Jose Rodriguez-Avalos v. Eric Holder, Jr.

Case: 13-60736 Document: 00513071832 Page: 1 Date Filed: 06/09/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________
No. 13-60736 United States Court of Appeals
Fifth Circuit
________________________ FILED
June 9, 2015
JOSE MANUEL RODRIGUEZ-AVALOS,
Lyle W. Cayce
Clerk
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
_________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
Before DAVIS, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:
We sua sponte RECALL the mandate, WITHDRAW the prior panel
opinion, Rodriguez-Avalos v. Holder, 780 F.3d 308 (5th Cir. 2015), and
SUBSTITUTE the following:
Jose Manuel Rodriguez-Avalos (Rodriguez) petitions this court for
review of a Board of Immigration Appeals (BIA) decision. The BIA dismissed
his appeal from the Immigration Judge’s denial of his application for relief
from removal. The BIA, like the Immigration Judge, held that the prison
sentence Rodriguez served following his conviction for falsely and willfully
representing himself as a United States citizen, in violation of 18 U.S.C. § 911,
Case: 13-60736 Document: 00513071832 Page: 2 Date Filed: 06/09/2015
No. 13-60736
barred him from demonstrating the “good moral character” necessary to be
statutorily eligible for relief from removal pursuant to 8 U.S.C. § 1229b(b)(1).
For the following reasons, we DENY Rodriguez’s petition for review.
I.
Rodriguez is a citizen of Mexico who entered the United States without
having been admitted or paroled. In January 2011, a Department of Homeland
Security (DHS) inspection revealed that Rodriguez was one of fourteen
employees of an Omaha, Nebraska grocery store against whom identity-theft
complaints had been filed with the Federal Trade Commission. On May 3,
2011, a DHS agent interviewed Rodriguez, who admitted his identity to the
DHS agent and admitted that he had no documentation allowing him to enter
or work in the United States. 1 Rodriguez was then placed under arrest for
administrative immigration violations.
Based on the DHS investigation, Rodriguez was indicted on May 18,
2011, and charged with, inter alia, falsely and willfully representing himself to
be a United States citizen in violation of 18 U.S.C. § 911. On October 11, 2011,
in the United States District Court of Nebraska, Rodriguez pleaded guilty to
having committed a § 911 offense. He was sentenced on January 18, 2012 to
fourteen months of imprisonment. Rodriguez later testified during
immigration proceedings that he served “about seven” months of his sentence
before being released. 2
1 During these interviews, Rodriguez did not specify when he entered the United
States, but later, in his written pleading to the immigration judge, he asserted that he had
entered the United States in April 1999.
2There is no record evidence regarding the specific dates during which Rodriguez was
confined. However, he does not contest the Immigration Judge’s and the BIA’s
characterization of his sentence as “at least six months” and “approximately seven months,”
respectively.
2
Case: 13-60736 Document: 00513071832 Page: 3 Date Filed: 06/09/2015
No. 13-60736
On November 28, 2012, the DHS served Rodriguez with a notice to
appear (NTA), charging him with removability under 8 U.S.C.
§ 1182(a)(6)(A)(i) as an alien who had entered the United States without
having been admitted or paroled. On April 29, 2013, Rodriguez appeared with
counsel before an immigration judge (IJ), and submitted written pleadings
admitting the allegations against him and conceding the charges of
removability. His pleadings included an application for cancellation of removal
pursuant to 8 U.S.C. § 1229b(b)(1), 3 asserting that his removal to Mexico would
result in hardship to his three United States citizen children. 4 The IJ entered
an oral order sustaining the charge of removability and denying Rodriguez’s
application for cancellation of removal, finding that pursuant to 8 U.S.C.
§ 1101(f)(7), 5 because Rodriguez spent “at least the last six months in custody
3 Section 1229b(b)(1) provides in relevant part that:
[T]he Attorney General may cancel removal of, and adjust to the status of an
alien lawfully admitted for permanent residence, an alien who is inadmissible
or deportable from the United States 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 exceptional 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.
