Jose Duron-Ortiz v. Eric Holder, Jr , 698 F.3d 523 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3851
JOSE D URON-O RTIZ,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A076-202-970
A RGUED S EPTEMBER 5, 2012—D ECIDED O CTOBER 15, 2012
Before B AUER, M ANION, and T INDER, Circuit Judges.
M ANION , Circuit Judge. After a long history of arrests
for drunken driving and other offenses, Jose Duron-Ortiz,
a native and citizen of Mexico who entered the United
States illegally in 1989, was served a Notice to Appear
by the Department of Homeland Security. He sought
cancellation of removal, but the Immigration Judge
denied his application on the grounds that, because
Duron-Ortiz had served over 300 days for two recent
2 No. 11-3851
drunken driving arrests, he could not satisfy the good
moral character requirement of the Immigration and
Nationality Act for cancellation of removal. Duron-Ortiz
sought review by the Board of Immigration Appeals, but
the Board affirmed the Immigration Judge’s decision.
Duron-Ortiz now appeals that decision and argues that
we should reject the Board’s interpretation of the removal
statute in Matter of Ortega-Cabrera, 23 I. & N. Dec. 793(BIA 2005), and reverse the Immigration Judge’s deci-
sion. For the reasons set forth below, we defer to the
Board’s holding in Ortega-Cabrera, deny Duron-Ortiz’s
petition for review, and affirm the Board’s decision.
I. BACKGROUND
Jose Duron-Ortiz, a native and citizen of Mexico, illegally
entered the United States in 1989. His first arrest, for
possession of stolen property, occurred in April 1996. He
was then arrested for driving under the influence (“DUI”)
in December 1998, February 1999, and March 2000. In
October 2001, he was again arrested, this time for DUI
and speeding. He was arrested for DUI, driving on a
suspended or revoked license, obstructing justice, and
various other charges in June 2003. His most recent
arrest occurred in November 2008, when he was
arrested on two counts of DUI, driving on a suspended
or revoked license, and other charges.
The Department of Homeland Security (“DHS”) finally
served Duron-Ortiz with a Notice to Appear (“NTA”) on
January 22, 2009, thus placing Duron-Ortiz in removal
proceedings. He was charged with removability under
No. 11-3851 3
8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the
United States without being admitted or paroled. On
March 12, 2009, Duron-Ortiz appeared with counsel
before an Immigration Judge (“IJ”) and declared his
intent to file an application for cancellation of removal.
He also admitted four of the five factual allegations
concerning his prior arrests in the NTA and conceded
the charge of removability.
At the next hearing, on April 7, 2009, Duron-Ortiz
submitted his cancellation application and the IJ con-
tinued the proceedings to allow Duron-Ortiz to resolve
his pending criminal charges. Duron-Ortiz’s removal pro-
ceedings were continued five more times over the next
six months due to his criminal charges and other proce-
dural issues. On October 27, 2009, the IJ administratively
closed the case because Duron-Ortiz was serving a 24-
month sentence for his two most recent aggravated
DUI arrests.
Duron-Ortiz was released from state custody on
August 18, 2010, after serving approximately ten months
of his sentence. Thereupon the IJ reopened the removal
proceedings, and a hearing was held on September 21,
2010. During the hearing, the IJ explained that Duron-Ortiz
was probably not eligible for cancellation of removal
due to the duration of his recent incarceration. The IJ
also questioned whether Duron-Ortiz would be eligible
for voluntary departure, and then continued the pro-
ceedings so that Duron-Ortiz’s counsel could submit
a brief in support of his eligibility for cancellation
of removal. The IJ also scheduled a hearing for Novem-
ber 29, 2010.
4 No. 11-3851
Duron-Ortiz’s brief was submitted two days late, on
October 20, 2010. On November 24, 2010—five days
prior to the hearing scheduled for November 29—the
IJ issued a written decision pretermitting Duron-Ortiz’s
application for removal and ordering him removed
to Mexico. The IJ found that Duron-Ortiz’s recent incar-
ceration for ten months prevented him from showing
the good moral character necessary to satisfy the statu-
tory elements for cancellation of removal. Specifically,
the IJ relied upon Matter of Ortega-Cabrera, 23 I & N. Dec.
