FILED

NOT FOR PUBLICATION MAR 17 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

EVARISTO MARTINEZ-PIOQUINTO, No. 05-75013

Petitioner, Agency No. A079-525-930

v.

MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted March 16, 2011 ** Pasadena, California

Before: PREGERSON, D.W. NELSON, and IKUTA, Circuit Judges.

Martinez-Pioquinto is statutorily ineligible for cancellation of removal

because he failed to demonstrate “good moral character” for the ten-year period

before the date of his application. See 8 U.S.C. §§ 1229b(b)(1)(B), 1101(f)(3).

Specifically, Martinez-Pioquinto admitted to knowingly assisting his fiancee to

* 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). “enter the United States in violation of law.” 8 U.S.C. § 1182(a)(6)(E)(i). The

family reunification exception to removability does not aid Martinez-Pioquinto,

because it is applicable only to waivers of admissibility, not to the establishment of

“good moral character,” see Sanchez v. Holder, 560 F.3d 1028, 1032 (9th Cir.

2009) (en banc); and even then applies only to aliens who assisted “the alien’s

spouse, parent, son, or daughter (and no other individual)” before May 5, 1988, 8

U.S.C. § 1227(a)(1)(E)(ii). The smuggling incident here occurred after May 5,

1988, and involved petitioner’s fiancee, not his wife.1

Like the dissent, we recognize that Martinez-Pioquinto is a sympathetic

figure. But like the immigration judge, we are bound by the law as it is, not the

law as it might (or should) be. The IJ did not err in denying Martinez-Pioquinto’s

application for cancellation of removal.

PETITION DENIED.

1 While the dissent is correct that the smuggling incident occurred more than ten years before this appeal, it occurred less than three years before the immigration judge rendered his ruling, and the statute required the immigration judge to determine whether Martinez-Pioquinto had been a person of “good moral character” during the ten-year period immediately preceding his application for relief. See 8 U.S.C. § 1229b(b)(1)(B).

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FILED

Martinez-Pioquinto v. Holder, No. 05-75013 MAR 17 2011

MOLLY C. DWYER, CLERK

U .S. C O U R T OF APPE ALS

PREGERSON, Circuit Judge, dissenting:

The majority leans heavily on Sanchez v. Holder, 560 F.3d 1028 (9th Cir.

2009) (en banc). I continue to abide by my view that Sanchez should be

overturned because it makes a mockery of our nation’s core values. See id. at 1036

(Pregerson, J., dissenting).

Like Sanchez, this is a case about a good and industrious husband and father

who established a loving home for himself, his wife, Guillermina Carrera Abad

(“Guillermina”), and their five American-born citizen children. Martinez-

Pioquinto works as an assembler in Anaheim, California, with the same company

he has worked for since 1990. He has paid his taxes every year since arriving in

the United States. The couple’s children have done well in school. The family

attends church together. Martinez-Pioquinto has never been detained by

immigration officials and has not been convicted of any criminal misconduct.

Martinez-Pioquinto and Guillermina both applied for cancellation of

removal based on the exceptional and extremely unusual hardship that their

deportation would cause to their qualifying U.S.-citizen children. See 8 U.S.C. §

1229b(b). Their second son was born prematurely and suffers from developmental

delays and neurological abnormalities. He attends the Rehabilitation Institute in Anaheim, California, to improve his development. The couple’s second daughter

suffers from febrile seizures, high fevers, and vomiting. She has difficulty

breathing, and has required several emergency room visits. Although she takes

medications regularly, doctors have been unable to give her a specific diagnosis.

The Immigration Judge (“IJ”) originally denied both Martinez-Pioquinto’s

and Guillermina’s applications for cancellation of removal for reasons unrelated to

an analysis of whether the U.S.-citizen children would suffer “exceptional and

extremely unusual hardship” should their parents be deported. See 8 U.S.C. §

1229b(b)(1)(D). The IJ denied Guillermina’s application for failure to establish

the requisite ten years physical presence for cancellation of removal. See 8 U.S.C.

§ 1229b(b)(1)(A). The BIA, however, severed Guillermina’s case from her

husband’s and remanded her case to the IJ because of a change in the law. On

remand, the IJ granted Guillermina cancellation of removal.

