woula have ultimately come to the same conclusion after addressing extreme hard ship is epeculative at the etage See Hastanipour, GAO An. V Yd at 1190-91 Gremanding the BIA's denial of asy lum, notwitheteanding ite findings concerning the denial of an alternative application for Beetion YiZ() relief, because the balancing of factorea might incline differently had the BIA made explicit find inge on the etatutory asylum issues) Vor this rea eon, and for thoee etated above, the failure of the ld i» address extreme hardship with reapect to Me Henrys appleation for a Bection 2120h) waiver requires remand See Liv INS, 464 ¥ 4d 129, 141 (4d Cir 2008) (requiring remand to the BIA hecausee “we cannot etate with confidence that the HIA would reach the same reeult in the ahbeence of errire ) WALT CONCLUSION Vor the foregoing reasons, Me Henry reepectful ly requeete that the Court grant thie petition for panel rehearing and rehearing en bane, vacate the panel order in Henry vu. Mukasey, 2008 WL, A769K9, and remand the case to the BIA with inetructione to return the matter to the Ld for a new determina tion of Me Henry's application for a Heetion 212th) waiver Dated New York, New York March 27, 200% Heepectfully submitted Civpany GorTriien Sreen & Hamwivron LLP le/ LAN DSER OHANPIELD hy landewe Granfield A Member of tne Virm fine Liberty Place New York, New York 10006 (2127) 22% 2000 Attorneys for Petitioner Appellant Jenny Lee Henry Of Counsel Tanisha L. Massie Joseph Landau Rahul Mukhi ATT CERTIFICATE OF COMPLIANCE WITH RULES 42a), S60b)(%), and 400h) | This brief complies with Pederal Mule of Appellate Vrocedure 4$5(b)(7) and 40(b) because it does not exceed fifteen pages, excluding the parte of the brief exempted by bederal Mule of Appellate Procedure 420ay07 (ii) / This brief complies with the typeface requirements of Federal Mule of Appellate Procedure 47(4)(5) and the type style requirements of bederal Mule of Appellate Procedure i /(a) because thie brief has heen prepared in a propor hhonalily spaced typetace using Microsolt Word 7000 in 14 point Times New Homan font linted New York “New York March 27. ZOOn CLEARY GOTTLIER STREN & HAMILTON LLP My /a/ [ILI POTALEL (AYE) Hahul Mukhi fone Laberty Vlaza New York, New York 10006 lelephone (7127) 228-2000 Facaimile (212) 225-4999 Altorne ye for Petitioner Jenny Lee hhe nury 12a US. COURT OF APPEALS od ee eR i ate Bai ae x In THe Marien Ov Jenny Lik Henry, Vetitioner, Case No. 1706 Va. ALBERTO GONZALES, Hespondent. PV rPYYIgO ¥ Vebruary 1, 2008 APPEARANCES: MS. TANISHA Massie, Kaquink Mit. MITCHELL A. LAWENTHAL Kequine Ms. CLAIRE DE ST. VINCENT, Eaquink Ms ALIDA Y. LASKER, Esquine For the Petitioner Ms SARAH MALONE, FSquine For the KReapondent TRANSCRIBER: VICTORIA L. BICKFORD 1290 {Page 2] aD RE ¥, WITNESS DIRECT cChOSS npiInecT Choss D. J. EXHIBITS Vor in Petitioner Deseription LD. Ky [VPage 5] ISTAKT TAPE 1 SIDE Al THe Court. The next item on our calendar is Jenny Lee Henry veraue Alberto Gonzales, soon to be changed to Michael Mukasey. Thank you. Good morning. Ms. TANISHA MASSIE Good morning. May it please the Court, Tanisha Massie, Cleary Gottheb Steen & Hamilton, along with my colleagues, Mitchell Lowenthal, Claire de Saint Vin-, de Saint Vincent, and Alida Lasker. Good morning THe Court: Good morning Ms. TANISHA MASSIF: We're here today for two reasons The first is to ask that this Court find and remedy the constitutional! violations that occurred when Ms. Henry's Section 212(h) waiver was denied by the immigration judge and affirmed by the Board of Immigration Appeals. It is the law of this circuit that two similarly situated, lawful, per manent residents should not be treated differently for arbitrary reasons. Currently the law is that an—an—an-— permanent resident who has depart. 140a ed the--the country, but who has, uh, is allowed to apply for a 212(h) waiver without having to apply for adjustment of status. Ma. Henry, unfortunately, did not apply, uh, did not depart the [Page 4] United States, and as a consequence— THe Court. [Interposing| And you're familiar with our recent decision of Blake v. Carbon, which— Ms. TANISHA MASSIF: [Interposing| Yea. Yes THe Court uh, seemed to wipe out those dis tinctions. Yea, but deal with the issue of both the LJ and the BIA saying, even if we reach the 212th), this ie discretionary and we would not grant this relief to this petitioner. Ms. TANISHA MASSIF: Well, Your Honor, uh, as we've argued in our papers, it is insufficient that the-—the immigration judge simply said that he- he simply said that he would use the same ration. ale to deny, uh, the 212(h) waiver if Ms. Henry had been found to be eligible. The same rationale that he used to deny cancellation of removal. Those are two completely different waivers, and— THE COURT: [Interposing| But tell me how the, uh, criteria are different. Ian't it still a balancing of, uh, benefits and harms? Ms. TANISHA MASSIE: Ultimately it is still a bal- ancing. However, when we're dealing with a 212(h) waiver, one of the statutory eligibility require- ments is that there's extreme hardship, and {Page 5] that extreme hardship then becomes one of the fac- tors that— l3la THE Court: [Interposing] But they found that there was hardship, as there is in every case when a mother with, uk, American citizen children is removed, Uh, the—they admitted that there was hardship, but both of the decision makers found that, um, that was balanced by, um, her criminal record, Ms. TANISHA MASSIE: Yes, Your Honor, but there are different types of hardship, there are different levels of hardship,and there are different levels of hardship with THE Court: [Interposing] Ian't that a matter of viewer discretion? Aren't you really arguing they didn't count it enough, and isn't that one of the issues on which we do not have jurisdiction? Ms. TANISHA MAsSsIE: No, Your Honor. II don't tuink it's simply a matter of not counting it enough. Again, there was some level of THE Court: [Interposing| Well, you said there are different levels Ms. TANISHA MASSIE: hardship that was found, but there—we don’t know exactly what that is. There are two— THE Court: [Interposing] Uh, is-—-is—-do we [Page 6] even have the right to ask? MS. TANISHA MASSIE: Yes, we do have the right to ask that question. | think specifically because extreme hardship is a specific term under the immigration laws, as is exceptual—exceptional and extremely unusuai hardship. The judge—the immi- gration judge did not make a determination of whether or not there was extreme hardship, and 132a the fact that he then said that instead of going through this analysis he had instead substituted his analysis for cancellation of removal. That is a question of law that is reviewable by this court. THE CouRT: That’s the wrong standard. You’re saying he used the wrong standard. Ms. TANISHA MASSIE: Not only did he use the wrong standard, but it was—it—he failed to apply the law. He failed to make a finding that he was supposed to make— THE Court: [Interposing] Well, aren’t you really just saying that what you want him to—what he should have done, he had to articulate the words, uh, I find no extreme hardship, or I find extreme hardship, but nevertheless in the exercise of my discretion I don’t find this an appropriate case? Uh, he didn’t articulate those express words, but w—, [Page 7] what—can you point us to a case or a regulation, something that says he has to articulate those words on the record? Because the record has a lot of evidence that he, uh, that he considered the question of hardship. He says I’ve reviewed the record as a whole, including the social and humane considerations involved. There is evidence of hard- ship, uh, to this family if removal occur—uh, occurs, there is strong evidence that the respon- dent and her family, including her five minor U.S. citizen ch—, children would suffer a hardship, and he goes on to list specific factors. So where d-, where is he required to articulate the precise words, extreme hardship in a finding that other- 133a wise seems to be about hardship and a balancing of the equities? MS. TANISHA MASSIE: Well, I think that if—if—if only the immigration laws that were not important to articulate whether or not a certain level of hard- ship would—needed to be reached, then I—I, uh, then there would not be different—of hardship under the immigration laws. It’s there for a reason. There are different levels of hardship. The judge used the term severe hardship in his decision, but quite frankly that’s not one of the [Page 8] levels of hardship that we’re dealing with. Particu- larly about with 212—the Section 212(h)—. The— the statutory—the statute requires, um, that— show that there has been extreme hardship. We don’t know whether or not Ms. Henry had been sh-, had shown extreme hardship. If she had shown extreme hardship, then by definition the judge would have used extreme hardship as one of the factors that he, uh, in his balancing of—of—and determination of whether or not Ms. Henry merit- ed, uh, a Section 212(c) dec—, excuse me, 212(h) waiver. THE Court: Um, well, the case, uh, that you cite to, uh, on this point is a case where, um, I think it’s Bostanopor [phonetic]— Ms. TANISHA