Hugo Aguilar v. Attorney General United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 18-3320

HUGO ABRAHAM AGUILAR,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

On Petition for Review of a Final Order

of the Board of Immigration Appeals

(BIA No.: 1: A206-194-739)

Immigration Judge: Irma Lopez Defillo

Argued on March 10, 2020

Before: McKEE*, AMBRO**, and PHIPPS, Circuit Judges

(Opinion Filed: July 10, 2024)

Thomas S. Jones

Kevin C. Meacham [Argued]

Nelson Mullins

6 PPG Place

7th Floor

Pittsburgh, PA 15222

Counsel for Petitioner

Walter Bocchini [Argued]

Thankful T. Vanderstar

United States Department of Justice

Office of Immigration Litigation

P. O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

*Judge McKee assumed senior status on October 20,

2022. **Judge Ambro assumed senior status on February 6,

2023.

2

OPINION OF THE COURT

AMBRO, Circuit Judge

Congress has provided certain avenues for immigration

relief to those who have resided in the United States for many

years and have built ties to the country. Cancellation of

removal is one of them. To qualify for this discretionary relief,

an applicant must, among other things, demonstrate his “good

moral character.” 8 U.S.C. § 1229b(b)(1)(B). But Congress

has told us that one who has been “confined[] as a result of

conviction” for 180 days or more cannot meet that

requirement. Id. § 1101(f)(7).

Hugo Abraham Aguilar was detained for 1,332 days

after being arrested in New Jersey. Following a guilty plea, he

was convicted and sentenced to 1,332 days’ imprisonment with

credit for time served. So Aguilar spent no extra time in prison

in connection with his state court conviction. The question

before us is whether pre-conviction detention credited toward

a defendant’s sentence is confinement “as a result of

conviction,” thus precluding a finding of good moral character

under the cancellation-of-removal statute. We conclude that it

is and thus deny Aguilar’s petition for review.

I

Aguilar is a native and citizen of Honduras who entered

the United States without inspection in 2001. He has lived here

since then and has three children who are U.S. citizens. In

3

January 2014, Aguilar was arrested for allegedly sexually

assaulting his stepdaughter and was charged with nine counts,

including sexual assault, endangering the welfare of a child by

a caretaker, and aggravated sexual contact under New Jersey

law. Unable to afford $ 125,000 in bail, he remained in pretrial

detention in the Morris County Jail in New Jersey. In May

2017—over three years later—Aguilar pled guilty to one

reduced charge of third-degree endangering the welfare of a

child through sexual conduct, N.J.S.A. 2C:24-4a(1), and was

sentenced in September that year. As noted, he spent 1,332

days in custody. The Superior Court of New Jersey imposed

that sentence precisely and gave Aguilar credit for the time he

had served in pre-conviction detention. Administrative Record

(“A.R.”) 176.

Just days later, the Department of Homeland Security

(“DHS”) began removal proceedings, charging Aguilar with

removability under the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1182(a)(6)(A)(i), for entering the country

without being admitted or paroled after inspection.1 He

conceded removability but sought to remain in the United

States by applying for cancellation of removal under 8 U.S.C.

§ 1229b(a) in March 2018. But qualifying for that type of relief

turned out to be an uphill battle given his state court conviction.

The Immigration Judge (“IJ”) found Aguilar statutorily

ineligible for relief and ordered him removed to Honduras. In

the IJ’s view, Aguilar “st[ood] convicted for a crime for which

1

For reasons we are unsure, the DHS prepared a notice to

appear for Aguilar on April 11, 2014—only a few months after

his arrest—but took no further action until completion of his

criminal case, serving the notice on September 25, 2017.

4

he ha[d] been in detention” and was sentenced “to 1,332 days”;

he thus “squarely” could not meet the INA’s good moral

character requirement, as he had been “confined[] as a result of

conviction” for 180 days or more. J.A. 115. The IJ also denied

Aguilar’s request for a continuance to challenge his conviction

in state court and to submit documents in support of his

application. The Board of Immigration Appeals (“BIA”)

dismissed Aguilar’s appeal. It agreed that his detention barred

a finding of good moral character. It also concluded the IJ

acted within his discretion in denying the request for a

continuance.

