Gutierrez v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JUAN PABLO GUTIERREZ, 
Petitioner, No. 06-71680
v.
 Agency No.
A092-227-488
ERIC H. HOLDER Jr., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
April 25, 2011—San Francisco, California

Filed November 7, 2011

Before: Sidney R. Thomas and Sandra S. Ikuta,
Circuit Judges, and Jane A. Restani, Judge.*

Opinion by Judge Restani

*The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.

20077
20080 GUTIERREZ v. HOLDER

COUNSEL

Fernando Quiñones (withdrawn) and Michael Grim (with-
drawn), Law Offices of Fernando Quiñones, San Francisco,
California, for the petitioner-appellant.

Stephen J. Flynn, Arthur Leonid Rabin, Mark Christopher
Walters, Sunah Lee, and Gladys Marta Steffens Guzman, U.S.
Department of Justice, for the respondent-appellee.

Allison L. Ehlert and Matthew Carter Dirkes, Coblentz, Patch,
Duffy & Bass, LLP, San Francisco, California, amicus curiae.

OPINION

RESTANI, Judge:

Petitioner Juan Pablo Gutierrez petitions for review of an
order of the Board of Immigration Appeals (“BIA”) uphold-
ing the Immigration Judge’s (“IJ”) denial of registry, cancel-
lation of removal, and voluntary departure on grounds of
alleged constitutional violations and that as a matter of law
the administrative record cannot support a finding that he
lacked good moral character. We conclude that we lack juris-
diction to review some of Gutierrez’s claims, and where we
 GUTIERREZ v. HOLDER 20081
do possess jurisdiction, Gutierrez’s claims fail on the merits.
Thus, we DENY the petition for review in part and DISMISS
in part.

BACKGROUND

Gutierrez is a seventy year-old native and citizen of Mexico
who entered the United States sometime between 1969 and
1971. Gutierrez is not married and has no children. Gutier-
rez’s mother and brother are United States citizens, and his
sister and other brother are lawful permanent residents of the
United States. In October 2001, Gutierrez was issued a Notice
to Appear, charging him with being removable from the
United States as an alien who was present in the United States
without being admitted or paroled, in violation of Section
212(a)(6)(A)(i) of the Immigration and Nationality Act. 8
U.S.C. § 1182(a)(6)(A)(i).

Gutierrez appeared before an IJ and conceded his remov-
ability from the United States. For relief from removal,
Gutierrez requested registry, cancellation of removal, and vol-
untary departure. During the hearing, Gutierrez presented evi-
dence including that of his good moral character. Gutierrez
also moved to present the telephonic testimony of three wit-
nesses regarding the issue of his good moral character, claim-
ing the witnesses were unavailable due to pre-established
work commitments. The IJ considered the motion despite its
untimeliness but disallowed the telephonic testimony because
Gutierrez had failed to provide affidavits from these witnesses
as to why they could not be present and because there were
other witnesses who could testify to Gutierrez’s good moral
character. Three of Gutierrez’s family members testified to
his good moral character.

Gutierrez testified, admitting that he was arrested and pled
guilty approximately seven or eight times between 1978 and
2001 for driving under the influence (“DUI”) offenses and
arrested for driving without a license at least once. Gutierrez
20082 GUTIERREZ v. HOLDER
served eight months in prison as a result of these arrests. His
last offense occurred in August 2001, and Gutierrez had not
paid his fine as of the date of his April 2004 hearing. When
the IJ asked Gutierrez if he was currently driving with a sus-
pended license, Gutierrez’s attorney stated that Gutierrez was
invoking his right to remain silent despite an admonition from
the IJ that the hearing was not a criminal proceeding and a
negative inference could be drawn from his silence. Gutierrez
testified that he had not drunk alcohol since 2001 and was
currently attending Alcoholics Anonymous meetings twice a
week.

