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

A96-059-341 ALBERTO R. GONZALES, Attorney

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 Naturalization Act expressly eliminates our jurisdiction over decisions

by the Board of Immigration Appeals that involve the exercise 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
Rosario Renden Velez failed to establish the requisite exceptional 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 empathize with Judge Pregerson’s heartfelt sentiments, Congress

has delegated to the Attorney General the discretion to consider them and it has restricted our power to overturn them.

See 8 U.S.C. § 1252(a)(2)(B)(i). As our colleague, Judge Farris, so eloquently put it in another immigration case, “My

brother and I differ on what is the appropriate appellate function. 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 government 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 process by forcing the children to accept de facto expulsion from

their native land or give up their constitutionally protected

3482 MEMIJE v. GONZALES
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 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”). 

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 taxpayers. 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 Mexico. 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 daughter, 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 parents are removed to Mexico, circumstances will force her to

MEMIJE v. GONZALES 3483
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 depression 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 devastating 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 opportunity 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. 

3To 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. Appendix E is a letter of recommendation for Erica. Appendix F is a letter of recommendation for Maria. Appendix G is a letter of recommendation for

Noe. 

3484 MEMIJE v. GONZALES
Accordingly, I vote to grant petitioners’ motions for reconsideration 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 conceived 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

MEMIJE v. GONZALES 3485
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 homework 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 village 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 necklace 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

3486 MEMIJE v. GONZALES
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 parents 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. illegally. 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

MEMIJE v. GONZALES 3487
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 

3488 MEMIJE v. GONZALES
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 survive? 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 thinking at what she might want for her career and then all at once

MEMIJE v. GONZALES 3489
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 SEMES3490 MEMIJE v. GONZALES
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, dedication 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 during 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

MEMIJE v. GONZALES 3491
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 following 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

3492 MEMIJE v. GONZALES
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 language, and computer education. His favorite subject is computer 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 studentMEMIJE v. GONZALES 3493
mentoring program. He also attends After School Tutoring

three days a week for one hour. 

Thank you, 

/S/ Maria P. Castillo 

Maria P. Castillo 

3494 MEMIJE v. GONZALES

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