Aguilar timely petitioned for review.2 Although we

generally lack jurisdiction to review “any judgment regarding

the granting of relief” under the INA, see 8 U.S.C.

§ 1252(a)(2)(B)(i), determinations of statutory ineligibility are

nondiscretionary legal questions exempt from that

jurisdictional limitation, see id. § 1252(a)(2)(D); Khan v. Att’y

Gen., 979 F.3d 193, 197 (3d Cir. 2020).

2

Because Aguilar maintained his counsel failed to advise him

adequately of the immigration consequences of pleading guilty

to the state charge, he petitioned for post-conviction relief in

New Jersey state court in early 2018, asserting a Sixth

Amendment violation for ineffective assistance of trial

counsel. We stayed Aguilar’s removal and held the case in

abeyance pending the disposition of his petition. On March 21,

2023, the New Jersey Supreme Court denied a petition for

certification; with that, his state post-conviction proceedings

concluded. Aguilar’s conviction stands, and his petition to us

now is ripe for review, thus explaining the delay in our

disposition of this case.

5

II

We asked the parties to address whether (1) time spent

in pretrial detention is “confine[ment] as a result of conviction”

under the INA, and (2) the period for which Aguilar must

establish his good moral character is coterminous with the

“period of continuous presence” that also is necessary to

qualify for relief. J.A. 107. The second issue, however, no

longer is an open question in our Circuit. See Mejia-Castanon

v. Att’y Gen., 931 F.3d 224, 227 (3d Cir. 2019) (holding that

the “stop-time rule,” under which the physical presence period

ends when the DHS serves a notice to appear, does not apply

to the period during which an applicant must exhibit good

moral character). Aguilar had to demonstrate his good moral

character for ten years prior to his March 2018 application for

cancellation of removal, even though the notice to appear was

served in September 2017 (meaning he could no longer accrue

physical presence time thereafter).

With that out the way, we turn to the first issue. We

briefly address the Government’s claim that Aguilar failed to

exhaust any argument that pre-conviction detention cannot be

“confine[ment] as a result of conviction.” Because we do not

see it that way, we then move to the merits of Aguilar’s

position.

A

The Government believes we lack jurisdiction to

consider Aguilar’s good moral character claim because he did

not raise (i.e., exhaust) it before the BIA. It is true Aguilar did

not argue to the BIA that his time-served sentence should not

count as confinement under the statute, and we ordinarily

cannot consider unexhausted arguments. See 8 U.S.C.

6

§ 1252(d)(1). Although the Government is wrong to suggest

we thus lack jurisdiction—the INA’s exhaustion requirement

is a non-jurisdictional claim-processing rule, see Santos-

Zacaria v. Garland, 598 U.S. 411, 421-23 (2023)—we “must

enforce the rule” where, as here, the Government “properly

raises it.” Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 1849

(2019) (cleaned up). Yet we do not apply the exhaustion

principle “in a draconian fashion.” Lin v. Att’y Gen., 543 F.3d

114, 121 (3d Cir. 2008), abrogated on other grounds by

Santos-Zacaria, 598 U.S. 411. Rather, we look past a

petitioner’s failure to make an argument to the BIA where the

agency “sua sponte[] considered th[e] issue and adopted and

affirmed the IJ’s decision on th[at] basis.” Id. at 123.

That is what the BIA did here. It agreed with the IJ that

Aguilar was statutorily ineligible for relief because he lacked

good moral character and then “was sentenced to, and served,

1332 days in jail for this crime.” A.R. 3. “Consequently, since

September 2017, he served more than 180 days in jail. A

person who has been convicted of one or more crimes and

served more than 180 days in jail during the 10-year period has

been statutorily determined to lack good moral character.” Id.

(citing 8 U.S.C. § 1101(f)(7)). Implicit in that determination is

that Aguilar’s 1,332-day detention was “as a result of” his

conviction. We believe the BIA’s sua sponte consideration of

the issue makes it ripe for our review, as “the interests behind

the exhaustion rule have been fulfilled.” Lin, 543 F.3d at 124

(brackets omitted) (citing Sidabutar v. Gonzales, 503 F.3d

1116, 1120-21 (10th Cir. 2007)).

