Arcos v. Memije v. Gonzales ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CORNELIO ARCOS MEMIJE; MARIA 
DEL ROSARIO RENDON VELEZ, No. 06-71282
Petitioners, Agency Nos.
v.  A96-059-340
ALBERTO R. GONZALES, Attorney A96-059-341
General, ORDER
Respondent.

Filed March 26, 2007
Before: Harry Pregerson, Richard C. Tallman and
Consuelo M. Callahan, Circuit Judges.
Order;
Dissent by Judge Pregerson
ORDER
On July 3, 2006, we dismissed this petition for review for
lack of jurisdiction. Since that time, petitioners have filed
three motions for reconsideration of our July 3, 2006 order.
Because petitioners have not identified any points of law or
fact overlooked by the court, these motions are denied. See
9th Cir. R. 27-10.
Section 242(a)(2)(B)(i) of the Immigration and Naturaliza-
tion Act expressly eliminates our jurisdiction over decisions
by the Board of Immigration Appeals that involve the exer-
cise of discretion. See 8 U.S.C. § 1252(a)(2)(B)(i). We lack
jurisdiction to review the Immigration Judge’s discretionary
determination that Cornelio Arcos Memije and Maria Del
3481
3482 MEMIJE v. GONZALES
Rosario Renden Velez failed to establish the requisite excep-
tional and extremely unusual hardship to their United States
citizen children, and are therefore ineligible for cancellation
of removal. See Martinez-Rosas v. Gonzales, 424 F.3d 926,
930 (9th Cir. 2005); Romero-Torres v. Ashcroft, 327 F.3d
887, 892 (9th Cir. 2003).
For the same reasons, we lack jurisdiction to decide the
issues raised in Judge Pregerson’s dissent. While we empa-
thize with Judge Pregerson’s heartfelt sentiments, Congress
has delegated to the Attorney General the discretion to con-
sider them and it has restricted our power to overturn them.
See 8 U.S.C. § 1252(a)(2)(B)(i). As our colleague, Judge Far-
ris, so eloquently put it in another immigration case, “My
brother and I differ on what is the appropriate appellate func-
tion. He would retry. I am content to review.” Li v. Ashcroft,
378 F.3d 959, 964 n.1 (9th Cir. 2004).
No motions for reconsideration, rehearing, clarification,
stay of the mandate, or any other submissions shall be filed
or entertained in this closed docket.
PREGERSON, Circuit Judge, dissenting:
I dissent. The decision in this case, if carried out, will
inflict egregious harm on four children born in the United
States. Our government’s refusal to grant the children’s
undocumented parents cancellation of removal tramples on
the children’s substantive due process rights—rights our gov-
ernment routinely ignores. By denying undocumented parents
cancellation of removal, our government effectively deports
their United States citizen children and denies those children
their birthrights. See Cerrillo v. INS, 809 F.2d 1419, 1426-27
(9th Cir. 1987). The government’s conduct violates due pro-
cess by forcing the children to accept de facto expulsion from
their native land or give up their constitutionally protected
MEMIJE v. GONZALES 3483
right to remain with their parents. See, e.g., Moore v. City of
E. Cleveland, 431 U.S. 494, 503-05 (1977) (plurality opinion)
(“Our decisions establish that the Constitution protects the
sanctity of the family precisely because the institution of the
family is deeply rooted in this Nation’s history and tradi-
tion.”); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (recog-
nizing that “[t]he integrity of the family unit has found
protection in the Due Process Clause of the Fourteenth
Amendment”).
Petitioners, Cornelio Arcos Memije and his wife Maria
Rendon, have lived in the United States since the mid-1980s.
They are married and have four children: Ruby age 17, Erica
age 16, Noe age 12, and Giselle age 6. All four children are
United States citizens.
Petitioners and their children have attained the American
dream. Cornelio has worked as a cook and recently took a
second job with Hewlett Packard. Maria, has been steadily
employed, most recently as a parts assembler at Jacuzzi
Whirlpool Bath. Cornelio and Maria are federal and state tax-
payers. In 2002, Cornelio and Maria purchased a home in
Corona, California. Despite her busy work schedule, Maria
has volunteered at the local elementary school. She has also
served as a member of the PTA and School Site Council.
Despite having lived in this country for nearly a quarter of
a century, the Arcos family now faces forced removal to Mex-
ico. Removal to Mexico will turn their American dream into
a nightmare. While Cornelio may find a job in the agricultural
fields of Mexico, Maria’s work prospects are slim.