4The record reflects that Rodriguez was married in 2004 in Omaha, Nebraska, and
thereafter had three children with his wife, all of whom were born in Omaha.
5 Section 1101(f) provides a list of various conditions that preclude a petitioner from
establishing the good moral character necessary to be eligible for cancellation of removal,
such as “confine[ment], as a result of conviction, to a penal institution for an aggregate period
of one hundred and eighty days or more, regardless of whether the offense, or offenses, for
which he has been confined were committed within or without such period[.]” 8 U.S.C.
§ 1101(f)(7).
3
Case: 13-60736 Document: 00513071832 Page: 4 Date Filed: 06/09/2015
No. 13-60736
for a conviction,” he could not demonstrate the statutorily required good moral
character. The IJ ordered Rodriguez removed to Mexico.
Rodriguez appealed to the BIA. The BIA, in a single-judge opinion,
agreed with the IJ’s determination that Rodriguez’s service of approximately
seven months following his § 911 conviction precluded him from establishing
the “good moral character” required for cancellation of removal, and dismissed
Rodriguez’s appeal. See § 1229b(b)(1)(B). Rodriguez filed a timely petition for
review. In November 2013, this court granted Rodriguez’s unopposed motion
for a stay of deportation and we now consider his petition for review.
Rodriguez contends that his § 911 conviction for falsely claiming to be a
United States citizen is not a crime involving moral turpitude and thus his
seven-month incarceration as a result of that conviction should not preclude
him from establishing the good moral character necessary to be eligible for
cancellation of removal under § 1229b(b)(1). He additionally argues that his
prison term fell outside of the relevant time period for demonstrating good
moral character because the so-called “stop-time” rule, codified at
§ 1229b(d)(1), 6 operates to end the ten-year good moral character period when
an NTA is served upon the petitioner. Despite stating in his petition for review
that the NTA was “formally issued” on November 28, 2012, Rodriguez argues
that the Government should be estopped from asserting that the date the NTA
was served was anything other than May 3, 2011—the date that appears on a
DHS form as the date he was served with an NTA and placed into removal
proceedings. Therefore, Rodriguez argues, the relevant time period for
establishing good moral character is the ten years immediately preceding May
6 See 8 U.S.C. § 1229b(d)(1) (“For purposes of this section, any period of continuous
residence or continuous physical presence in the United States shall be deemed to
end . . . when the alien is served a notice to appear . . .”).
4
Case: 13-60736 Document: 00513071832 Page: 5 Date Filed: 06/09/2015
No. 13-60736
3, 2011 and, because his prison sentence was served after May 3, 2011, he is
statutorily eligible for cancellation of removal.
Primarily at issue before us are questions of statutory interpretation of
various provisions of the Immigration and Nationality Act (“INA”): first,
whether 8 U.S.C. § 1101(f)(7) precludes a petitioner from demonstrating good
moral character if he or she has been confined to a penal institution for 180
days or more, even if such a confinement was a result of a crime that is not a
crime involving moral turpitude; and second, whether § 1229b(b)(1) and
§ 1229b(d)(1) together signify that the time period for establishing good moral
character for purposes of cancellation of removal is the ten years preceding the
final administrative decision of the IJ or BIA, or, rather, that time period is
the ten years measured backwards from the date the petitioner was served
with the NTA.
II.
Generally, we review the “BIA’s legal conclusions de novo ‘unless a
conclusion embodies the [BIA’s] interpretation of an ambiguous provision of a
statute that it administers; a conclusion of the latter type is entitled to the
deference prescribed by Chevron U.S.A. Inc. v. Natural Resources Defense
Council.’” 7 See Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th Cir. 2012)
(quoting Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006)). As we have
recently explained, however, we only apply Chevron deference to the BIA’s
interpretation of the statutes and regulations it administers when its
interpretations are precedential and thus “carry[] the force of law.” 8 Dhuka v.
7 467 U.S. 837 (1984).
8 Comparatively, when examining the BIA’s interpretation of an ambiguous provision
of a statute it administers that was rendered in a non-precedential BIA decision, we use the
standard announced in Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). See Dhuka v.