7

B

As previewed, an applicant seeking cancellation of

removal under the INA must show he has been a person of

“good moral character” during the relevant timeframe. 8

U.S.C. § 1229b(b)(1)(B). He cannot do so if he “has been

confined, as a result of conviction, to a penal institution for an

aggregate period of one hundred and eighty days or more.” Id.

§ 1101(f)(7).

No one disputes Aguilar was confined as recited. But

was his detention “a result of conviction” because it was later

credited toward his sentence? The IJ and BIA thought so. And

although neither offered any reasoning nor cited relevant

authority, the Board already has answered this question. See

Matter of Valdovinos, 18 I. & N. Dec. 343, 344-45 (B.I.A.

1982). In that precedential decision, it held “the time [an

applicant] spent incarcerated prior to his . . . conviction is

considered time served as a result of his subsequent

conviction” under § 1101(f)(7), which was consistent with

state law (California in that case) “specif[ying] that a criminal

defendant is given credit for pre-conviction confinement when

determining the date of his release from custody.” Id. at 344.

Further reason to reject the argument that pre-conviction

detention should not count in determining the time spent

“confined[] as a result of conviction,” the Board explained, was

that “such pre-sentence confinement also results in the

accruing of good behavior credit for early release from

incarceration.” Id. at 345. The Government urges us to defer

to the Board’s interpretation in Valdovinos and join the Ninth

and Tenth Circuits, which have concluded that pretrial

detention later credited as time served as part of the sentence

imposed counts as confinement “as a result of” conviction. See

8

Garcia-Mendoza v. Holder, 753 F.3d 1165, 1170-71 (10th Cir.

2014); Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1232-33

(9th Cir. 2008).

Aguilar claims they got it wrong. To him, the text of

§ 1101(f)(7) “unambiguously” makes clear that the phrase

“confined[] as a result of conviction” “requires a temporal

sequence of events—a conviction, then confinement”—not

met in his case. Pet’r Br. 18. His confinement, he says, “was

‘as a result’ of his inability to post bail, not the later in time

entry of his plea agreement.” Id. We disagree.3

In our view, § 1101(f)(7) is best understood to include

the period of a defendant’s pre-conviction confinement if it is

later credited toward his sentence. As both the Ninth and

Tenth Circuits reasoned, crediting the time spent in detention

against the term of imprisonment imposed after conviction

now is a “uniform practice.” Arreguin-Moreno, 511 F.3d at

3

When the parties briefed this case in 2019, they disagreed

whether the BIA’s interpretation of § 1101(f)(7) is entitled to

deference under Chevron U.S.A., Inc. v. Natural Resources

Def. Council, Inc., 467 U.S. 837 (1984). That decision

required courts to defer to the BIA’s reasonable interpretation

if the statutory text was not sufficiently clear. See id. at 842-

44. As the Supreme Court has now abandoned the Chevron

doctrine, see Loper Bright Enters. v. Raimondo, No. 22-451

(June 28, 2024); Relentless, Inc. v. U.S. Dep’t of Com., No. 22-

1219 (June 28, 2024), we need not entertain the parties’ debate.

Reviewing the issue de novo, as we must, we still reach the

same conclusion as the BIA did.

9

1232 (citing Spina v. Dep’t of Homeland Sec., 470 F.3d 116,

127 (2d Cir. 2006)); Garcia-Mendoza, 753 F.3d at 1170. “The

federal government, fifty states, and the District of Columbia

provide by statute, rule, or court decision that time spent by a

defendant in pre-conviction detention is to be treated as a day-

for-day credit or reduction of the term of imprisonment

imposed upon conviction.” Spina, 470 F.3d at 127. New

Jersey law (under which Aguilar was convicted) is consistent.

See N.J. Ct. R. 3:21-8 (“The defendant shall receive credit on

the term of a custodial sentence for any time served in custody

in jail . . . between arrest and the imposition of sentence.”);

State v. Bellamy, 224 A.3d 628, 631 (N.J. App. Div. 2019)

(“Jail credits . . . reduce a defendant’s overall sentence and any

term of parole ineligibility.”).

