Gutierrez v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN PABLO GUTIERREZ, 

Petitioner, No. 06-71680

v.

 Agency No.

A092-227-488

ERIC H. HOLDER Jr., Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

April 25, 2011—San Francisco, California

Filed November 7, 2011

Before: Sidney R. Thomas and Sandra S. Ikuta,

Circuit Judges, and Jane A. Restani, Judge.*

Opinion by Judge Restani

*The Honorable Jane A. Restani, Judge for the United States Court of

International Trade, sitting by designation.

20077

20080 GUTIERREZ v. HOLDER

COUNSEL

Fernando Quiñones (withdrawn) and Michael Grim (with-

drawn), Law Offices of Fernando Quiñones, San Francisco,

California, for the petitioner-appellant.

Stephen J. Flynn, Arthur Leonid Rabin, Mark Christopher

Walters, Sunah Lee, and Gladys Marta Steffens Guzman, U.S.

Department of Justice, for the respondent-appellee.

Allison L. Ehlert and Matthew Carter Dirkes, Coblentz, Patch,

Duffy & Bass, LLP, San Francisco, California, amicus curiae.

OPINION

RESTANI, Judge:

Petitioner Juan Pablo Gutierrez petitions for review of an

order of the Board of Immigration Appeals (“BIA”) uphold-

ing the Immigration Judge’s (“IJ”) denial of registry, cancel-

lation of removal, and voluntary departure on grounds of

alleged constitutional violations and that as a matter of law

the administrative record cannot support a finding that he

lacked good moral character. We conclude that we lack juris-

diction to review some of Gutierrez’s claims, and where we

GUTIERREZ v. HOLDER 20081

do possess jurisdiction, Gutierrez’s claims fail on the merits.

Thus, we DENY the petition for review in part and DISMISS

in part.

BACKGROUND

Gutierrez is a seventy year-old native and citizen of Mexico

who entered the United States sometime between 1969 and

1971. Gutierrez is not married and has no children. Gutier-

rez’s mother and brother are United States citizens, and his

sister and other brother are lawful permanent residents of the

United States. In October 2001, Gutierrez was issued a Notice

to Appear, charging him with being removable from the

United States as an alien who was present in the United States

without being admitted or paroled, in violation of Section

212(a)(6)(A)(i) of the Immigration and Nationality Act. 8

U.S.C. § 1182(a)(6)(A)(i).

Gutierrez appeared before an IJ and conceded his remov-

ability from the United States. For relief from removal,

Gutierrez requested registry, cancellation of removal, and vol-

untary departure. During the hearing, Gutierrez presented evi-

dence including that of his good moral character. Gutierrez

also moved to present the telephonic testimony of three wit-

nesses regarding the issue of his good moral character, claim-

ing the witnesses were unavailable due to pre-established

work commitments. The IJ considered the motion despite its

untimeliness but disallowed the telephonic testimony because

Gutierrez had failed to provide affidavits from these witnesses

as to why they could not be present and because there were

other witnesses who could testify to Gutierrez’s good moral

character. Three of Gutierrez’s family members testified to

his good moral character.

Gutierrez testified, admitting that he was arrested and pled

guilty approximately seven or eight times between 1978 and

2001 for driving under the influence (“DUI”) offenses and

arrested for driving without a license at least once. Gutierrez

20082 GUTIERREZ v. HOLDER

served eight months in prison as a result of these arrests. His

last offense occurred in August 2001, and Gutierrez had not

paid his fine as of the date of his April 2004 hearing. When

the IJ asked Gutierrez if he was currently driving with a sus-

pended license, Gutierrez’s attorney stated that Gutierrez was

invoking his right to remain silent despite an admonition from

the IJ that the hearing was not a criminal proceeding and a

negative inference could be drawn from his silence. Gutierrez

testified that he had not drunk alcohol since 2001 and was

currently attending Alcoholics Anonymous meetings twice a

week.

