Jorge Hernandez v. Merrick B. GarlandJorge Hernandez v. Merrick B. Garland
On Petition for Review from the Board of Immigration Appeals; No. A 073 646 149.
Decided and Filed: February 6, 2023
Before: STRANCH, MURPHY, and DAVIS, Circuit Judges.
COUNSEL
ON BRIEF: Justin B. Hurst, HURST LAW GROUP, Hot Springs, Arkansas, for Petitioner. Lisa Morinelli, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
MURPHY, Circuit Judge. When the Attorney General or his designee, the Board of Immigration Appeals, denies discretionary relief to an immigrant, the immigration laws limit the jurisdiction of the courts to review that decision.
This case requires us to consider how these rules apply to the Board‘s denial of one type of discretionary relief: cancellation of removal. The Board has discretion to cancel the removal of immigrants who meet four eligibility requirements—including that they have “good moral character” and that their removal would cause sufficient “hardship” to a qualifying relative.
We thus may review Jorge Hernandez‘s argument that the Board wrongly held that he lacked good moral character because his negative attributes (including two drinking-and-driving convictions) outweighed his positive attributes (including his support of his ill wife). That said, the Board properly concluded that Hernandez‘s history of alcohol use and drinking-and-driving convictions showed his lack of
I
Born and raised in El Salvador, Hernandez came to the United States a couple of months before his eighteenth birthday in 1994. Admin. R. (A.R.) 1363, 1637. Hernandez entered without inspection and has lived in this country ever since. A.R. 1638.
At some point, immigration authorities learned of Hernandez‘s presence and mailed him a “notice to appear” in proceedings designеd to remove him to El Salvador. A.R. 1953, 2057–59. In 1999, Hernandez did not appear at his initial hearing, so an immigration judge ordered him removed in his absence. A.R. 1334, 2052; see
In the meantime, Hernandez married his wife and became the stepfather of her four children. A.R. 1364–65, 1430. The couple lived in Arkansas. But Hernandez‘s job laying cable for an oil company took him to other states, with the expectation that he would spend a month or more at home for every three months he spent away. A.R. 1366–68, 1432–34, 1447.
In 2012, Hernandez sought cancellation of removal. A.R. 1637–44. To qualify for this relief, Hernandez needed to establish: (1) that he had remained in the United States for the past ten years; (2) that he had “been a person of good moral character during” that time; (3) that he had not been convicted of certain crimes; and (4) that his “removal would result in exceptional and extremely unusual hardship to” his wife.
After holding a hearing at which Hernandez and his wife testified, an immigration judge denied his cancellation-of-removal motion. A.R. 1329. The judge found that Hernandez met two of the four elements: he had remained in this country for ten years and had not been convicted of disqualifying offenses. A.R. 1323, 1325. But the judge concluded that Hernandez did not satisfy the other elements for several reasons. According to the judge, Hernandez lacked good moral character because of his failure to pay taxes in recent years and because of his criminal record. A.R. 1323–25. Hernandez allegedly provided obfuscating testimony about his tax-paying history in an effort to “confuse” the court. A.R. 1319. Hernandez also had been convicted of three criminal offenses. A.R. 1324–25. In 2003, he pleaded guilty to possessing an instrument of crime in violation of Arkansas law after an officer found him with a fake ID. A.R. 1378–81. In 2007 and 2010, he pleaded guilty to drinking-and-driving offenses. A.R. 1383–84.
Alternatively, the judge found that Hernandez‘s removal would not cause exceptional and extremely unusual hardship to his wife. A.R. 1325–28. The judge acknowledged that she could not work due to her many health problems, including diabetes and a heart condition. A.R. 1326, 1436–38. Yet Hernandez‘s job took him away from thеir home for nine months of the year, so he largely provided his wife with only financial support. A.R. 1327. The judge reasoned that she received sufficient government aid to meet her monetary needs and that she could use other sources of income to pay for medicines not covered by insurance. Id.
After Hernandez appealed to the Board, immigration authorities approved his wife‘s visa petition to allow him to become a permanent resident due to their relationship.
On remand, the immigration judge administratively closed Hernandez‘s case. A.R. 1194. The judge granted this relief to give him time to apply for a certain waiver with immigration authorities. The waiver would allow him to receive the applied-for visa even while he remained in this country (rather than force him to leave the country to obtain it). A.R. 82–95, 1194.