The reason defendants “will ordinarily earn time-served

credit for any period of presentencing detention” is that

“postconviction incarceration is considered punishment for the

offense.” Betterman v. Montana, 578 U.S. 437, 447 n.9 (2016)

(citing 18 U.S.C. § 3585(b)). So when a defendant spends time

in custody in connection with the crime for which he is later

convicted, and that pre-conviction confinement is credited

toward his ultimate sentence, his detention effectively becomes

part of the term of imprisonment imposed by the judgment. See

Arreguin-Moreno, 511 F.3d at 1232; Garcia-Mendoza, 753

F.3d at 1170. For practical purposes, his confinement thus is

“a result of conviction” under § 1101(f)(7). So we agree with

our dissenting colleague that the statute’s “focus is those

confirmed to have engaged in illicit behaviors and who have

had [a] sentence imposed for that conduct.” Dissent Op. 7.

Aguilar’s contrary theory would allow a defendant to

benefit from a shorter sentence of post-conviction

10

incarceration—or no post-conviction incarceration at all, as

was true here—while circumventing the immigration

consequences that Congress intended. A simple hypothetical

illustrates that point. Suppose a person spent 120 days in

pretrial confinement. He is convicted and sentenced to 190

days’ imprisonment with credit for time served, so he serves

70 days in prison after his conviction. If pretrial detention

credited toward a sentence is not “confine[ment] as a result of

conviction,” that individual falls outside § 1101(f)(7)’s scope,

as he was confined for only 70 days after his conviction, even

though the sentence imposed, and the time served, was 190

days—more than the statute’s 180-day limit. But a person

convicted of the same crime who spent no time (or less than 10

days) in pretrial confinement and received a 190-day sentence

would be confined “as a result of” conviction and barred from

establishing his good moral character. That can’t be what

Congress had in mind.

Our dissenting colleague contends that Congress could

have replaced “as a result of” with “in connection with” had it

intended § 1101(f)(7) to be interpreted as we do today. Dissent

Op. 3-4. Perhaps that’s true. But it likewise could have

rephrased the statute to signal that “a temporal sequence is

required,” as the dissent believes is required, id. at 3, by

“us[ing] narrower language, such as ‘after a conviction’ or

‘following a conviction,’” id. (quoting Mont v. United States,

139 S. Ct. 1826, 1829 (2019)).

No doubt an individual’s confinement would be “a

result of his inability to post bail” rather than “a result of

conviction” if his pretrial detention were not credited as time

served in the judgment of conviction. See Troncoso-Oviedo v.

Garland, 43 F.4th 936, 941 (9th Cir. 2022). In that context,

11

casting pretrial detention as confinement under § 1101(f)(7)

indeed would “unduly discriminate[] against those too poor to

muster sufficient funds for bail.” Pet’r Br. 19. But that is not

this case. Likewise, if a defendant’s conviction were vacated,

any period of pretrial confinement in connection with it

logically would not preclude a finding of good moral character.

See Garcia-Mendoza, 753 F.3d at 1169 n.1. And, if a

defendant’s pretrial detention exceeds the sentence ultimately

imposed, only the latter would count as confinement under the

statute. For instance, a defendant who spent 200 days in

pretrial detention and is sentenced to 170 days’ imprisonment

with credit for time served could still establish his good moral

character. This fact-based inquiry, which looks to the actual

sentence for the conviction, alleviates any fear that defendants

may be penalized for their inability to make bail.

But we are not now concerned with any of the above.

Aguilar spent 1,332 days in pre-conviction confinement, which

was credited as time served in making up the full sentence

imposed for his conviction. That conviction withstood state-

court challenges, so the immigration consequences of

§ 1101(f)(7) attach. Aguilar thus cannot establish his good

moral character under § 1229b(b)(1)(B).

III

We also deny as moot Aguilar’s challenge to the BIA’s

decision dismissing his appeal from the IJ’s denial of a

continuance in the underlying removal proceedings. Aguilar

requested a continuance to pursue post-conviction relief from

the New Jersey conviction that made him ineligible for

cancellation of removal. But his claim that the IJ wrongly

denied his motion became moot once the New Jersey state

12

courts denied him that relief, as federal courts have no “power

to decide questions that cannot affect the rights of litigants in

the case before them.” North Carolina v. Rice, 404 U.S. 244,

246 (1971) (citation omitted). Even if we concluded the IJ

should have granted a continuance, “[a] remand now would

effect[] no change” because the “basis for a continuance no

longer exists.” Qureshi v. Gonzales, 442 F.3d 985, 987-90 (7th

Cir. 2006) (claim for continuance mooted by dismissal of I-130

petition).

