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___________________________No 12-2145_____________________________ UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT __________________________________________________________________ MYRNA COLN-MARRERO Plaintiff-Appellant v. HCTOR CONTY-PREZ, President of the Puerto Rico State Elections Commission; EDWIN MUNDO-ROS, as Electoral Commissioner of the New Progressive Party; EDER ORTIZ-ORTIZ, as Electoral Commissioner of the Popular Democratic Party; ROBERTO I. APONTE-BERRIOS, as Electoral Commissioner of the Puerto Rican Independence Party; JULIO FONTANETMALDONADO, as Electoral Commissioner of the Movimiento Unin Soberanista Party; ADRIAN DAZ-DAZ, as Electoral Commissioner of the Puertorriqueos por Puerto Rico Party; and CARLOS QUIROS-MNDEZ, as Electoral Commissioner of the Pueblo Trabajador Party Defendants-Appellees __________________________________________________________________ INTERLOCUTORY APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO __________________________________________________________________ BRIEF OF AMICUS CURIAE FRANCISCO R. GONZLEZ-COLN IN SUPPORT OF AFFIRMANCE __________________________________________________________________
FRANCISCO J. GONZLEZ-MAGAZ USDC No. 223907 FRANCISCO GONZLEZ LAW OFFICE 1519 PONCE DE LEON FIRST FEDERAL SUITE 805 SAN JUAN, P.R. 00909 Tel. (787) 723-3222 FAX 722-7099 gonzalezmagaz@gmail.com

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TABLE OF CONTENT I. STATEMENT REGARDING THE AMICUS CURIAE.1 II. STATEMENT REGARDING PREPARATION OF BRIEF OF AMICUS CURIAE........................................................................................3 III. SUMMARY OF ARGUMENT...3 IV. ARGUMENT A finding that the NVRA, as amended by the HAVA, applies in Puerto Rico must necessarily include the recognition of the right to vote for the President and Vice-President...4 a. The NVRA does not apply to Puerto Rico4 b. Were the NVRA to apply in Puerto Rico, the whole statute, including the right to vote for the President and Vice-President, would apply7 c. To apply the NVRA to Puerto Rico with respect to voter registration, but without enforcing its provisions regarding the right to vote for the President and Vice-President, would mean unequal treatment to the U.S. citizens residing in the island11 V. CONCLUSION14

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TABLE OF AUTHORITIES CASES United States Supreme Court Willowbrook v. Olech, 528 U.S. 562, 564 (2000).12 First Circuit Court of Appeals Ayala-Sepulveda v. Municipality of San Germn, 671 F.3d 24, 32 (1st Cir. 2012).12 Gonzlez v. Holder, 673 F. 3d 35, 41 (1st Cir. 2012).10 Igarta de la Rosa v. U.S., 32 F. 3d 8 (1st Cir. 1994)9 Igarta de la Rosa v. U.S., 229 F.3d 80 (1st Cir. 2000).9 Igarta de la Rosa v. U.S., 417 F.3d 145 (1st Cir. 2004)...9 Palmquist v. Shinseki, 689 F. 3d 66, 77 (1st Cir. 2012)......9 Rubinovitz v. Rogato, 60 F.3d 906, 909-910 (1st Cir. 1995).12 U.S. v. Corts-Cabn, 691 F.3d 1, 35 (1st Cir. 2012)......9 U.S. v. Neto, 659 F.3d 194, at footnote 7 (1st Cir. 2011)12 U.S. v. Walker, 665 F. 3d 212, 225 (1st Cir. 2011)....10 STATUTES Fifth Amendment of the Constitution, USCS Const. Amend 511 Fourteenth Amendment of the Constitution, USCS Const. Amend 14.......12 Federal Election Campaign Act, 2 U.S.C. 431....8 Help America Vote Act of 2002 (HAVA), 116 Stat. 1666, Public Law 107252 of October 29, 2002..2