The case remained administratively closed for over a year, but Hernandez never sought the contemplated waiver. A.R. 54, 520. (He alleges that he asked his attorneys to do so but that they declined for unknown reasons. A.R. 521–22.) At the request of immigration authorities who viewed Hernandez as an “enforcement priority,” a new immigration judge rеopened his removal proceedings. A.R. 98. The judge scheduled a supplemental hearing for the parties to provide updated evidence concerning the cancellation-of-removal eligibility requirements. A.R. 103.
After Hernandez and his wife testified a second time, the immigration judge again held that he did not qualify for cancellation of removal. A.R. 63. This time, however, the judge found that his removal would cause his wife exceptional and extremely unusual hardship. A.R. 61–63. Her health had deteriorated even more in recent years, and Hernandez cared for her and the household. A.R. 62. Hernandez had also taken a job that allowed him to stay in Arkansas, so he now gave his wife more than financial support. Id.
Yet the judge found that Hernandez still lacked “good moral character.” A.R. 60–61. According to the judge, Hernandez‘s “positive” qualities did not outweigh his “negative” ones. A.R. 60. On the positive side, Hernandez kept a job and was the primary caregiver and financial provider for his wife and stepchildren. Id. On the negative side, he had three more run-ins with the law. A.R. 60–61. The police arrested him two more times for drinking and driving in 2016. One arrest led to a third drinking-and-driving conviction. A.R. 61, 146, 154–56, 162, 165. The police also arrested him for a domestic-violence offense in 2013. A.R. 58, 143–44, 160–61. After consuming alcohol, he began screaming at his wife and daughter because they would not let him leave their home. A.R. 160–61. Hearing the commotion, neighbors called the police out of fear that Hernandez was hitting his family members. A.R. 144, 160. Both Hernandez and his wife testified that he had not hit anyone, and the state dropped the charges. A.R. 144–45, 161. The judge nevertheless reasoned that Hernandez‘s inability to control his drinking had led to another drinking-and-driving conviction, even after the prior judge had explаined the importance of following the law. A.R. 61. And while Hernandez claimed that he no longer drinks alcohol to excess, he admitted that he still drinks. Id.; A.R. 164. The judge thus found that he remained a danger to his community. A.R. 61.
The Board upheld the immigration judge‘s decision that Hernandez lacked the good moral character required for cancellation of removal. According to the Board, the judge properly concluded that Hernandez‘s
II
Hernandez petitions for our review of the Board‘s denial of cancellation of removal. Immigrants qualify for this relief if they satisfy four eligibility requirements:
The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien—
(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and
(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien‘s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
The parties agree that Hernandez met all eligibility requirements but the one mandating that he have “good moral character.” The general “definitions” section in the immigration laws provides guidance on what this term of art means. The relevant subsection provides that eight specific classes of immigrants automatically lack “good moral character,” including those who are “habitual drunkard[s],” those who receive their main income “from illegal gambling activities,” those who have lied under oath to obtain immigration-related benefits, and those who have “aggravated felony” convictions.
Here, the immigration judge found that Hernandez did not fall within any of the specific categories of immigrants whom § 1101(f) treats as automatically ineligible. A.R. 60. The judge (and Board) instead held that Hernandez lacked good moral character under § 1101(f)‘s catch-all provision. A.R. 3–4, 60–61. Hernandez challenges this conclusion in his petition for review. The government responds that we lack jurisdiction to review his challenge. We disagree with the government‘s jurisdictional argument but reject Hernandez‘s claim on the merits.
A. Jurisdiction
All agree that the Board‘s decision to deny Hernandez cancellation of removal qualifies as a “final order of removal” that we generally have jurisdiction to review.
As for the jurisdictional limits, the judicial-review section bars courts from reviewing, among other things, decisions that
As for the safe harbor, a nearby provision (subparagraph (D)) allоws courts to review certain legal questions embedded in a discretionary denial of cancellation of removal. It provides: “Nothing in subparagraph (B) . . . shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.”
