Gonzalez-Ruano v. Holder

• Decision Date: 31 October 2011
• Docket Number: No. 11–1138.,11–1138.
• Citation: 662 F.3d 59
• Parties: Otto Amilcar GONZALEZ–RUANO, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

662 F.3d 59

Otto Amilcar GONZALEZ–RUANO, Petitioner,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 11–1138.

United States Court of Appeals, First Circuit.

Submitted Sept. 15, 2011.Decided Oct. 31, 2011.

Brian Monahan and Ross & Associates on brief for petitioner.

Tony West, Assistant Attorney General, Civil Division, David V. Bernal, Assistant Director and Jesse M. Bless, Trial Attorney, Office of Immigration Litigation, Civil Division, on brief for respondent.

Before LIPEZ, RIPPLE,^* and HOWARD, Circuit Judges.HOWARD, Circuit Judge.

Petitioner Otto Amilcar Gonzalez–Ruano is a native and citizen of Guatemala who unlawfully entered the United States in 1989 and has resided here since. An Immigration Judge (IJ) rejected his request for a special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA). See Pub. L. No. 105–100, § 203, 111 Stat. 2160, 2196–99, amended by Pub. L. No. 105–139, 111 Stat. 2644 (1997). He seeks review of the decision of the Board of Immigration Appeals (BIA) which affirmed that adverse decision. We deny the petition in part and dismiss the remainder for lack of jurisdiction.

I. BACKGROUND

Enacted in 1997, NACARA amended certain provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) permitting aliens from particular countries, including Guatemala, to seek discretionary relief under prior, more generous statutory standards. See Peralta v. Gonzales, 441 F.3d 23, 26–27 (1st Cir.2006) (providing background on the enactment of NACARA); Fieran v. INS, 268 F.3d 340, 343–44 (6th Cir.2001) (same). In particular, section 203 of NACARA allows qualified aliens to apply for either suspension of deportation or “special rule” cancellation of removal, depending upon whether the deportation proceedings commenced prior or subsequent to April 1, 1997. See Pub. L. No. 105–100, § 203, 111 Stat. 2160, 2196–99; 8 C.F.R. §§ 1240.64–1240.66.

The Department of Homeland Security (DHS) served Gonzalez–Ruano with a Notice to Appear (NTA) in September 2007. It charged him with being removable from the United States because he entered this country without proper admittance. See 8 U.S.C. § 1182(a)(6)(A)(i). He conceded the grounds for removal and applied for a special rule cancellation of removal under NACARA.¹ See 8 C.F.R. §§ 1240.64, 1240.66. To obtain such relief, he was required to “establish by a preponderance of the evidence” that he was both “eligible for ... special rule cancellation of removal and that discretion should be exercised to grant relief.” 8 C.F.R. § 1240.64(a) (emphasis added); see Pub. L. No. 105–100, § 203(b), 111 Stat. 2160, 2198. The general eligibility requirements are a seven-year period of continuous physical presence in the United States with good moral character (preceding the date of the application), and a showing that removal would result in “extreme hardship” to himself, or to his spouse, parent, or child who is a United States citizen or a lawful permanent resident. 8 C.F.R. § 1240.66(b)(2)-(4). For certain qualifying aliens, there is a presumption that deportation or removal would result in extreme hardship, 8 C.F.R. § 1240.64(d)(1), and the burden shifts to DHS to rebut that presumption, 8 C.F.R. § 1240.64(d)(2)-(3). Again, as noted, in addition to proving eligibility, the applicant must also establish that favorable discretion should be exercised.

The removal hearing was twice continued in 2008 to allow Gonzalez–Ruano time to secure legal counsel, then scheduled to take place in June 2009. In May 2009, Gonzalez–Ruano filed a memorandum recounting his activities in this country, including his criminal history, and also included legal arguments regarding the proper standard to apply to his relief request. The memorandum referenced, among others, three 1997 Massachusetts convictions: one for willful and malicious destruction of property and two for assault and battery. Gonzalez–Ruano had pled guilty to all three charges.

Five days before the hearing, the DHS amended the original Notice to Appear with Form I–261, detailing new charges based on the 1997 convictions which, the government alleged, comprised “crime[s] involving moral turpitude”. See 8 U.S.C. § 1182(a)(2)(A)(i)(I). Gonzalez–Ruano admitted to the fact of convictions, but disputed that the crimes involved moral turpitude.