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National Voter Registration Act of 1993 (NVRA), 42 U.S.C. 1973gg et seq..2 Section 2 of the NVRA, 42 U.S.C. 1973gg3, 4, 8 Section 3 of the NVRA, 42 U.S.C. 1973gg-1.6 Section 8 of the NVRA, 42 U.S.C. 1973gg-62, 5 48 U.S.C. 891....7 STATE STATUTES Law No. 78 of June 1, 2012, as amended, known as the Puerto Rico Electoral Code for the 21st Century.5 RULES Rule 29 of the Federal Rules of Appellate Procedure, Fed. R. App. Proc. R. 291 AUTHORITIES U.S. House, Committee on House Administration; Help America Vote Act of 2002 (H. Rpt. 107-329, Pt. 1). Washington: Government Printing Office, 2002..7 ARTICLES Rogers, Estelle H., The National Voter Registration Act: Fifteen Years On (American Constitution Society for Law and Policy, Issue Brief, November 2009)6

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT MYRNA COLN-MARRERO APPEAL NO. 12-2145 Plaintiff-Appellant, v. HCTOR CONTY-PREZ, et al. Defendants-Appellees, BRIEF OF AMICUS CURIAE TO THE HONORABLE COURT: COMES NOW Francisco R. Gonzlez-Coln, through the undersigned counsel, and submits this Brief pursuant to his Motion for Leave to File Brief of Amicus Curiae per Rule 29 of the Federal Rules of Appellate Procedure, Fed. R. App. Proc. R. 29. I. STATEMENT REGARDING THE AMICUS CURIAE From the Federal District Court of San Juan, Puerto Rico, Civil Case No. 121749 (CCC)

Pursuant to Rule 29 of the Federal Rules of Appellate Procedure, the appearing citizen has filed a Motion for Leave to File Brief of Amicus Curiae. The appearing amicus curiae is a U.S. citizen residing in Puerto Rico who has registered to vote in the November 6, 2012 general elections with electoral number 1206164. Appearing individual is also an attorney and officer of the court with over forty years of experience in civil rights litigation before the state courts of Puerto Rico, the District Court for the District of Puerto Rico, this Honorable Court and the Supreme Court of the United States. He appears before this Honorable Court as a citizen seeking

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to participate in fair and impartial elections in full exercise of his civil rights. Specifically, this friend of the Honorable Court also appears on behalf of the estimated 3.7 million U.S. citizens residing in Puerto Rico who are deprived of their right to vote for the President of the United States. Regarding the linchpin issue before the Court, the appearing amicus concurs with the District Court in that, as a legal matter, the National Voter Registration Act of 1993 (NVRA), 42 U.S.C. 1973gg et seq, as amended by the Help America Vote Act of 2002 (HAVA), 116 Stat. 1666, Public Law 107252 of October 29, 2002, does not apply in Puerto Rico. 1 However, the amicus appears to raise and highlight an important consideration for the Courts analysis. That is, should this Honorable Court reverse the District Court, and decree that the NVRA applies to Puerto Rico, then all of its statutory mandates would have to be enforced vis--vis Puerto Rico. If applicable, the rights bestowed by the NVRA are to be applied as a whole, all or nothing, without cherry picking. It follows that, were the NVRA to be applied in Puerto Rico for purposes of Section 8, supra, voter registration, Puerto Rico residents would also be given the right as U.S.

The NVRA was approved in 1993 to promote the right to vote in Federal elections for all U.S. citizens and establish mechanisms aimed at increasing voter registration and turnout. The HAVA was approved in 2002 to establish uniform voting standards. In relevant part, the HAVA amended Section 8 of the NVRA to allow the removal of an individual from voter registration lists if that person did not notify the applicable registrar of his intention to remain in said lists and if he failed to vote or appear to vote in two consecutive Federal elections. 42 U.S.C. 1973gg-6.