Putting subparagraphs (B) and (D) together, we have jurisdiction to review some aspects of a conclusion that an immigrant did not satisfy the “good moral character” requirement, but we lack jurisdiction to review other aspects of that conclusion. Subparagraph (B) makes clear that we lack jurisdiction over any purely factual questions underlying the conclusion. See Patel, 142 S. Ct. at 1621–23. An immigrant thus could not challenge an immigration judge‘s finding that he had driven “while intoxicated on several occasions” when that finding undergirded the holding that he lаcked good moral character. Martinez-Acosta v. Garland, 2021 WL 5013813, at *2 (6th Cir. Oct. 28, 2021). Conversely, subparagraph (D) makes clear that we have jurisdiction over any purely legal question resolved in the process of reaching a “good moral character” conclusion. So an immigrant could raise a challenge
What type of challenge does Hernandez raise here? To answer this question, we must look to the substance of his claim. See Singh, 984 F.3d at 1149. And for the most part, his challenge does not fit neatly within either the purely legal or purely factual buckets. He does not challenge any of the immigration judge‘s findings about the historical facts. He, for example, accepts the findings about his prior encounters with the police and the danger that his drinking poses. A.R. 60–61. At the same time, Hernandez does not challenge thе Board‘s interpretation that the phrase “good moral character” turns on an evaluation of all of an immigrant‘s positive and negative traits. A.R. 3 (citing Matter of Guadarrama de Contreras, 24 I. & N. Dec. 625, 627 (B.I.A. 2008)). Rather, he challenges the ultimate conclusion that his negative traits outweighed his positive ones.
Courts have disagreed over the type of question that this challenge raises. The Eighth Circuit held that it represents a mixed question of law and fact that courts have jurisdiction to review under subparagraph (D). See Hernandez v. Garland, 28 F.4th 917, 921 (8th Cir. 2022) (citing Ikenokwalu-White, 316 F.3d at 803); see also Patel v. U.S. Att‘y Gen., 971 F.3d 1258, 1278 (11th Cir. 2020) (en banc), aff‘d, Patel v. Garland, 142 S. Ct. 1614 (2022). Before Guerrero-Lasprilla, other courts offered more complex views. If the Board found that immigrants lacked good moral сharacter because they fell within one of the automatically ineligible categories in § 1101(f) (for example, if it found that they were “habitual drunkards“), these courts held that the Board resolved a mixed question that they could review. See Restrepo v. Holder, 676 F.3d 10, 15 (1st Cir. 2012) (citing Bernal-Vallejo v. I.N.S., 195 F.3d 56, 62 (1st Cir. 1999)); Moran v. Ashcroft, 395 F.3d 1089, 1091 (9th Cir. 2005); Omagah v. Ashcroft, 288 F.3d 254, 259 (5th Cir. 2002); Kalaw v. I.N.S., 133 F.3d 1147, 1151 (9th Cir. 1997). Yet if, as here, the Board relied on § 1101(f)‘s catch-all provision, some of these courts held that they lacked jurisdiction because the Board had made a “discretionary” decision about an immigrant‘s moral worth. See Restrepo, 676 F.3d at 15; Moran, 395 F.3d at 1091; see also Portillo-Rendon v. Holder, 662 F.3d 815, 817 (7th Cir. 2011).
The government suggests that we have yet to enter this debate. (We found two unpublished decisions indicating that we laсk jurisdiction over a good-moral-character determination, but their conclusory statements predate Guerrero-Lasprilla. See Ramdane v. Mukasey, 296 F. App‘x 440, 449 (6th Cir. 2008); Mateo v. Gonzales, 217 F. App‘x 476, 481 (6th Cir. 2007).) We now side with the Eighth Circuit. No matter the provision in § 1101(f) on which the Board relies, its holding that an immigrant lacks “good moral character” resolves a mixed question. That type of conclusion applies a “legal standard” (good moral character) to the historical “facts” found by the immigration judge. Guerrero-Lasprilla, 140 S. Ct. at 1067. The conclusion does not make a “discretionary” determination. Patel, 971 F.3d at 1278.
The statutory scheme as a whole supports this view. Many other sections of the immigration laws use the phrase “good moral character.” See Matter of Castillo-Perez, 27 I. & N. Dec. 664, 666 (A.G. 2019); see also, e.g.,
The statutory framework in § 1101(f) governing this “good moral character” requirement points the same way. All courts agree that the Attorney General does not have discretion to decide whether an immigrant falls into one of the eight specific categories of immigrants who automatically lack good moral character.
It makes no textual or logical sense to treat § 1101(f)‘s catch-all clause differently. Textually, the clause provides: “The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character.”