Holder, 716 F.3d 149, 156 (5th Cir. 2013). “Under [the Skidmore] standard, the ‘weight of
such a judgment in a particular case will depend upon the thoroughness evident in its
5
Case: 13-60736 Document: 00513071832 Page: 6 Date Filed: 06/09/2015
No. 13-60736
Holder, 716 F.3d 149, 155 (5th Cir. 2013) (citing United States v. Mead Corp.,
533 U.S. 218, 226-27 (2001)). If we determine that the BIA decision is
precedential, 9 then we proceed under the Chevron two-part inquiry:
[W]hen reviewing an agency’s construction of a statute it
administers, a court must determine first whether Congress has
directly spoken to the question at issue. If so, the court, as well as
the agency, must give effect to the unambiguously expressed intent
of Congress. If not, the court must determine whether the agency’s
answer is based on a permissible construction of the
statute. . . . Courts give agency interpretations “controlling weight
unless they are arbitrary, capricious, or manifestly contrary to the
statute.”
Orellana-Monson, 685 F.3d at 517 (quoting Chevron, 467 U.S. at 842-44)
(internal citations omitted).
For the reasons that follow, we hold that (1) based on the unambiguous
plain text of § 1101(f)(7), a petitioner cannot establish good moral character if
he has been incarcerated for 180 days or more, regardless of the nature of the
underlying crime of conviction; and (2) the BIA’s interpretation of Section
1229b(b)(1) as requiring a petitioner to establish good moral character during
consideration, the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to persuade, if lacking power to
control.’” Id. at 154 (quoting Skidmore, 323 U.S. at 140). Single-judge decisions of the BIA
and unpublished opinions issued by three-member panels of the BIA are “non-precedential
[and therefore] do[] not . . . bind third parties and [are] not entitled to Chevron
deference . . . [but] will be examined closely for [their] power to persuade.” Id. at 156; see also
Rodriguez-Benitez v. Holder, 763 F.3d 404, 406 (5th Cir. 2014) (“Where . . . the statute is
silent or ambiguous with respect to the specific issue, but the three-member Board panel did
not publish its order . . . or otherwise cite to precedential authority, this Court affords only
Skidmore deference to the panel’s interpretation”) (footnote and quotation marks omitted).
Nonetheless, to the extent a non-precedential BIA decision “relies on prior precedential BIA
decisions,” it is reviewed under the deferential Chevron two-part inquiry, “as appropriate.”
Siwe v. Holder, 742 F.3d 603, 607 (5th Cir. 2014).
9 In Dhuka we reasoned that a three-member panel opinion, unless it is designated to
serve as one of the “‘precedents in all proceedings involving the same issues or issues,’” is not
precedential and not entitled to Chevron deference. Dhuka, 716 F.3d at 156 (quoting 8 C.F.R.
§ 1003.1(g)).
6
Case: 13-60736 Document: 00513071832 Page: 7 Date Filed: 06/09/2015
No. 13-60736
the ten-years immediately preceding the final administrative decision
regarding the petitioner’s application for cancellation of removal is entitled to
deference under Chevron. Because we uphold the BIA’s decision regarding
Rodriguez’s statutory ineligibility for cancellation of removal, his estoppel
argument regarding the date of service of the NTA is rendered moot.
A.
Section 1229b(b)(1) provides for cancellation of removal if the petitioner
meets various eligibility requirements, including, inter alia, that the petitioner
“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[,]”
and (2) “has been a person of good moral character [hereinafter “GMC”] during
such period[.]” 8 U.S.C. § 1229b(b)(1). An individual is precluded from
establishing GMC if, during the pertinent time period, he has “been confined,
as a result of conviction, to a penal institution for an aggregate period of [180]
days or more[.]” See 8 U.S.C. § 1101(f)(7). Section 1101(f) states in relevant
part that:
No person shall be regarded as, or found to be, a person of good
moral character who, during the period for which good moral
character is required to be established, is, or was--
...
