BIA Overrules Precedent, Holds Aggravated Felons Are Inadmissible as

The Board of Immigration Appeals has dismissed the appeal of a Nicaraguan woman convicted of federal identity theft and access-device fraud offenses, holding for the first time that any noncitizen with an aggravated felony conviction is inadmissible as a person "permanently ineligible to citizenship," since an aggravated felony conviction forever bars the good moral character required for naturalization.

The Board expressly overruled its decades-old precedent in Matter of Kanga, which had limited that inadmissibility ground to military draft evaders, holding that decision failed to apply the plain, forward-looking text of the INA's definition of "ineligible to citizenship." Because this represents a significant and reasonably unanticipated change in the law, the Board applied its new holding only prospectively, to aggravated felony convictions entered after the date of the decision, and on the merits affirmed the denial of a § 212(h) waiver, adjustment of status, and CAT protection to the respondent based on her extensive fraud-related criminal history.

The full text of Matter of A-V-O- can be found here: https://www.justice.gov/eoir/media/1461651/dl?inline

BIA Holds Paying a Smuggler to Bring a Child to the Border Bars Good Moral Character

The Board of Immigration Appeals has dismissed the appeal of a Guatemalan respondent found ineligible for cancellation of removal after he paid a smuggler to transport his 14-year-old son from Guatemala to the U.S.-Mexico border to reunite the family, even though the son ultimately sought asylum after arrival.

The Board held that the alien-smuggling ground of inadmissibility applies to assisting an alien "to enter or to try to enter" the United States regardless of whether the smuggled person is later admitted or applies for asylum, and that the respondent's unsupported claim he intended only lawful entry did not overcome evidence that his son had no lawful basis to enter and was taken through the desert. The Board held this triggered the statutory bar to good moral character, making the respondent ineligible for cancellation of removal.

The full text of Matter of L-L-R- can be found here: https://www.justice.gov/eoir/media/1455106/dl?inline

BIA Finds that Cancellation Applicant has not Rebutted Presumption he Lacked Good Moral Character

The Board of Immigration Appeals has determined that a cancellation applicant who sustained two DUI convictions during the good moral character period had not rebutted the presumption that he lacked good moral character because “[c]aring for his son and maintaining gainful employment do not constitute an ‘unusual case’ sufficient to ‘overcome the strong evidence’ that the respondent lacked good moral character based on recidivist conduct involving DWI offenses.”

The full text of Matter of Palma-Olvera can be found here: https://www.justice.gov/eoir/media/1421101/dl?inline

Tenth Circuit Upholds Negative Good Moral Character Determination Based on Recidivist DUI Conviction

The Tenth Circuit has upheld the agency’s negative good moral character determination for an individual convicted of a recidivist DUI offense within the 10 year good moral character, even though the three prior convictions that made him a recidivist were from 20 years prior. “The BIA and IJ treated Petitioner’s 2017 DUI conviction so seriously because it was his fourth such conviction. In doing so, the BIA and IJ were not reflecting on what Petitioner’s moral character had been back in 1995 or 1996. Rather, they were saying that his moral character was bad in 2017 because he was unable to keep himself from repeating serious misconduct for which he had been convicted.”

The full text of Luna-Corona v. Bondi can be found here: https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111337652.pdf

Third Circuit Finds that Good Moral Character is Mixed Question of Fact and Law

The Third Circuit has determined that good moral character - as required for cancellation of removal - is a mixed question of fact and law that a federal court can reviewed under the substantial evidence standard.

The full text of Sanchez v. Attorney General can be found here:

Https://www2.ca3.uscourts.gov/opinarch/242279p.pdf

Third Circuit Finds that Confinement as a Result of Conviction Includes Pre-Conviction Confinement

The Third Circuit has determined that the phrase “confined as a result of conviction,” as it is found in the list of good moral character bars, includes time spent in pre-conviction confinement.

The full text of Aguilar v. Attorney General can be found here:  https://www2.ca3.uscourts.gov/opinarch/183320p.pdf

Third Circuit Construes Polygamy Bar to Good Moral Character

The Third Circuit has construed the polygamy bar to good moral character to require the applicant to have knowingly entered into two marriages simultaneously. It does not require any evaluation of the applicant’s subjective beliefs regarding the practice of polygamy.

The full text of Al-Hasani v. Secretary of Department of Homeland Security can be found at: https://www2.ca3.uscourts.gov/opinarch/221603p.pdf

Sixth Circuit Says Good Moral Character is a Mixed Question of Fact and Law

The Sixth Circuit has determined that whether a non-citizen lacks good moral character is a mixed question of fact and law that the a federal appellate court has jurisdiction to review, though it reserved the question of what standard of review applies.