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citizens to also vote for Federal elected officials, including the President and the VicePresident of the United States, pursuant to Section 2 of the same statute. 42 U.S.C. 1973gg. To apply the NVRA in Puerto Rico for purposes of registration without granting the same citizens the right to vote for the President and the Vice-President as established in the same statute, would contravene the rules of coherent statutory interpretation; set a dangerous precedent of statutory choosing-and-picking (especially troubling regarding civil rights legislation); frustrate the NVRAs and HAVAs legislative intent, rendering the statutory scheme hollow and inherently inconsistent; violate the Equal Protection Clause as to the residents of Puerto Rico; and, worst of all, once again deny such U.S. citizens the right to political representation by preventing their participation in the election of the President and Vice-President. II. STATEMENT REGARDING PREPARATION OF BRIEF OF AMICUS CURIAE

This Brief has been researched, drafted and prepared by the undersigning counsel on behalf of the appearing amicus curiae. No party or partys counsel has authored, in whole or in part, this Brief. Moreover, no party, partys counsel, or person other than the undersigning counsel have contributed any money in the preparation of this Brief. III. SUMMARY OF ARGUMENT

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As previously stated, the appearing citizen agrees with the legal analysis that the NVRA, as amended by the HAVA, does not apply to Puerto Rico. As a matter of law, the District Courts dismissal of the Appellants action should not be reversed. Still, given the possibility that this Honorable Court may nevertheless reverse the District Court and thus apply the NVRA in Puerto Rico, the appearing citizen deems it essential for this Honorable Court to take into account some far reaching consequences of the issue. To wit, the application of the NVRA, as amended, would necessarily entail the recognition of the right of the residents of Puerto Rico to vote for President and Vice-President of the United States as provided in Section 2 of the same statute. With full respect, the appearing amicus submits that a partial application of the NVRA in Puerto Rico applying the voter registration provisions, but not those regarding the vote for the President and Vice-President would be picking and choosing, an exercise that is legally impermissible. Such a ruling would contravene bedrock principles of

legal interpretation, fly against the express purpose and language of the NVRA, and provoke an equal protection violation against 3.7 million U.S. citizens in Puerto Rico. IV. ARGUMENT A finding that the NVRA, as amended by the HAVA, applies in Puerto Rico must necessarily include the recognition of the right to vote for the President and Vice-President. a. The NVRA does not apply to Puerto Rico.

Appellant argues that the district courts reading of NVRA as inapplicable to Puerto Rico is contrary to the purpose and letter of the law. Appellants Brief, at

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page 31. Within that premise, Appellant alleges that the NVRA, as amended by the HAVA, prohibits a state from removing an individual from a list of registered voters unless that person has not voted or appeared to vote in two or more consecutive elections for Federal office and has not notified the applicable registrar of his/her intention to remain registered. To that purpose, Appellant relies on Section 8 of the NVRA, as amended by the HAVA: Any State program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll for elections for Federal office (1) [] (2) shall not result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the persons failure to vote, except that nothing in this paragraph may be construed to prohibit a State from using the procedures described in subsections (c) and (d) of this section to remove an individual from the official list of eligible voters if the individual (A) has not either notified the applicable registrar (in person or in writing) or responded during the period described in subparagraph (B) to the notice sent by the applicable registrar; and then (B) has not voted or appeared to vote in 2 or more consecutive general elections for Federal office. Supra. Thus, according to the Appellant, the State Elections Commission of Puerto Rico cannot remove individuals from the lists of registered voters for having

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failed to appear to vote in one state general election, as local law has mandated since 1977. 2 Although the appearing amicus seeks recognition of the right of the U.S. citizens residing in Puerto Rico to vote for the President and Vice-President of the United States, the objective legal analysis conducted by counsel for the amicus concurs with the conclusion issued by the District Court as a legal matter, the NVRA is inapplicable to Puerto Rico. The NVRA is only applicable to some, not even all, States, and certainly no territories. As provided in Section 4 of the NVRA: [E]ach State shall establish procedures to register to vote in elections for Federal Office 42 U.S.C. 1973gg-2. Section 4 also excludes from the NVRA any State (1) that does not have a voter registration requirement for any voter in the State with respect to an election for Federal office; or (2) where all voters can register at the polling place at the time of voting in elections for Federal office. Id. In 2009, the NVRA did not apply to North Dakota, Idaho, Minnesota, New Hampshire, Wisconsin, and Wyoming. See Rogers, Estelle H., The National Voter Registration Act: Fifteen Years On (American Constitution Society for Law and Policy, Issue Brief, November 2009). Moreover, the NVRA defines the term State as a State of

The removal of an individual from the voting registration list for failure to appear to vote in one election has been the norm in Puerto Rico since it was included in Article 2.102 of the Puerto Rico Electoral Law of 1977. Currently, this mechanism is found in Art. 6.012 of Law No. 78 of June 1, 2012, as amended, known as the Puerto Rico Electoral Code for the 21st Century.