*****

Congress has imposed a “good moral character”

requirement on any noncitizen seeking to cancel his removal

from the United States, and one who has been “confined[] as a

result of conviction” for 180 days or more cannot make that

showing. See 8 U.S.C. §§ 1229b(b)(1)(B), 1101(f)(7). Aguilar

was convicted and sentenced to 1,332 days’ imprisonment with

credit for time served. In line with the BIA’s decision in

Valdovinos and the persuasive rulings of the Ninth and Tenth

Circuits, we hold that pretrial detention later credited as time

served as part of the sentence imposed counts as confinement

under § 1101(f)(7). We thus reject Aguilar’s challenge to the

BIA’s decision and deny his petition for review.

13

McKEE, Circuit Judge, dissenting.

While I agree with the Majority’s jurisdictional holding,

I cannot agree with my colleagues’ view that Aguilar’s pre-

conviction detention can constitute “confine[ment], as a result

of conviction.” I understand my colleagues’ contrary

conclusion. However, Aguilar’s pretrial detention was clearly

the result of his financial inability to obtain pretrial release on

bail. As a matter of basic logic, his pretrial detention clearly

could not have resulted from something—i.e., a conviction—

which had not yet occurred. Accordingly, I cannot join my

colleagues’ opinion.

I.

My colleagues’ conclusion that a period of

imprisonment resulting from one’s inability to afford bail

constitutes confinement as a result of conviction for the

underlying criminal offense does have superficial appeal. As

my colleagues explain, other Courts of Appeals agree.

Nevertheless, that conclusion is inconsistent with the plain text

of 8 U.S.C. § 1101(f)(7) which does indeed impose the

temporal requirement that my colleagues dismiss. I believe that

8 U.S.C. § 1101(f)(7) means no more than it says. Accordingly,

1

pretrial detention cannot constitute “confine[ment], as a result

of conviction.”

Statutory interpretation starts with the “literal meaning

of the statute” which we determine by “read[ing] the statute in

its ordinary and natural sense.”1 If this reading reveals an

“unambiguous [meaning], our inquiry ends because courts

must presume that Congress ‘says in a statute what it means

and means in a statute what it says there.’”2

Here, we must interpret the phrase “confine[ment], as a

result of conviction,” as used in 8 U.S.C. § 1101(f)(7). Pretrial

detention clearly constitutes “confinement.” However,

Congress has no less clearly limited the circumstances in which

such confinement should bar cancellation of removal. As my

colleagues correctly explain, pretrial confinement only bars

that relief when the confinement results from a conviction.3

1

Harvard Secured Creditors Liquidation Trust v. I.R.S., 568

F.3d 444, 451 (3d Cir. 2009) (quoting Galloway v. United

States, 492 F.3d 219, 223 (3d Cir.2007)).

2

Da Silva v. Att’y Gen. United States, 948 F.3d 629, 635 (3d

Cir. 2020) (quoting In re Phila. Newspapers, LLC, 599 F.3d

298, 304 (3d Cir. 2010)).

3

See Majority Op. at 7.

2

Merriam-Webster defines “result” as “a consequence,

issue, or conclusion”; 4 the Oxford English Dictionary defines

it as “the effect, consequence, or outcome of some action,

process, or design”; 5 and Black’s Law Dictionary defines it as

“a consequence, effect, or conclusion.”6 Thus, each of these

commonly accepted authorities agree that “[a]n event . . .

cannot be a ‘consequence’ of another event . . . that has not yet

occurred[,] nor can an ‘effect’ precede its purported cause.”7

Section 1101(f)(7) therefore requires that the prescribed

confinement be a consequence or effect (i.e., result) of the

conviction, and not merely be related to it. Clearly a temporal

sequence is required. Since pretrial detention occurs before a

conviction, it cannot amount to “confine[ment], as a result of

conviction.” The confinement cannot result from something

that has not yet occurred. I do not believe we should now

rewrite this statute to resolve the problems posed by my

4

Merriam-Webster Online Dictionary, https://www.merriam-

webster.com/dictionary/result (last visited April 19, 2024).

5

Oxford English Online Dictionary,

https://www.oed.com/view/Entry/164061?rskey=njZ8qt&resu

lt=1&isAdvanced=false (last visited April 19, 2024).

