5th Circuit addresses good moral character requirement for non-LPR cancellation

By University of Denver Sturm College of Law

Mar 19, 2015

The U.S. Court of Appeals for the Fifth Circuit recently clarified two related requirements for obtaining Cancellation of Removal for non-Lawful Permanent Residents. Rodriguez-Avalos v. Holder, No. 13-60736, slip op. (5th Cir. March 4, 2015). Specifically, the court concluded that the good moral character requirement doesn’t involve an analysis of moral turpitude and that the applicant must have established GMC during the ten years immediately preceding the immigration judge or Board of Immigration Appeals’ decision.

This case involved a migrant who entered without inspection and was later convicted of lying about being a United States citizen (an offense related to his employment at an Omaha grocery store). Id. at 2. He was sentenced to 14 months and served about 7 months in prison. Id. DHS later initiated removal proceedings based on his entry without inspection and he conceded removability pursuant to INA § 212(a)(6)(A)(i). At the same time, Rodríguez (that’s how the court refers to him) sought cancellation of removal for non-LPRs under INA § 240A(b). Id. at 2-3. Non-LPR cancellation requires that the applicant show that he has had good moral character (GMC).

The immigration judge denied his cancellation application on the basis that his conviction and time served meant he could not satisfy the GMC requirement. The BIA agreed. Id. at 3.

On appeal to the Fifth Circuit, Rodríguez made two arguments. First, he argued that his conviction doesn’t involve moral turpitude, thus it can’t preclude him from showing GMC. The Fifth Circuit did not buy this argument. INA § 101(f)(7) provides that a person can’t show GMC if she has been “confined, as a result of a conviction, to a penal institution for an aggregate of one hundred and eighty days or more.” It says nothing about moral turpitude. After reviewing existing BIA and federal court decisions the Fifth Circuit concluded that the BIA’s decision to interpret this language as having nothing to do with moral turpitude “is consistent with the plain text of the statute, the BIA precedent interpreting the Congressional intent of the statute, our non-binding precedent, and the persuasive authority from our sister-circuits.” Id. at 12.

Second, Rodríguez argued that the GMC requirement applies only to the 10 years immediately preceding the date he was served with the Notice to Appear that initiated removal proceedings. Id. at 13. The Fifth Circuit disagreed with this position too.

The court noted, as did Rodríguez, that the Board’s precedential decision in Matter of Ortega-Cabrera, 23 I&N Dec. 793, 798 (BIA 2005), clearly states that an applicant must show GMC during the ten years immediately preceding the final decision by the immigration judge or BIA. Id. at 13. Since then the BIA has reaffirmed this position and a few federal circuits have adopted it expressly or implicitly. Id. at 16.

The key statutory language, the Fifth Circuit, is ambiguous. Id. at 13. Crucially, the BIA’s interpretation is reasonable, thus under the deference that federal courts are required to give reasonable agency interpretations of ambiguous statutory text under Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), the court upheld the BIA’s view. Id. at 18.

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