MASSIE: [Interposing] Yes. THE COURT: where, um, the BIA mentioned nothing, right? Um, here, uh, I think both the IJ and the BIA were aware of the fact that this woman had five children, the oldest being 13 or 14, a dependent mother, had not been in Guyana for 134a many years. They were aware of that. That’s what we look to. So if you’re telling us we have discretion to compu—, compare severe hardship to extreme hardship, I—I—I think that we’re in an area that is purely discretionary. [Page 9] Ms. TANISHA MASSIE: Your Honor, I think, um, uh, the—your bringing up Bostanopor in Seventh Circuit I think is instructive here, because there, Judge Posner cautioned against, uh, the Court try- ing to fill the gap that was left by the immigration judge. In that case the, uh, the immigration judge denied, uh, asylum for the same reasons—on the same discretionary grounds that he had—he was to deny Section 212(c) relief. THE COURT: But that’s a different standard, and there they said the Board gave no reasons for its discretionary determination. We don’t say—you don’t say that here, do you? Ms. TANISHA MASSIE: I wouldn’t say that they— I didn’t think they’re—that a re—, that the—a reex- amination of the reasons needs to occur. I'm not saying, um, that there were no reasons given, Your Honor. However, if, uh,—Bostanopor, where the Court said you cannot simply take the factors that you use for any other form of relief and apply them in denying, uh, the, uh, another form of relief on discretionary grounds, that that was inappropri- ate. And that’s the same thing that happened here. Cancellation of removal, the factors are different under cancellation of removal than 135a [Page 10] they are under 212(h). There’s no requirement under cancellation of removal to look at hardship. However, when we look at the statutory grounds for granting 212(h) relief, there is a requirement of a finding of extreme hardship, and frankly we just don’t know how it would have changed if the judge had waived the determination and gone through the analysis of whether or not there was extreme hardship. THE CouRT: Thank you. You’ve reserved two minutes for rebuttal. We'll hear— Ms. TANISHA MASSIE: [Interposing] Yes, Your Honor. THE COURT: —from the government. Ms. SARAH MALONE: Will it please the Court, Sarah Malone for the respondent. Ms. Henry’s failed to raise a~—a question of law or a constitu- tional claim with regard to the agency’s dispositive, uh, discretionary denials of relief from removal. Uh, instead she mischaracterizes the agency's deci- sion, she identifies an, uh, legal standards, and she intends to dispute the agency’s weighing of the evi- dence. Um, it—none of these—none of those issues | are reviewable. Uh, the agency here, in accordance with its—of decisions, properly balanced the evi- dence of positive and adverse [Page 11] factors in determining that Ms. Henry didn’t prove, uh, that a favorable exercise of discretion on her avocations for relief from removal, uh, would be in the best interests of this country. Um, in the con- text of the, uh, the extreme hardship discussion, — yume wel 2s 136a uh, that the Court just had, the—the immigration judge did in fact, uh, identify the—the—the correct rule of law under, uh,—Morales and Cervantes, and weighing all of the relevant factors as to hard- ship, all of the evidence that went to—to—to a showing of hardship, and the Board independently reviewed, uh, the extreme hardship argument that Ms. Henry raises to this Court, and determined that any hardship Ms., uh, Henry showed was not outweighed by the adverse factors in her case. THE COURT: Counsel, what do you take to mean the fact that in 212(h), um, extreme hardship is picked out and, um, noted separately? Does that require a different analysis? Ms. SARAH MALONE: There, uh, it—it—it is a statutory element for 212(h), uh, uh, and the, uh, matter of Cervantes is the Board’s decision that— that identifies which factors go into determining, uh, extreme hardship, um, and the immigration judge in this case identified those factors, um, and then [Page 12] he also, in weighing of this evidence, went through—went through them on page 167 of the, uh, joint appendix. Um, so ul-, ultimately here, uh, uh, what Ms. Henry’s trying to do is to rehash—use of discretion argument, um, as a con- stitutional claim or, uh, a question of law, and, uh, it is neither and, uh, this Court, uh, it—it’s unre- viewable per—per her claim. THE COURT: So you can’t even get to 212(h) with- out having extreme hardship, but if you have it, that doesn’t guarantee— 137a MSs. SARAH MALONE: [Interposing] Precisely. THE COURT: —a favorable exercise of discretion. MS. SARAH MALONE: Yes, the— THE Court: [Interposing] I> that your argument? Ms. SARAH MALONE: Well, in fact that’s what the Board says in Mendes Morales, that even—even, uh, upon showing of extreme hardship, uh, the— the alien must still show that, uh, a favorable exer- cise of administrative grace here, uh, is in the best interest of this country. THE COURT: So—so you need it to even get the 212(h) consideration that is—that’s what you have [Page 13] to prove. But having proved that, that’s not the end of the issue. Ms. SARAH MALONE: No, it isn’t. There’s a sepa- rate, uh, and distinct discretionary, uh, component, and,. uh, as—as the Board described, a matter of, uh, Mendes Morales and, uh, the—those, uh, dis- cretionary factors are—are identified in the matter of—for instance, and the matter of Cervantes. And if the agency would prove that that whole, uh, weighing of the favorable, uh, evidence and the adverse evidence, uh, in order to—in—in de—, in— in exercising this discretion here. THE COURT: Deal with, um, the petitioner’s argu- ment that, um, the—the different tests for cancel- lation and removal were conflated and said I’m applying my previous analysis and -and and again finding against the petitioner. MS. SARAH MALONE: Well, in fact the same fac- tors that were used for the matter of Marin, uh, analysis—originated under the 212(c) waiver, uh, 138a has been incorporated in Board case law to apply those to, uh, 212(h) waivers and 240(a), uh, cancel- lation of removal, which both are which at issue here. THE CouRT: So they’re comparable, but they [Page 14] don’t have identical statutory language. Ms. SARAH MALONE: No, the statute of language is different, yes. THE COURT: Um, so if the statutory language is different, haven’t they given rise over time to dif- ferent analysis? Ms. SARAH MALONE: Yeah, there’s a—the—the— both of the statutes state that—that—that the alien must meet certain, uh, statutory criteria, and then the agency may, uh, may consider, um, to grant—whether to grant the, uh, the—the waiver, cancellation of removal, in its exercises of discre- tion, and the agency has determined the factors that it will consider, uh, uh, when—when exercis- ing its discretion. THE CourRT: So though it has different statutory language, it still comes down to discretion reposed in the agency, and if it’s discretion, we are without jurisdiction to review how the agency exercised that discretion. We are not, however without juris- diction if the agency used the wrong standard or imported improperly one analysis from one statute to another statute. I believe that’s the argument that the petitioner makes. [Page 15] Ms. SARAH MALONE: She—she is attempting to— to make a, uh, a legal, uh, and—and erroneous 139a legal stand of arguing. She claims it’s a question of law. Here, however, the agency didn’t—did not apply the erroneous—an erroneous legal standard. Uh, the immigration judge, uh, considered all the evidence of hardship, and weighed it against the adverse factors. The petitioner, uh, here raised this issue to the Board of Immigration Appeals, which independently re—, reviewed the record and the evidence, then—the immigration judge’s finding, and proceed to supplement the decision by saying any hardship—any hardship this petitioner has shown does not outweigh the—the—the cumulative adverse factors in, uh, in—in this record. THE COURT: Is any hardship enough to meet the extreme hardship, uh, statutory language— Ms. SARAH MALONE: Well, here— THE COURT: —by saying any hardship— Ms. SARAH MALONE: here the agency found that—that all of the—all of the—all of the, uh, the evidence of p-—, of, uh, of hardship, uh, the—emo- tional hardship, the financial hardship, um, uh, uh— THE CouRT: [Interposing] The children. [Page 16] Ms. SARAH MALONE: To the children, yes. Yes. Um, uh, did not outweigh the negative factors, and that is precisely within the agency’s discretion to determine, and, uh, she hasn’t shown that—that— that her claim that the agency didn’t formally use the term extreme hardship in this case rises to the level of the constitutional claim of—law. MALE VOICE 1: So is your—is your point that by using the phrase any hardship, the, uh, the Board 140a was saying, whatever hardship, no matter how extreme— Ms. SARAH MALONE: [Interposing] Yes, it-- MALE VOICE 1: —would not be sufficient? Ms. SARAH MALONE: Yes. Um, I—I—I just also want to point that she—she—she quibbles or—or complains that the agency—pending charges, um, when—um, proves this Court in