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the United States and the District of Columbia. 42 U.S.C. 1973gg-1. This definition unquestionably excludes the Commonwealth of Puerto Rico. Also, any argument that the HAVA serves to extend the provisions of the NVRA to Puerto Rico and preempt any contradictory state law is without merit. To that point, the Committee on House Administration issued a Report on H.R. 3295, which later become the HAVA, stating, in pertinent part, that H.R. 3295 is not intended to preempt any state or local law See U.S. House, Committee on House Administration; Help America Vote Act of 2002 (H. Rpt. 107-329, Pt. 1). Washington: Government Printing Office, 2002. Finally, the U.S. Department of Justices own website explains that [t]he requirements of the NVRA apply to 44 States and the District of Columbia the territories are not covered by the NVRA (Puerto Rico, Guam, Virgin Islands, American Samoa). See

http://www.justice.gov/crt/about/vot/nvra/nvra_faq.php. Also, the NVRA was designed to address Federal elections occurring every two years, since that is the effective term of a member of the U.S. House of Representatives. However, the effective term for the only Federal elected official in Puerto Rico, the Resident Commissioner, is four years. 48 U.S.C. 891. In effect, one general election cycle in Puerto Rico equals two Federal election cycles. As such, because the time cycle in Puerto Rico equals two Federal cycles, there exists no

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contradiction between the NVRA and the longstanding legal requirement in Puerto Rico to register for elections if a citizen did not vote in the last election cycle. b. Were the NVRA to apply in Puerto Rico, the whole statute, including the right to vote for the President and Vice-President, would apply. The NVRA does more than just establish norms for voter registration. The NVRA also provides the right for all U.S. citizens to vote for Federal offices, including the President and Vice-President of the United States. Section 2 of the NVRA sets forth such rights: The Congress finds that (1) the right of citizens of the United States to vote is a fundamental right; (2) it is the duty of the Federal, State, and local governments to promote the exercise of that right; and (3) discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for Federal office and disproportionately harm voter participation by various groups, including racial minorities. 42 U.S.C. 1973gg. In the previously cited Congressional findings issued for the approval of the NVRA, we also find a clear intent to promote the right to vote for Federal office as a fundamental right for all U. S. citizens. As stated above, under the NVRA, the exercise of this right must be actively promoted by the Federal Government lest any discriminatory practice harms voter participation by racial minorities. And note that the NVRA is limited to elections for Federal office, a term defined, by reference to

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the Federal Election Campaign Act, to include the office of President or Vice President, or of Senator or Representative in, or Delegate or Resident Commissioner to, the Congress. 2 U.S.C. 431. Likewise, pursuant to Section 4 of the NVRA: [E]ach State shall establish procedures to register to vote in elections for Federal Office Supra. In Appellants own words, the NVRA is aimed primarily at State election of presidential electors and Congressional election to the House and Senate. Appellants Brief, at page 26. Against that background, a ruling for the application of the NVRA to Puerto Rico would necessarily encompass the finding that the Federal Government has the obligation to promote the vote for President and Vice-President as a fundamental right of all U.S. citizens, including (if the NVRA is applied to Puerto Rico) those residing in the island. More, the Federal Government would be duty bound to avoid and prosecute any practice that could infringe upon this right and harm a racial minority (i.e., in this context, Puerto Ricans).3

The question of whether U.S. citizens residing in Puerto Rico have the right to vote for the President and Vice-President of the United States has been brought before this Honorable Court on three prior occasions. Repeatedly and based on different legal grounds than the ones at issue in the present case, this Honorable Court has found that, despite being U.S. citizens, the residents of Puerto Rico cannot partake in the selection of their President. See Igarta de la Rosa v. U.S., 32 F. 3d 8 (1st Cir. 1994); Igarta de la Rosa v. U.S., 229 F.3d 80 (1st Cir. 2000); Igarta de la Rosa v. U.S., 417 F.3d 145 (1st Cir. 2004). The appearing amicus submits that such a right to political participation exists irrespective of the prior federal case law having failed to recognize it, and independent of whether the NVRA applies to Puerto Rico.