The full text of Hernandez v. Garland can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0019p-06.pdf

Seventh Circuit Finds Jurisdiction to Review Good Moral Character Determination Based on Undisputed Facts

The Seventh Circuit has determined that the Supreme Court’s decision in Patel v. Garland does not strip it of jurisdiction to review the agency’s negative good moral character determination in connection with an application for cancellation of removal when the determination is based on undisputed facts.

The full text of Cruz-Velasco v. Garland can be found here:

http://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Submit=Display&Path=Y2023/D01-24/C:21-1642:J:Wood:aut:T:fnOp:N:2992048:S:0

Ninth Circuit Addresses Impact of Pretrial Detention on Good Moral Character

The Ninth Circuit has determined that pretrial detention not credited toward a sentence is not “confinement, as a result of conviction” under § 1101(f)(7). In this case, the petitioner was sentenced to a term of 4 months of incarceration, with credit given for 183 days of pretrial confinement. The court determined that the excess days of pretrial confinement (i.e., those beyond the 4 month mark) are not confinement as a result of conviction.

The full text of Troncoso-Oviedo v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/05/21-70547.pdf

AG Creates Presumption of a Lack Good Moral Character for 2 DUIs

The Attorney General has determined that a person with two DUI convictions during the good moral character period presumptively lacks good moral character and is ineligible for cancellation of removal for non-lawful permanent residents.

“There could be an unusual case in which an alien can establish that the multiple convictions were an aberration and can show good moral character. To do so, the respondent must overcome the strong evidence attributable to those multiple convictions by establishing good moral character. See 8 C.F.R. § 1240.8(d). But a respondent may not make this showing merely by demonstrating that he reformed himself after those convictions by, for instance, addressing a problem with substance abuse. The statute requires that good moral character be shown over the continuous period of not less than 10 years immediately preceding’ the application. INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1). The alien thus must show that he had good moral character even during the period within which he committed the DUI offenses. An alien’s efforts to reform or rehabilitate himself after multiple DUI convictions are commendable, but they do not themselves demonstrate good moral character during the period that includes the convictions. Absent substantial relevant and credible contrary evidence, multiple DUI convictions require that the immigration judge deny cancellation of removal.”

The full text of Matter of Castillo-Perez can be found here:

https://www.justice.gov/eoir/page/file/1213196/download

Third Circuit finds that Good Moral Character Period Continues until Adjudication of Cancellation Application

The Third Circuit has determined that the good moral character period for cancellation of removal for non-lawful permanent residents does not cease with service of the Notice to Appear. Instead, the period continues to run until the entry of an administratively final decision. In so doing, the court deferred to the Board of Immigration Appeals’ decision in Matter of Ortega-Cabrera.

The full text of Mejia-Castanon v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/172901p.pdf

Sixth Circuit Upholds Habitual Drunkard Good Moral Character Bar

The Sixth Circuit has determined that the bar to good moral character for being a “habitual drunkard” does not violate equal protection. However, the court also determined that suffering from alcoholism alone does not constitute being a habitual drunkard. Instead, a court must examine if the individual’s alcoholism is also associated with harmful conduct.

The full text of Tomasczcuk v. Whitaker can be found here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0254p-06.pdf

Ninth Circuit Upholds Habitual Drunkard Bar to Good Moral Character

Sitting en banc, the Ninth Circuit has reversed the 3-judge panel's decision in Ledezma-Cosino v. Sessions, and upheld the habitual drunkard bar to good moral character.  First, the court upheld the determination that Ledezma-Cosino met the definition of a habitual drunkard.  "In 2010, treating doctors recorded a 'more than ten year history of heavy alcohol abuse,' during which time Petitioner drank '1 liter of tequila per day on the average.' In 2008, he was convicted of driving under the influence. During Petitioner’s removal proceedings, Petitioner’s daughter testified that he had 'a drinking problem' and that his liver had failed because of '[t]oo much alcohol,' '[t]oo much drinking.  At a minimum, the evidence does not compel the conclusion that Petitioner was not a habitual drunkard."

Second, the court determined that the bar was not unconstitutionally vague. "[T]he term 'habitual drunkard' readily lends itself to an objective factual inquiry. And whatever uncertainty the term 'habitual drunkard' may raise in borderline cases, a person of ordinary intelligence would have fair notice that the term encompasses an average daily consumption of one liter of tequila for a 10-year period, leading to a conviction for driving under the influence. Because Petitioner has engaged in conduct that is clearly covered, he 'cannot complain of the vagueness of the law as applied to the conduct of others.'"