6

Black’s Law Dictionary (11th ed. 2019).

7

Daniel S. v. Scranton Sch. Dist., 230 F.3d 90, 98 (3d Cir.

2000) (Becker, C.J., concurring) (citing Webster’s Third New

International Dictionary 1937 (1966)).

3

colleagues’ hypotheticals. Nor does the quandary that results

from the plain reading of the text suggest that Congress did not

mean what it said when it drafted 8 U.S.C. § 1101(f)(7).

If Congress had intended the result that the Majority

reaches, it could have used broader language than “as a result

of.” Congress could have replaced “as a result of” with

something like “in connection with” as it did in 18 U.S.C. §

3624. In Mont v. United States, the Supreme Court held that

pretrial detention later credited as time served for a new offense

is “imprison[ment] in connection with a conviction” as used in

§ 3624(e).8 The Court explained that the phrase “in connection

with” encompassed pretrial detention based on its broad

meaning and the context of the statutory scheme within which

it was used.9 The Court also emphasized that “[i]f Congress

intended a narrower interpretation, it could have easily used

narrower language, such as ‘after a conviction’ or ‘following a

conviction.’”10

My colleagues rephrase the language of 8 U.S.C. §

1101(f)(7) while explaining why they believe “as a result of”

8

Mont v. United States, 139 S. Ct. 1826, 1829 (2019).

9

Id. at 1832–33.

10

Id. at 1832–33 (citation omitted).

4

does not have a temporal requirement. Nevertheless, in three

different places in the Majority opinion, my colleagues, like

the Supreme Court in Mont, use the phrase “in connection

with” to explain the relationship between pretrial detention and

the subsequent credit for that detention upon conviction.11

Congress could have done the same had it intended the result

my colleagues reach. Congress could have declared that

anyone “confined for 180 days in connection with a

conviction” lacked good moral character and was therefore

ineligible for relief from cancellation of removal.

In reaching the opposite conclusion, the Majority adopts

the interpretations of the Courts of Appeals for the Ninth and

Tenth Circuits12 and the Board of Immigration Appeals

(BIA).13 But in Arreguin-Moreno, the Court of Appeals for the

11

See Majority Op. at 3, 9, 12.

12

See Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1232

(9th Cir. 2008) (“[P]re-trial detention that is later credited as

time served as part of the sentence imposed counts as

confinement as a result of a conviction within the meaning of

§ 1101(f)(7).”); Garcia-Mendoza v. Holder, 753 F.3d 1165,

1170 (10th Cir. 2014) (“We conclude that the phrase ‘as a

result of conviction’ is ambiguous, and we defer to the BIA’s

reasonable interpretation of the statute” concluding that

pretrial detention is encompassed within the statute.).

13

Matter of Valdovinos, 18 I. & N. Dec. 343, 344 (BIA 1982)

(“[T]he time the respondent spent incarcerated prior to his

July 1, 1980, conviction is considered time served as a result

of his subsequent conviction under California law.”).

5

Ninth Circuit also failed to consider the plain meaning of the

statute and thus reached an erroneous conclusion.14 In Garcia-

Mendoza, the Court of Appeals for the Tenth Circuit reasoned

that “as a result of conviction” is ambiguous and has multiple

interpretations.15 But as explained, “as a result” is not

ambiguous merely because it allows for the kind of

incongruous consequences that trouble my colleagues. In

Matter of Valdovinos, the BIA obfuscated the plain meaning of

“as a result of conviction” and relied solely on general

principles concerning credit for time served.16 But the practical

and possibly legal difficulties of not crediting pretrial

confinement to a subsequent conviction does not justify

rewriting 8 U.S.C. § 1101(f)(7).

I realize that my interpretation of 8 U.S.C. § 1101(f)(7)

can also yield inequitable or incongruous results as

hypothesized by my colleagues.17 However, for all the reasons

that I have argued, I do not believe those results justify

rewriting the statute. Incongruous results flow from the

Majority’s interpretation as well as from my own. That may be

14

Arreguin-Moreno, 511 F.3d at 1232.

15

753 F.3d at 1170.

16

18 I. & N. Dec. at 344–45.

17

See Majority Op. at 9-10.