The IJ denied Gutierrez’s applications for relief. Although
the IJ found the testimony of Gutierrez as well as Gutierrez’s
mother and brother credible, the IJ denied his applications for
cancellation of removal, voluntary departure, and registry
because the IJ found that Gutierrez lacked good moral charac-
ter and had not demonstrated “exceptional and extremely
unusual hardship.” 8 U.S.C. § 1229b(b)(1)(D). With regard to
the application for relief for registry, the IJ determined that
“there is no requisite time period for good moral character for
registry” and that because of Gutierrez’s “numerous criminal
convictions for driving under the influence” and the fact that
“the respondent is currently still driving even on a suspended
driver’s license, . . . this Court does not believe that in its dis-
cretion it [is] appropriate to grant the respondent registry.”
Based on a lack of exceptional and extremely unusual hard-
ship as well as a lack of good moral character, the IJ also
denied Gutierrez’s petition for cancellation of removal.

In August 2005, the BIA adopted and affirmed the IJ’s
decision and dismissed Gutierrez’s appeal. The BIA sua
sponte reopened and reconsidered Gutierrez’s appeal,1 con-
curring with the IJ that Gutierrez failed to establish his good
1
The BIA’s prior decision “inadvertently included a reference to a
‘practice of persecution . . . of ethnic Chinese Christian’ which was not
part of the Immigration Judge’s decision or record in this case.”
 GUTIERREZ v. HOLDER 20083
moral character and exceptional and extremely unusual hard-
ship for obtaining registry and cancellation of removal, based
on “the reasons stated by the Immigration Judge in his deci-
sion.” The BIA determined that the IJ correctly drew an
adverse inference from Gutierrez’s silence. The BIA also
rejected Gutierrez’s claim that the IJ’s rejection of the tele-
phonic witnesses violated due process. Gutierrez sought
review of the BIA’s order denying registry, cancellation of
removal, and voluntary departure.2

STANDARD OF REVIEW

The BIA adopted and affirmed the decision of the IJ pursu-
ant to Matter of Burbano, 20 I. & N. Dec. 872, 874 (B.I.A.
1994). Where the BIA does not express any disagreement
with the IJ’s reasoning or conclusions, we revisit both deci-
sions and treat the IJ’s reasons as those of the BIA. See
Pelayo-Garcia v. Holder, 589 F.3d 1010, 1012 (9th Cir.
2009). “[W]e have jurisdiction to determine whether jurisdic-
tion exists,” Flores-Miramontes v. INS, 212 F.3d 1133, 1135
(9th Cir. 2000) (internal quotation marks and citation omit-
ted), and we review issues regarding jurisdiction and the
BIA’s legal conclusions de novo, see Oropeza-Wong v. Gon-
zales, 406 F.3d 1135, 1141 (9th Cir. 2005). We review consti-
tutional and other questions of law de novo. See Khan v.
Holder, 584 F.3d 773, 776 (9th Cir. 2009).

JURISDICTION TO REVIEW DENIAL OF
REGISTRY DECISIONS

Amicus argues that we have jurisdiction to review the
entirety of the IJ’s decision regarding Gutierrez’s denial of
registry. Specifically, Amicus argues that the IJ based his
decision on a statutory per se category rather than his discre-
2
We received supplemental briefing and oral argument from amicus
curiae and the Government after Gutierrez’s lawyer withdrew from the
case.
20084 GUTIERREZ v. HOLDER
tionary authority and therefore this panel need not reach the
issue of jurisdiction over discretionary decisions. In the alter-
native, Amicus argues that we retain jurisdiction to review
statutory determinations regarding good moral character. We
agree with the latter argument. In addition, we retain jurisdic-
tion to decide issues of law, including constitutional claims.3
8 U.S.C. § 1252(a)(2)(D).4

[1] Since the Real ID Act of 2005, we have not determined
whether we have jurisdiction over decisions of the Attorney
General denying registry. The applicable provision states that:

[N]o court shall have jurisdiction to review . . . (i)
any judgment regarding the granting of relief under
section 1182(h), 1182(i), 1229b, 1229c, or 1255 of
this title, or (ii) any other decision or action of the
Attorney General . . . the authority for which is spec-
ified under this subchapter to be in the discretion of
the Attorney General . . . .