Removal of Cornelio and Maria will have a devastating
effect on their four minor children. Ruby, their oldest daugh-
ter, is now in her senior year of high school. She is taking
Honors and Advanced Placement classes and hopes to attend
college. She has lived in California her entire life. If her par-
ents are removed to Mexico, circumstances will force her to
3484 MEMIJE v. GONZALES
go with them. This will prevent her from gaining a college
education and realizing her dream of becoming a nurse or a
doctor. In a letter to this Court dated October 21, 2005, Ruby
stated that she was experiencing symptoms of severe depres-
sion as a result of her family’s impending removal to Mexico.1
Her sister, Erica, also a high school student, will suffer a
similar fate. She too has only known life in California. She
worries about adjusting to life in Mexico, a country where her
parents are likely to be poor, and whose culture, language,
and way of life are foreign to her.2 If her parents are removed,
she will be forced to go with them. This will prevent Erica
from fulfilling her dream of joining the U.S. Army.
Moreover, removal of their parents would also have a dev-
astating effect on the family’s two youngest children: Noe and
Giselle. Because of the high costs of uniforms, textbooks, and
school supplies in Mexico, Cornelio and Maria do not believe
that they could earn enough money to support the family and
enroll their children in school. Therefore, removal would
deprive Noe and Giselle of an education altogether — a right
that is both provided and mandated by all U.S. states. See
Lawrence Kotin & William E. Aikman, Legal Foundations of
Compulsory School Attendance 34 (1980).
Removal of the petitioners will result in extreme and
unusual hardship to their four United States citizen children.
Removal of the parents will deny all four children the oppor-
tunity to develop their full potential in the country of their birth.3
1
See Appendix A and B, the transcribed text of handwritten letters to
this court from Ruby.
2
See Appendix C, the transcribed text of a handwritten letter to this
Court from Erica.
3
To demonstrate the potential of the Arcos children and provide a better
understanding of the extreme and unusual hardship that these children
would suffer should their parents be removed, please refer to the attached
appendices. Appendix D is a letter of recommendation for Ruby. Appen-
dix E is a letter of recommendation for Erica. Appendix F is a letter of rec-
ommendation for Maria. Appendix G is a letter of recommendation for
Noe.
MEMIJE v. GONZALES 3485
Accordingly, I vote to grant petitioners’ motions for reconsid-
eration of our previous order dismissing their petition for
review for lack of jurisdiction. See Ramirez-Perez v. Ashcroft,
336 F.3d 1001, 1004 (9th Cir. 2003) (“[W]e retain jurisdiction
to consider whether the BIA’s interpretation of the hardship
standard violates due process.”).
As I have said before, “I pray that soon the good men and
women in our Congress will ameliorate the plight of families
like the [petitioners] and give us humane laws that will not
cause the disintegration of such families.” Cabrera-Alvarez v.
Gonzalez, 423 F.3d 1006, 1015 (9th Cir. 2005).
Appendix A — Redacted Text of Handwritten Letter from
Ruby to the Ninth Circuit Court of Appeals
Oct. 21, 2005
Dear Judge,
My name is Ruby Arcos and the reason I am writing you
this letter is so that hopefully you will give my parents their
residence cards.
The reason my parents came to the U.S. is so that they
could have a better life. They both met here in the U.S. They
did not know each other in Mexico. The reason I am saying
this is because I have nothing to do with Mexico. I was con-
ceived and born here in America. I don’t even speak much
Spanish at all. I only talk to my parents in Spanish.
I don’t even want to imagine myself in Mexico. I wouldn’t
be able to communicate with anyone, and my education
would be finished. I want to graduate from high school and
go to college. I also want my little brothers and sisters to
study here so that they can be educated people when they’re
3486 MEMIJE v. GONZALES
grown up. I see how hard my parents work and how little they
get paid for not having had to opportunity to study because
they had to work instead.
My mom. She lost her dad at the age of 5. Her mom was
with child and 5 kids to support on her own. My mom had to
help my grandma and started working when she was 6 years
old! I think my mom at least deserves a residence card.
This is really affecting me mentally. My grades are starting
to go down because I can’t concentrate on doing my home-
work and I can’t pay attention in class. I can’t imagine leaving
all my cousins, uncles, and friends. They are really important
to me. When I was depressed they were the one who helped
me out. This is really personal and I feel bad [ ]! I DO NOT
WANT TO MOVE TO MEXICO. I would not survive.
Instead of paying attention in class I would [think about the
effects of moving to Mexico and how to avoid them].
I am not making this up! It’s just the thought of living in
Mexico is unbearable to me. From what I’ve heard if we were
deported (I mean my parents) we would live in my dad’s vil-
lage and a lot of bad stuff has happened there. My dad’s
brother got killed (shot to death!) because someone want to
steal his truck, and my grandma has been pointed a gun to the
head because someone wanted her money and her gold neck-
lace with a charm of the cross.