The IJ denied Gutierrez’s applications for relief. Although

the IJ found the testimony of Gutierrez as well as Gutierrez’s

mother and brother credible, the IJ denied his applications for

cancellation of removal, voluntary departure, and registry

because the IJ found that Gutierrez lacked good moral charac-

ter and had not demonstrated “exceptional and extremely

unusual hardship.” 8 U.S.C. § 1229b(b)(1)(D). With regard to

the application for relief for registry, the IJ determined that

“there is no requisite time period for good moral character for

registry” and that because of Gutierrez’s “numerous criminal

convictions for driving under the influence” and the fact that

“the respondent is currently still driving even on a suspended

driver’s license, . . . this Court does not believe that in its dis-

cretion it [is] appropriate to grant the respondent registry.”

Based on a lack of exceptional and extremely unusual hard-

ship as well as a lack of good moral character, the IJ also

denied Gutierrez’s petition for cancellation of removal.

In August 2005, the BIA adopted and affirmed the IJ’s

decision and dismissed Gutierrez’s appeal. The BIA sua

sponte reopened and reconsidered Gutierrez’s appeal,1 con-

curring with the IJ that Gutierrez failed to establish his good

1

The BIA’s prior decision “inadvertently included a reference to a

‘practice of persecution . . . of ethnic Chinese Christian’ which was not

part of the Immigration Judge’s decision or record in this case.”

GUTIERREZ v. HOLDER 20083

moral character and exceptional and extremely unusual hard-

ship for obtaining registry and cancellation of removal, based

on “the reasons stated by the Immigration Judge in his deci-

sion.” The BIA determined that the IJ correctly drew an

adverse inference from Gutierrez’s silence. The BIA also

rejected Gutierrez’s claim that the IJ’s rejection of the tele-

phonic witnesses violated due process. Gutierrez sought

review of the BIA’s order denying registry, cancellation of

removal, and voluntary departure.2

STANDARD OF REVIEW

The BIA adopted and affirmed the decision of the IJ pursu-

ant to Matter of Burbano, 20 I. & N. Dec. 872, 874 (B.I.A.

1994). Where the BIA does not express any disagreement

with the IJ’s reasoning or conclusions, we revisit both deci-

sions and treat the IJ’s reasons as those of the BIA. See

Pelayo-Garcia v. Holder, 589 F.3d 1010, 1012 (9th Cir.

2009). “[W]e have jurisdiction to determine whether jurisdic-

tion exists,” Flores-Miramontes v. INS, 212 F.3d 1133, 1135

(9th Cir. 2000) (internal quotation marks and citation omit-

ted), and we review issues regarding jurisdiction and the

BIA’s legal conclusions de novo, see Oropeza-Wong v. Gon-

zales, 406 F.3d 1135, 1141 (9th Cir. 2005). We review consti-

tutional and other questions of law de novo. See Khan v.

Holder, 584 F.3d 773, 776 (9th Cir. 2009).

JURISDICTION TO REVIEW DENIAL OF

REGISTRY DECISIONS

Amicus argues that we have jurisdiction to review the

entirety of the IJ’s decision regarding Gutierrez’s denial of

registry. Specifically, Amicus argues that the IJ based his

decision on a statutory per se category rather than his discre-

2

We received supplemental briefing and oral argument from amicus

curiae and the Government after Gutierrez’s lawyer withdrew from the

case.

20084 GUTIERREZ v. HOLDER

tionary authority and therefore this panel need not reach the

issue of jurisdiction over discretionary decisions. In the alter-

native, Amicus argues that we retain jurisdiction to review

statutory determinations regarding good moral character. We

agree with the latter argument. In addition, we retain jurisdic-

tion to decide issues of law, including constitutional claims.3

8 U.S.C. § 1252(a)(2)(D).4

[1] Since the Real ID Act of 2005, we have not determined

whether we have jurisdiction over decisions of the Attorney

General denying registry. The applicable provision states that:

[N]o court shall have jurisdiction to review . . . (i)

any judgment regarding the granting of relief under

section 1182(h), 1182(i), 1229b, 1229c, or 1255 of

this title, or (ii) any other decision or action of the

Attorney General . . . the authority for which is spec-

ified under this subchapter to be in the discretion of

the Attorney General . . . .

Id. § 1252(a)(2)(B). According to 8 U.S.C. § 1259, the statute

3

The Real ID Act of 2005 explicitly authorized such judicial review by

adding the following language to 8 U.S.C. § 1252(a)(2)(D): “Nothing in

subparagraph (B) or (C), or in any other provision of this Act (other than

this section) which limits or eliminates judicial review, shall be construed

as precluding review of constitutional claims or questions of law . . . .”

