Case: 17-15289 Date Filed: 08/17/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-15289
Non-Argument Calendar
________________________
Agency No. A095-073-788
NIMROD HERNANDEZ-HERNANDEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(August 17, 2018)
Before WILLIAM PRYOR, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 17-15289 Date Filed: 08/17/2018 Page: 2 of 7
Nimrod Hernandez-Hernandez petitions for review of an order of the Board
of Immigration Appeals (“BIA”) affirming the denial of his application for
cancellation of removal under the Immigration and Nationality Act, 8 U.S.C.
§ 1101 et seq. (“INA”), based on a determination that he lacked good moral
character. For the reasons that follow, we dismiss Hernandez-Hernandez’s
petition.
I.
Hernandez-Hernandez, a native and citizen of Honduras, entered the United
States without inspection in 1998. The Department of Homeland Security filed a
Notice to Appear in July 2012, charging that Hernanez-Hernandez was removable
for being an alien present in the United States without having been admitted or
paroled. Hernandez-Hernandez conceded that he was removable and informed the
immigration judge (“IJ”) that he would seek cancellation of removal as a non-
lawful permanent resident. He filed an application for cancellation of removal.
At a hearing before the IJ in July 2014, at which Hernandez-Hernandez was
represented by counsel, he argued that he met the requirements for cancellation of
removal because: he had been physically present in the United States since 1998,
(2) he had two financially dependent children who were U.S. citizens, (3) he had
good moral character, and (4) his children would have exceptional and unusual
2
Case: 17-15289 Date Filed: 08/17/2018 Page: 3 of 7
hardship if he were removed. The IJ reserved her decision because there were no
visa numbers available at that time. 1
At a hearing in May 2016, the IJ stated that she had been inclined to grant
Hernandez-Hernandez’s application for cancellation of removal during the July
2014 hearing, but that Hernandez-Hernandez subsequently had been arrested for
driving under the influence, which “undercut[] the discretionary ground of his
case.” AR at 47. 2 She stated that Hernandez-Hernandez would need to rehabilitate
his good moral character. Hernandez-Hernandez testified that in July 2015 he was
driving after having “two or three” drinks and had backed into another car while
trying to maneuver around a collision in the road. Id. at 52. He was arrested for
driving under the influence but was given a ticket for reckless driving. The
criminal record of the incident included a victim statement, in which the victim
represented that Hernandez-Hernandez had attempted to run away after the
accident, which Hernandez-Hernandez denied. The criminal record also reflected
that Hernandez-Hernandez had refused a breathalyzer test and smelled of alcohol.
1
Congress limits the number of available visas that can be issued each fiscal year. See 8
U.S.C. § 1299b(e) (“[T]he Attorney General may not cancel the removal and adjust the status . . .
of a total of more than 4,000 aliens in any fiscal year.”). “When the cap is about to be reached,”
IJs generally “must reserve decisions granting cancellation or suspension.” U.S. Dep’t of
Justice, Operating Policies and Procedures Mem. 17-04 (Dec. 20, 2017),
http://www.justice.gov/eoir/file/oppm17-04/download.
2
Citations to “AR” are to the administrative record in this case.
3
Case: 17-15289 Date Filed: 08/17/2018 Page: 4 of 7
Hernandez-Hernandez presented witnesses, including his boss, who testified
positively as to his character.
After summarizing the evidence, the IJ found that “[Hernandez-Hernandez]
lack[ed] good moral character under the catch-all provision of [§] 101(f) of the
[INA] based on his arrest for driving under the influence of alcohol on July 18,
2015 and based on his subsequent conviction . . . for reckless driving, crash.” Id.
at 182. She noted that Hernandez-Hernandez had been advised specifically that a
criminal arrest could negatively affect his case but that he nonetheless had driven
while under the influence. She also noted that Hernandez-Hernandez had
attempted to flee the scene of the incident and that the incident had involved
property damage. She denied the application for cancellation of removal.
Hernandez-Hernandez appealed to the Board of Immigration Appeals
(“BIA”). Reviewing the IJ’s decision de novo, the BIA affirmed the decision,
noting that the IJ had “several reasons for concluding . . . that [Hernandez-
Hernandez] did not have the requisite good moral character under the catch-all
provision.” AR at 4. The BIA dismissed Hernandez-Hernandez’s appeal.
Hernandez-Hernandez petitioned this Court for review of the BIA’s order.
II.