Wallace, uh, stat- ed that the agency’s factors in the matter of Marin, uh, that the agency can look to the presence of other evidence indicative of an alien’s character, and their desirability as a permanent resident in— in this country, that upheld it, and—and Wallace said that the agency may consider charges leading to a conviction, or no legal judgment whatsoever when determine—when exercising its discretion. Um, and [Page 17] as to her claims that the agency relied us, uh, Ms. Henry’s failure to—to acknowledge her culpa- bility as to the pending charges, the agency didn’t. The, uh, the record makes clear that the agency relied on her lack of candor and failure to acknowl- edge her guilt as to, uh, her criminal conduct for which she was convicted in the past, and under the matter of—and even the Ninth Circuit case she cites to, uh, Nguyen [phonetic], the age—, it is— that it is permissible for the agency to consider that. Um, because—because the—the agency’s dis- positive decision had—has gone unchallenged in this Court, um, there is no need to reach the— challenge. Um, in the event the Court finds for some reason the agency made an error in—deter- 1l4la minations, uh, the, uh, the alien’s, uh, statutory rights—for 212(h) should be remanded also to the Board for the Board to decide in the first instance, under Ventura, um, because—because it didn’t decide it in this case. Um, unless there are any further questions. THE CourT: Thank you, counsel. Ms. Massie, you reserve two minutes for rebuttal. MS. TANISHA MASSIE: Thank you, Your Honor. All immigration—almost—nearly ever single form of relief under immigration law has a discretionary [Page 18] component. But that doesn’t mean that you can simply substitute one, uh, uh, an analysis for one form of relief for an analysis for the other, and that’s what happened here. The immigration judge simply decided that he would not analyze the 212(h) factors. Uh, he found Ms. Henry was ineligi- ble, and simply decided that he was not going to undergo the analysis that—under the statute. THE CouRT: Aren’t they essentially the same? Aren’t they—don’t they come down, finally, to the exercise of discretion in balancing the positive and adverse factors” MS. TANISHA MASSIE: Your Honor, ultimately it is a balancing test. However, there is a balancing t-., balancing test, for example, that happened in— that happens, uh, in a—case, for the Bostanopor case, um, for example. The—in a—deciding whether or not to grant asylum the Court balances any adverse factors, um, versus, uh, a person’s fear of persecution. Um, here, uh, that’s the—it—it’s, uh, equivalent in the 212(h) determination. if you 142a are eligible for 212(h), then by definition there is extreme hardship, and then the balancing begins. It can be m-, uh, one of several factors that are used, but it’s cr—, there’s a critical difference here. [Page 19] There’s a—there’s a critical difference. Uh, the language is in the statute, the extreme hardship requirement is in the statute. Um, it is not in the cancellation, it is not a requirement of cancella- tion, and frankly I just don’t—we just don’t know what the immigration judge would have done if he had undertaken the analysis for extreme hard- ship. Uh— THE CourRT: [Interposing] But he does tell. Um, aren’t you heard in this case, in the opinion, the— the immigration judge does cite the legal stan- dard, so we know, a couple of pages before he makes his ultimate finding, that he is ex-, he is aware that extreme hardship is the standard for the waiver, and your argument, skillfully made, uh, ends up being particular words must be said at the end of the—at the end of the opinion, or there’s a fundamental flaw, even if the entire analysis appears correct, and we've shied away from saying, uh, ritualistic words must be, uh, used as immigration judges pronounce decisions. Ms. TANISHA MASSIE: Uh, I would just like to say, Your Honor,—that we do not believe that it is ritu- alistic or that it—there is a semantic difference. There is a real difference in [Page 20] immigration law between extreme hardship, ex-, exceptional and extremely unusual, uh, hardship, 143a and, uh, because the immigration judge did not undergo the proper analysis, Ms. Henry suffered equal protection, uh, violations and due process violations, and, um, we ask that her case be ran-., remanded for this reason, and also for, um, the reasons that we stated in our papers about the errors of law that occurred under her cancellation of removal application. Thank you. THE CourT: Thank you, counsel. Thank you both. Um, the last case is on submission, so I'll ask the clerk to adjourn Court. THE CLERK: The Court stands adjourned. [END TAPE 1 SIDE A] CERTIFICATE I, Victoria Bickford, certify that the foregoing transcript is a true record of said proceedings, that I am not connected by blood or marriage with any of the parties herein nor interested directly or indi- rectly in the matter in controversy, nor am I in the employ of the counsel. Signature Victoria L. Bickford Date March 26, 2008 144a 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, Shelly Williams, a.k.a. Williams, Petitioner-Appellant, We ALBERTO R. GONZALES, Attorney General of The United States, Respondent-Appellee. ON APPEAL FROM THE BOARD OF IMMIGRATION APPEALS BRIEF OF PETITIONER-APPELLANT JENNY LEE HENRY 145a 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 Massie 146a TABLE OF CONTENTS Page TABLE OF AU TRIORE EERO ve cccccccsccesouseces li PRELIMINARY STATEMENT ................. 1 JURISDICTIONAL STATEMENT........ sate 3 REQUEST FOR ORAL ARGUMENT ...... ia 4 ISSUES PRESENTED ............... Pan ere pe 4 STATEMENT OF THE CASE AND STATEMENT OF THE FACTS ........... 5 SUMMARY OF ARGUMENT................... 14 STANDARD OF REVIEW «......cccccceccceccees 15 PAE SGN a aN acy op pecien en eNngead hinds se cees 16 I. THE BIA ERRED IN DENYING MS. HENRY’S APPLICATION FOR WAIVER OF INADMISSIBILITY PURSUANT TO INA § 212(h)............. 16 A. The BIA Improperly Denied Ms. Henry’s Equal Protection Right to Direct Eligibility for Section 212(h) EON 5 ieutaie hi ek He eee oe 17 B. The BIA Erred In Not Making A Formal Finding With Respect To The Extreme Hardship Faced By Ms. Henry’s U.S. Citizen Children And Relying Solely On The IJ’s Grounds For Denying Cancellation Con SO ou oo ennk cee peee wena 22 . ~~ oa 147a ll. THE IJ AND THE BIA ERRED AS A MATTER OF LAW AND VIOLATED Ms. HENRY’S CONSTITUTIONAL DUE PROCESS RIGHTS IN DENYING HER APPLICATION FOR CANCELLATION OF REMOVAL BASED ON CONSTITU- TIONALLY IMPROPER GROUNDBG..... 26 EG Gu de seks ob dbs basses havtabostvias 32 TABLE OF AUTHORITIES Statutes Page(s) Mrs Wh RR CPIPC RCE: ces cccccacsecccccessseves 18 ee RIND ca ccvesccsccvccsccsccvecveseces 27 PR Se 6 3 |) 3, 15 ee 4 I OD vocccissussesvesveccesvesecusboues 4 Cases Bastanipour v. INS, Bee £20 1129 (7th Cir. 1992) .............. 25 Beharry v. Reno, 183 F.Supp.2d 584 (E.D.N.Y. 2002) reu'd on other grounds Beharry uv. Ashcroft, 329 F.3d 51 (2d Cir. 2003)...... 24 Blake v. Carbone, ee ae ee Cae GAP. BOOT)... ccc ccccsccscees 16, 19 148a Blakely v. Washington, ee ns. cc ccnecndvenseccserse 28 Bowen v. Am. Hosp. Ass’n., 476 U.S. 610, 626-27 (1986)................. 23 Brown v. Ashcroft, 360 F.3d 346 (2d Cir. 2004)................. 28 Burrafato v. U.S. Dep’t of State, 625 F.20 O56 (246 Cir. 19786) .....cccscecsvess 17 Diallo v. INS, Boe Bie Bre CAG CAP. DOGO)... ccc ccccccese 15 Francis v. INS, 532 F.20 266 (Za Cir. 1976)... ...ccsccceess passim Guillen-Garcia v. INS, 999 F.2d 199 (7th Cir. 1993)................ 31 Henry v. Ashcroft, 175 F.Supp.2d 688 (S.D.N.Y. 2001) ....... 8 In re Abosu, 241. & N. Dec. 204 (BIA 2007)............. 16, 21 In re Bernabella, 13 1. & N. Dec. 42 (BIA 1968) .............. 18 In re Catalina Arreguin de Rodriguez, 211.&N. Dec. 38 (BIA 19905) .............. 30 In re C-V-T, 32 1. & N. Dec. 7 GBIA 1998).............6:- 27 In re Lok, 18 1. & N. Dec. 101 (BIA 1991) aff'd, Lok v. INS, 681 F.2d 107 EE WN, IE ais dowel uctbedesseusktenveasreds 21 149a Page(s) In re Marin, -~ 16 1. & N. Dec. 581 (BIA 1978)...........-. 23 In re Mendez-Moralez, 211. & N. Dec. 296 (BIA 1996)............. 22 In re Parodi, 171. & N. Dec. 608 (BIA 1980)............. 18, 21 In re Sanchez, 171. & N. Dec. 218 (BIA 1980)............. 18 INS v. Bagamasbad, SO ic ccccsceeecepevceervstees 22 Khan v. Gonzales, ___ F.3d __, Docket No-4905-AG, 2007 WL 2127712 (BIA July 26, 2007)... 3, 27 Lin v. U.S. Dep't of Justice, 459 F.3d 265 (2d Cir. 2006)................. 29 Montero v. INS, 124 F.3G S61 (2a Cir. 1997).......ccccccssee By OO Moore v. City of East Cleveland, 8. ere 24 Paredes-Urrestarazu v. INS, 36 F.3d 801 (9th Cir. 1994) ................. 30 Qiu v. Ashcroft, gee F.ae 140 Ga Cir. BOGS) .......cccscccces 15 Yeung v. INS, 16 F.3d 337 (llth Cir. 1995)................ 