But the IJ denied Martinez-Pioquinto’s application because he concluded

that Martinez-Pioquinto was ineligible for cancellation because he lacked the

requisite “good moral character” to cancel removal. See 8 U.S.C. §

1229b(b)(1)(B). That finding was based on Martinez-Pioquinto’s truthful answers

to the Department of Homeland Security (“DHS”) attorney’s questions at his

hearing before the IJ on his application for cancellation of removal regarding an

2 incident that occurred now more than ten years ago: DHS attorney: The second time that [Guillermina] went back to Mexico [in January 2001], do you know why she went back? Martinez-Pioquinto: She went back to Mexico because she wanted to see her father, he was sick. DHS attorney: Okay. Did you accompany her on that occasion? Martinez-Pioquinto: No. DHS attorney: And how did she come back to the United States? Martinez-Pioquinto: That’s the second time she returned. She returned illegally. DHS attorney: Did she use the assistance of a smuggler? Martinez-Pioquinto: Yes. DHS attorney: And you were here in the United States, did you in anyway assist in those arrangements? Martinez-Pioquinto: Yes. DHS attorney: And how did you help? Martinez-Pioquinto: I paid the money where he could pass her. DHS attorney: And how much money did you pay? Martinez-Pioquinto: About $1,000 DHS attorney: And after you paid that money, did he assist her in coming to the United States illegally, the smuggler? Martinez-Pioquinto: Yes. DHS attorney: Nothing further, Your Honor.

Is such an honest man a man of bad moral character?

In Sanchez, this court held that an alien who arranged for his wife to be

smuggled into the United States cannot demonstrate the “good moral character”

necessary to cancel removal. Sanchez, 560 F.3d at 1034. As I wrote in my dissent

in Sanchez, “the majority struggle[d] through a labyrinth of complex statutory

interpretation to conclude that Congress intended that people like Sanchez be

3 deemed to have ‘bad moral character.’” Id. at 1038 (Pregerson, J., dissenting). As

in Sanchez, I find the result here to be absurd. This is not a story about a man with

“bad moral character.” It is instead “the story of a good man making every attempt

for himself, his wife, and his [five] American children to live the American

dream.” Id.

The en banc panel in Sanchez overturned Moran v. Ashcroft, 395 F.3d 1089

(9th Cir. 2005) by applying a misguided view of congressional intent. I continue

to find the reasoning of Moran to be much more compelling. See Sanchez, 560

F.3d at 1038 (Pregerson, J., dissenting). In Moran, we held that Congress intended

the “family unity” waiver employed in the inadmissibility context to apply to

cancellation of removal proceedings, where an “individual’s involvement in ‘alien

smuggling’ is limited to helping their own family members, including spouses and

children.” Moran, 395 F.3d at 1090. “[B]y establishing a ‘family unity’ waiver,

Congress has shown that it wants to help immigrant men and women maintain their

marriages and families.” Sanchez, 560 F.3d at 1039 (Pregerson, J., dissenting)

(emphasis in original).

Moreover, the result of this case is unconscionable. Martinez-Pioquinto’s

wife was granted cancellation of removal based on the IJ’s conclusion that the

couple’s American-born citizen children would suffer exceptional and extremely

4 unusual hardship if their mother were deported, meaning that she successfully

demonstrated that her children “would suffer hardship that is substantially beyond

that which would ordinarily be expected to result from [her] deportation.” In re

Monreal-Aguinaga, 23 I. & N. Dec. 56, 59 (BIA 2001) (emphasis added).

In this case, the government is substituting one extreme hardship that U.S.-

citizen children will suffer with another by deporting the sole breadwinner of the

family. Our government has already determined that extreme and unusual

hardship will be inflicted on five American-born citizen children if their mother is

deported. Martinez-Pioquinto’s deportation will undoubtedly cause his children to

suffer the extreme and unusual hardship the government sought to prevent when it

canceled the removal of their mother. This absurd result hurts not only the

children, but also burdens our government, which will likely have to provide

assistance to the family in their father’s absence.

This unconscionable result deprives American-born citizen children of their

constitutionally protected right to remain in the country of their birth with their

family intact. This outcome is unjust and violates due process. See, e.g., Moore v.

City of 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

5 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”). This suffering inflicted on five American-born citizen

children, we are told, is required by Sanchez. But I continue to believe that the

opinion in Sanchez “disregard[s] the explicit intent of Congress” to preserve family

unity. 560 F.3d at 1039 (Pregerson, J., dissenting). Accordingly, I respectfully

dissent.

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