The moral turpitude designation is important because an alien convicted of such a crime must demonstrate eligibility for NACARA “special rule” relief under a more stringent standard. See 8 C.F.R. § 1240.66(c)(1)-(4). This standard of eligibility requires a ten-year period of continuous physical presence with good moral character (calculated from the date of the commission of an act or the assumption of a status constituting a ground for removal), and a greater degree of hardship, “exceptional and extremely unusual” rather than “extreme.” See 8 C.F.R. § 1240.66(c)(2)-(4). Also, such applicant loses the benefit of the presumption under the hardship prong. See 8 C.F.R. § 1240.64(d). In addition to proving eligibility under the more stringent requirements, the applicant still must also establish “that discretion should be exercised to grant relief.” 8 C.F.R. § 1240.64(a).

At the hearing, Gonzalez–Ruano testified about his tumultuous relationships with his purportedly unfaithful first wife and his allegedly unstable second wife.² Regarding his first wife, he recalled an incident in which he approached her car (despite the existence of a restraining order) and attacked a male passenger. On another occasion, he again approached her car in violation of a restraining order, reached in and slapped her. When she attempted to drive away he held onto the vehicle door, causing damage. He also admitted to following his first wife on numerous occasions despite a court order directing him to stay away from her. The couple divorced in 2002.

His marriage to his second wife bears similar marks. She secured restraining orders against him as well, and Gonzalez–Ruano admitted to multiple arrests as a result of some domestic disturbances. At the time of the hearing, he was estranged from, though still married to, his second wife. In short, his conduct during his marriages gave rise to several arrests and police incident reports, criminal convictions, and violations of protective orders. Over the years, he also committed various motor vehicle and traffic violations. At the time of the IJ proceeding, Gonzalez–Ruano had an abuse prevention order in place against him, and he faced three state criminal charges, including assault and battery with a dangerous weapon, breaking and entering, and assault.

Testimony established that in this country Gonzalez–Ruano has lived with his brother and sister and their families. He does not have children of his own. He expressed concern to the IJ about his ability to find work in his homeland due to his age, then 54, and to obtain needed medication in the event he is repatriated. While his parents live in Guatemala, they are elderly and Gonzalez–Ruano owns no property there.

Concluding that the conviction for malicious destruction of property qualified as a crime involving moral turpitude, the IJ applied the more stringent eligibility standard under NACARA. The IJ then determined that Gonzalez–Ruano failed to establish the good moral character and hardship requisites for eligibility, thus dooming his request for relief. Alternatively, the IJ found that Gonzalez–Ruano did not warrant a favorable exercise of discretion, citing his “long and troubling criminal history, marked by his repeated and continuous mistreatment of his spouses.” Finally, the IJ rejected a challenge to the propriety of the timing of Form I–261 which supplemented the NTA.

Gonzalez–Ruano appealed to the BIA, which affirmed the IJ's decision. It ruled that the Massachusetts crime of malicious destruction of property categorically qualified as a crime involving moral turpitude, and thus the IJ was correct to apply the more stringent standard for eligibility. The BIA, however, concluded that it did not need to reach the remaining eligibility factors relating to character and hardship, because it adopted the IJ's reasoning that Gonzalez–Ruano did not warrant a favorable exercise of discretion. It also ruled that the purportedly late filing of Form I–261 did not cause prejudice, and that Gonzalez–Ruano failed to preserve certain arguments before the IJ relative to the status of his Massachusetts crimes (and alternatively ruled that such arguments lacked merit). This petition followed.

II. ANALYSIS

Our authority to review the BIA's decision in this case is significantly circumscribed. Review of a decision invoking special rule cancellation of removal under NACARA is subject to the jurisdiction-stripping provision codified at 8 U.S.C. § 1252. See Pub. L. 105–100, § 203(b), 111 Stat. 2160, 2198; see also Blandon v. United States, No. 11–10206, 444 Fed.Appx. 319, 321–22, 2011 WL 3903408, at *1 (11th Cir. Sept. 7, 2011); Argueta v. Holder, 617 F.3d 109, 111–12 (2d Cir.2010); Cruz Agustin v. U.S. Att'y Gen., 427 Fed.Appx. 94, 95–96 (3d Cir.2011); Yat v. Holder, 341 Fed.Appx. 990, 991 (5th Cir.2009); Castro–Saravia v. Ashcroft, 122 Fed.Appx. 303, 304 (9th Cir.2004). That provision divests federal courts of jurisdiction to review “any judgment regarding the granting of relief” relative to cancellation of removal, 8 U.S.C. § 1229b. See 8 U.S.C. § 1252(a)(2)(B)(i). We do, however, have jurisdiction to consider constitutional claims and questions of law raised in the petition. 8 U.S.C. § 1252(a)(2)(D). Consequently, we cannot review discretionary determinations regarding requests for special rule cancellation of removal under NACARA, absent legal or constitutional error. See, e.g., Argueta, 617 F.3d at 111–12 (decided in the NACARA context); cf. Cruz–Camey v. Gonzales, 504 F.3d 28, 29 (1st Cir.2007) (holding that...