6

a reason for Congress to rewrite the statute, but it does not

license us to rewrite it.

I doubt that anyone would suggest that Aguilar’s

sentence of 1,332 days upon conviction, the exact length of his

confinement for failure to post bond, was a mere coincidence.

Rather, the sentence was imposed because it coincided with the

length of his incarceration for failure to post bail.

Aguilar spent 1,332 days (over 3.5 years) in pretrial

detention, maintaining his innocence throughout until

accepting a guilty plea on counsel’s advice.18 While the offense

he pled to typically carries a sentence of 3-5 years, Aguilar

could have received a downgraded fourth-degree offense with

a maximum sentence of 18 months because he was a first-time

offender,19 leaving open the possibility that he could have been

sentenced to less than the 180 days of confinement that bars

cancellation of removal. Instead, he received a 1,332-day

sentence, with credit for time served, as the court in his

criminal case had no incentive to impose a lower sentence than

that which he had already served.

18

A.R. 176–77.

19

Pet’r Reply Br. 6 n.1.

7

Individuals detained pretrial are more likely to receive

sentences equivalent to the time already served in detention,

resulting in longer sentences than would have otherwise been

imposed.20 Thus, a petitioner’s financial status could unfairly

impact whether s/he is of “good moral character.” The effect

of the Majority’s interpretation of 8 U.S.C. § 1101(f)(7) will

be to arbitrarily punish some individuals who were detained

pretrial due to an inability to afford bail when they later receive

credit for time served. Since we will never know what their

sentence would have been had they not been detained pretrial,

it will be impossible to determine if such a sentence indicates

lack of “good moral character” as defined by 8 U.S.C. §

1101(f)(7).

Lastly, the Majority’s interpretation of 8 U.S.C. §

1101(f)(7) fails to convincingly demonstrate that individuals,

whose time in pretrial detention is due to an inability to post

bail, lack “good moral character.” Good moral character

20

See Léon Digard and Elizabeth Swavola, Justice Denied:

The Harmful and Lasting Effects of Pretrial Detention, VERA

INSTITUTE OF JUSTICE, Apr. 2019, at 1, 5,

https://www.vera.org/downloads/publications/Justice-Denied-

Evidence-Brief.pdf (discussing how individuals in pretrial

detention are more likely to receive harsher sentences than

those who do not spend time detained before trial).

8

“means character which measures up to the standards of

average citizens of the community in which the applicant

resides.”21 Section 1101(f) lists circumstances under which

someone would not be “regarded as, or found to be a person of

good moral character.”22 Notably, this provision explicitly

includes illicit actions and convictions but does not mention

pretrial detention.23 This omission suggests that individuals

currently facing charges without a conviction are not specific

targets of this provision, regardless of whether they await trial

in or out of jail. Therefore, the focus remains strictly on those

confirmed to have engaged in illicit behaviors and who have

had legal judgments imposed, rather than on those awaiting

trial like Aguilar. Pretrial detention arising from financial

inability to post bail does not reflect the offensive nature of the

underlying conduct nor limit denial of relief to those who truly

lack “good moral character.”

21

VOLUME 12, CITIZENSHIP AND NATURALIZATION, CHAPTER

1, PURPOSE AND BACKGROUND U.S. CITIZENSHIP AND

IMMIGRATION SERVICES, https://www.uscis.gov/policy-

manual/volume-12-part-f-chapter-1#footnotelink-1 (last

visited Apr 19, 2024) (citing 8 CFR 316.10(a)(2)).

22

See also 8 CFR § 316.10(b)(1)–(2) (enumerating

circumstances that will form the basis of a finding for lack of

good moral character as also described in 8 U.S.C. § 1101(f)).

23

8 U.S.C. § 1101(f)(1)–(9).

9

II.

The Majority’s application of 8 U.S.C. § 1101(f)(7),

which disqualifies individuals “confined to a penal institution

for an aggregate period of one hundred and eighty days or

more,”24 overlooks the distinction between pretrial detention

and conviction. Aguilar’s detention pretrial, due to an inability

to post bail, is clearly in connection with his subsequent

conviction, but pretrial detention does not follow from a

conviction. Accordingly, I respectfully dissent from the

decision of my colleagues.

24

Id. § 1101(f)(7).

10