Finally, the court also determined that the bar did not violate equal protection.  "Congress reasonably could have concluded that, because persons who regularly drink alcoholic beverages to excess pose increased risks to themselves and to others, cancellation of removal was unwarranted. We see nothing irrational about that legislative choice, which furthers the legitimate governmental interest in public safety. Nor does it matter that Congress has permitted cancellation of removal for other 13 groups who may pose similar risks."

The full text of Ledezma-Cosino v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/05/30/12-73289.pdf

Ninth Circuit Grants Petition for Rehearing En Banc in Case Involving Habitual Drunkard Bar to Good Moral Character

The Ninth Circuit has voted to rehear en banc the decision in Ledezma-Cosino v. Lynch, in which the three judge panel determined that the habitual drunkard bar to good moral character violated equal protection.

The decision announcing the en banc can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/10/12/12-73289.pdf

The original three judge decision can be found here: 

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/24/12-73289.pdf

Board of Immigration Appeals Construes Good Moral Character Requirement

The Board of Immigration Appeals has reaffirmed that a person who provides false testimony under oath before an Immigration Judge for the purpose of obtaining an immigration benefit cannot establish that he is a person of good moral character.  In determining whether the evidence is sufficient to establish that an applicant gave false testimony, the judge must conduct a case-by-case assessment of whether the applicant had a subjective intent to deceive the court.  

The full text of Matter of Gomez Beltran can be found here: 

https://www.justice.gov/eoir/file/871131/download

The Ninth Circuit Invalidates the Bar to Good Moral Character Based on Being a "Habitual Drunkard"

The Ninth Circuit has ruled that chronic alcoholism should be considered a medial disability, and as such, the Equal Protection Clause prohibits the government from discriminating against an applicant in immigration court proceedings based on this disability.  "Just as a statute targeting people who exhibit manic and depressive behavior would be, in effect, targeting people with bipolar disorder and just as a statute targeting people who exhibit delusional conduct over a long period of time would be, in effect, targeting individuals with schizotypal personality disorder, a statute targeting people who habitually and excessively drink alcohol is, in effect, targeting individuals with chronic alcoholism."  "Like any other medical condition, alcoholism is undeserving of punishment and should not be held morally offensive."  The Court expressed concern that based on the government's logic, veterans who drink excessively as a symptom of post-traumatic stress disorder would be considered to lack good moral character.  The Court was also concerned about disproportionate impact on other populations where alcoholism rates are high, such as Native Americans and the homeless.  The Court concluded that the good moral character bar was merely a result of animus against those who suffer from chronic alcoholism, and thus, the government had no rational basis for discriminating against chronic alcoholics in this manner.   

The full text of Ledezma-Cosino v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/24/12-73289.pdf

Fifth Circuit Addresses Good Moral Character Requirements for Cancellation of Removal

In a reissued decision, the Fifth Circuit addressed whether confinement in a penal institution for more than 180 days for a conviction that does not qualify as a crime involving moral turpitude would still pose a statutory bar to establishing the requisite good moral character for cancellation of removal.  The court also addressed whether the 10 years of good moral character required for cancellation of removal dates back from the adjudication of the application for cancellation or from the date of service of the Notice to Appear.

The court concluded that an applicant is precluded from establishing the requisite good moral character if they are incarcerated for more than 180 days, even if the incarceration is not related to a crime involving moral turpitude.  The court further concluded that good moral character must be established in the 10 years preceding adjudication of the cancellation application.

The full text of Rodriguez-Avalos v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/13/13-60736-CV1.pdf

My blog post about the original decision in Rodriguez-Avalos can be found here: http://www.sabrinadamast.com/journal/2015/3/8/no-good-moral-character-for-immigrant-who-serves-7-months-for-a-federal-conviction-for-falsely-claiming-to-be-a-us-citizen

No Good Moral Character for a Non-Citizen who Served 181 Days in Jail for Illegal Entry

This week, the Fourth Circuit issued a decision addressing the following question: Could Congress have intended that individuals seeking cancellation of removal for non-permanent residents, who very frequently enter the United States illegally and thus, could be convicted of illegal entry, be barred from this form of immigration relief by virtue of time served on an illegal entry conviction?  The answer: yes.  An individual who serves 181 days in prison for an illegal entry conviction is statutorily barred from showing good moral character, regardless of the underlying conviction.

The full text of Tiscareno-Garcia v. Holder can be found here: http://www.ca4.uscourts.gov/Opinions/Published/132459.P.pdf