793 (BIA 2005), where the Board ruled that the time
period for establishing good moral character is the ten
years immediately preceding the final administrative
decision. Id. at 797. Since the removal statute states that
no person who has served 180 days or more in the pre-
ceding ten years can possess good moral character,
and since Duron-Ortiz had served over 300 days for his
aggravated DUI convictions between 2009 and 2010, the
IJ found that Duron-Ortiz could not satisfy the require-
ments of the statute and denied his application for can-
cellation of removal. The IJ also noted that Duron-Ortiz
had not applied for voluntary departure, but due to
the time Duron-Ortiz served in prison, the IJ found that
he would not be eligible for post-conclusion voluntary
departure anyway.
Duron-Ortiz appealed the IJ’s decision to the Board,
where he argued that Matter of Ortega-Cabrera was
wrongly decided and that the IJ erred by not providing
him with an opportunity to apply for voluntary departure.
The Board dismissed the appeal in November 2011, ruling
that the IJ correctly found Duron-Ortiz ineligible for
cancellation of removal. The Board declined to revisit
No. 11-3851 5
its holding in Ortega-Cabrera, and also ruled that the IJ
did not err when the IJ issued a written decision
denying Duron-Ortiz’s application prior to the sched-
uled hearing. Duron-Ortiz now appeals the Board’s
decision. He urges us to reject the Board’s interpretation
of the removal statute in Ortega-Cabrera and reverse the
IJ’s ruling. Duron-Ortiz also contends that the IJ erred
when the IJ issued a written decision denying Duron-
Ortiz’s cancellation application before he could seek pre-
conclusion voluntary removal. We address each argu-
ment in turn.
II. DISCUSSION
A. We defer to the Board’s decision in Ortega-Cabrera
and therefore Duron-Ortiz cannot satisfy the good
moral character requirement for cancellation of
removal.
We review questions of law and due process claims
de novo. Fonseca-Sanchez v. Gonzales, 484 F.3d 439, 443
(7th Cir. 2007). Duron-Ortiz challenges the Board’s inter-
pretation of part of the Immigration and Nationality Act
(“INA”) in Matter of Ortega-Cabrera, thus raising a legal
question. Patel v. Holder, 563 F.3d 565, 568 (7th Cir. 2009).
While our review of legal questions is de novo, we “owe
the Board deference in its interpretation of the INA.”
Gattem v. Gonzales, 412 F.3d 758, 763 (7th Cir. 2005) (citing
INS v. Aguirre-Aguirre, 526 U.S. 415 (1999)). Where the
decision of the Board relies on the decision of the IJ,
we review the decision of the IJ as supplemented by the
Board. Terezov v. Gonzales, 480 F.3d 558, 560 (7th Cir. 2007).
6 No. 11-3851
Under the INA, the Attorney General may cancel the
removal proceedings and adjust the status of an alien if
the alien:
(A) has been physically present in the United States
for a continuous period of not less than 10 years
immediately preceding the date of such application;
(B) has been a person of good moral character during
such period;
(C) has not been convicted of an offense under
section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this
title, subject to paragraph (5); and
(D) establishes that removal would result in excep-
tional and extremely unusual hardship to the
alien’s spouse, parent, or child, who is a citizen of
the United States or an alien lawfully admitted for
permanent residence.
8 U.S.C. § 1229b(b)(1). The statute defines “good moral
character” in the negative, stating, inter alia, that anyone
who has been confined in a penal institution for an ag-
gregate of 180 days or more during the ten-year
period cannot satisfy the good moral character standard.
Id. at § 1101(f)(7). The statute also contains a “stop-
time” rule, however, which states that any period
of continuous presence in the United States ends
“when the alien is served a notice to appear.” Id. at
§ 1229b(d)(1).1
1
The stop-time provision was added to the INA with the
passage of the Illegal Immigration Reform and Immigrant
(continued...)
No. 11-3851 7
Duron-Ortiz’s appeal centers on his challenge to the
Board’s decision in Ortega-Cabrera, which found
that the cancellation of removal statute—8 U.S.C.