Real ID Act of 2005, Pub. L. No. 109-13, § 106, 119 Stat. 231, 310 (2005)

(codified as amended at 8 U.S.C. § 1252(a)(2)(D)). Furthermore, we have

noted that errors of law may infect discretionary decisions. See Bazua-

Cota v. Gonzales, 466 F.3d 747, 748 (9th Cir. 2006) (per curium) (finding

jurisdiction to review colorable legal and constitutional claims even where

the decision was purely discretionary).

4

To the extent Gutierrez asserts that the IJ’s decision denying cancella-

tion of removal under 8 U.S.C. § 1229b and voluntary departure under 8

U.S.C. § 1229c was not warranted by the record, such claims are expressly

barred from judicial review. 8 U.S.C. § 1252(a)(2)(B) (“[N]o court shall

have jurisdiction to review . . . any judgment regarding the granting of

relief under section . . . 1229b, 1229c . . . of this title” except for constitu-

tional and other legal questions).

GUTIERREZ v. HOLDER 20085

under which Gutierrez was denied registry, the IJ may grant

registry if the alien establishes certain facts, including that he

is of good moral character. Id. § 1259 (registry “may, in the

discretion of the Attorney General . . . , be made in the case

of any alien”). Although registry under Section 1259 is not

expressly listed as a section for which judicial review is

barred, see 8 U.S.C. § 1252(a)(2)(B)(i), we do not have juris-

diction to review “any other decision or action of the Attorney

General . . . the authority for which is specified under this

subchapter to be in the discretion of the Attorney General,” id.

§ 1252(a)(2)(B)(ii) (emphasis added).5 Section 1259 explicitly

states that registry is “in the discretion of the Attorney Gener-

al.” Id. § 1259. Thus, to the extent the challenged decision

was a legally permissible exercise of that discretion, we lack

jurisdiction to review it.

[2] Here, in denying Gutierrez’s application for registry,

the IJ “noted that [registry] is a relief in the discretion of [the

IJ],” and that he did “not believe that the respondent has dem-

onstrated good moral character and believes that in its discre-

tion, it is inappropriate for [the IJ] to grant the respondent

registry.” Although Section 1101(f) lists nine circumstances

that, if true in a particular alien’s case, preclude a finding of

good moral character, the IJ did not rely on any of the items

listed therein.6 Rather, the IJ based his conclusion on Gutier-

5

We stated in Beltran-Tirado that we had jurisdiction to review denial

of registry based purely on the omission of registry from the list of statu-

tory provisions placed beyond our jurisdiction by the transitional rules of

the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”). Beltran-Tirado v. INS, 213 F.3d 1179, 1182 n.4 (9th Cir.

2000) (citing IIRIRA, Pub. L. No. 104-208, § 309(c)(4)(E)). Beltran-

Tirado, however, addressed the legal question of whether conviction under

42 U.S.C. § 408 constitutes a crime of moral turpitude under 8 U.S.C.

§ 1182(a)(2)(A). Id. at 1184-85. The Real ID Act made explicit the hold-

ing of Beltran-Tirado: we have jurisdiction over legal questions involving

denial of registry claims.

6

The preclusive categories include an individual who is or was “during

the period for which good moral character is required to be established . . .

a habitual drunkard.” 8 U.S.C. § 1101(f). Here, the IJ’s decision was based

on Gutierrez’s crimes rather than whether or not he was a habitual drunk-

ard under the statute.

20086 GUTIERREZ v. HOLDER

rez’s “numerous criminal convictions for driving under the

influence . . . from 197[8] to 2001,”7 as well as the fact that

Gutierrez was currently driving on a suspended license. The

BIA concurred, stating that “[w]e agree with the Immigration

Judge that the respondent failed to establish the requisite good

moral character for the requested forms of relief.” Because the

IJ made no mention of per se good moral character except to

restate the Government’s argument and instead relied on

actions falling outside Section 1101(f), the IJ made a general

finding of lack of good moral character, a statutory require-

ment for registry.8

[3] We have jurisdiction to review this determination. As

we made clear in Singh v. Holder, 8 U.S.C.

