                                                                           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                             NOT FOR PUBLICATION                            JUL 28 2010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.
