Gutierrez v. Holder

• Decision Date: 07 November 2011
• Docket Number: No. 06–71680.,06–71680.
• Citation: 11 Cal. Daily Op. Serv. 13616,662 F.3d 1083,2011 Daily Journal D.A.R. 16257
• Parties: Juan Pablo GUTIERREZ, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

11 Cal. Daily Op. Serv. 13,616

2011 Daily Journal D.A.R. 16,257

662 F.3d 1083

Juan Pablo GUTIERREZ, Petitioner,

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

No. 06–71680.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 25, 2011.Filed Nov. 7, 2011.

Fernando Quiñones (withdrawn) and Michael Grim (withdrawn), Law Offices of Fernando Quiñones, San Francisco, CA, for the petitioner-appellant.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, CA, amicus curiae.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A092–227–488.Before: SIDNEY R. THOMAS and SANDRA S. IKUTA, Circuit Judges, and JANE A. RESTANI, Judge.^*

OPINION

RESTANI, Judge:

Petitioner Juan Pablo Gutierrez petitions for review of an order of the Board of Immigration Appeals (“BIA”) upholding the Immigration Judge's (“IJ”) denial of registry, cancellation 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 jurisdiction to review some of Gutierrez's claims, and where we 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. Gutierrez'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 removability from the United States. For relief from removal, Gutierrez requested registry, cancellation of removal, and voluntary departure. During the hearing, Gutierrez presented evidence including that of his good moral character. Gutierrez also moved to present the telephonic testimony of three witnesses regarding the issue of his good moral character, claiming 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 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 suspended 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 character 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 discretion it [is] appropriate to grant the respondent registry.” Based on a lack of exceptional and extremely unusual hardship 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 concurring with the IJ that Gutierrez failed to establish his good moral character and exceptional and extremely unusual hardship for obtaining registry and cancellation of removal, based on “the reasons stated by the Immigration Judge in his decision.” 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 telephonic 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 pursuant 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 decisions 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 jurisdiction exists,” Flores–Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir.2000) (internal quotation marks and citation omitted), and we review issues regarding jurisdiction and the BIA's legal conclusions de novo, see Oropeza–Wong v. Gonzales, 406 F.3d 1135, 1141 (9th Cir.2005). We review constitutional 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 discretionary authority and therefore this panel need not reach the issue of jurisdiction over discretionary decisions. In the alternative, Amicus argues that we retain jurisdiction to review statutory determinations regarding good moral character. We agree with the latter argument. In addition, we retain jurisdiction to decide issues of law, including constitutional claims. ³ 8 U.S.C. § 1252(a)(2)(D).⁴

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 specified 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 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 jurisdiction 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 General.” Id. § 1259. Thus, to the extent the challenged decision was a legally permissible exercise of that discretion, we lack jurisdiction to review it.

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 demonstrated good moral character and believes that in its discretion, 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 Gutierrez'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 requirement for registry.⁸

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...