59 F.4th 762
6th Cir.2023Background
- Jorge Hernandez, born in El Salvador, entered the U.S. without inspection before age 18 and lived in the U.S. continuously for over ten years.
- He married a U.S.-permanent-resident spouse and was stepfather to four children; he worked in a job that often required travel away from home.
- Hernandez sought cancellation of removal under 8 U.S.C. § 1229b(b)(1); an IJ initially denied relief (citing tax issues and convictions), the Board remanded, the case was administratively closed, then reopened.
- On remand the IJ found Hernandez satisfied the ten-year presence and hardship elements but lacked "good moral character," relying primarily on multiple drinking-and-driving convictions and other arrests; the Board affirmed.
- Hernandez petitioned for review arguing the Board erred in balancing his positive attributes against his criminal history and alternatively sought voluntary departure; the Sixth Circuit found the good-moral-character question reviewable as a mixed question but denied relief on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review the Board's good-moral-character determination | Hernandez: the question is a mixed question of law and fact and is reviewable under §1252(a)(2)(D) and Guerrero-Lasprilla | Government: §1252(a)(2)(B) bars review of discretionary decisions, and good-moral-character inquiries are discretionary and fact-intensive | Court: The good-moral-character determination is a mixed question of law and fact and is reviewable under §1252(a)(2)(D) (Sixth Circuit follows Guerrero-Lasprilla and Singh) |
| Merits: whether Hernandez lacked good moral character | Hernandez: his positive traits (caregiver, steady work, family support) outweigh negatives; Board misbalanced the factors | Government: multiple DUI convictions and alcohol-related conduct during the relevant period demonstrate lack of good moral character | Court: Upheld Board; DUI convictions (two within the relevant period plus other arrests/convictions) support finding that negatives outweigh positives; petition denied |
| Voluntary departure relief | Hernandez: alternatively, he should have been allowed voluntary departure | Government: Denial of voluntary departure is discretionary and not properly raised/preserved for review | Court: Claim inadequately briefed and not preserved; jurisdictional limits apply to discretionary refusal; claim denied |
Key Cases Cited
- Patel v. Garland, 142 S. Ct. 1614 (2022) (subparagraph (B) bars review of factual findings underlying discretionary immigration relief)
- Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020) (§1252(a)(2)(D) preserves review of questions of law and mixed questions)
- Singh v. Rosen, 984 F.3d 1142 (6th Cir. 2021) (Sixth Circuit held hardship determinations are mixed questions reviewable under Guerrero-Lasprilla)
- U.S. Bank Nat'l Ass'n v. Village at Lakeridge, LLC, 138 S. Ct. 960 (2018) (framework for deciding when mixed questions require de novo vs. deferential review)
- Patel v. U.S. Att'y Gen., 971 F.3d 1258 (11th Cir. 2020) (discusses scope of §1252 review and mixed-question analysis)
- Ikenokwalu-White v. I.N.S., 316 F.3d 798 (8th Cir. 2003) (treats good-moral-character determinations applying statutory categories as mixed questions)