Gerardo Romero-Ochoa v. Eric H. Holder Jr.

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Gerardo ROMERO-OCHOA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 08-74277.

United States Court of Appeals, Ninth Circuit.

Filed April 10, 2013.

712 F.3d 1328

Argued and Submitted Feb. 15, 2013.

court granted these motions nine days later, on February 9, 2011, before the Commissioner submitted a response. The district court did not err by ruling on these motions at that time. Under its plain language, Local Rule 7-2(b) does not guarantee parties a period of time to file a response. Rather, it limits the period in which a response may be filed to fifteen days. Moreover, assuming that the district court did violate Local Rule 7-2(b), neither motion raised issues that affected the Commissioner‘s substantial rights. The Commissioner does not articulate how the admission of two additional amici affected the outcome of the district court proceeding; he only argues that he was denied his chance to file an opposition to their admission.

Second, we address ANI‘s March 21, 2011 motion seeking leave to supplement a previously filed reply. The Commissioner filed a response on March 23, 2011, but the district court granted ANI‘s motion on March 24, 2011 without acknowledging the Commissioner‘s response. The Commissioner does not allege how the district court‘s failure to consider his response affected any substantial rights. Instead, he argues that he was “forced to file a motion asking the District Court to ‘reconsider’ arguments never even considered.” However, enduring the process of filing an additional motion does not, by itself, affect the outcome of the proceeding. Further, in this instance, the outcome clearly was not affected. After the district court granted ANI‘s motion, the Commissioner filed a motion for reconsideration. In that motion, the Commissioner re-submitted the response that the district court allegedly overlooked the first time. Considering the response explicitly when ruling on the motion for reconsideration, the district court reached the same conclusion. Thus, the district court‘s failure to consider the Commissioner‘s response in the first instance did not affect the outcome of ANI‘s motion, or the litigation.

The district court‘s errors if any-did not affect the Commissioner‘s substantial rights. Rather, they seem “slight” and “unimportant,” and we think the “sensible treatment” is to overlook them.

Prof‘l Programs Grp., 29 F.3d at 1353.

CONCLUSION

The Commissioner‘s Order, which barred ANI from writing first dollar liability insurance policies in Nevada, is preempted by the LRRA, 15 U.S.C. § 3902(a). Therefore, we AFFIRM the district court‘s entry of declaratory and injunctive relief. However, the LRRA does not confer a right to be free from state law that can be enforced under 42 U.S.C. § 1983, making fees under 42 U.S.C. § 1988 unavailable. Therefore, we VACATE the fee award.

Finally, we REMAND so that the district court can enter a new summary judgment order consistent with this opinion. The parties shall bear their own costs on appeal. See Fed. R.App. P. 39(a)(4).

AFFIRMED in part, VACATED in part, and REMANDED.

Susan E. Hill (argued), Hill & Piibe, Immigration Attorneys, Los Angeles, CA, for Petitioner.

John W. Blakeley (argued), Senior Litigation Counsel; Tony West, Assistant Attorney General; Leslie McKay, Assistant Director, United States Department of Justice, Civil Division, Washington, D.C., for Respondent.

Before: MARSHA S. BERZON and PAUL J. WATFORD, Circuit Judges, and JED S. RAKOFF, Senior District Judge.^*

OPINION

WATFORD, Circuit Judge:

Gerardo Romero-Ochoa is a native and citizen of Mexico who first came to the United States in 1973, when he was roughly 18 years old. His wife is a lawful permanent resident of the United States, and three of his five children are U.S. citizens. Mr. Romero‘s mother is a lawful permanent resident of the United States and his younger brother is a U.S. citizen as well.

But Mr. Romero is not a lawful permanent resident; in the eyes of the immigration laws, he is an “alien present in the United States without being admitted or paroled,” and is thus subject to removal. 8 U.S.C. § 1182(a)(6)(A)(i). In 2005, the government initiated removal proceedings against him, prompted by his then-recent 2004 conviction for vehicular manslaughter. Mr. Romero pleaded guilty to killing a person while unlawfully driving under the influence of alcohol in violation of California Penal Code § 192(c). He received a sentence of 16 months in prison and served approximately half of that time in custody.

Mr. Romero conceded removability and filed an application for cancellation of removal or, in the alternative, for voluntary departure. To be eligible for such relief, Mr. Romero had to show, among other things, that he is a person of “good moral character” and was so during the 10-year period immediately preceding his application (or, in the case of voluntary departure, the 5-year period immediately preceding his application). 8 U.S.C. §§ 1229b(b)(1), 1229c(b)(1).

The immigration judge presiding over Mr. Romero‘s removal proceedings held that he is statutorily ineligible for relief because he cannot meet the good moral character requirement. Congress has not explicitly defined what it means to have “good moral character,” but it has established eight categories of individuals who are conclusively presumed to lack good moral character. See 8 U.S.C. § 1101(f). Mr. Romero falls within one such category: individuals who have been “confined, as the result of conviction, to a penal institution for an aggregate period of one hundred and eighty days or more” during the period for which good moral character must be shown. Id. § 1101(f)(7). Because Mr. Romero was imprisoned for more than 180 days during the relevant time period (as a result of his vehicular manslaughter conviction), he is conclusively presumed to lack good moral character. The immigration judge denied Mr. Romero cancellation of removal and voluntary departure on that basis, and the Board of Immigration Appeals affirmed.