Id. § 1252(a)(2)(B). According to 8 U.S.C. § 1259, the statute
3
The Real ID Act of 2005 explicitly authorized such judicial review by
adding the following language to 8 U.S.C. § 1252(a)(2)(D): “Nothing in
subparagraph (B) or (C), or in any other provision of this Act (other than
this section) which limits or eliminates judicial review, shall be construed
as precluding review of constitutional claims or questions of law . . . .”
Real ID Act of 2005, Pub. L. No. 109-13, § 106, 119 Stat. 231, 310 (2005)
(codified as amended at 8 U.S.C. § 1252(a)(2)(D)). Furthermore, we have
noted that errors of law may infect discretionary decisions. See Bazua-
Cota v. Gonzales, 466 F.3d 747, 748 (9th Cir. 2006) (per curium) (finding
jurisdiction to review colorable legal and constitutional claims even where
the decision was purely discretionary).
4
To the extent Gutierrez asserts that the IJ’s decision denying cancella-
tion of removal under 8 U.S.C. § 1229b and voluntary departure under 8
U.S.C. § 1229c was not warranted by the record, such claims are expressly
barred from judicial review. 8 U.S.C. § 1252(a)(2)(B) (“[N]o court shall
have jurisdiction to review . . . any judgment regarding the granting of
relief under section . . . 1229b, 1229c . . . of this title” except for constitu-
tional and other legal questions).
 GUTIERREZ v. HOLDER 20085
under which Gutierrez was denied registry, the IJ may grant
registry if the alien establishes certain facts, including that he
is of good moral character. Id. § 1259 (registry “may, in the
discretion of the Attorney General . . . , be made in the case
of any alien”). Although registry under Section 1259 is not
expressly listed as a section for which judicial review is
barred, see 8 U.S.C. § 1252(a)(2)(B)(i), we do not have juris-
diction to review “any other decision or action of the Attorney
General . . . the authority for which is specified under this
subchapter to be in the discretion of the Attorney General,” id.
§ 1252(a)(2)(B)(ii) (emphasis added).5 Section 1259 explicitly
states that registry is “in the discretion of the Attorney Gener-
al.” Id. § 1259. Thus, to the extent the challenged decision
was a legally permissible exercise of that discretion, we lack
jurisdiction to review it.

[2] Here, in denying Gutierrez’s application for registry,
the IJ “noted that [registry] is a relief in the discretion of [the
IJ],” and that he did “not believe that the respondent has dem-
onstrated good moral character and believes that in its discre-
tion, it is inappropriate for [the IJ] to grant the respondent
registry.” Although Section 1101(f) lists nine circumstances
that, if true in a particular alien’s case, preclude a finding of
good moral character, the IJ did not rely on any of the items
listed therein.6 Rather, the IJ based his conclusion on Gutier-
5
We stated in Beltran-Tirado that we had jurisdiction to review denial
of registry based purely on the omission of registry from the list of statu-
tory provisions placed beyond our jurisdiction by the transitional rules of
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”). Beltran-Tirado v. INS, 213 F.3d 1179, 1182 n.4 (9th Cir.
2000) (citing IIRIRA, Pub. L. No. 104-208, § 309(c)(4)(E)). Beltran-
Tirado, however, addressed the legal question of whether conviction under
42 U.S.C. § 408 constitutes a crime of moral turpitude under 8 U.S.C.
§ 1182(a)(2)(A). Id. at 1184-85. The Real ID Act made explicit the hold-
ing of Beltran-Tirado: we have jurisdiction over legal questions involving
denial of registry claims.
6
The preclusive categories include an individual who is or was “during
the period for which good moral character is required to be established . . .
a habitual drunkard.” 8 U.S.C. § 1101(f). Here, the IJ’s decision was based
on Gutierrez’s crimes rather than whether or not he was a habitual drunk-
ard under the statute.
20086 GUTIERREZ v. HOLDER
rez’s “numerous criminal convictions for driving under the
influence . . . from 197[8] to 2001,”7 as well as the fact that
Gutierrez was currently driving on a suspended license. The
BIA concurred, stating that “[w]e agree with the Immigration
Judge that the respondent failed to establish the requisite good
moral character for the requested forms of relief.” Because the
IJ made no mention of per se good moral character except to
restate the Government’s argument and instead relied on
actions falling outside Section 1101(f), the IJ made a general
finding of lack of good moral character, a statutory require-
ment for registry.8