I have a lot of dreams like every 16-year-old, and if there’s
one thing I know is that they can come true here in the United
States. I want to become somebody in life. I am not sure yet
but I want something to do in the medicine field. It’s sounds
dumb, but I want to be called Dr. Ruby Arcos. I want to go
to a community college, work to have enough money to be
able to transfer to U.C. Davis. It’s going to be extremely hard,
I know, and I’ll have to apply myself on school work. But I
promise that if you take this stress away from me by giving
my parents their residence card. I will become a doctor, if not
MEMIJE v. GONZALES 3487
a medical on a PH.D. I am begging you from the bottom of
my heart. Let my dream come true. My dream is for my par-
ents to have their residency and them being proud of me for
becoming somebody in the world.
Sincerely,
/S/ Ruby Arcos
Ruby Arcos
P.S. [ ]
Appendix B — Complete Text of Handwritten Letter from
Ruby to the Ninth Circuit Court of Appeals
Dear Judge,
My name is Ruby Arcos and I am sixteen years old. The
reason I am writing this letter is so that you can hopefully find
it in your heart to give my parents the right to stay in the
United States legally.
I hope my parents can be forgiven for entering the U.S. ille-
gally. The reason my mom and dad came here was because
they wanted to make their lives better and progress. They
have never done any crimes in this country except for entering
it.
This is so much more than a citizenship case. It is affecting
us in everything we do, and if will certainly affect our future.
If our parents are given deportation, I will not be able to
graduate highschool. I will be turning 17 in August and in
September I am suppose to start my senior year in highschool.
It is the most important year to me because it means I have
achieved my goal and I can attend college. Next year I will
3488 MEMIJE v. GONZALES
be taking Honors and Above Placement (AP) classes. All my
efforts to get into these classes will have been for nothing if
my parents are deported because we will have to go with them
to Mexico.
The reason so many people leave Mexico is because there
is no future or a chance to progress in life. I do not want to
go there and have to live there. I have never even been to
Mexico. I don’t know anything or anyone. I only know that
my parents decided to come here because they saw better
opportunities in the U.S.
Please do not deport my parents because you will also
deport a girl who only has a year left of highschool and a
dream to become something more than the daughter of illegal
immigrants. I want my dream and my parents dream to come
true. To see me be a doctor, or a nurse or something more. I
want to go to U.C. Davis but all this will be impossible if my
parents aren’t granted the right to remain in the U.S. legally.
Please let me be all that I can be. My future lies in your
hands and decision over my parents case. I will be forever
grateful if I am allowed to graduate highschool. Santiago H.S.
is a distinguished California school. A highschool diploma
from this school will be worth more than one anywhere in
Mexico.
Don’t let all these 11 years of hard work go to nothing.
Thank you for taking the time to read this letter.
Sincerely,
/S/ Ruby Arcos
Ruby Arcos
MEMIJE v. GONZALES 3489
Appendix C — Complete Text of Handwritten Letter
from Ruby to the Ninth Circuit Court of Appeals
April 7, 2006
Dear Judge,
My name is Erica Arcos. I am 15 and I currently live in
Corona. My parents are immigrants who immigrated from
Mexico. It was a wrong thing for them to do that but they had
a reason for that, they needed money and a good work to get
paid enough so they could have sent it to their family back in
Mexico because they didn’t have money, food or clothes.
Please your honor think of how everyone would feel if my
parents had to leave and my brother and my sisters and me
had to leave with them it would affect us in every way such
as family members, friends, teachers and personally me and
my brothers. How would I survive in a place where I don’t
really understand the language. I don’t know anyone, and the
food is different back there from what I’ve heard is that you
have to grow it on your own and if you want to eat meat you
have to kill the animal. I wouldn’t never eat meat in Mexico
if I had to kill the animal for me it would be like killing a pet
that you’ve had and then cook it and eat it. How would I sur-
vive? How would I have money to buy clothes and shoes if
you don’t get paid enough money by working in Mexico.
Also what would my future be like? One important reason
that my parents should receive their residence is because I
want to go to the army, like they say “I am the army” how
would I be “an army of one” if I have to go to Mexico. Please
think of how me and my brothers would suffer? How would
my little sister adapt to the living at Mexico, how would she
have a career if she is in Mexico or even go to school? And
my brother he would have to grow up to be working and not
study. Also my older sister has one more year of high school.