(7) . . . confined, as a result of conviction, to a penal institution for
an aggregate period of one hundred and eighty days or more,
regardless of whether the offense, or offenses, for which he has
been confined were committed within or without such period[.]
8 U.S.C. § 1101(f)(7).
Rodriguez challenges the BIA’s determination that, by virtue of his
seven-month incarceration, he was precluded by § 1101(f)(7) from showing that
he was a person of GMC. Rodriguez contends that his crime of conviction, 18
U.S.C. § 911, falsely and willfully representing himself as a United States
citizen, is not categorically a crime involving moral turpitude (CIMT), and thus
7
Case: 13-60736 Document: 00513071832 Page: 8 Date Filed: 06/09/2015
No. 13-60736
should not foreclose his ability to establish the GMC necessary for cancellation
of removal. He argues that it is illogical and unreasonable to foreclose the
possibility of cancellation of removal based solely upon the length of time one
spends in jail, rather than the nature of the crime involved, and preclude a
finding of GMC without consideration of whether the petitioner’s underlying
conduct was “base, vile, or depraved.” See generally Hyder v. Keisler, 506 F.3d
388, 391 (5th Cir. 2007) (noting that we have adopted the BIA’s definition of
“moral turpitude” as “conduct that shocks the public conscience as being
inherently base, vile, or depraved, and contrary to the accepted rules of
morality . . . ” (quoting Hamdan v. I.N.S., 98 F.3d 183, 186 (5th Cir. 1996))).
As noted, our inquiry begins with asking “whether Congress has directly
spoken to the precise question at issue. If the intent of Congress is clear, that
is the end of the matter[.]” BNSF Ry. Co. v. United States, 775 F.3d 743, 751
(5th Cir. 2015) (quoting Chevron, 467 U.S. at 842-43). “In evaluating the
clarity of Congressional direction, we apply the “traditional tools of statutory
interpretation,” including “text, structure, purpose, and legislative history.”
Id. (footnotes and citations omitted). “We start with the text.” Id.
The plain text of section 1101(f)(7) unambiguously renders petitioners
ineligible for withholding of removal if the petitioner has spent over 180 days
in a penal institution as a result of conviction. Section § 1101(f)(7) does not
contain any language that limits the confinement as a “result of conviction” to
confinement as a result of conviction of crimes involving moral turpitude and
“we ordinarily resist reading words or elements into a statute that do not
appear on its face.” Bates v. United States, 522 U.S. 23, 29 (1997). Accordingly,
the text unambiguously reflects Congress’s intent to preclude petitioners who
have served 180 days in a penal institution as a result of any conviction from
demonstrating GMC.
8
Case: 13-60736 Document: 00513071832 Page: 9 Date Filed: 06/09/2015
No. 13-60736
Further evincing Congress’s intent to preclude a finding of GMC if a
petitioner has served 180 days or more of confinement as a result of any
conviction, the sub-sections of § 1229b(b)(1) distinguish between a
demonstration of GMC and the absence of a conviction of a CIMT. See
§ 1229b(b)(1)(B) & (C). 10 In order to be eligible for cancellation of removal
under § 1229b(b)(1), a petitioner must establish both GMC during the requisite
time period and that he or she was not convicted of a CIMT. If the IJ finds
either a conviction of a CIMT, or a lack of GMC, then the petitioner is ineligible
for discretionary cancellation of removal. Were we to accept Rodriguez’s
argument that only those who serve over 180 days in confinement as a result
of conviction of a CIMT are precluded from demonstrating GMC, then the
separate GMC provision codified at § 1229b(b)(1)(B) would be rendered
superfluous. Further, it would ignore the Supreme Court’s directive that we
“generally presume” that, “[w]here Congress includes particular language in
one section of a statute but omits it in another section of the same
Act, . . . Congress acts intentionally and purposely in the disparate inclusion
or exclusion.” Brown v. Gardner, 513 U.S. 115, 120 (1994); see also Martinez
10 As noted, the statute states, in relevant part:
Attorney General may cancel removal of, and adjust to the status of an alien
lawfully admitted for permanent residence, an alien who is inadmissible or
deportable from the United States 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).