§ 1252(a)(2)(B)(ii) does not preclude from review factual

decisions unless “the language of the statute in question . . .

provide[s] the discretionary authority for the Attorney Gener-

al’s action.” Singh v. Holder, 591 F.3d 1190, 1194 (9th Cir.

2010) (alteration in original) (internal quotation marks omit-

ted) (citing Spencer Enters., Inc. v. United States, 345 F.3d

683, 689 (9th Cir. 2003)). In Singh, we addressed the statutory

requirements for eligibility for hardship waiver of the require-

ments for permanent residence status, holding that by stating

“[t]he Attorney General, in the Attorney General’s discretion,

may” grant relief, 8 U.S.C. § 1186a(c)(4), the ultimate deci-

sion was “specified” to be in the Attorney General’s discretion.9

7

The IJ misstated the date as 1970. The BIA subsequently correctly

stated the date as 1978.

8

The BIA did refer to the habitual drunkard provision in saying it had

no authority to decide constitutional issues. We interpret this to be a con-

venient disposition of an issue rather than an altering of the IJ’s broad

basis for his decision. Accordingly, as Gutierrez was not removed under

this statute, he lacks standing to challenge the “habitual drunkard” lan-

guage in 8 U.S.C. § 1101(f)(1) for unconstitutional vagueness as applied.

See Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1494 (9th

Cir. 1996) (stating that petitioner cannot challenge a statutory provision on

vagueness grounds when it was not used against him).

9

In relevant part, Immigration and Nationality Act § 216(c)(4) provides:

(4) Hardship waiver

GUTIERREZ v. HOLDER 20087

Singh, 591 F.3d at 1194. Singh also concluded that the phrase,

“[t]he determination of what evidence is credible and the

weight to be given that evidence shall be within the sole dis-

cretion of the Attorney General,” 8 U.S.C. § 1186a(c)(4)

(emphasis added), sufficed to commit such decisions to the

Attorney General’s discretion. Singh, 591 F.3d at 1195. In

contrast, the language providing that the Attorney General

could grant relief if the alien “demonstrate[d]” that certain

criteria were met did not “commit[ ] to the Attorney General’s

discretion the question whether” those criteria were satisfied.

Id. at 1194-95 (emphasis and internal quotation marks omit-

ted). Here, the “establishes” language in Section 1259 is akin

to the “demonstrates” language of Section 1186a(c)(4). Just as

Singh held that the IJ’s and BIA’s underlying factual determi-

nations were not specified to be in the discretion of the Attor-

ney General, nothing in sections 1252 or 1259 specifies that

The Attorney General, in the Attorney General’s discretion, may

remove the conditional basis of the permanent resident status for

an alien who fails to meet the requirements of paragraph (1) if the

alien demonstrates that—

(A) extreme hardship would result if such alien is removed,

(B) the qualifying marriage was entered into in good faith by

the alien spouse, but the qualifying marriage has been termi-

nated (other than through the death of the spouse) and the

alien was not at fault in failing to meet the requirements of

paragraph (1), or

(C) the qualifying marriage was entered into in good faith by

the alien spouse and during the marriage the alien spouse or

child was battered by or was the subject of extreme cruelty

perpetrated by his or her spouse or citizen or permanent resi-

dent parent and the alien was not at fault in failing to meet

the requirements of paragraph (1).

. . . The determination of what evidence is credible and the

weight to be given that evidence shall be within the sole discre-

tion of the Attorney General.

8 U.S.C. § 1186a(c)(4) (emphases added).

20088 GUTIERREZ v. HOLDER

the good moral character decision is committed to the discre-

tion of the Attorney General. As a result, Section

1252(a)(2)(B)(ii) does not strip us of jurisdiction over the IJ’s

decision regarding Gutierrez’s moral character.10

Thus, we turn to Gutierrez’s claims regarding, 1) the extent

to which an assessment of good moral character can be based

only on the immediate present and whether there was substan-

tial evidence supporting the finding of lack of good moral

character for purposes of registry, 2) procedural due process,

and 3) the Fifth Amendment.

