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Good Moral Character Findings Are Outside The Scope of Appellate Review

Good Moral Character Findings Are Outside The Scope of Appellate Review.
 

The procedural history, facts of record, holding and rationale in Medina Carreon v. Garland (June 15, 2023) No. 21-60391 are as follows:

 

Case History

The Department of Homeland Security (“DHS”) served the Petitioner with a notice to appear (“NTA”) for removal proceedings.

 

In March 2013, the Petitioner conceded removability and filed an application for cancellation of removal.

 

In a subsequent hearing, an Immigration Judge denied the Petitioner’s application for cancellation of removal as well as his application for voluntary departure, and ordered him removed from the United States.

 

The Petitioner appealed to the Board of Immigration Appeals (“BIA”).

 

The BIA agreed with the Immigration Judge and dismissed the Petitioner’s appeal.

 

The Petitioner then filed a petition for review of the BIA’s decision.

 

 

Facts

  • The Petitioner is a native and citizen of Mexico who entered the United States in 1996 without being admitted or paroled.
  • The DHS served the Petitioner with a NTA in 2011, while he was serving a sentence for three misdemeanor convictions arising out of an illegal cockfighting ring.
  • In March 2013, the Petitioner conceded that he was subject to removal from the United States and filed an application for cancellation of removal under section 240A(b)(1) of the Immigration and Nationality Act, as amended (“the Act”).
  • An Immigration Judge determined that the Petitioner is ineligible for cancellation of removal because he lacks good moral character under the “catchall” provision of section 101(f) of the Act: 

“The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is not or was not of good moral character.”

  • The Immigration Judge based a moral character determination on specific positive and negative factors as follows:

Positive Factors

  1. Medina Carreon’s family
  2. His long residence in the United States
  3. His “enduring marriage”
  4. His employment record
  5. His assets
  6. Character testimony that he was “a hard, good worker, and a good family man and neighbor.”

 

Negative Factors

  1. The Petitioner’s three cockfighting-related convictions
  2. The Petitioner’s conviction for driving on a suspended license
  3. The fact that the Petitioner had hired workers unlawfully in the United States, paid his workers in cash, leaving it up to them to report their income to the IRS
  • Ultimately the Immigration Judge concluded that the Petitioner lacked good moral character because the “negative factors far outweigh[ed] the positive factors.”
  • For the same reasons, the Immigration Judge justified denying voluntary departure at the conclusion of immigration court proceedings under section 240B(b) of the Act (which also requires proof of good moral character).
  • The BIA agreed with the Immigration Judge and dismissed the Petitioner’s administrative appeal.
  • Two temporary BIA members who had been reappointed by the Attorney General to new six-month terms participated in the BIA decision relating to the Petitioner after their terms had automatically expired by operation of law on October 31, 2020.
  • The Petitioner then filed a timely petition for review.

 

Held

Petition for Review DISMISSED in part; DENIED in part

 

Rationale

The Petitioner claimed that:

  1. BIA’s ruling was an invalid ultra vires act (i.e. an act done without legal authority) because two of the three BIA members who ruled on his case were temporary members whose initial terms had expired.
  2. The BIA erred in denying his application for cancellation of removal under section 240A(b) of the Act based on the finding that he lacked such character.
  3. The Immigration Judge committed legal error by “bas[ing] his decision . . . on the flawed, implicit legal conclusion” that the Petitioner’s conviction for attempting to commit cruelty to animals is a crime involving moral turpitude (“CIMT”).
  4. The BIA erred by affirming the Immigration Judge’s denial of voluntary departure in reliance on the same flawed CIMT determination that supported denial of the Petitioner’s application for cancellation of removal.
  5. The Immigration Judge’s erred by looking beyond the requisite five-year period to consider his 2011 cockfighting-related convictions in support of the denial of voluntary departure.

 

The Government opposed the Petitioner’s claims as follows:

Ultra Vires Claim

  1. The court lacks jurisdiction to consider this claim because the Petitioner did not exhaust it before the BIA.
  2. Ultra vires challenges may not be raised in a petition for review
  3. The ultra vires claim fails on its merits because plain language of 8 C.F.R.  § 1003.1(a)(4) “necessarily contemplates the possibility of more than one term of appointment.”

 

Denial of Voluntary Departure

  1. The Petitioner failed to raise the denial of voluntary departure before the BIA.
  2. Therefore, the Petitioner failed to exhaust his administrative remedies as required by section 242(d)(1) of the Act.