“When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopt[ed] the IJ’s decision.” Rodriguez v. U.S. Att’y
4
Case: 17-15289 Date Filed: 08/17/2018 Page: 5 of 7
Gen., 735 F.3d 1302, 1308 (11th Cir. 2013). We review jurisdictional questions,
legal issues, and constitutional claims de novo. Rivas v. U.S. Att’y Gen., 765 F.3d
1324, 1328 (11th Cir. 2014).
“This Court’s jurisdiction to review the BIA’s discretionary decisions is
limited by statute.” Jimenez-Galicia v. U.S. Att’y. Gen., 690 F.3d 1207, 1209 (11th
Cir. 2012) (citing 8 U.S.C. § 1252(a)(2)(B)). We are precluded from reviewing
discretionary determinations about cancellation of removal, except those
“determinations about which [Hernandez-Hernandez] presents a genuine
constitutional claim or question of law.” Id. A “garden-variety abuse of discretion
argument[]” that the BIA failed to weigh properly the facts, however, does not
present a legal question. Id. at 1210-11 (internal quotation marks omitted).
The Attorney General may cancel the removal of an individual from the
United States and adjust his status to lawful permanent resident if he (1) has
continuous physical presence in the United States for at least ten years, (2) is of
good moral character, (3) has not committed one of a number of specified crimes,
and (4) a qualifying relative will suffer exceptional and extremely unusual hardship
upon his removal. 8 U.S.C. § 1299b(b)(1). If a person applying for cancellation of
removal falls into one of several enumerated categories, the INA automatically
precludes a finding that he has good moral character. Id. § 1101(f). The INA
additionally sets forth “a kind of ‘catchall provision,’ which says ‘that any person
5
Case: 17-15289 Date Filed: 08/17/2018 Page: 6 of 7
is not within any of the per se categories shall not preclude a finding that for other
reasons such person is or was not of good moral character.’” Jimenez-Galicia, 690
F.3d at 1210 (alteration adopted) (quoting § 1101(f)). This Court has held that
determinations made pursuant to this catchall provision are discretionary and thus
can be reviewed “only if the petitioner presents questions of law or constitutional
claims about the decision.” Id.
We have jurisdiction to consider only Hernandez-Hernandez’s argument that
the BIA erred as a matter of law by determining that his reckless driving
conviction precluded him from establishing good moral character.3 According to
Hernandez-Hernandez, only crimes containing an element of moral turpitude
preclude an individual from establishing good moral character. But contrary to
Hernandez-Hernandez’s contention, the BIA did not conclude that his conviction
for reckless driving precluded him from showing good moral character; rather, the
BIA denied his petition only after noting that he had driven under the influence and
had attempted to flee the scene along with the “positive equities” of his case. AR
at 4. And an individual may be deemed as lacking good character under the
catchall provision regardless of the elements of any particular crime the petitioner
may have committed. Whether “a person lacks good moral character ‘for other
3
To the extent Hernandez-Hernandez argues that the BIA erred in finding that he lacked
good moral character based on the facts of his arrest and conviction, we lack jurisdiction to
consider that argument. As we explained in Jimenez-Galicia, “[w]e have no jurisdiction to
consider . . . arguments about how the BIA weighed the facts in the record.” Id. at 1210-11.
6
Case: 17-15289 Date Filed: 08/17/2018 Page: 7 of 7
reasons’ is a matter of judgment not tightly controlled by formula or by hard
rules.” Jimenez-Galicia, 690 F.3d at 1210. We thus reject Hernandez-
Hernandez’s argument that the BIA erred in determining that he lacked good moral
character.
Hernandez-Hernandez also argues that the IJ erred by considering the police
reports and the victim statement in finding that he lacked good character, because
those statements were hearsay. We lack jurisdiction to review this claim because
Hernandez-Hernandez failed to present it to the BIA. See Amaya-Artunduaga v.
U.S. Att’y. Gen., 463 F.3d 1247 (11th Cir. 2006) (explaining that this Court lacked
jurisdiction over the petitioner’s argument where the BIA had not “consider[ed] the
merits of . . . [the] argument, and, therefore, there [was] no final agency decision
with respect to this claim”). Although Hernandez-Hernandez challenged the IJ’s
finding that certain hearsay statements made during the hearing were credible, he
never argued that the hearsay was inadmissible. We thus lack jurisdiction to
consider whether the IJ improperly considered hearsay statements in reaching her
decision.
DISMISSED.
7