20 Yick Wo v. Hopkins, 3) BIR Re fst: ern eeeeee l ~] PRELIMINARY STATEMENT Petitioner Jenny Lee Henry respectfully seeks reversal of the April 26, 2007 order of the Board of Immigration Appeals (the “BIA”) dismissing Ms. Henry’s appeal of the Immigration Judge’s (“IJ”) denial of Ms. Henry’s applications for cancellation of removal under Section 240A of the Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1229b (“Section 240A”), and a waiver of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h). Ms. Henry is 39 years old and has lived in the United States since she entered as a lawful perma- nent resident (“LPR”) in 1984. She is a citizen of Guyana. Ms. Henry is the mother of five U.S. citi- zen children, all of whom are minors. Since her entry to the United States, Ms. Henry has never returned to her native country or otherwise left the United States. Besides an aunt with whom Ms. Henry has sporadic contact, Ms. Henry has no ties to Guyana. On June 12, 2000, Ms. Henry was served with a Notice to Appear, charging her with deportability pursuant to INA § 237(a)(2)(A), as an admitted alien convicted of two or more crimes involving moral turpitude not arising out of a single scheme of misconduct. On remand from the United States Court for the Southern District of New York, Ms. Henry—who had conceded removability— applied for cancellation of removal under INA § 240A. Ms. Henry also applied for waiver of inad- missibility under INA § 212(h) on grounds of extreme hardship to her family. In a Decision and 15la Order dated December 9, 2005 (“IJ Dec.”), the IJ denied both of Ms. Henry’s applications. With respect to Ms. Henry’s cancellation of removal application the IJ—contrary to controlling law and Ms. Henry’s Fifth Amendment right to due process—improperly considered the existence of certain arrests and unproven charges that were still pending when the IJ ordered Ms. Henry’s pro- ceedings closed to further evidence. The IJ also committed legal error by improperly considering the fact that Ms. Henry insisted that she was inno- cent of certain conduct for which she was arrested and/or convicted. With respect to Ms. Henry’s application for a Sec- tion 212(h) waiver, the IJ ruled that as an LPR in removal proceedings, Ms. Henry was ineligible for Section 212(h) relief without a concurrent applica- tion for adjustment of status. Had Ms. Henry been in exclusion proceedings or had she left the country and returned subsequent to a conviction upon which her removability was based, Ms. Henry would have been able to apply directly for Section 212(h) relief without a concurrent application for adjustment of status. There is no rational basis for requiring Ms. Henry to make further applications solely because she has never left the country. The IJ further ruled that even if Ms. Henry were eligi- ble for Section 212(h) relief, he would deny her appli- cation based on his determination in Ms. Henry’s separate application for cancellation of removal. Those grounds were flawed as a matter of law. Moreover, before moving on to those grounds, the IJ failed to make formal finding as to the extreme 152a hardship Ms. Henry’s children would face if Ms. Henry were removed, thereby effectively ignor- ing a relevant factor. Ms. Henry administratively appealed the IJ’s deci- sion. With the exception of Ms. Henry’s constitution- al arguments concerning her direct eligibility for Section 212(h) relief, which it did not reach, the BIA affirmed the IJ’s rulings and dismissed Ms. Henry’s appeal. Ms. Henry now seeks reversal of the BIA’s order dismissing her appeal. JURISDICTIONAL STATEMENT This Court has jurisdiction to review a final order of deportation pursuant to 8 U.S.C. § 1252(a)(1). Furthermore, under 8U.S.C. § 1252(a)(2)(D), Ms. Henry is entitled to a “review of constitutional claims or questions of law raised upon [her] peti- tion for review.” 8 U.S.C. § 1252(a)(2)(D). This Court has recently held that for purposes of jurisdiction under 8 U.S.C. § 1252(a)(2)(D), a “question of law” includes a claim that the BIA “applied an erro- neous legal standard in making a discretionary determination,” as well as claim that “the IJ based his decision on an unambiguous misstatement of pertinent facts in the record.” Khan v. Gonzales, _. ~*#F.3d= = ___, Docket No-4905-AG, 2007 WL 2127712, at *3 (BIA July 26, 2007). Ms. Henry timely filed her petition for review on May 3, 2007. Venue is proper because the adminis- trative.procecedings were completed in this Circuit. 8 U.S.C. § 1252(b)(2); JA at 000151 (IJ Dec.). Ms. Henry has exhausted the administrative reme- 153a dies available to her as of right, and the validity of the BIA’s order of deportation has not been consid- ered in any prior judicial proceeding. 8 U.S.C. § 1252(d). REQUEST FOR ORAL ARGUMENT Pursuant to Local Rule 32, Ms. Henry respectfully requests oral argument. The issues presented for review raise significant constitutional and statuto- ry interpretation questions. Because of the impor- tance and complexity of the issues presented, Ms. Henry respectfully submits that oral argument would help explicate the arguments for the Court. ISSUES PRESENTED 1. Whether the BIA erred‘as a matter of law, and violated Ms. Henry’s right to equal protection under the Fifth Amendment to the U.S. Constitu- tion, by leaving intact the IJ’s holding that. Ms. Henry is ineligible for relief under INA § 212(h) (8 U.S.C. § 1182(h)). 2. Whether the BIA erred as a matter of law, and violated Ms. Henry’s procedural due process rights under the Fifth Amendment to the U.S. Constitu- tion, in affirming the IJ’s denial of cancellation of removal under INA § 240A(a) (8 U.S.C. § 1229b(a)) where the IJ relied on certain impermissible adverse factors to negate a finding of rehabilitation and min- imize Ms. Henry’s showing of hardship. 154a STATEMENT OF THE CASE AND STATEMENT OF THE FACTS Jenny Lee Henry emigrated from Guyana in 1984 and was admitted into the United States as a law- ful permanent resident (“LPR”). JA at 001221 (Application for Cancellation of Removal); JA at 000281 (Tr. at 103). Since Ms. Henry moved to the U.S. twenty-two years ago, she has never been back to Guyana. JA at 000270 (Tr. at 92). Except for one aunt who remains in Guyana, with whom Ms. Henry speaks only sporadically, Ms. Henry no longer has any ties to that country. JA at 000266-268 (Tr. at 88-90). All of her immediate family, including her parents and siblings, are either LPRs or U.S. citi- zens and are currently living in the U.S. JA at 000259-261 (Tr. at 81-83). In particular, Ms. Henry’s mother is a naturalized citizen. JA at 000259 (Tr. at 81). Ms. Henry’s father was admitted to the United States as an LPR on August 28, 2005. JA at 000865 (Copy of Passport Pages of Clarence Arthur Boston). Ms. Henry is the mother and was the sole care- taker of five minor daughters, all of whom are U.S. citizens: Shanequia Shantha Henry (16 years old), Oneika Shamari Henry, (15 years old), Tameika Aneish= Henry (11 years old), Alizah Zaneshia Henry, (9 years old) and Asha Vanesha Henry, (8 years old). JA at 000285 (Tr. at 107 (noting that Ms. Henry is [the] only adult in [the] household)): JA 001221 (Application for Cancellation of Removal); JA at 00103-1107 (Birth Certificates for Ms. Henry’s Children). Ms. Henry’s children are all 155a minors and have lived their entire lives in the U.S. JA at 000301 (Tr. at 123). None of Ms. Henry’s chil- dren has ever traveled to Guyana. ’d. As a result of the undue influence of certain acquaintances, the poverty Ms. Henry faced in the United States and poor judgment, Ms. Henry engaged in some shoplifting incidents in an effort to make ends meet. JA at 000307 (Tr. at 129); JA at 000316 (Tr. at 138 (discussing acquaintances). Ms. Henry’s problem with shoplifting led to a num- ber of convictions, none of which rendered her inel- igible for relief from removal. See JA at 1169 (List of Arrests and Convictions filed with Application for Cancellation of Removal); JA at 1229 (Arrest Report). On May 24, 2000 the INS issued a Warrant for Arrest of Alien (Form I-200) for Ms. Henry. JA at 001446-1447 (Warrant for Arrest). On June 12, 2000, Ms. Henry was served with a Notice to Appear while in custody, charging her with deporta- bility pursuant to INA § Section 237(a)(2)(A)(ii), as an admitted alien convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. JA at 001443-1444 (Notice to Appear). The Notice to Appear cited two convic- tions for petit larceny stemming from Ms. Henry’s shoplifting, which were entered on January 10, 2000 and March 14, 2000. Id. An additional convic- tion for petit larceny, also for shoplifting, dated October 5, 1987 was subsequently added as a basis for deportability. JA at 001448 (Form I[-261). Beginning June 13, 2000, Ms. Henry was detained 156a in the Avoyelles Women’s Correctional Facility in Cottonport, Louisiana. JA at 000152 (IJ Dec. at 2). On June 13, 2000, Ms. Henry appeared before the Immigration Court in Oakdale, Louisiana where she conceded removability and submitted an appli- cation for cancellation of removal. Id. The Oakdale Court denied her application for cancellation of removal on December 12, 2000, on the basis that her application was time-barred, and ordered Ms. Henry removed to Guyana. Id. Ms. Henry appealed that decision to the BIA. Id. On March 23, 2001, the BIA affirmed, without opin- ion, the decision of the Oakdale IJ. Jd. Ms. Henry, through counsel, submitted a motion to reconsider, arguing that the “stop-time” rule in INA § 240(A)(a), enacted in 1996, could not be applied to