Gutierrez v. Holder
2011 U.S. App. LEXIS 22518
| 9th Cir. | 2011Background
- Gutierrez is a 70-year-old Mexican national who entered the U.S. between 1969 and 1971.
- He is not married and has no children; his relatives include U.S. citizens and lawful permanent residents.
- In Oct. 2001, he was issued a Notice to Appear charging removability for presence without admission or parole.
- Gutierrez sought registry, cancellation of removal, and voluntary departure; the IJ denied relief, citing lack of good moral character and no exceptional hardship.
- The IJ disallowed telephonic testimony for three witnesses due to untimeliness and lack of affidavits, though other family witnesses testified.
- The BIA adopted the IJ’s decision, sua sponte reopened, and affirmed denial of registry and cancellation; Gutierrez sought review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review registry denial. | Gutierrez argues the decision is reviewable under 8 U.S.C. §1252(a)(2)(D) and 1259. | The government contends the registry denial is discretionary and barred from review. | Court has jurisdiction to review the IJ/BIA good moral character determination for registry. |
| Whether the IJ could base good moral character on past conduct and lookback period was reasonable. | Gutierrez claims only present conduct may be considered; past conduct should not be weighed. | Agency proper to consider a reasonable period looking back; past acts can affect current character. | The court upheld consideration of past conduct over a reasonable period and affirmed lack of good moral character. |
| Whether the telephonic witness exclusion violated due process. | Gutierrez contends due process was violated by excluding telephonic testimony. | Exclusion was justified due to untimeliness and availability of other witnesses; no prejudice. | No due process violation; full opportunity to present case was provided. |
| Whether drawing a negative inference from Fifth Amendment silence violated rights. | Gutierrez asserts Fifth Amendment rights were violated by adverse inference. | Adverse inference permissible in deportation hearings when the respondent declines to answer. | No Fifth Amendment violation; adverse inference upheld. |
Key Cases Cited
- Singh v. Holder, 591 F.3d 1190 (9th Cir. 2010) (distinguishes what is discretionary vs. not under IIRIRA/Real ID rules)
- Matter of Sanchez-Linn, 20 I. & N. Dec. 362 (BIA 1991) (lookback period for good moral character before application)
- Matter of De Lucia, 11 I. & N. Dec. 565 (BIA 1966) (establishes need for a reasonable period of time for character evaluation)
- Getachew v. INS, 25 F.3d 841 (9th Cir. 1994) (full and fair hearings; due process standard in deportation proceedings)
- Kalaw v. INS, 133 F.3d 1147 (9th Cir. 1997) (transitional rules and scope of review for good moral character under IIRIRA)
- Bilokumsky v. Tod, 263 U.S. 149 (U.S. 1923) (adverse inference permissible in deportation hearings)