Jose Rodriguez-Avalos v. Eric Holder, Jr., 2015 U.S. App. LEXIS 9605

Background

Rodriguez, a Mexican national, pleaded guilty in federal court to falsely claiming U.S. citizenship under 18 U.S.C. § 911 and was sentenced to 14 months; he served about seven months in custody.
DHS later served a notice to appear (NTA) and placed Rodriguez in removal proceedings; he conceded removability and applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1) based on his U.S.-citizen children.
An IJ denied cancellation, concluding Rodriguez could not show the statutory “good moral character” (GMC) because he served at least six months in custody; the BIA affirmed, finding ~7 months of confinement during the relevant GMC period barred relief under 8 U.S.C. § 1101(f)(7).
Rodriguez argued (1) his § 911 conviction is not a crime involving moral turpitude (CIMT) so the 180‑day GMC bar should not apply, and (2) the ten‑year GMC period should be measured from the date the NTA was served (May 3, 2011), which would put his incarceration outside the relevant period.
The Fifth Circuit recalled its prior panel opinion, reviewed statutory interpretation issues (including agency deference), and denied Rodriguez’s petition for review.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does § 1101(f)(7) bar GMC for any conviction resulting in ≥180 days confinement, or only for CIMT convictions?	Rodriguez: §1101(f)(7) should be read to apply only where confinement resulted from a CIMT because GMC is tied to moral turpitude.	Government/BIA: Text is unambiguous — §1101(f)(7) bars GMC for any conviction producing ≥180 days confinement, irrespective of CIMT.	Held: §1101(f)(7) unambiguously precludes GMC when confinement ≥180 days resulted from any conviction; Rodriguez’s ~7 months bars relief.
When is the 10‑year GMC period measured to end — service of the NTA or the final administrative decision?	Rodriguez: The stop‑time rule (§1229b(d)(1)) ends continuous presence at NTA service, so GMC period should also end at NTA service.	Government/BIA: The BIA’s precedential rule (Ortega‑Cabrera) reasonably treats GMC as a continuing 10‑year period measured to the final administrative decision.	Held: Defer to BIA under Chevron; the relevant 10‑year GMC period runs to the final administrative decision, so Rodriguez’s custody fell within it.
Is the BIA entitled to Chevron deference here?	Rodriguez: N/A (argued statutory clarity to his favor).	Government: BIA’s interpretation in Ortega‑Cabrera is precedential and reasonable.	Held: BIA’s Ortega‑Cabrera is precedential for this issue and its interpretation is reasonable and entitled to Chevron deference.
Is Rodriguez estopped from contesting the NTA service date?	Rodriguez: Government should be estopped from asserting a later NTA service date; record shows an earlier service date.	Government: Date of formal NTA matters less if BIA deference resolves GMC period to final decision.	Held: Moot — because the court upheld BIA’s GMC timing, the estoppel/NT A service‑date argument need not be reached.

Key Cases Cited

Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (agency deference framework)
Skidmore v. Swift & Co., 323 U.S. 134 (weight accorded non‑precedential agency interpretations)
Brown v. Gardner, 513 U.S. 115 (statutory text inclusion/exclusion presumption)
Bates v. United States, 522 U.S. 23 (avoid reading unexpressed elements into statute)
Dhuka v. Holder, 716 F.3d 149 (5th Cir. on when Chevron or Skidmore applies to BIA decisions)
Duron‑Ortiz v. Holder, 698 F.3d 523 (7th Cir. deferring to BIA that GMC period runs to final decision)
Eyoum v. INS, 125 F.3d 889 (5th Cir. applying §1101(f)(7) regardless of CIMT)
Arreguin‑Moreno v. Mukasey, 511 F.3d 1229 (9th Cir. concluding §1101(f)(7) precludes relief for ≥180 days confinement)
Pacheco v. Holder, [citation="544 F. App'x 442"] (5th Cir. unpublished applying §1101(f)(7) bar)