 

The Fifth Circuit Court of Appeal reasoned as follows:

Ultra Vires Claim

  • The government relied on Ayala Chapa v. Garland, 60 F.4th 901, at 905 (5th Cir. 2023) (holding that held that the exhaustion requirement in section 242(d)(1) of the Act applies to ultra vires claims) to assert lack of appellate jurisdiction to consider a claim not raised before the BIA.
  • Ayala Chapa v. Garland, however, was abrogated by the Supreme Court’s decision in Santos-Zacaria v. Garland, 143 S. Ct. 1103 (2023) and Santos-Zacaria v. Garland, at 1116–17 specifically held that section 242(d)(1) of the Act “does not require that [an alien] seek reconsideration from the Board[.]”).
  • Therefore, the Petitioner’s failure to raise his ultra vires claim in a motion for reconsideration before the BIA does not bar appellate review.
  • Although the government asserted that 8 C.F.R. § 1003.1(a)(4), the regulation at issue, merely concerns the BIA’s organization, management, and internal procedures, and submitted that the Petitioner’s removal order “is not fairly contingent on the operation of the regulation” such that the regulation “is not within the scope of [our] review[,]” the Petitioner not merely challenged the government’s compliance with a regulation.  Rather, he contended that non-compliance rendered the BIA’s decision ultra vires.  See Nastase v. Barr, 964 F.3d 313, at 318 (5th Cir. 2020).
  • Since the ultra vires issue goes to the heart of the BIA decision’s validity, it is a reviewable question upon which the validity of the BIA’s decision is contingent.
  • The text of the regulation authorizing the Director to designate temporary BIA members (8 C.F.R. § 1003.1(a)(4)) does not include the word, “renewable” to describe the terms of temporary BIA members as opposed to the analogous regulation (8 C.F.R. § 1003.10(e)(1)) which describes the terms of temporary Immigration Judges as “renewable.”
  • However, the Petitioner conceded that the Attorney General has authority to renew the terms of temporary BIA members, and, based on the BIA members’ reappointment paperwork (of which the Fifth Circuit Court of Appeal took judicial notice), the temporary BIA members who participated in the review of the Petitioner’s appeal were reappointed by the Attorney General, not the Director.
  • Consequently, the Petitioner’s ultra vires claim unavoidably failed.

 

Cancellation of Removal

  • With regard to the Petitioner’s contention that the BIA erred in denying his application for cancellation of removal under section 240A(b) of the Act based on the finding that he lacked good moral character, Congress has proscribed appellate court jurisdiction to review “any judgment regarding the granting of relief under . . . section 240A(b) of the Act[.]”  See section 242(a)(2)(B)(i) of the Act.
  • The Petitioner relied on Trejo v. Garland, 3 F.4th 760 (5th Cir. 2021) (distinguishing between the ultimate discretionary determination of whether to grant cancellation of removal and the non-discretionary determination of whether an applicant is eligible for cancellation of removal).  However, in Patel v. Garland, 142 S. Ct. 1614 (2022) the United States Supreme Court abrogated Trejo v. Garland.
  • Specifically, the United States Supreme Court held in Patel v. Garland, at 1621 that section 242(a)(B)(i) of the Act bars appellate review of “any authoritative decision,” which “encompasses any and all decisions relating to the granting or denying of discretionary relief,” including “[f]actual findings.”
  • Consequently, Patel v. Garland, at 1621, bars appellate review of the “authoritative decision” that an alien lacks good moral character, which is a factual finding relating to an application for cancellation of removal under section 240A(b)(1)(B) of the Act, as opposed to a reviewable question of law.
  • In short, the Petitioner’s contention that the BIA did not properly consider all the relevant factors does not involve a constitutional claim or a question of law.
  • Therefore, an appellate court lacks jurisdiction to consider the BIA’s determination that the Petitioner lacks good moral character necessary to be eligible for cancellation of removal.
  • The Petitioner did not adequately brief his claim that the BIA improperly relied on a 2019 decision by the then-Acting Attorney General (“AAG”) because it was issued without legal authority due to alleged defects in the AAG’s appointment by failing to identify a framework or otherwise explain how the one case he cited (Casa de Maryland, Inc. v. Wolf, 486 F. Supp. 3d 928 (D. Md. 2020)), a district court decision about the legality of the appointment of an Acting Secretary of Homeland Security, applies to the AAG or to the BIA’s opinion under review.  Therefore, the Petitioner waived this argument.
  • The government did not object to the failure of the Petitioner to articulate his claim that the Immigration Judge committed legal error by basing his decision on a “flawed, implicit legal conclusion” that the Petitioner’s conviction for attempting to commit cruelty to animals is a CIMT to the BIA.  Therefore, the government waived application of the exhaustion of administrative remedies requirement under section 242(d)(1) of the Act.
  • Nevertheless, neither the Immigration Judge nor the BIA concluded that the Petitioner’s conviction relating to cockfighting was a CIMT.  Instead, the BIA determined that the Immigration Judge had not erred in concluding that the Petitioner’s attendance at the cockfight and his related convictions impugned his moral character; not on classification of his conviction as a CIMT.

 

Voluntary Departure

  • Although the Petitioner’s challenge to the BIA’s interpretation of section 242B(b)(1)(B) of the Act (relating to post hearing voluntary departure) may be reviewed under section 242(a)(2)(D) of the Act as a question of law, the government objected to consideration of this issue because the Petitioner failed to raise it before the BIA. 
  • Therefore, the exhaustion requirement of section 242(d)(1) of the Act applies and the Petitioner’s challenge to the BIA’s interpretation of 242B(b)(1)(B) of the Act governing voluntary departure is barred from appellate review.