Ms. Henry’s 1987 conviction without violating the ex post facto clause of Art. I of the U.S. Constitu- tion. Id. On May 15, 2001, the BIA denied Ms. Henry’s motion to reconsider. JA at 000153 (IJ Dec. at 3). Ms. Henry thereafter sought of writ of habeas corpus pursuant to 28 U.S.C. § 2241 before the Unit- ed States District Court for the Southern District of New York, seeking an order (i) vacating her order of removal and (ii) declaring her eligible to apply for cancellation of removal pursuant to INA § 240(A)(a) and a waiver of inadmissibility under INA § 212(h). Id. While her petition was pending, Ms. Henry was granted supervised release in June 2001 and she returned to New York City. JA at 000152 (iJ Dec. at 2). On November 30, 2001, the S.D.N.Y. granted Ms. Henry’s petition, holding that the provisions of 157a INA § 240(A)(a) enacted in 1996 which limit an applicant’s ability to seek relief from an order of removal could not be applied retroactively. JA at 000153 (IJ Dec. at 3). The S.D.N.Y. remanded the case to the BIA and directed the INS to permit Ms. Henry to file applications for cancellation of removal pursuant to INA § 240(A)(a) and a waiver of inadmissibility pursuant to INA § 212(h). Henry v. Ashcroft, 175 F. Supp. 2d 688 (S.D.N.Y. 2001); JA at 000158 (IJ Dec. at 3). In a per curiam order dated June 10, 2002, the BIA vacated its decisions from March 23, 2001 and May 15, 2001. JA at 000153 (IJ Dec. at 3). The BIA remanded the case to the Immigration Court for further proceedings consistent with the S.D.N.Y.’s decision and order. Jd. After Ms. Henry was grant- ed a Motion to Change Venue on August 13, 2002, hearings at the Immigration Court of New York, New York commenced on January 29, 2003 before Immigration Judge Alan P. Page. Id. At the remanded proceedings, Ms. Henry present- ed evidence that she was effectively the sole finan- cial supporter for her five children and was deeply involved in their care and welfare. JA at 000295-298 (Tr. at 117-120); JA at 000952-956 (Letter of Support from Henry Children); JA at 000957 (Letter of Sup- port from Lucille Charles). The father of Ms. Henry’s three youngest children was serving a prison sen- tence following a drug conviction and had provided any support to Ms. Henry and her children since he was arrested in March 2003. JA at 000409-410 (Tr. at 231-232). The father of Ms. Henry’s two oldest children had provided only limited support of $150 158a every two weeks since June 2001. JA at 000411-413 (Tr. at 233-235). Ms. Henry also presented evidence that her care and continued presence was instrumental to the health of her children. JA at 000564 (Tr. at 385) (tes- timony of Denise Adler noting that while Ms. Henry was in INS custody her daughters had health prob- lems, including contracting ringworm and that such problems have not occurred since Ms. Henry has been released from custody). This is critical for Ms. Henry’s second-oldest daughter, Oneika, who has suffered from eczema since birth and receives Supplemental Social Security Income to pay for treatment of her condition. JA at 000252, 000257 (Tr. at 74, 79); JA 001144-1146 (Proof of Bank Account for Oneika Henry). Ms. Henry further made a showing of extreme hardship to her family—par- ticularly her U.S. citizen children—if she were removed. Indeed, wile the IJ did not make a formal finding of whether Ms. Henry met the extreme hard- ship standard under Section 212(h), the IJ held that Ms. Henry’s removal would lead to “severe emotion- al and economical hardship” for her children. JA at 000167 (IJ Dec. at 17). Specifically, the lJ recognized that it was unlikely that Oneika would receive the same level of medical treatment in Guyana and fur- ther recognized that the opportunities for all of Ms. Henry’s daughters would be far more limited than opportunities in the United States. Id.; see also, JA 000283 at (Tr. at 105); JA at 000566 (Tr. at 387). Moreover, during the administrative proceedings, both the IJ and the Government admitted that if Ms. Henry's daughters remained in the United 159a States, the likely outcome would be that they would be separated in foster care. JA 000483 (Tr. at 305). Ms. Henry also established strong evidence of rehabilitation. Ms. Henry had made efforts to stay away from the former acquaintances that intro- duced her to shoplifting and had focused on her relationship with her children. JA at 000350 (Tr. at 172); JA at 000559 (Testimony of Denise Adler (Tr. at 380)). Ms. Henry began attending Church on a weekly basis. JA at 000548 (Tr. at 369). In addition, Ms. Henry tackled her problems with shoplifting head-on and participated in a rehabilitation program for shoplifters, Shoplifters Alternative, which she successfully completed. JA at 000352 (Tr.at 174); JA at 000922 (Letter from Shoplifters Alternative dated January 30, 2004 (“Shoplifters Alternative Letter’)). Upon completion of the program, Shoplifters Alter- native determined that, based on Ms. Henry’s responses to certain questions posed during the pro- gram, it appeared that Ms. Henry’s shoplifting behavior was “less related to criminal intent and more the result of personal stress or other factors affecting [her] life.” JA at 000922 (Shoplifters Alter- native Letter). In conjunction with participating in rehabilitation program, the record demonstrated that Ms. Henry had made a concerted effort to set her life in order. JA at 000366-367, 000369 (Tr. at 188-89, 191) (discussing efforts to deal with low income without resorting to shopl.fting). Ms. Henry’s mother also confirmed that Ms. Fienry’s efforts to “improve her life and those who she deals with on a daily basis have grown beyond expectation.” JA at 000957 (Letter of Support from Lucille Charles). 160a On December 9, 2005, the IJ denied Ms. Henry’s application for cancellation of removal under INA § 240(A)(a) and Ms. Henry’s application for a waiv- er of inadmissibility under INA § 212(h), and ordered Ms. Henry removed to Guyana. JA at 000171 (lJ Dec. at 21). In denying Ms. Henry’s application for cancellation of removal, the IJ effec- tively based his rulings on two constitutionally improper adverse findings. First, the IJ found that Ms. Henry’s insistence that she was innocent of certain conduct for which she was arrested and/or convicted evinced a lack of remorse and rehabilita- tion. During the proceedings, Ms. Henry explained that certain of her shoplifting convictions were cases of mistaken identity or occurred when she was at the wrong place at the wrong time. JA at 000305 (Tr. at 127). Ms. Henry also explained that she felt pressured to take certain pleas even though she believed she was innocent. JA at 900306, 000308-311 (Tr. at 128, 130-133). Notwith- standing these specific claims of innocence, Ms. Henry freely admitted that she committed the majority of her offenses and that “[she knew she] was doing something wrong.” JA at 000365 (Tr. at 187); JA at 000305-318, 000407-408, 000431, 000434-437, 000439-445, 000454, 000467 (Tr. at 127-40, 229-30, 253, 256-59, 261-67, 276, 289). The IJ also improperly relied on the existence of certain arrests and charges that remained pending and undetermined when he ordered the record closed in Ms. Henry’s proceedings. In expectation that these pending charges would ultimately be dismissed, or successfully defended, Ms. Henry’s 16la counsel requested that the IJ extend the date on which proceedings would be closed. JA at 000649 (Tr. at 468). The IJ responded by providing only one additional week and expressly noted that it was unlikely that dispositions for the pending charges would be available at that time. JA at 000629 (Tr. at 448, 468-69). Ms. Henry’s counsel responded by urging the IJ to refrain from relying on the pending charges as negative factors in his determination. JA at 168 (IJ Dec. at 18). Notwith- standing this request, the IJ improperly relied upon the pending unproven charges as a basis for making various adverse determinations including: (1) that because of the pending charges it was “hard to conclude, with any certainty, that even if Ms. Henry were to remain in the United States, she would remain with her children” (JA at 000143 (IJ Dec. at 17)); and (2) as adverse factors indicating lack of rehabilitation. JA at 000144 (IJ Dec. at 18). The IJ also denied Ms. Henry’s application for a waiver of inadmissibility under INA § 212(h), find- ing that Ms. Henry was ineligible for such relief, because as an LPR in deportation proceedings (as opposed to exclusion proceedings), she was required to submit a concurrent application for adjustment of status pursuant to 8 C.F.R. § 1245.1(f). Alternatively, the IJ found that even if Ms. Henry were eligible for Section 212(h) relief, he would deny the application on the same grounds as his denial of Ms. Henry’s application for cancella- tion of removal. JA at 000146 (IJ Dec. at 20). On January 6, 2006, Ms. Henry timely filed a Notice of Appeal with the BIA. JA at 000114-119 162a (Notice of BIA Appeal). The BIA dismissed Ms. Henry’s appeal of the IJ’s decision on January 19, 2007. JA at 000004 (Reissued Decision of the BIA, dated Apr. 26, 2007 at 2). The BIA’s decision, how- ever, was not timely sent to Ms. Henry’s