Jose Duron-Ortiz v. Eric Holder, Jr
698 F.3d 523
| 7th Cir. | 2012Background
- Duron-Ortiz, Mexican national, entered U.S. illegally in 1989; multiple DUIs and arrests culminated in 2008–2010 incarceration.
- NTA issued Jan 22, 2009; charged with removability under § 1182(a)(6)(A)(i).
- IJ denied cancellation due to >180 days confinement within ten years, relying on Ortega-Cabrera (2005).
- Board affirmed; Ortega-Cabrera held the ten-year period ends at final administrative decision; stop-time provision affects period.
- Duron-Ortiz received multiple continuances; IJ pretermitted cancellation; final decision denied cancellation and voluntary departure; appeal to Seventh Circuit.
- Court defers to Ortega-Cabrera, denies petition for review; confirms no error in IJ’s pre-hearing written decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Good moral character period ends when final decision is issued? | Duron-Ortiz argues ten-year period ends at NTA. | Board views period ending at final decision; Ortega-Cabrera reasonable. | Deferral to Ortega-Cabrera; period ends at final decision. |
| Stop-time ambiguity in determining good moral character period. | Statute unambiguously stops at NTA. | Three acceptable calculations; but final decision end is proper. | Board's end-at-final-decision approach upheld. |
| Confinement duration defeats good moral character under INA §1101(f)(7). | Duron-Ortiz served >180 days; cannot show good moral character. | Recent >300 days confinement falls within ten-year window; precludes good moral character. | Duron-Ortiz cannot satisfy good moral character; Board decision affirmed. |
| IJ's written decision before final hearing violated due process regarding voluntary departure. | Pre-hearing denial prevented voluntary departure opportunity. | No protected liberty interest in discretionary relief; adequate notice and fair hearing. | No due process violation; no error in written pre-hearing decision. |
Key Cases Cited
- Matter of Ortega-Cabrera, 23 I. & N. Dec. 793 (BIA 2005) (ambiguous timing of good moral character period under INA; stop-time provision)
- Castro, 19 I. & N. Dec. 692 (BIA 1988) (pre-IIRIRA interpretation allowing period through cancellation proceedings)
- Castillo-Cruz v. Holder, 581 F.3d 1154 (9th Cir. 2009) ( Ninth Circuit adoption of Ortega-Cabrera reasoning)
- Matter of Bautista Gomez, 23 I. & N. Dec. 893 (BIA 2006) (affirming Ortega-Cabrera line of reasoning)
- Matter of Garcia, 24 I. & N. Dec. 179 (BIA 2007) (affirming Ortega-Cabrera line of reasoning)
- Delgado v. Holder, 674 F.3d 759 (7th Cir. 2012) (due process rights in discretionary relief context)