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Federal Policy Becomes Family Matter

U.S. orders couple's deportation, though judge ruled it would hurt their gifted child.

October 27, 2003|Teresa Watanabe | Times Staff Writer

Eleven-year-old Diana Cabrera is a straight-A honors student, hits top scores on statewide achievement tests and has never missed a day of class. The Los Angeles native studies as much as six hours a day.

"She's the smartest student I've had in 30 years of teaching," said JoAnn Burdi, who teaches Diana and other gifted sixth-grade students at Bell Gardens Intermediate School, which serves low-income, mostly Latino families east of Los Angeles. "She's 11 years old but has the maturity of a 25-year-old."

But Diana's confident future has suddenly been darkened as she stands at the center of a legal and political controversy over illegal immigration: Should the needs of an unusually gifted student who is a U.S. citizen be used to grant legal status to undocumented immigrant parents?

Last year, a Los Angeles immigration judge said yes. In a March 2002 decision, Judge Bruce J. Einhorn canceled deportation orders for Diana's parents, Benjamin and Londy Cabrera, who illegally immigrated here in the 1980s and are nearing the end of unsuccessful efforts to obtain amnesty or asylum.

Diana's academic achievements would be "savagely and permanently interrupted" by her parents' deportation, Einhorn wrote, noting that the family had paid taxes, committed no crimes and did not receive welfare. He ruled that the girl, born in Los Angeles, would suffer "exceptional and extremely unusual hardship," a legal finding required to cancel removal orders.

But last month, the federal Board of Immigration Appeals reversed the decision and ordered the Cabreras deported last week -- Benjamin to his native Mexico and Londy to her Guatemalan homeland. In its opinion, the board said that granting the exception would essentially open the door to all illegal immigrants from developing countries with bright children.

The Cabreras' attorneys have obtained a 60-day extension of removal orders and are seeking new avenues of legal challenge.

In the meantime, the family faces the collapse of a life built up over two decades.

"Can you believe all of these wonderful opportunities denied to Diana just because she's my daughter?" Londy Cabrera said, her large brown eyes filling with tears. "That hurts me. To me, it really hurts me."

Immigration officials in Washington and Los Angeles declined to comment on the case. "The decision speaks for itself," said Greg Gagne, spokesman for the Executive Office for Immigration Review, which oversees the appeals board.

The case illustrates disputes over recent changes at the immigration appeals board, often called the supreme court of immigration cases. According to a study for the American Bar Assn., the board has sharply reduced the number of appeals it grants: from one in four in 2001 to one in 10 today.

The changes occurred, the study found, after the Justice Department implemented sweeping procedural reforms to reduce a backlog of 55,000 cases in early 2002. The reforms included strict time limits for deciding cases, broader permission for a single board member to decide cases rather than a three-member panel and a reduction in board members from 23 to 11.

The study alleged that board members removed and reassigned were those most likely to grant the immigrant appeals. "This change in composition of the Board detracts from a public perception of fair and impartial decision making," said the study, which was conducted for the association by the law firm of Dorsey & Whitney.

But U.S. Rep. Tom Tancredo, the Colorado Republican who heads the Congressional Immigration Reform Caucus, said the appeals board reforms were needed because the previous procedures had been too often exploited by illegal immigrants to prolong their stays.

Granting an exception to the Cabreras would be "nothing more than a slap in the face" to immigrants who entered the country legally, Tancredo said. "It breeds disrespect for the law and tells those who are patiently waiting in line that they're suckers."

In cases like the Cabreras', decisions by the immigration appeals board are supposed to be final. That's because Congress eliminated the right of judicial review for cases involving hardship claims as part of its 1996 immigration reform law. In a new legal strategy, however, Los Angeles attorney Carl Shusterman is petitioning the 9th Circuit Court of Appeals to review the Cabrera case on the grounds that the appeals board wrongly considered only Diana's education. Shusterman argues that the board failed to consider other potential hardships: the fracturing of the family and the impact on the Cabreras' other relatives who are legal U.S. residents. They include the couple's younger daughter, Jocelyn, and Benjamin's diabetic mother, whom he supports financially.

"This is a mean-spirited decision," Shusterman said.

To Burdi, her star pupil's family deserves an exception to what she said were otherwise understandable laws to control illegal immigration.

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