Fuentes Aguilar v. Holder

FILED
NOT FOR PUBLICATION JUL 28 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BALTAZAR FUENTES AGUILAR, No. 04-73796
Petitioner, Agency No. A095-878-110
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 20, 2008 **
Before: PREGERSON, TASHIMA and GOULD, Circuit Judges.
Baltazar Fuentes Aguilar, a native and citizen of Mexico, petitions pro se for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reconsider its summary affirmance of an immigration judge’s decision denying
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
him cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We
review for abuse of discretion the denial of motions to reconsider. Cano-Merida v.
INS, 311 F.3d 960, 964 (9th Cir. 2002). We deny the petition for review.
Fuentes Aguilar’s opening brief does not challenge the BIA’s order denying
reconsideration, so we do not review that order. See Martinez-Serrano v. INS, 94
F.3d 1256, 1259-60 (9th Cir. 1996) (issues not specifically raised and argued in a
party’s opening brief are waived).
Fuentes Aguilar’s equal protection challenge to the Nicaraguan and Central
American Relief Act is foreclosed by Jimenez-Angeles v. Ashcroft, 291 F.3d 594,
602-03 (9th Cir. 2002) (“Congress’s decision to afford more favorable treatment to
certain aliens ‘stems from a rational diplomatic decision to encourage such aliens
to remain in the United States.’”) (quoting Ram v. INS, 243 F.3d 510, 517 (9th Cir.
2001)).
PETITION FOR REVIEW DENIED.
FILED
JUL 28 2010
Fuentes-Aguilar, No. 04-73796, Pregerson, J., Dissenting:
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
Fuentes-Aguilar has lived in the United States since 1995. Fuentes-Aguilar
applied for asylum, likely with the assistance of a notario 1 of some kind. These
individuals encourage undocumented immigrants to file asylum applications and
collect fees for the “assistance” they render with the application. Fuentes-Aguilar
was referred to immigration court where he withdrew his asylum application and
applied for cancellation of removal. The IJ denied Fuentes-Aguilar’s application
for cancellation of removal because Fuentes-Aguilar had failed to demonstrate the
required ten years of physical presence in the United States.
Fuentes-Aguilar entered the United States when he was approximately
seventeen-years-old. He is now thirty-two-years old. In 2003, Fuentes-Aguilar
became a father when his fiancee gave birth to his son, Kevin Fuentes-Martinez, a
United States citizen.
1
Our case law recognizes the problem of notarios operating within the
undocumented immigrant community. See, e.g., Morales Apolinar v. Mukasey, 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.
Mukasey, 509 F.3d 1074, n.4 (9th Cir., 2007) (“The immigration system in this
country is plagued with ‘notarios’ who prey on uneducated immigrants.”).
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 Nation’s 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 Fuentes-Aguilar will be separated from his six-year-old U.S. citizen
son, I cannot agree with the result in this case.