§ 1229b(b)(1)—is ambiguous with regard to when the ten-
year period for establishing continuous physical
presence and good moral character terminates. The
Board held that the period for establishing both
terminates when the IJ or Board issues a final admin-
istrative decision. See Ortega-Cabrera, 23 I. & N. Dec. at 797-
98. Duron-Ortiz argues that the statute is not ambiguous
and urges us to read the statute in such a way that the ten-
year period to establish continuous physical presence
and good moral character cuts off when an alien is
served an NTA. We are not persuaded by Duron-Ortiz’s
arguments, and defer to the Board’s decision in Ortega-
Cabrera.
The interplay of the statutory language is, as the
Board found in Ortega-Cabrera, ambiguous. Under the
statute, an individual who applies for cancellation
of removal must show that he has “been a person of
good moral character during such period”, where “such
period” refers to the ten years of physical presence pre-
(...continued)
Responsibility Act of 1996 (“IIRIRA”). Prior to the Act’s passage,
the “continuous physical presence” requirement and conse-
quently the “good moral character” period were treated as
continuing to accrue until the Board rendered a final admin-
istrative decision on an alien’s appeal. See Ortega-Cabrera, 23
I. & N. Dec. at 794 (citing Matter of Castro, 19 I. & N. Dec. 692(BIA 1988)).
8 No. 11-3851
ceding the date of the cancellation application. See 8 U.S.C.
§ 1229b(B)(1)(A)-(B). The ambiguity arises when we
read the statute in conjunction with the stop-time provi-
sion of § 1229b(d)(1), which renders the “date of [the]
application” language superfluous when an NTA is
served. Under the stop-time provision, the moment
an NTA is served upon an alien, the ten-year period to
determine continuous physical presence (and thus good
moral character) is cut off, regardless of when the alien
ultimately files an application for cancellation of removal.
As the Board noted, with the stop-time provision in
play there are three possible ways to calculate the ap-
plicable “good moral character” period: (1) the ten-year
period ending when the NTA is served; (2) the ten-year
period ending when the alien files an application for
cancellation of removal; or (3) the ten-year period ending
when a final administrative decision on the application
for cancellation of removal is rendered. Ortega-Cabrera,
23 I. & N. Dec. at 795. The Board rejected the first two
approaches, reasoning that if either approach were used
to calculate the ten-year period to establish good moral
character, then “an alien who engages in a disqualifying
act . . . after being served with the [NTA] or filing the
initial application [for cancellation of removal], would
theoretically be eligible for cancellation of removal . . . .” Id.
at 797 (emphasis in original). Such a result, the Board
noted, would be a “decidedly unlikely expression of
congressional intent.” Id. The Board then concluded that
“the 10-year period during which good moral character
must be established ends with the entry of a final ad-
ministrative decision.” Id. at 798.
No. 11-3851 9
In light of the possible ambiguity the stop-time provi-
sion adds to the removal statute, we find that the
Board’s decision is reasonable, and so must defer to it.
Reading the statute in the manner Duron-Ortiz urges
would result in precisely the untenable situation the
Board sought to avoid—namely, an applicant could
commit a crime or otherwise engage in disqualifying
activity after being served with an NTA, yet remain
eligible for cancellation of removal. Such a result would
flaut the purpose of the INA. As the government cor-
rectly argues, allowing the good moral character require-
ment to continue until a final decision is reached by the
IJ or the Board comports with one of the most essential
considerations in deciding who is allowed to remain in
the United States—an individual’s character.2 It is only
logical that the agency consider an applicant’s most
recent negative behavior when making such a decision,
as the more recent an individual’s behavior is, the
more accurately it reflects his or her character.
Furthermore, the Board’s decision returns to the
original way the statute was interpreted prior to
the ambiguity created by the stop-time provision of the
IIRIRA: the relevant period for determining good
2
Duron-Ortiz asserts that it “would be inconsistent with the
purpose of the statute to find that an alien is precluded
from establishing good moral character if, while attempting
to clear up his record, he served time in a correctional institu-
tion in connection with an old arrest.” We agree; but here
there is nothing “old” about Duron-Ortiz’s arrests and subse-
quent 24-month sentence for multiple aggravated DUIs.