Think about it going to school from kinder though high school
all those years going to school getting ready to graduate think-
ing at what she might want for her career and then all at once
3490 MEMIJE v. GONZALES
having to leave everything back. So please your honor I beg
you think of how my parents would feel having to leave how
would they make money to buy all the necessary things for us
such as food, clothes, shelter, everything that a person needs.
Will please think of everything I wrote my feelings, my
thoughts, and what I want to do when I grow up. Its all up to
you your honor.
Sincerely,
/S/ Erica Arcos
Erica Arcos
Appendix D — Complete Text of Letter from Ruby’s
History Teacher
California Distinguished School
Santiago High School
Home of Scholars, Achievers, & Champions
1395 Foothill Parkway — Corona, CA 92881
(951) 739-5600 — Fax (951) 739-5639
April 6, 2006
To whom it may concern,
I have had the pleasure of having Ruby Arcos in my U.S.
History class since Sept. 2005. Ruby is a fine young woman
and has proven to be an outstanding student. She has been
responsible and consistent in her academic/class preparations
and responsibilities.
Ruby earned an “A” for her 1st SEMESTER grade and is
currently earning an 84%, a strong “B” for 3rd quarter. She
hopes to earn an “A” by June 2006, the end of 2nd SEMES-
MEMIJE v. GONZALES 3491
TER. She certainly has the skills and drive to be able to meet
this goal.
It is my hope that Ruby be able to continue her education
here at Santiago High School as she is highly motivated to
succeed. It is her dream to continue her education in the
United States and become a nurse. Ruby has a desire, dedica-
tion and drive to make her dreams come true. It is my belief
that she will become a hard-working, contributing member of
our country.
Most Sincerely,
/S/ E. Miller
Mrs. E. Miller
U.S. History
Santiago High School
Appendix E — Complete Text of Letter From Erica’s
Language Arts Teacher
Language Arts Teacher
1395 Foothill Parkway
Corona, CA 92881
April 6, 2006
To Whom It May Concern:
It has been my pleasure to have Erica Arcos as a student dur-
ing this past semester. Over the course of the marking period,
I have gotten to observe Erica and gain a sense of who she is.
My impression of Erica is one of high esteem. She is a very
pleasant young lady. Erica is always respectful and attentive.
I have been very impressed with her strong work ethic. I feel
3492 MEMIJE v. GONZALES
that she strives to ensure that she produces a product that is
of high quality. Simply put, Erica is dedicated to succeeding
academically. In addition to her commitment to her schooling,
Erica seems to be well adjusted to her surroundings. She is
also greatly liked by her peers. Overall, Erica is a fine young
lady with a bright future.
Sincerely,
/S/ Jessica Fuller
Jessica Fuller
Language Arts Teacher
Appendix F — Complete Text of Letter From the
Principal of Lincoln Elementary School
Lincoln Elementary
425 South Sullivan Street
Santa Ana, CA 92704
(714) 972-6200
June 3, 2003
To Whom it May Concern:
I like to take this opportunity to verify that Maria Del Rosario
Rendon has been known to Lincoln Elementary School for six
years. Within these six years, she was involved in the follow-
ing areas: member of the Parent and Teacher Association
(P.T.A.), School Site Council, and a Parent Safety Patrol
(Santa Ana Police Department).
Mrs. Rendon’s three children, Ruby, Erika, and Noe had
made Lincoln their elementary school. Mrs. Rendon had an
MEMIJE v. GONZALES 3493
excellent rapport with our teachers, parents, students, and
administrators. She is frank and outgoing and exhibits a very
pleasant and friendly personality.
If I can be of further assistance, please feel free to call me.
Sincerely,
/S/ Manuel Fuentes
Manuel Fuentes, Ed.D.
Principal
Appendix G — Complete Text of letter from Noe’s
Teacher
Home Gardens Elementary School
13550 Tolton Ave.
Corona, California 92876
Mrs. Linda White, Principal
Mrs. Cecilia Chester, Assistant Principal
October 27, 2003
To Whom It May Concern:
My name is Maria Castillo and I am a second teacher at Home
Gardens Elementary School in Corona, California. I write to
inform you of Noe Arcos who has been in my class since the
beginning of the school year, which began on July 9, 2003.
Noe is learning such subjects as reading, math, written lan-
guage, and computer education. His favorite subject is com-
puter education. Noe enjoys playing “tease the bull” with his
friends at recess time. He is a fun and loving student who gets
along well with his peers. He is currently involved in the
Home Gardens Heroes Program, which is a staff and student-
3494 MEMIJE v. GONZALES
mentoring program. He also attends After School Tutoring
three days a week for one hour.
Thank you,
/S/ Maria P. Castillo
Maria P. Castillo
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