Hernandez v. Garland
| Decision Date | 06 February 2023 |
| Docket Number | 22-3120 |
| Parties | Jorge Hernandez, Petitioner, v. Merrick B. Garland, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
On Petition for Review from the Board of Immigration Appeals; No. A 073 646 149.
Justin B. Hurst, HURST LAW GROUP, Hot Springs, Arkansas, for Petitioner.
Lisa Morinelli, UNITED STATES DEPARTMENT OF JUSTICE, Washington D.C., for Respondent.
Before: STRANCH, MURPHY, and DAVIS, Circuit Judges.
When the Attorney General or his designee, the Board of Immigration Appeals, denies discretionary relief to an immigrant, the immigration laws limit the jurisdiction of the courts to review that decision. 8 U.S.C. § 1252(a)(2)(B)(i). This jurisdictional limit bars us from reviewing not just the Board's ultimate discretionary choice to deny relief but also any factual findings underlying that choice. See Patel v. Garland, 142 S.Ct. 1614, 1621-23 (2022). Yet a jurisdictional safe harbor preserves our power to review "questions of law" embedded in the discretionary decision, 8 U.S.C. § 1252(a)(2)(D), including a "mixed question of law and fact" that requires the Board to consider whether the historical facts meet the governing legal test, Guerrero-Lasprilla v. Barr, 140 S.Ct. 1062, 1068-69 (2020) (citation omitted).
This case requires us to consider how these rules apply to the Board's denial of one type of discretionary relief: cancellation of removal. The Board has discretion to cancel the removal of immigrants who meet four eligibility requirements-including that they have "good moral character" and that their removal would cause sufficient "hardship" to a qualifying relative. 8 U.S.C. § 1229b(b)(1)(B), (D). We recently held that the Board's conclusion that the historical facts did not rise to the required level of "hardship" resolved a mixed question of law and fact that we have jurisdiction to review. See Singh v. Rosen, 984 F.3d 1142, 1149-54 (6th Cir. 2021). Like Singh, we now hold that the question whether the historical facts show that an immigrant lacks "good moral character" also qualifies as a mixed question within our jurisdiction.
We thus may review Jorge Hernandez's argument that the Board wrongly held that he lacked good moral character because his negative attributes (including two drinking-and-driving convictions) outweighed his positive attributes (including his support of his ill wife). That said, the Board properly concluded that Hernandez's history of alcohol use and drinking-and-driving convictions showed his lack of "good moral character." We thus deny his petition for review on the merits.
Born and raised in El Salvador, Hernandez came to the United States a couple of months before his eighteenth birthday in 1994. Admin. R. (A.R.) 1363, 1637. Hernandez entered without inspection and has lived in this country ever since. A.R 1638.
At some point, immigration authorities learned of Hernandez's presence and mailed him a "notice to appear" in proceedings designed to remove him to El Salvador. A.R. 1953, 205759. In 1999, Hernandez did not appear at his initial hearing, so an immigration judge ordered him removed in his absence. A.R. 1334, 2052; see 8 U.S.C. § 1229a(b)(5)(A). Over ten years later, another immigration judge granted Hernandez's motion to reopen his removal proceedings on the ground that he had never received the notice to appear that the authorities had mailed to him. A.R. 1954-96, 2013-15; see 8 U.S.C. § 1229a(b)(5)(C)(ii).
In the meantime, Hernandez married his wife and became the stepfather of her four children. A.R. 1364-65, 1430. The couple lived in Arkansas. But Hernandez's job laying cable for an oil company took him to other states, with the expectation that he would spend a month or more at home for every three months he spent away. A.R. 1366-68, 1432-34, 1447.
In 2012, Hernandez sought cancellation of removal. A.R. 1637-44. To qualify for this relief, Hernandez needed to establish: (1) that he had remained in the United States for the past ten years; (2) that he had "been a person of good moral character during" that time; (3) that he had not been convicted of certain crimes; and (4) that his "removal would result in exceptional and extremely unusual hardship to" his wife. 8 U.S.C. § 1229b(b)(1)(A)-(D).