8 U.S.C.A. § 1229b(1)(B)-(C) (emphases added). The statutes cited in sub-section (C)
reference, inter alia, conviction for crimes involving moral turpitude. See § 1182(a)(2)(i);
§ 1227(a)(2).
9
Case: 13-60736 Document: 00513071832 Page: 10 Date Filed: 06/09/2015
No. 13-60736
v. Caldwell, 644 F.3d 238, 242 (5th Cir. 2011) (quoting City of Chicago v. Env’t
Def. Fund, 511 U.S. 328, 338 (1994)).
Moreover, the BIA’s prior precedent suggests that to limit the
application of § 1101(f)(7) to confinement as a result of crimes involving moral
turpitude would be inconsistent with Congressional intent. As the BIA has
explained, “the guiding philosophy behind the promulgation of the section
undoubtedly was that a person who has served a jail term of a specified length
is not worthy for special exemptions from the penalties of the immigration
laws.” Matter of B-----, 7 I. & N. Dec. 405, 406 (BIA 1957). The BIA has
therefore shown hesitancy in reading limitations into § 1101(f)(7) without
express direction from Congress. See, e.g., Matter of Piroglu, 17 I. & N. Dec.
578, 580 (BIA 1980) (“The language of the statute is clear that confinement for
the prescribed period resulting from a conviction bars a finding of good moral
character. It makes no exception for a prison term resulting from violation of
probation rather than from an original sentence to incarceration. Absent a
showing that Congress intended to make such a distinction, we are unwilling
to so limit the statutory mandate that persons within its scope should be
barred from establishing good moral character.”) (footnote omitted).
Our conclusion here is consistent with our previous decisions. See
Pacheco v. Holder, 544 F. App’x 442, 443 (5th Cir. 2013) (unpublished)
(“Pacheco admitted to serving over four years in prison; thus, she was
statutorily ineligible for cancellation of removal because she could not
demonstrate the requisite good moral character, regardless of whether she was
convicted of a crime involving moral turpitude.”) (emphasis added); cf. Eyoum
v. INS, 125 F.3d 889, 891 & n.2 (5th Cir. 1997) (concluding that a petitioner
10
Case: 13-60736 Document: 00513071832 Page: 11 Date Filed: 06/09/2015
No. 13-60736
was ineligible for voluntary departure 11 because, pursuant to § 1101(f)(7), he
could not establish GMC for the requisite period because he was imprisoned
for ten months following conviction for importation of pancake turtles—a crime
that the BIA determined is not a CIMT); accord Mayorga v. Attorney Gen. U.S.,
757 F.3d 126, 130 n.5 (3d Cir. 2014) (noting that a petitioner who served seven
months in prison as a result of conviction “would likely be ineligible for
cancellation of removal under the ‘person of good moral character’
requirement” even if the court had concluded that the crime of conviction “was
not categorically a crime involving moral turpitude”) (citing, inter alia, 8 U.S.C.
§ 1101(f)(7)); Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1233 (9th Cir. 2008)
(concluding, without finding it necessary to address whether the crime of
conviction was a CIMT, that “the IJ correctly determined that the petitioner
was not eligible for cancellation of removal because she served 180 days or
more in a penal institution during the relevant period and was thus unable to
satisfy the statutory good moral character requirement”); Castro v. Holder, 467
F. App’x 689, 691 (9th Cir. 2012) (unpublished) (reasoning that “even if [the
petitioner can establish that] his conviction was not for a crime involving moral
turpitude, he would still be ineligible for” cancellation of removal or voluntary
departure if he spent over 180 days in prison for his conviction).
11 Section 1229c(b)(1) provides that a petitioner may be granted voluntary departure
in lieu of removal if the immigration judge finds that:
(A) the alien has been physically present in the United States for a period of at
least one year immediately preceding the date the notice to appear was served
under section 1229(a) of this title;
(B) the alien is, and has been, a person of good moral character for at least 5
years immediately preceding the alien’s application for voluntary departure;
(C) the alien is not deportable under section 1227(a)(2)(A)(iii) or section
1227(a)(4) of this title; and
(D) the alien has established by clear and convincing evidence that the alien
has the means to depart the United States and intends to do so.