Mr. Romero does not dispute that 8 U.S.C. § 1101(f)(7) precludes him from establishing eligibility for cancellation of removal or voluntary departure. But he asks us to declare § 1101(f)(7) facially unconstitutional on the ground that it violates the equal protection component of the Fifth Amendment‘s Due Process Clause. (Mr. Romero also attacks § 1101(f)(7) under the rubric of “substantive due process,” but he does not advance any independent arguments for invalidation under that theory.) In Mr. Romero‘s view, the constitutional vice of § 1101(f)(7) is that it conclusively presumes an individual to lack good moral character based solely on the length of time served in prison, rather than on the nature of the underlying criminal conduct. Given the wide variation in sentences imposed by different States for the same criminal conduct, Mr. Romero argues, § 1101(f)(7) allows disparate treatment of similarly situated individuals in violation of equal protection principles.

Before explaining why we reject this challenge, it is helpful to isolate the narrow pivot of Mr. Romero‘s argument. He does not contest Congress‘s authority to order the removal of those present in this country unlawfully, nor Congress‘s judgment that leniency should be extended to certain classes of removable aliens but not others-for example, by offering discretionary forms of relief like cancellation of removal and voluntary departure only to those who can show good moral character. See

Fiallo v. Bell, 430 U.S. 787, 798 (1977) (such policy judgments are reserved to the political branches alone). Nor does he contest Congress‘s authority to declare that those who have committed sufficiently serious crimes are conclusively presumed to lack good moral character. Mr. Romero‘s sole contention is that, in deciding which crimes are sufficiently serious to warrant that presumption, Congress may not use the length of time served in custody as a proxy for seriousness. Instead, Mr. Romero argues, Congress must use conduct-based classifications, as it has elsewhere in § 1101(f), by specifying the particular criminal offenses which trigger the conclusive presumption that an individual lacks good moral character. See 8 U.S.C. § 1101(f)(3), (8), (9).

Our task in evaluating the constitutionality of Congress‘s chosen method of designating offenses that render an alien ineligible for relief is a limited one. The sentence-based classification drawn by § 1101(f)(7) does not implicate a fundamental right or target a suspect class, so it is subject to rational basis review.

FCC v. Beach Commc‘ns, Inc., 508 U.S. 307, 313 (1993);

Sudomir v. McMahon, 767 F.2d 1456, 1464-65 (9th Cir. 1985). Such review does not provide “a license for courts to judge the wisdom, fairness, or logic of legislative choices.”

Beach Commc‘ns, 508 U.S. at 313; see

Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 316-17 (1976). Thus, the question for us is not whether basing ineligibility on conviction of a specified offense, as opposed to sentence length, provides a superior means of accomplishing Congress‘s end. See

Armour v. City of Indianapolis, 132 S.Ct. 2073, 2083 (2012);

Murgia, 427 U.S. at 316. We ask only whether there are “plausible reasons for Congress’ action,” and if there are, “our inquiry is at an end.”

U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980).

We think there are plausible reasons supporting the classification drawn by § 1101(f)(7). Congress rationally concluded that, in most cases, aliens who have been convicted of crimes serious enough to warrant at least six months of incarceration will lack the good moral character necessary to warrant discretionary relief from removal. Congress was entitled to rely on that judgment to create the conclusive presumption erected by § 1101(f)(7) even though it may prove over- or under-inclusive in individual cases. See

Fiallo, 430 U.S. at 799;

Mathews v. Diaz, 426 U.S. 67, 83 (1976);

Weinberger v. Salfi, 422 U.S. 749, 776–77, 781 (1975). Although the conclusive presumption denies individuals like Mr. Romero an opportunity to show that they possess the requisite good moral character notwithstanding their service of more than six months in custody, Congress could rationally conclude that “the expense and other difficulties of individual determinations justified the inherent imprecision of a prophylactic rule.”

Salfi, 422 U.S. at 777. Whether Congress should have drawn the line at six months in custody, or one year or ten years, is not for us to second-guess. See

Fritz, 449 U.S. at 179;

Mathews, 426 U.S. at 83-84.

All that remains is Mr. Romero‘s contention that § 1101(f)(7) violates equal protection principles because it relies on the periods of incarceration generated by state sentencing regimes that are not uniform in operation. We do not think this aspect of § 1101(f)(7) renders it irrational. There may well be cases in which the same un-derlying crime results in a period of incarceration of seven months in one State but only five months in another. But that sort of disparity at the margins does not render the classification invalid under rational basis review. See

Murgia, 427 U.S. at 316. Drawing any line “inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line.”

Mathews, 426 U.S. at 83. And we have held that when determining which offenders should be eligible for immigration relief, Congress may rationally rely on “the adjudicating forum‘s judgment concerning the seriousness of [an] offense.”

Rangel-Zuazo v. Holder, 678 F.3d 967, 969 (9th Cir. 2012). That remains true even though different forums impose different sentences for the same offense. See

Vieira Garcia v. INS, 239 F.3d 409, 414-15 (1st Cir. 2001).

PETITION FOR REVIEW DENIED.

PAUL J. WATFORD

UNITED STATES CIRCUIT JUDGE

Notes

*

The Honorable Jed S. Rakoff, Senior United States District Judge for the Southern District of New York, sitting by designation.

Case Details

Case Name: Gerardo Romero-Ochoa v. Eric H. Holder Jr.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 10, 2013

Citation: 712 F.3d 1328

Docket Number: 08-74277

Court Abbreviation: 9th Cir.