counsel due to an administrative error by the BIA. On March 27, 2007, Ms. Henry moved the BIA to rescind and reissue its decision dated January 19, 2007. On April 26, 2007, the BIA granted Ms. Henry’s motion and re-issued its decision dated January 19, 2007, ordering that if be treated as if entered on April 26, 2007. JA at 000001-7 (Reissued Decision of the BIA, dated Apr. 26, 2007 at 2). On May 3, 2007, Ms. Henry timely filed a Peti- tion for Review of the BIA’s April 26, 2007 decision. SUMMARY OF ARGUMENT The BIA erred as a matter of law in affirming the IJ’s denial of Ms. Henry’s application for waiver of inadmissibility under INA § 212(h). Ms. Henry is eligible to directly apply for Section 212(h) relief without a concurrent application for adjustment of status. There is no rational basis why Ms. Henry as an LPR who happened never to have traveled out- side of the United States must concurrently apply for adjustment of status, when a similarly situated LPR who had sojourned would be able to directly apply for the waiver. To make Ms. Henry’s eligibil- ity for a waiver of inadmissibility turn on a factor as arbitrary as whether she traveled abroad is a violation of Ms. Henry’s rights to equal protection under the Fifth Amendment. The BIA further erred 163a in affirming the IJ’s ruling that even if Ms. Henry had been found eligible for Section 212(h) relief, the IJ would have denied such relief on the same grounds upon which he denied Ms. Henry’s appli- cation for cancellation of removal. The IJ and BIA should have made a formal finding concerning the extreme hardship prerequisite of Section 212(h) before conducting an analysis of whether to grant discretionary relief. By failing to make such a find- ing, the IJ and BIA effectively ignored a relevant factor in rendering their determination, in contra- vention to the language of the statute and the BIA’s own legal standards. In addition, the grounds upon which the Id denied Ms. Henry’s application for cancellation of removal were also flawed as a matter of law. The BIA erred in affirming the IJ’s denial of Ms. Henry’s application for cancellation of removal under INA § 240A, where the IJ improperly consid- ered certain factors, in violation of Ms. Henry’s right to due process under the Fifth Amendment. Specifically, the BIA improperly considered the existence of certain arrests and charges against Ms. Henry that remained pending and undeter- mined after the IJ closed the record in Ms. Henry’s proceedings. The IJ and the BIA also improperly relied on Ms. Henry’s claims of innocence with respect to certain activities for which she was arrested and/or convicted. 164a STANDARD OF REVIEW This Court exercises de novo review of the BIA’s legal conclusions. See, e.g., Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir. 2003); Dialio v. INS, 232 F.3d 279, 287 (2d Cir. 2000). Under 8 U.S.C. § 1252(a)(2)(D), Ms. Henry is entitled to a “review of constitutional claims or questions of law raised upon [her] petition for review.” 8 U.S.C. § 1252(a) (2)(D). ARGUMENT I. THE BIA ERRED IN DENYING MS. HENRY’S APPLI- CATION FOR WAIVER OF INADMISSIBILITY PUR- SUANT TO INA § 212(h) The BIA improperly affirmed the IJ’s denial of Ms. Henry’s application for waiver of removal pur- suant to INA § 212(h). The BBA failed to reach the threshold issue of whether Ms. Henry is eligible for Section 212(h) relief. The IJ held that Ms. Henry was eligible to apply for Section 212(h) relief with- out a concurrent application for adjustment of sta- tus. JA 000170 (IJ Dec. at 20). As Section 212(h) is currently applied, had Ms. Henry left the United States after the convictions that made her remov- able and later sought readmission, she would be eligible for Section 212(h) relief without a concur- rent application for adjustment of status. See In re Abosi, 24 1. & N. Dec. 204, 205 (BIA 2007) (holding that a returning LPR seeking to overcome a ground of inadmissibility is not required to apply for adjustment of status in conjunction with a Section 165a 212(h) waiver). As this Court held in Francis v. INS, 532 F.2d 268 (2d Cir. 1976) and reaffirmed recently in Blake v. Carbone, 489 F.3d 88 (2d Cir. 1007), a distinction premised solely on whether an alien has departed and returned to the country has no rational basis for equal protection purposes. Francis, 532 F.2d at 272. Furthermore, the BIA improperly affirmed the IJ’s alternative denial of Ms. Henry’s application for Section 212(h) relief on the same grounds as the IJ’s denial of Ms. Henry’s application for cancella- tion of removal. The IJ and BIA, as a matter of due process, should have made a formal finding regard- ing Ms. Henry’s showing of extreme hardship where this showing could have affected an inde- pendent discretionary analysis under Section 212(h). Moreover, the grounds upon which the IJ relied in denying Ms. Henry’s application for can- cellation of removal were erroneous as a matter of law and thus are an improper basis upon which to base the denial of Ms. Henry’s application for Sec- tien 212(h) relief. A The BIA Improperly Denied Ms. Henry’s Equal Protection Right to Direct Eligibility for Sec- tion 212(h) Relief It is axiomatic that the constitutional guarantee of equal protection under the law applies to aliens as well as citizens. Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886). Because of Congress’ plenary power over immigration issues, see Burrafato v. U.S. Dep’t of State, 523 F.2d 554, 556 (2d Cir. 1975) (citing Lem Moon v. United States, 158 U.S. 538 166a (1895)), federal classifications of aliens are subject to a rational basis standard of review. See Francis, 532 F.2d at 272. Pursuant to such scrutiny, “dis- tinctions between different classes of persons must be reasonable, not arbitrary, and must rest on some ground of difference having'a fair and sub- stantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Jd. Pursuant to Section 212(h), the Attorney Gener- al 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 lawfully admitted for permanent residence ... it is established to the satisfaction of the Attorney General that the alien’s [exclusion] would result in extreme hardship to the United States citizen or law- fully resident spouse, parent, son, or daughter of such alien. INA § 212(h)(1)(B); 8 U.S.C. § 1182(h)(1)(B). Although Section 212(h) specifies that its provi- sions are to be utilized in inadmissibility proceed- ings, the BIA has long applied Section 212(h) in deportation proceedings in two situations. Where a legal permanent resident in deportation proceed- ings departed and returned to the United States subsequent to her conviction for deportable offense, such immigrant may be granted a Section 212(h) waiver nunc pro tunc without the need for an 167a adjustment of status. See In re Sanchez, 171. & N. Dec. 218, 222-23 (BIA 1980). On the other hand, where a legal permanent resident who has never left the United States seeks a Section 212(h) waiv- er, such an immigrant must submit a concurrent application for adjustment of status. See In re Par- odi, 17 1.& N. Dec. 608, 611-12 (BIA 1980); In re Bernabella, 13 1. & N. Dec. 42, 43-44 (BIA 1968). The distinction created by the BIA’s interpreta- tion and application of Section 212(h) turns on a classification—whether an alien has traveled abroad—that this Court has long held to be without a rational or reasonable basis. See Francis, 532 F.2d at 273. In Francis, this Court examined INA § 212(c), a statute that, like Section 212(h) was inténded to provide an opportunity for the Attorney General, in his discretion, to waive certain grounds of excludability for aliens secking entry to the United States. See Francis, 532 F.2d at 272 (noting Congress’ concern that “there be some degree of flexibility to permit worthy returning aliens to con- tinue their relationships with family members in the United States despite a ground of exclusion”). As with Section 212(c), the INS had expanded the reach of Section 212(c) to deportable aliens, based on its realization “that these consideration[s] apply with equal force to an alien who has already reen- tered.” Id. This Court held, that once the benefits of this statute were expanded, the government could not make eligibility for such benefits hinge on ran- dom factual distinctions such as whether the alien had traveled outside of the country. Jd. at 273. (“Fundamental fairness dictates that permanent 168a resident aliens who are in like circumstances, but for irrelevant and fortuitous factors, be treated in a like manner.”). Recently, this Court reaffirmed the central constitutional principle embodied by Fran- cis. 