After holding a hearing at which Hernandez and his wife testified, an immigration judge denied his cancellation-of-removal motion. A.R. 1329. The judge found that Hernandez met two of the four elements: he had remained in this country for ten years and had not been convicted of disqualifying offenses. A.R. 1323, 1325. But the judge concluded that Hernandez did not satisfy the other elements for several reasons. According to the judge, Hernandez lacked good moral character because of his failure to pay taxes in recent years and because of his criminal record. A.R. 1323-25. Hernandez allegedly provided obfuscating testimony about his tax-paying history in an effort to "confuse" the court. A.R. 1319. Hernandez also had been convicted of three criminal offenses. A.R. 1324-25. In 2003, he pleaded guilty to possessing an instrument of crime in violation of Arkansas law after an officer found him with a fake ID. A.R. 1378-81. In 2007 and 2010, he pleaded guilty to drinking-and-driving offenses. A.R. 1383-84.
Alternatively, the judge found that Hernandez's removal would not cause exceptional and extremely unusual hardship to his wife. A.R. 1325-28. The judge acknowledged that she could not work due to her many health problems, including diabetes and a heart condition. A.R. 1326, 1436-38. Yet Hernandez's job took him away from their home for nine months of the year, so he largely provided his wife with only financial support. A.R. 1327. The judge reasoned that she received sufficient government aid to meet her monetary needs and that she could use other sources of income to pay for medicines not covered by insurance. Id.
After Hernandez appealed to the Board, immigration authorities approved his wife's visa petition to allow him to become a permanent resident due to their relationship. A.R. 1247. This development, which occurred outside these removal proceedings, led the Board in 2014 to remand the case so that the immigration judge could consider Hernandez's request for an "administrative closure" of the proceedings. Id. When doing so, the Board criticized part of the judge's rationale for denying cancellation of removal. As relevant here, it noted that Hernandez's conviction from 2003 (a conviction on which the judge had partially relied) now fell outside the ten-year window for assessing his moral character under the governing statute. A.R. 1247-48 n.2.
On remand, the immigration judge administratively closed Hernandez's case. A.R. 1194. The judge granted this relief to give him time to apply for a certain waiver with immigration authorities. The waiver would allow him to receive the applied-for visa even while he remained in this country (rather than force him to leave the country to obtain it). A.R. 82-95, 1194.
The case remained administratively closed for over a year, but Hernandez never sought the contemplated waiver. A.R. 54, 520. At the request of immigration authorities who viewed Hernandez as an "enforcement priority," a new immigration judge reopened his removal proceedings. A.R. 98. The judge scheduled a supplemental hearing for the parties to provide updated evidence concerning the cancellation-of-removal eligibility requirements. A.R. 103.
After Hernandez and his wife testified a second time, the immigration judge again held that he did not qualify for cancellation of removal. A.R. 63. This time, however, the judge found that his removal would cause his wife exceptional and extremely unusual hardship. A.R. 61-63. Her health had deteriorated even more in recent years, and Hernandez cared for her and the household. A.R. 62. Hernandez had also taken a job that allowed him to stay in Arkansas, so he now gave his wife more than financial support. Id.
Yet the judge found that Hernandez still lacked "good moral character." A.R. 60-61. According to the judge, Hernandez's "positive" qualities did not outweigh his "negative" ones. A.R. 60. On the positive side, Hernandez kept a job and was the primary caregiver and financial provider for his wife and stepchildren. Id. On the negative side, he had three more run-ins with the law. A.R. 60-61. The police arrested him two more times for drinking and driving in 2016. One arrest led to a third drinking-and-driving conviction. A.R. 61, 146, 154-56, 162, 165. The police also arrested him for a domestic-violence offense in 2013. A.R. 58, 143-44, 160-61. After consuming alcohol, he began screaming at his wife and daughter because they would not let him leave their home. A.R. 160-61. Hearing the commotion, neighbors called the police out of fear that Hernandez was hitting his family members. A.R. 144, 160. Both Hernandez and his wife testified that he had not hit anyone, and the state dropped the charges. A.R. 144-45, 161. The judge nevertheless reasoned that Hernandez's inability to control his drinking had led to another drinking-and-driving conviction, even after the prior judge had explained the importance of following the law. A.R. 61. And while Hernandez claimed that he no longer drinks alcohol to excess, he admitted that he still drinks. Id.; A.R. 164. The judge thus found that he remained a danger to his community. A.R. 61.
The Board upheld the immigration judge's decision that Hernandez lacked the good moral character required for cancellation of removal. According to the Board, the judge properly concluded that Hernandez's...
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