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The interpretation and application of a statute must begin with its plain language. U.S. v. Corts-Cabn, 691 F.3d 1, 35 (1st Cir. 2012). As this Honorable Court held in Palmquist v. Shinseki, 689 F. 3d 66, 77 (1st Cir. 2012), courts, whenever possible, [should] give meaning to every word and phrase contained in the text of a statute. This is derivative of the venerable principle of interpretation that all words and provisions of statues should be given effect and that [c]onstructions that would render statutory words or phrases meaningless, redundant or superfluous should be avoided. U.S. v. Walker, 665 F. 3d 212, 225 (1st Cir. 2011). This Honorable Court has also held that where, as here, the statute's language is plain, the sole function of the courts is to enforce it according to its terms. Supra, at 39-40. Thus, the language of a statute is conclusive absent a clearly expressed legislative intention to the contrary. Id. Simply stated, having established the intention of a law, this Honorable Courts job is to effectuate the intent expressed in the plain language Congress has chosen, not to effectuate purported policy choices regardless of language. Gonzlez v. Holder, 673 F. 3d 35, 41 (1st Cir. 2012). Under these legal principles, should this Honorable Court reverse the District Court and find that the NVRA applies to Puerto Rico, then all of the statutes

But, logically, the application of NVRA in Puerto Rico would inevitably carry the recognition and implementation of that right.

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provisions must be applied with equal force. 4 Among those provisions is the right to vote for the President and Vice-President of the United States in the general elections, as the language of the NVRA is clear and unequivocal on that respect. In Section 2, the NVRA expressly requires the Federal Government to promote and facilitate that all U.S. citizens covered by the statute be allowed to vote for the President and VicePresident of the United States. To apply the NVRA to Puerto Rico without granting Puerto Ricans the right to exercise such votes would contravene the intent and commandments of the statute. 5 c. To apply the NVRA to Puerto Rico with respect to voter registration, but without enforcing its provisions regarding the right to vote for the President and Vice-President, would mean unequal treatment to the U.S. citizens residing in the island. To apply the NVRA to Puerto Rico without recognizing the right, as expressly provided in the statute, to vote for the President and Vice-President of the United States, would be discriminating against 3.7 million U.S. citizens residing in Puerto Rico disparately versus the U.S. citizens who reside in jurisdictions where the statute

The fact that the NVRA does not contain a separability clause is of particular significance in this regard. A separability clause would have allowed some provisions of the NVRA to be enforced even if other sections were found to be invalid. However, the omission of said clause points to Congress intention that the NVRA be enforced in whole. 5 The appearing amicus understands that, if successful in convincing this Court, the Appellant may prefer a selective, more limited application of the NVRA, but a party may not at its convenience pick and choose which provisions of the statute to apply.

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is also applied. Such disparate treatment would violate the Equal Protection Clause of the U.S. Constitution. The Fifth Amendment of the U.S. Constitution commands, in part, that [n]o person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. USCS Const. Amend 5 (emphasis ours). The Fourteenth Amendment then provides, in pertinent part, that [n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor deny to any person within its jurisdiction the equal protection of the laws. USCS Const. Amend. 14, 1. The U.S. Supreme Court has explained that the purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the state's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents. Willowbrook v. Olech, 528 U.S. 562, 564 (2000)(cites omitted). This Honorable Court has held that [e]qual protection analysis is the same under the Due Process Clause of the Fifth Amendment and Equal Protection Clause of the Fourteenth Amendment. U.S. v. Neto, 659 F.3d 194, at footnote 7 (1st Cir. 2011). This Honorable Court has established the following two-prong framework for an equal protection claim: Liability in the instant type of equal protection case should depend on proof that (1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible

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considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person. Rubinovitz v. Rogato, 60 F.3d 906, 909-910 (1st Cir. 1995). Further, a plaintiff claiming an equal protection violation must first identify and relate specific instances where persons situated similarly in all relevant aspects were treated differently, instances which have the capacity to demonstrate that plaintiffs were singled out for unlawful oppression." Ayala-Sepulveda v.