10 No. 11-3851
moral character for purposes of establishing eligibility
for cancellation of removal includes the time during
which the applicant is in removal proceedings up until
the issuance of a final administrative decision on the
cancellation application. See Castro, 19 I. & N. Dec. at 692-
93. Additionally, the Board has already affirmed Ortega-
Cabrera several times. See, e.g., Matter of Bautista Gomez,
23 I. & N. Dec. 893, 894 (BIA 2006); Matter of Garcia, 24
I. & N. Dec. 179, 181 (BIA 2007).
Finally, we note that the Ninth Circuit implicitly
adopted Ortega-Cabrera in Castillo-Cruz v. Holder, 581
F.3d 1154 (9th Cir. 2009). There, an alien’s application
for cancellation of removal was denied by the IJ and
upheld by the Board on the grounds that he could not
show good moral character, even though his prior con-
viction occurred outside the ten-year period immediately
preceding the date on which the IJ adjudicated the
alien’s cancellation application. Id. at 1158. The Ninth
Circuit, citing Ortega-Cabrera, found that the IJ erred
because more than ten years had passed between the
date of the alien’s conviction and the date of the IJ’s
decision, and remanded the case to the Board. Id. at 1162.
Since we defer to Ortega-Cabrera, Duron-Ortiz’s appeal
fails. It is undisputed that he served over 300 days in
state custody after he received the NTA but prior to the
Board’s final adjudication of his cancellation applica-
tion. His duration in state custody far exceeds the 180-
day limit imposed by the good moral character statute.
See 8 U.S.C. § 1101(f)(7). Since Duron-Ortiz cannot satisfy
the INA’s requirements for cancellation of removal,
the Board’s decision stands.
No. 11-3851 11
B. The IJ did not err when he denied Duron-Ortiz
an opportunity to apply for voluntary removal.
Duron-Ortiz also argues that the IJ erred by not al-
lowing him to apply for voluntary departure. His argu-
ment centers on the fact that, despite having scheduled a
hearing for November 29, 2009, the IJ issued a written
decision five days prior to the hearing pretermitting
Duron-Ortiz’s application, which effectively precluded
Duron-Ortiz from applying for voluntary departure at
the upcoming hearing. Duron-Ortiz insists that the IJ
erred in doing so, despite the fact that Duron-Ortiz
would not have qualified for post-conclusion voluntary
departure due to his recent incarceration.
We have held that there is no protected liberty interest
in discretionary relief from removal, Delgado v. Holder,
674 F.3d 759, 765 (7th Cir. 2012), and consequently Duron-
Ortiz’s due process rights here are limited to “notice
and an opportunity for a fair hearing.” Malave v. Holder,
610 F.3d 483, 487 (7th Cir. 2010). Here, Duron-Ortiz’s rights
have been satisfied. At the first hearing, the IJ asked
if Duron-Ortiz would seek relief from removal, to
which his counsel replied that he would be seeking can-
cellation. Duron-Ortiz did not express any interest in
seeking voluntary departure then, and never once
broached the topic during the next five hearings. At the
final hearing before the IJ issued his written decision,
the IJ specifically discussed voluntary departure with
Duron-Ortiz’s counsel, and again Duron-Ortiz did not
seek voluntary departure, but instead focused his brief
on the good moral character issue.
12 No. 11-3851
With so many opportunities to seek voluntary de-
parture yet failing to do so, the IJ’s decision to issue a
written decision prior to a final hearing did not violate
Duron-Ortiz’s rights. The IJ did not err when it issued
its written decision five days prior to what would have
been Duron-Ortiz’s final hearing. Also, as the Board
reasoned in its decision rejecting Duron-Ortiz’s appeal,
“it is unlikely that, after [Duron-Ortiz] was given an
opportunity to fully, albeit unsuccessfully, litigate the
good moral character issue before the Immigration Judge
and the Board, the DHS would agree to permit [him]
to withdraw his application for cancellation of removal
and to stipulate to a grant of pre-conclusion voluntary
departure.” For these reasons, the IJ did not err, and
the Board’s decision is affirmed.
III. Conclusion
For the foregoing reasons, we defer to the Board’s
holding in Matter of Ortega-Cabrera. Duron-Ortiz’s
appeal fails, and review of the Board’s decision is D ENIED.
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