Petitioner entered the U.S. from Mexico illegally and married another
undocumented alien. Their three children are U.S. citizens. Removal
proceedings began after he was convicted for DUI at least four times,
for driving without a license three times, and for other driving
offenses. An immigration judge denied a petition for cancellation of
removal, finding that petitioner lacked the requisite “good moral
character.” The Board of Immigration Appeals agreed. The Seventh Circuit
dismissed for lack of jurisdiction, noting its bewilderment at an
attempt to argue due process. Aliens do not have a liberty or property
right in cancellation of removal; it is a discretionary matter. The
determination of good moral character is not a matter of law, but an
administrative decision not subject to judicial review.
In Portillo-Rendon v. Holder, 2011 WL 5319855 (7th Cir. 2011), the U.S.
Court of Appeals for the Seventh Circuit dismissed a petition for review
filed by a citizen of Mexico whose application for cancellation of
removal under INA § 240A(b) [8 USCA § 1229b(b)] (applicable to
nonpermanent resident aliens) was denied by the IJ and the BIA based on
their conclusion that the petitioner did not establish the required good
moral character (GMC). The court rejected the petitioner’s contention
that his due process rights were violated and concluded that the
decision whether an alien has the required GMC reflects an exercise of
administrative discretion, which is insulated from the court’s review
authority.
The petitioner entered the U.S. without inspection and remained in the
U.S. for an extended period without detection by immigration officials.
He and his wife, who is also without legal status, gave birth to three
U.S.-citizen children. After several traffic offenses–at least four for
drunk driving and three for driving after his license had been suspended
or revoked–he came to the attention of DHS, which commenced removal
proceedings against him. Mr. Portillo-Rendon filed an application for
cancellation relief relying upon his family’s hardship considerations.
However, the IJ denied the application, reasoning that the petitioner
had not satisfied the threshold statutory GMC requirement due to his
disdain for the rules of the road and incorrigible criminal behavior,
including an offense involving high-speed flight to avoid arrest. The
petitioner failed to impress the IJ that his participation in alcohol
treatment demonstrated rehabilitation in light of the fact that several
of the convictions post-dated the alleged rehabilitation.
After the BIA affirmed the IJ’s decision, Mr. Portillo-Rendon filed his
petition with the circuit court, which pointed out that, except for
constitutional claims and questions of law, it does not have
jurisdiction to review a denial of discretionary cancellation relief,
citing to INA § 242(a)(2)(B)(i) and (D) [8 USCA § 1252(a)(2)(B)(i) and
(D)]. In response to the petitioner’s argument that eligibility for
cancellation of removal must be a question of law and thus open to
plenary judicial review, the court retorted that the petitioner’s
argument reflected a confusion over what the court thought it had
cleared up in its prior decision, Muratoski v. Holder, 622 F.3d 824 (7th
Cir. 2010). It proceeded to explain that a decision of whether an alien
has “good moral character,” a statutory eligibility requirement for
nonpermanent resident cancellation, reflects an exercise of
administration discretion. It expounded that, for the purpose of INA §
242(a)(2)(D) [8 USCA § 1252(a)(2)(D)] (permitting courts to exercise
jurisdiction over constitutional claims and questions of law), “law”
means a dispute about the meaning of a legal text so that the “alien
wins if the text means one thing and loses if it means something else,”
citing to Cevilla v. Gonzales, 446 F.3d 658 (7th Cir. 2006).
The court observed that eight circuits agree with Cevilla, and only the
Ninth Circuit does not (citations were not provided by the court). The
Seventh Circuit emphasized that, in the instant case, there was no
dispute about a controlling text and that the only dispute was whether
Portillo-Rendon’s driving infractions are serious and frequent enough to
show that he lacks GMC as opposed to isolated mistakes. The court
considered that the IJ’s and BIA’s thinking that the record showed “poor
moral fiber” was a “discretionary call” and thus not subject to judicial
review.
Addressing the petitioner’s due process challenge, the court disparaged
what it characterized as his “flabby, unfocused” argument in this regard
and expressed agreement with the government’s contention that an alien
does not have either a liberty or property interest in discretionary
cancellation relief. The court declared that it is appropriate to
consider the Constitution only if the statute and regulations are
deficient. It pointed out that Congress has given aliens significant
procedural entitlements, citing to INA § 240 [8 USCA § 1229a], and that
regulations have added more. The court noted that Portillo-Rendon was
not contending that these entitlements are constitutionally deficient or
that the agency failed to provide him with all the process required by
the statutes and regulations with respect to the GMC determination. Thus
it held that the petitioner’s challenges were not cognizable under INA §
242(a)(2)(D).