11
Case: 13-60736 Document: 00513071832 Page: 12 Date Filed: 06/09/2015
No. 13-60736
In sum, we hold that the unambiguous plain text of § 1101(f)(7) renders
Rodriguez statutorily ineligible for cancellation of removal based on his
incarceration in excess of 180 days as a result of conviction, regardless of
whether his conviction is categorically a crime involving moral turpitude.
B.
Next, Rodriguez contends that, pursuant to the language contained in
the “stop-time” rule, codified at 8 U.S.C. § 1229b(d)(1), the ten-year period
during which he must establish GMC is measured backward from the date he
was served with the NTA. Rodriguez acknowledges that the BIA has
previously held in Ortega-Cabrera, 23 I. & N. Dec. 793, 798 (BIA 2005), that
the pertinent GMC period consists of the ten years immediately preceding the
final administrative decision by the IJ or the BIA, not the ten years preceding
service of the NTA, but he argues that Ortega-Cabrera should be reconsidered.
Specifically, Rodriguez contends that § 1229b(b) is unambiguous and requires
that the ten-year GMC period mirror the period for continuous physical
presence, and thus, pursuant to § 1229b(d)(1), both time periods must
terminate upon the service of the NTA. We disagree and conclude that the
BIA’s decision here, which applied Ortega-Cabrera—a precedential three-judge
opinion interpreting an ambiguous provision of the INA—is reasonable, and
thus must be deferred to by this court.
Preliminarily, because the BIA relied upon Ortega-Cabrera in holding
that the relevant time period for establishing GMC is the ten years
immediately preceding the final administrative decision regarding Rodriguez’s
application for cancellation of removal, we apply the Chevron two-part inquiry
to our review of this issue. See Siwe v. Holder, 742 F.3d 603, 607 (5th Cir.
2014) (“[A]ny portion of a non-precedential decision that relies on prior
precedential BIA decisions will be afforded Chevron deference as appropriate.”)
12
Case: 13-60736 Document: 00513071832 Page: 13 Date Filed: 06/09/2015
No. 13-60736
(footnote omitted). First, we agree with the BIA and the Seventh Circuit that
the “interplay of the statutory language” at issue here is ambiguous and
subject to multiple possible interpretations. See Duron-Ortiz, 698 F.3d 523,
527 (7th Cir. 2012); see also Ortega-Cabrera, 23 I. & N. at 795. Thus, under
Chevron we must inquire only whether the BIA’s interpretation in Ortega-
Cabrera is not “arbitrary, capricious, or manifestly contrary to the statute.”
Siwe, 742 F.3d at 608, n.27.
As noted supra, for a petitioner to establish eligibility for cancellation of
removal, a petitioner must demonstrate, in relevant part, that he or she:
(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; and (B) has been a person of good
moral character during such period[.]
8 U.S.C. § 1229b(b)(1)(A)-(B) (emphasis added). In 1996, when Congress
passed the Illegal Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”), it added the “stop-time rule” to the INA, codified at 8 U.S.C.
§ 1229b(d)(1), providing that “any period of continuous residence or continuous
physical presence in the United States shall be deemed to end . . . when the
alien is served a notice to appear.” 8 U.S.C. § 1229b(d)(1). Prior to the passage
of the stop-time rule, the BIA “consistently treated the continuous physical
presence period, and consequently the good moral character period, as
continuing to accrue through the time that we decided an alien’s appeal,”
thereby requiring that a petitioner establish good moral character for ten years
measured backwards from the final administrative resolution of a petitioner’s
application for cancellation of removal. Ortega-Cabrera, 23 I. & N. Dec. at 794-
95. Subsequent to the passage of the stop-time rule, however, the BIA and
federal courts have “universally established” that the ten-year period of
13
Case: 13-60736 Document: 00513071832 Page: 14 Date Filed: 06/09/2015
No. 13-60736
continuous physical presence stops for purposes of eligibility for cancellation of
removal upon service of the NTA. Id. at 795.