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 Court made it clear that it deemed itself “bound by Fran- cis’s mandate to ensure that ‘permanent residents who are in like circumstances, but for irrelevant and fortuitous factors, be treated in a like man- ner.” Id. at 104 (citation omitted). Relying heavily on this Court’s decision in Fran- cis, the U.S. Court of Appeals for the Eleventh Cir- cuit has held, in the context of Section 212(h) relief, that the BIA’s distirction premised on an alien’s decision to travel outside of the United States is a violation of the Fifth Amendment. Yeung v. INS, 76 F.3d 337, 339-41 (11th Cir. 1995). In that case, the petitioner, a[n] LPR charged with deportability based on convictions for crimes of moral turpitude, sought a Section 212(h) waiver of inadmissibility but did not file a concurrent application for adjust- ment of status. The petitioner could not demon- strate that he had left and returned to the United States subsequent to the convictions that made him deportable. Comparing the case at bar to Sanchez, where the BIA found a[n] LPR :n depor- tation proceedings eligible for Section 212(h) relief based on a nunc pro tunc theory, the Yeung Court stated: 169a To claim, as the INS does here, that [the peti- tioner] belongs to a different classification of persons simply by virtue of his failure to depart and reenter, is to recognize a distinction that can only be characterized as arbitrary, and that is without a fair and substantial rela- tion to the object of the legislation.... We find that {the petitioner] and Sanchez are similarly situated and deserving of similar treatment | under the law. In particular, as deportable aliens they are equally deserving of waiver consideration by the Attorney General. Yeung, 76 F.3d at 340 (citations and quotations omitted). Ms. Henry stands in the same position as the petitioner in the Yeung case. Ms. Henry satisfies all of the criteria for consideration for a Section 212(h) waiver and her five U.S. citizen minor chil- dren will face extreme hardship if Ms. Henry is removed. Yet merely because she has never left the United States, Ms. Henry is deemed ineligible for Section 212(h) relief absent a concurrent applica- tion for adjustment of status.! Ms. Henry, as a 1 Under the BIA’s own rulings, it is questionable whether such an application for adjustment of status even makes sense or is necessary for a legal permanent residents such as Ms. Henry. An application for adjustment of status creates a legal fiction whereby deportable LPRs are “held to be in the same position as aliens presenting themselves at the border, seeking entry as LPRs.... Such aliens are therefore both subject to the exclusion provisions of Section 212(a) and eligible for waivers of excludability.” In re Parodi, 171. & N. Dec. at 611-12 (internal citations omitted). However, the BIA 170a deportable LPR should be afforded similar treat- ment as similarly situated LPRs who had the opportunity to leave the country. As this Court has made clear, “[rJeason and fairness would suggest that an alien whose ties with this country are so strong that [s]he has never departed since [her] ini- tial entry should receive at least as much consider- ation as an individual who may leave and return from time to time.” Francis, 532 F.2d at 273. B. The BIA Erred In Not Making A Formal Find- ing With Respect To The Extreme Hardship Faced By Ms. Henry’s U.S. Citizen Children And Relying Solely On The IJ’s Grounds For Denying Cancellation Of Removal Because Ms. Henry is directly eligible for Section 212(h) relief, the IJ and the BIA should have made formal findings that Ms. Henry met the extreme hardship standard required under Section 212(h). Instead the IJ and the BIA failed to address the has ruled that a[n] LPR does not lose her status as such until a removal order against her becomes administratively final. In re Lok, 181. & N. Dec. at 101 (BIA 1991) aff'd, Lok v. INS, 681 F.2d 107 (2d Cir. 1981). Thus an alien who is a[n] LPR at the time deportation proceedings commence, such as Ms. Henry, does not have to adjust her status. On this rea- soning, the BIA ruled that a returning LPR charged with inadmissibility did not need to make a concurrent application for adjustment of status to be eligible for Section 212(h) relief. See In re Abosi, 24 1. & N. Dec. at 206-07. There is no reason why the same rule should not apply to a[n] LPR such as Ms. Henry, who has never left the United States and is charged with deportability rather than inadmiussibility. Fran- cis, 532 F.2d at 272. 17la extreme hardship prerequisite. The IJ held that assuming arguendo that Ms. Henry were eligible for Section 212(h) relief and had met the statutory prerequisite, he would deny Ms. Henry’s 212(h) petition on the same grounds that he denied Ms. Henry’s petition for cancellation of removal. JA at 000170 (IJ Dec. at 20). The BIA affirmed this ruling. JA at 000007 of the IJ’s decision to deny Ms. Henry’s application for Section 212(h) relief based on the same grounds as the denial of her application for cancellation of removal was 175a improper because the IJ’s grounds for denying Ms. Henry’s cancellation of removal petition was erroneous as matter of law, as shown below in Part II. Il. THEIJ AND THE BIA ERRED AS A MATTER OF LAW AND VIOLATED MS. HENRY’S CONSTITUTIONAL DUE PROCESS RIGHTS IN DENYING HER APPLICA- TION FOR CANCELLATION OF REMOVAL BASED ON CONSTITUTIONALLY IMPROPER GROUNDS Ms. Henry meets the statutory requirements set forth in INA § 240A(a) and was improperly denied cancellation of removal as a matter of law by the IJ and the BIA. To be statutorily eligible for cancellation of removal under INA § 240A(a), an applicant must (i) be lawfully admitted for permanent residence for not less than 5 years, (11) have resided in the United States continuously for 7 years after having been admitted in any status and (iii) not have been convicted of any aggravated felony. INA § 240A(a), 8 U.S.C. INA § 1229b(a). During the Immigration Court proceedings, it was undisputed that Ms. Henry satisfied these statutory eligibility requirements. JA at 001221 (Application for Cancellation of Removal). In addition, pursuant to BIA ruling con- cerning cancellation of removal, in exercising dis- cretion under INA § 240A(a), “an Immigration Judge, upon review of the record as a whole, ‘must balance the adverse factors evidencing the appli- cant’s undesirability as a permanent resident with the social and humane considerations presented in 176a his (or her) behalf to determine whether the grant- ing of .. . relief appears in the best interest of this country.” In re C-V-T, 22 I. & N. Dec. 7, 11 (BIA 1998) (quoting Matter of Marin, 16 I.&N. Dec. 581, 584-85 (BIA 1978)). Although cancellation of removal under INA § 240A(a) involves a discretionary component, it should not be arbitrarily denied and it should not be based on considerations that violate due process. See Khan v. Gonzales, ___ F.3d ___, Dock- et No-4905-AG, 2007 WL 2127712, at *3 (BIA July 26, 2007). To protect applicants against this risk, federal court case law and BIA precedent provide binding guidelines that must be followed in the IJ’s exercise of discretion. Here, the BIA disregarded applicable precedents and thus committed errors of law in affirming the IJ’s reliance on Ms. Henry’s pending unproven charges and insistence of inno- cence with respect to certain charges as adverse factors in the IJ’s discretionary inquiry. First, the BIA erred as a matter of law, and vio- lated Ms. Henry’s procedural due process rights under the Fifth Amendment, in affirming the IJ’s denial of cancellation of removal where the IJ relied on the existence of recent arrests and unproven charges pending against Ms. Henry even though the IJ had closed proceedings. JA at 000152, 000168; 000005-6 (IJ Dec. at 2, 18; Reis- sued Decision of BIA, dated Apr. 26, 2007 at 3-4). An LPR’s right to due process of law under the Fifth Amendment is well established. See Brown v. Ashcroft, 360 F.3d 346, 350-51 (2d Cir. 2004). The core of this due process is having “a meaningful 177a opportunity to be heard. /d. at 530; Cf. Blakely v. Washington, 542 U.S. 296 (2004) (holding in the context of sentencing guidelines that, other than fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statu- tory maximum must be submitted to a jury, and proved beyond a reasonable doubt). This Court has consistently held that evidence submitted in removal proceedings is admissible only if it is “pro- bative and its use is fundamentally fair.” Montero v. INS, 124 F.3d 381, 385-86 (2d Cir. 1997); see also Lin v. U.S. Dep’t of Justice, 459 F.3d 255, 268 (2d Cir. 2006). Otherwise, as is the case here, reliance upon such evidence constitutes a violation of the LPR’s procedural! due process rights. Ms. Henry testified that she was vigorously defending against the pending charges. JA at 000616-619; 000167 (Tr. at 436-439; I.J. at 18). The IJ’s decision to close the record, and then use the existence of pending charges, with no evidence of conviction or corroborating evidence, denied Ms. Henry the opportunity to submit possibly favorable evidence with respect to some or all of these arrests. Instead, the IJ relied on these unproven allegations to effectively nullify two pos- itive factors in favor of Ms. Henry’s application— namely, the hardship Ms. Henry’s family would suffer if she were deported and Ms. Henry’s reha- bilitation. JA at 000167-168 (IJ Dec. at 17-18). These determinations dispositively impacted the IJ’s balancing of factors in his decision to deny Ms. Henry’s application for discretionary relief. JA at 000170 (IJ Dec. at 20). The IJ found that 178a because of the pending charges it was “hard to con- clude, with