Municipality of San Germn, 671 F.3d 24, 32 (1st Cir. 2012)(cites omitted). These principles brought to bear, should this Honorable Court find that the NVRA applies to Puerto Rico, but not extend to Puerto Ricans the right to vote for the U.S. President and Vice-President, would provoke an equal protection violation against 3.7 million U.S. citizens. It is a simple matter of taking judicial notice that the NVRA, as amended, carries the clear Congressional intention of recognizing, promoting and facilitating the vote for the President for the Vice-President. An easily achievable next step would be to show that an extraction of the right to vote for the President and VicePresident from the NVRA as applied in Puerto Rico, would constitute different treatment to the U.S. citizens in Puerto Rico, as opposed to how the statute is applied fully in every other jurisdiction where it operates. That would be effective evidence to satisfy the first prong of an equal protection violation that a person compared with others similarly situated was treated differently, for a constitutionally unacceptable reason, to his detriment. Specifically, U.S. citizens residing in Puerto

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Rico would be treated differently in the application of the NVRA when compared to other U.S. citizens. With regards to the second prong that such selective treatment was based on constitutionally impermissible considerations there would be no valid motivation for arbitrarily interpreting the NVRA restrictively to deny the U.S. citizens residing in Puerto Rico their right to vote for President or Vice-President. Previously, in the Igarta cases discussed above, this detrimental, unequal treatment was justified by claiming a distinction between the States and territories under the U.S. Constitution. However, such a distinction would not be available under the NVRA if it were applied to Puerto Rico. As previously discussed, since a law must be enforced in all its elements equally, applying the NVRA to Puerto Rico would entail recognizing, per that statute, that Congress intended to grant U.S. citizens in Puerto Rico the right to vote for the U.S. President and Vice-President. Otherwise, exempting Puerto Ricans from some such provisions of the NVRA and therefore denying them a fundamental right could only be explained by the fact that the vast majority of U.S. citizens in Puerto Rico are, of course, Puerto Ricans. V. CONCLUSION

The appearing amicus curiae sustains that, as a matter of law, the NVRA does not apply to Puerto Rico. Moreover, the amicus respectfully avers that, should this Honorable Court determine that the NVRA is applicable to Puerto Rico for purposes of voter registration, then all of its provisions would apply to Puerto Rico, including

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the directive to recognize and allow for the fundamental right to participate in the general elections vote for the U.S. President and Vice-President. Were the NVRA applied to Puerto Rico with regards to voter registration, but not with regards to the Presidential and Vice-Presidential vote, the intent and purpose of the NVRA would be defeated. Such a ruling would stand against paramount principles of statutory interpretation and construction. Such a selective and restrictive application of NVRA would also constitute an equal protection violation against 3.7 U.S. citizens residing in Puerto Rico, the vast majority of which are Puerto Ricans. WHEREFORE, for the reasons stated above, the appearing amicus curiae respectfully submits this Brief in the hope that it will assist in the Courts consideration of the issues. CERTIFY: Subscribing counsel hereby certifies that on this same date they have filed the foregoing with the Courts Electronic Filing System, which will serve copy of this Brief via e-mail to appearing attorneys. RESPECTFULLY SUBMITTED. In San Juan, Puerto Rico, this 9th day of October, 2012.
s/ Francisco J. Gonzlez-Magaz FRANCISCO J. GONZLEZ-MAGAZ USDC No. 223907 FRANCISCO R. GONZLEZ LAW OFFICE 1519 PONCE DE LEN AVE. FIRST FEDERAL, SUITE 805 SAN JUAN, P.R. 00909 Tel. (787) 723-3222 FAX 722-7099 gonzalezmagaz@gmail.com

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CERTIFICATE OF COMPLIANCE WITH RULE 32(a) 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 3,827 words, excluding the parts of the brief exempted by Fed. R. App. P.32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Office Word 2007 in 14 font Times New Roman.

s/ Francisco J. Gonzlez-Magaz FRANCISCO J. GONZLEZ-MAGAZ Attorney for Amicus Curiae Francisco R. Gonzlez-Coln Dated: October 9, 2012