The government responds with one potential answer: Because the catch-all provision invokes the totality of an immigrant‘s circumstances, it is too fact-intensive for us to treat it as anything other than a discretionary exercise. True, as Judge Learned Hand once noted, “people differ as much about moral conduct as they do about beauty.” Johnson, 186 F.2d at 589. But, as Singh recognized when rejecting the same complaint about the “hardship” requirement, Congress‘s choice to set a seemingly malleable standard does not give us the right to throw up our hands. Singh, 984 F.3d at 1152. Courts, for example, have long found it impossible to define with precision phrases like “reasonable suspicion” or “probable cause” and have instead said that these phrases trigger the totality of the circumstances. See Ornelas v. United States, 517 U.S. 690, 695-96 (1996). But that fact has not led them to give police officers or magistrates discretion to decide whether probable cause exists to search a home or reasonable suspicion to frisk a suspect. Rather, these inquiries raise mixed (not discretionary) questions subject to de novo review on appeal. Id. at 696–97; see U.S. Bank, 138 S. Ct. at 967 n.4. Both “[l]ong-standing judicial precedent” and agency regulations have given the phrase “good moral character” as much “discernible content” as probable cause. Castillo-Perez, 27 I. & N. Dec. at 667. The test requires the decisionmaker to grade аn immigrant‘s behavior against “the standards of the average citizen in the community of residence.”
B. Merits
As we also said in Singh, just because we possess jurisdiction to review this mixed question does not mean that we must closely scrutinize the Board‘s answer. Singh, 984 F.3d at 1154. When choosing a standard of review, the Supreme Court has told us to ask both historical and practical questions. As for the historical: Do appellate courts have a long practice of applying a particular standard to a particular question? U.S. Bank, 138 S. Ct. at 967 n.3 (citing Pierce v. Underwood, 487 U.S. 552, 558 (1988)). As for the practical: Which entity
These considerations might point to a deferential standard here. As a matter of history, the Eighth Circuit suggested that circuit courts have long evaluated the initial decisionmaker‘s answer to this question (which again dates to the founding) under a deferential “substantial evidence standard” of review. Ikenokwalu-White, 316 F.3d at 803 & n.8 (citing cases). As a matter of practicalities, the Board has long applied a fact-specific test to decide whether an immigrant has good moral character. As noted, this test asks whether an immigrant has lived up to “the standards of the average citizen in the community” based on all of the immigrant‘s charaсteristics.
Ultimately, though, the parties’ inadequate briefing on this topic leads us to reserve the proper standard of review for another case. Cf. id. We would uphold the Board‘s conclusion that Hernandez failed to prove his good moral character under any standard of review. Notwithstanding his support of his wife, Hernandez‘s criminal history shows his lack of good moral character undеr our community‘s “generally accepted moral conventions[.]” Castillo-Perez, 27 I. & N. Dec. at 667 (quoting United States v. Francioso, 164 F.2d 163, 163 (2d Cir. 1947) (L. Hand, J.)). As the criminal laws in all 50 states show, our country has formed “a national consensus” against drunk driving—an illegal practice that causes tragedies every day of the year. Id. at 669–70. Yet Hernandez had two drinking-and-driving convictions within the relevant ten-year period. A.R. 61. He also had a third such conviction outside that period and a fourth arrest for it within the period. Id. Most of these incidents, moreover, occurred while he was litigating his removal proceedings and thus well knew his obligations to follow the law. Id.
Significant judicial and administrative precedent supports this conclusion that Hernandez‘s drinking-related criminal history shows his lack of “good moral character.” The Attorney General has instructed the Board to adhere to a legal presumption that an immigrant lacks good moral character if the immigrant has two or more drinking-and-driving convictions in the relevant time period. See Castillo-Perez, 27 I. & N. Dec. at 664, 669, 673. Many cases have also relied on similar criminal histories to uphold a finding that an immigrant lacked good moral character. See, e.g., Llanas-Trejo v. Garland, 53 F.4th 458, 463 (8th Cir. 2022); Meza v. Garland, 5 F.4th 732, 736–37 (7th Cir. 2021); see generally Beth Holliday, Annotation, Construction аnd Application of “Good Moral Character” Requirement for Cancellation of Removal of Alien Under 8 U.S.C.A. § 1229b(b)(1)(B), 87 A.L.R. Fed. 2d 231, § 24 (2014 & Supp. 2022) (collecting cases).
One final point: Hernandez conclusorily asserts that the Board wrongly considered his domestic-assault and drinking-and-driving arrests because those arrests did not lead to convictions. But § 1101(f) allows the Board to consider “other reasons” why an immigrant lacks good moral character without limit—so its text places no restriction on the Board‘s consideration of arrests.
* * *
In his statement of issues and at the end of his brief, Hernandez alternatively asserts thаt the Board at least should have allowed him to depart the United States voluntarily. The immigration laws permit immigrants to seek voluntary departure in lieu of removal at the conclusion of their removal proceedings. See
We deny Hernandez‘s petition for review.