In Ortega-Cabrera, the BIA analyzed the interplay between § 1229b(b)
and § 1101(f) and interpreted § 1229b(b)(1)(B) such that the ten-year GMC
period is terminated by the entry of a final administrative decision by the IJ or
the BIA and thus the stop-time rule applies only to the continuous physical
presence requirement. The BIA reasoned that despite the clarity of the stop-
time rule in § 1229b(d)(1), the provision in § 1229b(b) regarding GMC is
ambiguous as to when the ten-year period terminates, and is subject to three
possible interpretations:
First, the applicable period may be the 10-year period coterminous
with that used to determine the length of continuous physical
presence, which is bounded at the end by service of the charging
document [the NTA]. Second, it may be the 10-year period ending
on the date that the application for cancellation of removal is first
filed with the court. Third, the period may be gauged by looking
backward 10 years from the time a final administrative decision is
rendered; that is, consistent with our long-established practice, the
application would be treated as continuing beyond the date it is
filed until a resolution by an Immigration Judge or the Board of
Immigration Appeals is completed.
Id. at 795. The BIA concluded that the third interpretation best reflects
congressional intent and that the “relevant period for determining good moral
character for purposes establishing eligibility for cancellation of removal must
include the time during which the respondent is in proceedings, i.e., until the
issuance of an administratively final decision on the application.” Id. at 797.
The BIA reasoned that if the ten-year period of GMC were deemed to end upon
service of the NTA, then an IJ would be foreclosed from considering, for
example, a petitioner’s false testimony proffered during his or her removal
proceeding, yet Congress expressly indicates that such false testimony should
preclude a finding of GMC. See id. at 796-97; 8 U.S.C. § 1101(f)(6) (barring a
14
Case: 13-60736 Document: 00513071832 Page: 15 Date Filed: 06/09/2015
No. 13-60736
petitioner from establishing GMC if he or she “has given false testimony for
the purpose of obtaining any benefits under this chapter”).
The issue of when § 1229b(b)(1)(B)’s ten-year GMC period terminates
has never been directly addressed by this court. However, the BIA has
reaffirmed its holding in Ortega-Cabrera in precedential opinions on at least
two occasions. See In re Garcia, 24 I. & N. Dec. 179, 181 (BIA 2007); In re
Bautista Gomez, 23 I. & N. Dec. 893, 894 (BIA 2006) (“We have recently
reiterated the view that an application for relief from removal is a continuing
one, holding that good moral character for cancellation of removal purposes
continues to accrue up to the time we decide an alien’s appeal”).
Recently, the Seventh Circuit, deferring to the BIA’s decision in Ortega-
Cabrera, rejected arguments identical to those raised here by Rodriguez. See
Duron-Ortiz v. Holder, 698 F.3d 523, 526-28 (7th Cir. 2012). In Duron-Ortiz,
the Seventh Circuit persuasively reasoned that the BIA’s interpretation of
§ 1229b(b)(1) as continuing the period of GMC until the final administrative
decision of a petitioner’s application for cancellation of removal is “logical [in]
that [it allows] the agency [to] 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.” Id. at 528.
Additionally, the Third Circuit has impliedly approved of the Ortega-
Cabrera rule by citing the Seventh Circuit’s Duron-Ortiz case and noting that
“the period for determining good moral character is a ten-year period
calculated backwards from the date on which a final administrative decision is
issued.” Jaimez-Perez v. Attorney Gen. of U.S., 563 F. App’x 136, 137, n.1 (3d
Cir. 2014) (unpublished) (emphasis added). The Ninth Circuit has likewise
implicitly adopted the holding of Ortega-Cabrera. See Castillo-Cruz v. Holder,
581 F.3d 1154, 1162 (9th Cir. 2009) (citing Ortega-Cabrera to conclude that
15
Case: 13-60736 Document: 00513071832 Page: 16 Date Filed: 06/09/2015
No. 13-60736
because the petitioner was convicted before the “ten year period . . . calculated
backwards from the date on which the cancellation of removal application is
finally resolved by the IJ or the BIA,” the petitioner’s conviction did not bar
him from establishing GMC).