10

Assessing jurisdiction over good moral character determinations under

IIRIRA’s transitional rules, we stated that “[t]he transitional rules . . . pre-

clude direct judicial review of the BIA’s determinations of the threshold

eligibility requirements of . . . ‘good moral character.’ ” Kalaw v. INS, 133

F.3d 1147, 1152 (9th Cir. 1997), superseded by statute, 8 U.S.C.

§ 1252(a)(5), as recognized in Trejo-Mejia v. Holder, 593 F.3d 913, 915

(9th Cir. 2010). Kalaw was decided pursuant to IIRIRA’s transitional rules

under Section 309(c)(4)(E), which stripped us of jurisdiction over “discre-

tionary decision[s]” under Immigration and Nationality Act § 244 and

which governed suspension of deportation, the form of relief at issue in

Kalaw. See Kalaw, 133 F.3d at 1150. Under these transitional rules, all

that was required to strip jurisdiction was a demonstration that the case

arose under one of the listed sections, and the decision in question was dis-

cretionary. See id. Kalaw confined itself to a discussion of whether the

particular analyses at issue in the suspension of deportation decision

(which subsumed the determination of good moral character) were discre-

tionary or not. See id. at 1151-52. After the Real ID Act of 2005, we lack

jurisdiction under Section 1252(a)(2)(B)(ii) only over discretionary deci-

sions “the authority for which is specified under this subchapter to be in

the discretion of the Attorney General or the Secretary of Homeland

Security.” 8 U.S.C. § 1252(a)(2)(B)(ii). Because the statute at issue in

Kalaw did not include the “is specified” language, Kalaw provides no

guidance on the question of our jurisdiction pursuant to Section

1252(a)(2)(B)(ii).

GUTIERREZ v. HOLDER 20089

DISCUSSION

I. Good Moral Character

Gutierrez argues that an applicant for registry need show

only that he is a person of good moral character in the imme-

diate present without reference to past negative conduct. Spe-

cifically, Gutierrez argues that the word “is” in 8 U.S.C.

§ 1259(c) refers unambiguously to the present moment with-

out reference to past events. This claim lacks merit.

[4] Although Congress has not mandated a specific tempo-

ral window for demonstration of good moral character in reg-

istry claims, for other claims the IJ can look back at evidence

of good moral character from past time periods, specifically,

five years for citizenship, 8 U.S.C. § 1427(a), ten years for

cancellation of removal, id. § 1229b(b)(1)(A), and five years

for voluntary departure, id. § 1229c(b)(1)(B). Thus, the time

periods for other moral character inquiries under immigration

law support the reasonableness of interpreting Section 1259 to

permit looking back to some past time period to determine

whether a person is of good moral character. See id.

§ 1259(c). Gutierrez’s past actions bear on his current moral

character. See Matter of Sanchez-Linn, 20 I. &. N. Dec. 362,

365 (B.I.A. 1991) (finding that the IJ must look back to some

period preceding the moment a petitioner is standing before

a judge). We need not and, for that matter, cannot restrict the

IJ or BIA to the immediate present for determining if a peti-

tioner is of good moral character. See id. “[A]n applicant for

registry must show good moral character for a ‘reasonable

period of time’ preceding the application.” Id. (quoting Matter

of De Lucia, 11 I. & N. Dec. 565, 575 (B.I.A. 1966)). “What

is a ‘reasonable period of time’ will vary depending on the

specific facts of a case.” Id. Indeed, in some circumstances,

facts from the whole sweep of a person’s life may properly be

considered by the IJ. Id.

20090 GUTIERREZ v. HOLDER

[5] Here, the IJ made a multifaceted determination based

on conduct stretching back many years, but leading up to the

time of the hearing: eight months in prison, seven or eight

DUI convictions with the most recent three years prior to the

hearing, and driving with a suspended license at the time of

the hearing. The IJ looked at facts bearing on lack of good

moral character that continued into at least the five years pre-

ceding the immigration hearing. There is no basis to find that

the IJ was restricted to a time period shorter than the shortest

time period for the good moral character inquiry specified in

other immigration provisions. Thus, the IJ looked back to a

permissible period of time in determining that Gutierrez

lacked good moral character.11

A finding of good moral character involves subjective

assessments and weighing of types of evidence that will vary

considerably from case to case but clearly here there is

enough evidence of wrongdoing over time that it cannot be

said that the IJ’s decision was without sufficient evidenciary

support. Where this type of general and somewhat amorphous

question must be answered, considerable deference to the

fact-finder is warranted. In this case in particular, with the his-

tory of repeated criminal acts, we will not second guess the

IJ.