any certainty, that even if Ms. Henry were to remain in the United States, she would remain with her children” (JA at 000167 (IJ Dec. at 17)) and found it “hard to give much credence to the Respondent’s claims of rehabilitation.” JA at 000168 (IJ Dec. at 18). The IJ and the BIA thus impermissibly inferred from these arrests that Ms. Henry was in fact guilty of the offenses for which she was arrested. Paredes-Urrestarazu v. INS, 36 F.3d 801, 816 (9th Cir. 1994) (The BIA cannot find “the mere fact of arrest probative of whether Petitioner had engaged in underlying con- duct.”) The IJ’s closure of the proceeding while charges were pending and subsequent use of those unproven charges as negative factors constitute a fundamental legal and procedural error that direct- ly prejudiced Ms. Henry. Moreover, even if the BIA were correct in holding that it was proper for the I-I to have considered the pending unproven charges (which Ms. Henry sub- mits it was not), the IJ erred as a matter of law in relying on the pending charges to the extent that he did. The BIA itself has stated that it is “hesitant to give substantial weight to an arrest report, absent a conviction or corroborating evidence of the allegations contained therein.” Jn re Catalina Arreguin de Rodriguez, 21 1. & N. Dec. 38, 42 (BIA 1995). The IJ’s failure to give these pending charges minimal or no weight was therefore also in contravention of the BIA’s own legal standards. Accordingly, the BIA’s holding that the I.J was enti- tled to rely on the recent arrests and charges pend- 179a ing against Ms. Henry was a violation of Ms. Henry’s due process rights. The BIA also erred as a matter of law in finding that the IJ properly based his determination that Ms. Henry had failed to demonstrate rehabilitation on Ms. Henry’s insistence that she was innocent of certain conduct for which she was arrested and/or convicted. JA at 000167; 000005 (IJ Dec. at 18; Reissued Decision of BIA, dated Apr. 26, 2007 at 3). As a matter of law, courts have held that refusal to acknowledge guilt regarding convictions cannot alone negate a finding of rehabilitation. See, e.g., Guillen-Garcia v. INS, 999 F.2d 199, 204-205 (7th Cir. 1993). Thus, to the extent the IJ based its determination that Ms. Henry had failed to demon- strate rehabilitation solely on her claims that she was innocent of certain conduct for which she was arrested and/or convicted, the BIA erred as a mat- ter of law in affirming the IJ’s decision. 180a CONCLUSION For the reasons stated above, Ms. Henry respect- fully requests that the BIA’s decision be reversed and that the case be remanded to the BIA with instructions to return the matter to the IJ for a new determination of Ms. Henry’s applications for cancellation of removal under INA § 240A(a) (8 U.S.C. § 1229b(a)), and for a waiver of inadmis- sibility under INA § 212(h) (8 U.S.C. § 1182(h)). Dated: New York, New York August 16, 2007 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 19006 Telephone: (212) 225-2000 Facsimile: (212) 225-3999 Attorneys for Petitioner Jenny Lee Henry Of Counsel: Kenneth Figueroa Tanisha !.. Massie Claire De Saint Vincent 18la CERTIFICATE OF COMPLIANCE WITH RULE 32(a) 1. This brief complies with Federal Rule of Appellate Procedure 32(a) because it contains 7,471 words, exclud- ing the parts of the brief exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type- style requirements of Federal Ruie of Appellate Procedure 32(a)(6) because this brief has been prepared in a propor- tionally spaced typeface using Microsoft Word 2000 in 14- point Times New Roman font. Dated: New York, New York Avgust 16, 2907 CLEALY GOTTLIEB STEEN & HAMILTON LLP By: /s/_ Claire de Saint Vincent Claire de Saint Vincent One Liberty Plaza New York, New York 10006 Telephone: (212) 225-2000 Facsimile: (212) 225-3999 Attornevs for Petitioner Jenny Lee Henry 182a 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, Shelly Williams, a.k.a. Williams, Petitioner-Appellant, ¥. PETER D. KEISLER, Acting Attorney General of The United States, Respondent-Appellee. ON APPEAL FROM THE BOARD OF IMMIGRATION APPEALS REPLY BRIE¥ OF PETITIONER-APPELLANT JENNY LEE HENRY 183a CLEARY GOTTLIEB STEEN & HAMILTON LLP One Likerty Plaza New York, New York 10006 212-225-2000 Attorneys for Petitioner-Appellant Of Counsel: Lindsee P. Granfield Tanisha L. Massie Kenneth Figuerea 184a TABLE OF CONTENTS PAs OF AUTOR E hoe «2.62. cece ees sseses PRELIMINARY STATEMENT................. Ft | RRR Re ie Pi A es AOE ne 3 If. THIS COURT HAS JURISDICTION TO CONSIDER MS. HENRY’S CONSTITUTIONAL AND LEGAL CI iol Oo peee ed elas winwieaas s hse A. Ms. Henry Is Entitled To Review Of Her Due Process Claims............. B. Ms. Henry Has Presented Constitutional And Legal Fe Ee EAE ELITR [A AOE A THE GOVERNMENT HAS FAILED TO ADDRESS FULLY OR REFUTE MS. HENRY’S REVIEWABLE CLAIMS A. Ms. Henry’s Equal Protection Challenge To Section 212(h) Is Meritorious And Is Not Moot........... B. The Government Has Failed To Address The BIA’s and IJ’s Use Of An Improper Standard In Adjudicating Ms. Henry’s Application For section 212th) Relief .................... 13 185a C. The Government Has Failed To Address Fully The Legal Errors in The IJ’s And BIA’s Determination Of Ms. Henry’s Application For Cancellation Of Removal............... 19 i iy ek nin tien scabies cseeevnese 24 TABLE OF AUTHORITIES Statutes and Regulations Page(s) oes c ia iwceresceccessescccseess 8. CS ee passim EE re passim 6 8 acess ccerecvcccceveccccccvens passim SC.P.m. $8 208. 1G6(c), 208.17.................... 7 Cases Bastanipour v. INS, 980 F.2d 1129 (7th Cir. 1992) .............. 18 Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007)................... 16 Blakely v. Wash., ES 12 Bd. of Regents v. Roth, Ee 6 186a Page(s) Bowen v. Am. Hosp. Ass’n., ey Ms MEE. oc beicccvcccveveecevevceecs 18 Burger v. Gonzales, 498 F.3d 131 (2d Cir. 2007)....... 4, 5, 11, 13, 22 Cekic v. INS, 436 F.3d 167 (2d Cir. 2006) ............0000. 5, 7 Chen v. INS, 471 F.3d 315 (2d Cir. 2006)................. 2, 5,9 Chen v. U.S. Dep’t of Justice, 434 F.3d 144 (2d Cir. 2006)................. 5 Dave v. Ashcroft, 363 F.3d 649 (7th Cir. 2004)................ 7 Demore v. Kim, EE 4 Etchu-Njang v. Gonzales, 403 F.3d 577 (8th Cir. 2005)................ 7 FDIC v. Henderson, 940 F.24 466 (Oth Cir. 1991)................ 6 Fiallo v. Bell, OS Oa 2» 5 4 Francis v. INS 532 F.2d 268 (2d Cir. 1976)..........0...64 3, 15 Garcia v. U.S. Att’y General, 329 F.3d 1217 (lith Cir. 2003)............. 7 Guillen-Garcia v. INS, See F.2a iS (7th Cir. 1993)...............- 12, 22 187a Page(s) In re Catalina Arreguin de Rodriguez, 211.&N. Dec. 38 (BIA 1995) .............. Fu, Sa In re Marin, 161. & N. Dec. 581 (BIA 1978)............. 20 In re Mendez-Morales, 211. & N. Dec. 296 (BIA 1996)............. 10, 17 In re Sanchez, 171. & N. Dec. 218 (BIA 1980)............. 15 INS v. Bagamasbad, ee Bi ik os ova ovine deccueesvcavaces 16 Khan v. Gonzales, 495 F.3d 31 (2d Vir. 2007) .........ccce00. 9, 11, 23 Landon v. Plasencia, a ee ID ies acncewecdvsevscssacseus 4 Li v. INS, 453 F.3d 129 (2d Cir. 2006)......... 18-19, 22, 23 Lin v. U.S. Dep't of Justice, 459 F.3d 265 (2d Cir. 2006)................. 12 Malagon de Fuentes v. Gonzales, 462 F.3d 498 (Sth Cir. 2006)................ 6 Marrero Pichardo v. Ashcroft, 374 F.3d 46 (2d Cir. 2004)..............0.0-. 14 Montero v. INS, 124 F.3e 381 (2d Cir. 1997) ...........:. 12, 13,33 Montilla v. INS, Bae © ee Be Ce GAP. THGE) .. 0 ons cccesccces o @ 188a Page(s) Moran v. Godinez, 57 F.3d 690 (9th Cir. 1995) ................. 6 Munoz v. Ashcroft, 339 F.3d 950 (9th Cir. 2003)................ 6 Nunez v. City of Los Angeles, 147 F.3d 867 (Sth Cir. 1998)..............0. 6 Olim v. Wakinekona, OE ee eo nbd vc cnn eaeerciccsvrcens 16 Ohio Adult Parole Auth. v. Woodard, BE BF ea EG bbe baccecedecccceccdsaasen 16 Paredes-Urrestarazu v. INS, 36 F.3d 801 (9th Cir. 1994) .............. 11, 20-21 Roberts v. Spalding, 783 F.2d 867 (Sth Cir. 1986)................ 6 Shaughnessy v. U.S. ex rel. Mezei, De Rs, Se I ks oh cas hh 04 de is deb heen 3 United States v. Perez, S30 FB BF (Be Cir. BOOS)... vcivenvccvececess 5, 7 United States v. Smith, 795 F.2d 841 (9th Cir. 1986)................ 6 Valdez v. Rosenbaum, 302 F.3d 1039 (9th Cir. 2002) .............. 6 Yeung v. INS, 76 F.3d 337 (ith Cir. 1995)................ 15 Zadvydas v. Davis, a: BF re, Fee CO ED 5. sek vd vn cee ncawanacnesouaes 4 189a PRELIMINARY STATEMENT Petitioner Jenny Lee Henry has brought before this Court meritorious constitutional and legal challenges to the denials of her applications for a waiver under INA Section 212(h) and for cancella- tion of removal. Yet, the Government attempts to characterize Ms. Henry’s reviewable issues as mere challenges of discretionary determinations. This is simply not the case. In its efforts to fit a square peg into a round hole, the Government not only mis- construes and oversimplifies Ms. Henry’s argu- ments, but also misapplies the governing legal standards by which Ms. Henry’s case should be decided. As an initial matter, contrar [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1122%3A2. Public record. Not legal advice.