 

Commentary

Assessment of the moral character of an individual seems to be best left in the hands of an all powerful, all knowing, all just, and compassionate being that is recognized in certain world religions as God.

Nevertheless, Congress has seen fit to place authority to judge moral character in the hands of administrative decision makers, such as Immigration Judges and the BIA with some specific, but ultimately broad guidelines, found in section 101(f) of the Act.

Perhaps, a review of the guidelines that govern moral character determinations might afford some readers a better grasp of the meaning of good moral character and a closely related term, “moral turpitude.”

Good moral character is defined negatively under section 101(f) of the Act.  No person can be found to be a person of good moral character who is or has been:

  1. a habitual drunkard (section 101(f)(1) of the Act);
  2. classifiable as a prostitute or person involved in prostitution or other commercialized vice, a person who has been convicted of a crime involving moral turpitude or has admitted the elements of such crime, a person who has been convicted of 2 or more crimes for which the aggregate sentences imposed were 5 years or more, an alien smuggler, polygamist, a person convicted for a narcotics offense or a person who has admitted committing the elements of such offense (committed during the period under review), or a drug trafficker (section 101(f)(3));
  3. a person whose income is derived principally from illegal gambling (section 101(f)(4) of the Act);
  4. a person who has been convicted of 2 or more gambling offenses during the period under review (section 101(f)(5) of the Act);
  5. a person who has given false testimony to obtain immigration benefits (section 101(f)(6) of the Act);
  6. a person who has been confined for a criminal conviction for 180 days or more during the period under review (section 101(f)(7) of the Act);
  7. a person who has been convicted of an aggravated felony at any time (section 101(f)(8) of the Act); or
  8.  a person who at any time has engaged in conduct described under section 212(a)(3)(c) of the Act (relating to assistance in Nazi persecution, participation in genocide or commission of acts of torture or extrajudicial killings) or 212(a)(2)(G) of the Act (relating to severe violations of religious freedom) (section 101(f)(9) of the Act).

The list described above is not exclusive.  Thus, a person who is not specifically described in the list may be found not to be a person of good moral character for other reasons.  See the last paragraph of section 101(f) of the Act:  "The fact that any poerson is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character."

The Fifth Circuit Court of Appeal referred to the last paragraph of section 101(f) of the Act when it noted in Medina Carreon v. Garland (June 15, 2023) No. 21-60391 that the Immigration Judge had determined the Petitioner lacked good moral character without specifically finding that his offenses relating to cockfighting were CIMTs.

Thus, an administrative decision maker can conclude an applicant for cancellation of removal lacks good moral character based on a conviction for a CIMT or draw a negative inference from a conviction record in the totality of circumstances reflected in the record of proceedings that relate directly or indirectly to the applicant’s character.

Classification of an applicant’s offense as a crime involving moral turpitude will not only disqualify the applicant for cancellation of removal based on failure to establish good moral character during the time period under review.  Conviction for an offense involving moral turpitude also disqualifies an applicant for cancellation of removal as an offense described under sections 212(a)(2) or 237(a)(2) of the Act, regardless of whether or not the offense is committed within the time period under review.  See Matter of Almanza, 24 I&N Dec. 771 (BIA 2009); Matter of Cortez, 25 I&N Dec. 301 (BIA 2010); Matter of Pedroza, 25 I&N Dec. 312 (BIA 2010).

The term, “moral turpitude,” is not just difficult to interpret from English into most other languages.  It is also difficult to define in English for immigration law purposes. Congress used this term to describe certain convicted aliens considered to be undesirables in the Act of March 3, 1891, and it has remained in our immigration statutes to this day. 

The BIA noted, in Matter of Danesh, 19 I&N Dec. 669 (BIA 1988), that moral turpitude is a “nebulous concept.” 

The United States Supreme Court defined an act involving moral turpitude as:

an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men or to society in general contrary to the accepted and customary rule of right and duty between man and man. 

Jordan v. De George, 341 U.S. 223, reh’g denied 341 U.S. 956 (1951).

Although a crime involving moral turpitude remains undefined in terms of specific elements, the United States Supreme Court seems to have determined that the phrase, “moral turpitude,” is not void for vagueness as a matter of constitutional law.  See Jordan v. De George.

A constitutional void for vagueness challenge to the nebulous definition of moral turpitude, however, might not be entirely foreclosed because Jordan v. De George narrowly focused on a crime involving fraud.

Also, it is interesting to note that the void for vagueness argument was not raised by either party to the controversy under review in Jordan v. De George.

Much more remains to be written about “good moral character” and “moral turpitude” for a more complete understanding of how these terms apply in the context of immigration law. 

Hopefully, this abbreviated discussion will provide a modicum of clarity or a starting point for specific legal research related to these terms.

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