Consistent with the persuasive reasoning of the Seventh Circuit in
Duron-Ortiz, we defer to the BIA’s reasonable interpretation of this ambiguous
provision of the statutes it administers, as announced in Ortega-Cabrera, that
the period for establishing GMC is the ten years immediately preceding the
final administrative ruling regarding a petitioner’s application for cancellation
of removal. The BIA’s interpretation of these provisions was “based on a
permissible construction of the statute,” it is not “arbitrary or capricious,” and
thus is entitled to deference. See Chevron, 467 U.S. at 843.
Rodriguez’s textual argument that the statute unambiguously requires
the GMC period to coincide with the continuous physical presence period—and
thus that the period is calculated backwards from the date upon which the
NTA is served—is unsupported by any persuasive authority and is inconsistent
with the precedent discussed directly above. His policy-driven argument is
likewise unavailing. Specifically, Rodriguez argues that the rule announced in
Ortega-Cabrera will allow for “arbitrary outcomes capable of encouraging
appellate system abuse,” because a petitioner could attempt to manipulate and
extend the proceedings to render a not-quite-ten-year-old period of
confinement outside the bounds of the ten-year GMC period. As the Seventh
Circuit has explained, however, the holding in Ortega-Cabrera logically allows
judges to consider the most recent behavior of the applicant, and thus is the
more reasonable calculation for the ten-year period, as opposed to ending the
ten-year period upon service of the NTA, thereby allowing for the IJ’s
16
Case: 13-60736 Document: 00513071832 Page: 17 Date Filed: 06/09/2015
No. 13-60736
consideration of more distant, and therefore less relevant, periods of
incarceration.
Because we find the BIA’s interpretation of § 1229b(b)(1) reasonable, and
not arbitrary or capricious, we defer to the holding in Ortega-Cabrera and the
BIA’s decision here consistent with it. Therefore, we find no error in the BIA’s
holding that the ten-year GMC period would have ended, at the earliest, with
the entry of the IJ’s April 2013 order of removal. See Ortega-Cabrera, 23 I. &
N. Dec. at 798. Rodriguez pleaded guilty to falsely claiming United States
citizenship under § 911 in October 2011 and was sentenced to fourteen months
imprisonment in January 2012. Rodriguez’s seven-month incarceration, that
occurred some time between January 2012 and when he appeared before the
IJ for his removal proceedings in 2013, necessarily falls within the ten years
preceding the final administrative decision regarding his application for
cancellation of removal, thereby precluding him from establishing the GMC
necessary for cancellation of removal. See § 1101(f)(7). Because we conclude
that the BIA and IJ reasonably calculated the ten-year GMC period as the ten
years preceding final adjudication of Rodriguez’s claim, and not the ten years
preceding service of the NTA, the date upon which the NTA was served is
inapposite in this case, and we therefore agree with the BIA that Rodriguez’s
estoppel argument is moot and need not be addressed.
CONCLUSION
We hold that, pursuant to the unambiguous language of § 1101(f)(7),
Rodriguez’s approximately seven-month incarceration during the ten years
prior to the adjudication of his application for relief from removal foreclosed
him from establishing good moral character, regardless of whether his
conviction was for a crime involving moral turpitude. Additionally, we defer to
the BIA’s conclusion, consistent with its prior binding precedent, that the ten-
17
Case: 13-60736 Document: 00513071832 Page: 18 Date Filed: 06/09/2015
No. 13-60736
year period during which a petitioner must establish good moral character for
purposes of cancellation of removal is measured backward from the date of the
final administrative decision regarding the petitioner’s application for
cancellation of removal. We therefore reject Rodriguez’s challenges to the
BIA’s decision and DENY his petition for review.
18