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

By 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.

"This is a family that does not rely on welfare," Burdi said. "They speak to us in English. They've done it all on their own. This is something our society should be proud of and open our arms to and say: 'This is what should be a model of what's possible in America.' "

The family has also won political advocates. U.S. Rep. Lucille Roybal-Allard (D-Los Angeles) says she will introduce legislation to cancel the Cabreras' deportation orders and grant them permanent legal residency if all other strategies fail.

"Our country is better off because they are here," she said in a prepared statement. "They have earned the right to become legal residents."

On a recent morning at Bell Gardens Intermediate, health teacher Marilyn Thompson asked her sixth-graders to write down a source of stress.

"Getting a bad grade!" Diana wrote.

That hardly ever happens.

Although she spoke only Spanish until she started kindergarten, Diana was achieving nearly perfect marks of "outstanding" by the end of first grade and continued stellar marks through elementary school. She's earned a trove of awards for spelling, science, citizenship, perfect attendance and other fields. In 2000, Diana was selected by The Times as one of the region's "Remarkable Students."

At the same time, Diana was acing statewide standardized tests. In her most recent California Standards Test taken earlier this year, Diana scored in the 99th percentile for language, 98th for math and spelling, and 83rd for reading.

The self-possessed girl with serious brown eyes and wavy long hair has also achieved national honors. For the last two summers, Diana has been selected to attend a math and science summer honors program at Johns Hopkins University in Maryland, which culls its class from the top 3% of students nationwide, according to Victor Chavez, principal of Bell Gardens Intermediate.

"I was thinking of becoming a scientist at one point — maybe I could win the Nobel Prize," Diana said. She has also toyed with the idea of becoming an FBI forensic scientist. Or an attorney. Or maybe the first female president of the United States.

Not that Diana never goofs off. She likes to swim. Sometimes she plays tag with her cousins. The room she shares with Jocelyn features typical girlish decor: pink walls, a flowered comforter, pastel curtains. Her bed is lined with a Cabbage Patch doll from Mom, a stuffed dog from Dad and a SpongeBob SquarePants pillow.

But studies are her consuming focus. "I'm more interested in achieving and setting goals for myself," said Diana, who is absorbed in a project on Cro-Magnons. "I like to be a role model for other kids so they understand how school is important."

What motivates Diana? Her answer is succinct: Mom.

Londy Cabrera says she grew up poor, like 75% of Guatemala's population. But she too, she said, was always consumed by a fierce desire to learn.

She says she excelled in her studies through the 12th grade, thanks to a hard-scrabbling mother who worked as a nurse to earn money for school. Londy says she made the furtive trek to the United States in 1988 to earn money to return home, attend a university and become a social worker.

"I always wanted to be someone," recalled Londy, who received her legal work permit two years ago and now assists severely disabled students at Rosewood Park Elementary School in Commerce.

"I always told Diana the only way to succeed in life is to study. There is a star out there that will make your life bright and you have to touch it," Londy said.

After she met and married Benjamin in Los Angeles, however, her plans changed. He had illegally crossed into the United States in 1985 and found work picking peppers in Santa Barbara and other local farm fields.

In 1988, he says, he applied for a special amnesty extended to certain farm workers and obtained a legal work permit while his case was pending. He began working at a Downey restaurant, and is now a supervisor overseeing 40 employees.

Along the way, the couple achieved the classic American dream. In 1999, they bought a $150,000 stucco house with two bedrooms, two baths and a neatly tended yard filled with rose bushes. Two years ago, they bought their first new vehicle, a Nissan Frontier pickup.

In 2002, the family received its best news yet: Though Benjamin's request for amnesty had been rejected, Los Angeles immigration judge Einhorn had granted them permission to make the United States their permanent home.

The family celebrated with a dinner out at their favorite restaurant. "We were so happy," Londy said. "It was freedom."

Now, as the family waits for its legal denouement, there are frequent tears and bouts of high blood pressure.

Through it all, Diana still studies, and dreams. "My mother told me there's a ladder to the stars and I have to climb it. If there's butter on it and you slip, you just have to keep going," Diana said. "I don't think I've ever slipped. I keep on climbing."