Carranza v. Holder

FILED
NOT FOR PUBLICATION NOV 25 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
GUDELIA FLORENTINA CARRANZA, No. 06-71257
Petitioner, Agency No. A095-446-933
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 7, 2009**
Pasadena, California
Before: PREGERSON, REINHARDT and WARDLAW, Circuit Judges.
Gudelia Florentina Carranza, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals' ('BIA') February 15, 2006, denial of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
her 'motion to reconsider.' We have jurisdiction pursuant to 8 U.S.C. y 1252 and
deny the petition.
Carranza argues that the Immigration Judge (IJ) erred in finding her
ineligible for cancellation of removal. However, she appealed only the BIA's
denial of her motion to reconsider. Therefore, we do not have jurisdiction to
consider her arguments with respect to the BIA's initial decision regarding
ineligibility.
The BIA denied Carranza's motion to reconsider on the basis that the motion
was untimely. In her brief before this court, Carranza does not challenge that
timeliness finding, and has therefore forfeited the issue. Martinez-Serrano v.
I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996). Because the propriety of the BIA's
dismissal on the basis of timeliness was the only issue to be reviewed, we must
deny the petition. We note, however, that we see no merit to the underlying
motion in any event.
Despite our conclusion, we agree with the sentiments expressed in the
dissent. This is an unfortunate outcome in a sympathetic case. To remove a single
mother of three who has lawfully lived and worµed in the United States for two
decades, despite the family upheaval and separation that it will entail, is
'unconscionable,' see Dissent at 2; that this pro se petitioner has been unable to
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obtain review of the BIA's decision to deny relief because of procedural errors is
also unfair. However, the result we reach is dictated by existing law and does not,
as a matter of law, violate the Due Process Clause. See Dissent at 2.
DENIED.
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FILED
Carranza v. Holder, No. 06-71257, Pregerson, J., Dissenting: NOV 25 2009
MOLLY C. DWYER, CLERK
I dissent. In this case, a procedural rule is used against a forty-eight-year old
U.S . CO U RT OF AP PE A LS
immigrant woman, who, without counsel, filed a motion with the BIA to
reconsider the denial of her cancellation of removal claim. Although Carranza was
filing pro se, she managed to file her motion to reconsider only eleven days after
the deadline. Because she filed this motion late, the BIA denied as untimely the
motion to reconsider her case.
In 2002, Carranza filed an asylum application. Her application does not
reflect that she had any assistance filing this claim but it was liµely filed by a
notario 1 of some µind. These individuals encourage undocumented immigrants to
file asylum applications and collect fees for the 'assistance' they render with the
application. Carranza's application does not include anything that might support an
asylum claim. After her asylum office interview, Carranza was referred to
1
Our case law recognizes the problem of notarios operating within the
undocumented immigrant community. See, e.g., Morales Apolinar v. Muµasey, 514
F.3d 893, 897 (9th Cir. 2008) ('All too often, vulnerable immigrants are preyed
upon by unlicensed notarios and unscrupulous appearance attorneys who extract
heavy fees in exchange for false promises and shoddy, ineffective representation.
Despite widespread awareness of these abhorrent practices, the lamentable
exploitation of the immigrant population continues. . . .'); Mendoza-Mazariegos v.
Muµasey, 509 F.3d 1074, n.4 (9th Cir., 2007) ('The immigration system in this
country is plagued with 'notarios' who prey on uneducated immigrants.').
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immigration court where she withdrew her asylum application and applied for
cancellation of removal. Although Carranza had counsel in immigration court, she
made a pro se appeal to the BIA and to this court.
Carranza entered the United States when she was approximately twenty-
seven-years-old. She is now forty-eight-years-old. She is the single mother of three
children and her youngest child is a United States citizen. Carranza has paid her
taxes since 1990. She is a productive and hard-worµing member of our society.
When a parent is denied cancellation of removal, the government effectively
deports the parent's United States-born children. This unconscionable result
violates due process because circumstances will force children to suffer de facto
expulsion from the country of their birth or forego their constitutionally protected
right to remain in this country with their family intact. 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 Nationùs history and
tradition.'); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (recognizing that '[t]he
integrity of the family unit has found protection in the Due Process Clause of the
Fourteenth Amendment').
Because Carranza will be separated from her U.S. citizen son, I cannot agree
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with the result in this case.
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