11

Gutierrez also argues that the IJ and BIA, unlike the BIA in Sanchez-

Linn and De Lucia, failed to consider any positive factors and violated his

right to equal protection. There is no evidence to support Gutierrez’s claim

that the IJ failed to consider positive factors before deciding that he was

not of good moral character for the purposes of registry. In fact, the IJ dis-

cusses the testimony of Gutierrez’s three family members at length, stating

that he did “not doubt the veracity of any of the witnesses.” Furthermore,

the other petitioners noted by Gutierrez did not obtain relief. See Sanchez-

Linn, 20 I. &. N. Dec. at 365-66, 367; De Lucia, 11 I. & N. Dec. at 582.

Because he cannot show that his treatment “differed from that of similarly

situated persons,” Gutierrez’s equal protection claim is unavailing. See

Dillingham v. INS, 267 F.3d 996, 1007 (9th Cir. 2001), overruled on other

grounds by Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. July 14, 2011)

(en banc).

GUTIERREZ v. HOLDER 20091

II. Due Process

Gutierrez alleges that the IJ’s decision not to allow certain

witnesses to testify telephonically violated local procedural

rules and his right to due process. This claim lacks merit.

A full and fair hearing is one of the due process rights

afforded to aliens in deportation proceedings. See Getachew

v. INS, 25 F.3d 841, 845 (9th Cir. 1994). A court will grant

a petition on due process grounds only if the proceeding was

“so fundamentally unfair that the alien was prevented from

reasonably presenting his case.” Ibarra-Flores v. Gonzales,

439 F.3d 614, 620 (9th Cir. 2006); see Baliza v. INS, 709 F.2d

1231, 1233 (9th Cir. 1983) (“[T]he only limitation upon its

procedure [is] that a hearing, though summary, must be fair.”

(quoting Navarrette-Navarrette v. Landon, 223 F.2d 234, 237

(9th Cir. 1955)). An alien bears the burden of proving the

alleged violation prejudiced his or her interests. See United

States v. Cerda-Pena, 799 F.2d 1374, 1378-79 (9th Cir.

1986).

[6] The IJ did not violate Gutierrez’s due process rights by

excluding the telephonic testimony of three witnesses

because, in addition to the untimeliness of the request, there

were other witnesses present and prepared to testify in person

as to the same character evidence. Gutierrez failed to show

that he was prejudiced by the exclusion of these witnesses.

Additionally, petitioner’s reliance on Zolotukhin v. Gonzales,

417 F.3d 1073 (9th Cir. 2005), is misplaced because the

excluded telephonic testimony in this case was not from

uniquely qualified expert witnesses and others with specific

and noncumulative testimony, but rather from witnesses who

planned to testify to Gutierrez’s good moral character and

continuous presence in the United States, which were the

same types of evidence nine other witnesses were prepared to

provide. Gutierrez had an opportunity to fully present his

case. Accordingly, no due process violation occurred.

20092 GUTIERREZ v. HOLDER

III. Fifth Amendment

[7] Gutierrez alleges that the IJ erred in drawing an

adverse inference when he invoked the Fifth Amendment

right against self-incrimination when asked if he was driving

on a suspended license. This claim lacks merit. The IJ was

permitted to draw an adverse inference when Gutierrez

refused to answer whether he was driving on a suspended

license. See United States ex rel. Bilokumsky v. Tod, 263 U.S.

149, 154-55 (1923). In a deportation hearing there is no prohi-

bition against drawing an adverse inference when a petitioner

invokes his Fifth Amendment right against self-incrimination.

See id.; United States v. Alderete-Deras, 743 F.2d 645, 647

(9th Cir. 1984). Accordingly, there was no Fifth Amendment

violation.

CONCLUSION

For the foregoing reasons, the petition for review is

DENIED in part and DISMISSED in part.