[3] We have jurisdiction to review this determination. As
we made clear in Singh v. Holder, 8 U.S.C.
§ 1252(a)(2)(B)(ii) does not preclude from review factual
decisions unless “the language of the statute in question . . .
provide[s] the discretionary authority for the Attorney Gener-
al’s action.” Singh v. Holder, 591 F.3d 1190, 1194 (9th Cir.
2010) (alteration in original) (internal quotation marks omit-
ted) (citing Spencer Enters., Inc. v. United States, 345 F.3d
683, 689 (9th Cir. 2003)). In Singh, we addressed the statutory
requirements for eligibility for hardship waiver of the require-
ments for permanent residence status, holding that by stating
“[t]he Attorney General, in the Attorney General’s discretion,
may” grant relief, 8 U.S.C. § 1186a(c)(4), the ultimate deci-
sion was “specified” to be in the Attorney General’s discretion.9
7
The IJ misstated the date as 1970. The BIA subsequently correctly
stated the date as 1978.
8
The BIA did refer to the habitual drunkard provision in saying it had
no authority to decide constitutional issues. We interpret this to be a con-
venient disposition of an issue rather than an altering of the IJ’s broad
basis for his decision. Accordingly, as Gutierrez was not removed under
this statute, he lacks standing to challenge the “habitual drunkard” lan-
guage in 8 U.S.C. § 1101(f)(1) for unconstitutional vagueness as applied.
See Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1494 (9th
Cir. 1996) (stating that petitioner cannot challenge a statutory provision on
vagueness grounds when it was not used against him).
9
In relevant part, Immigration and Nationality Act § 216(c)(4) provides:
(4) Hardship waiver
 GUTIERREZ v. HOLDER 20087
Singh, 591 F.3d at 1194. Singh also concluded that the phrase,
“[t]he determination of what evidence is credible and the
weight to be given that evidence shall be within the sole dis-
cretion of the Attorney General,” 8 U.S.C. § 1186a(c)(4)
(emphasis added), sufficed to commit such decisions to the
Attorney General’s discretion. Singh, 591 F.3d at 1195. In
contrast, the language providing that the Attorney General
could grant relief if the alien “demonstrate[d]” that certain
criteria were met did not “commit[ ] to the Attorney General’s
discretion the question whether” those criteria were satisfied.
Id. at 1194-95 (emphasis and internal quotation marks omit-
ted). Here, the “establishes” language in Section 1259 is akin
to the “demonstrates” language of Section 1186a(c)(4). Just as
Singh held that the IJ’s and BIA’s underlying factual determi-
nations were not specified to be in the discretion of the Attor-
ney General, nothing in sections 1252 or 1259 specifies that

The Attorney General, in the Attorney General’s discretion, may
remove the conditional basis of the permanent resident status for
an alien who fails to meet the requirements of paragraph (1) if the
alien demonstrates that—
(A) extreme hardship would result if such alien is removed,
(B) the qualifying marriage was entered into in good faith by
the alien spouse, but the qualifying marriage has been termi-
nated (other than through the death of the spouse) and the
alien was not at fault in failing to meet the requirements of
paragraph (1), or
(C) the qualifying marriage was entered into in good faith by
the alien spouse and during the marriage the alien spouse or
child was battered by or was the subject of extreme cruelty
perpetrated by his or her spouse or citizen or permanent resi-
dent parent and the alien was not at fault in failing to meet
the requirements of paragraph (1).
. . . The determination of what evidence is credible and the
weight to be given that evidence shall be within the sole discre-
tion of the Attorney General.
8 U.S.C. § 1186a(c)(4) (emphases added).
20088 GUTIERREZ v. HOLDER
the good moral character decision is committed to the discre-
tion of the Attorney General. As a result, Section
1252(a)(2)(B)(ii) does not strip us of jurisdiction over the IJ’s
decision regarding Gutierrez’s moral character.10

Thus, we turn to Gutierrez’s claims regarding, 1) the extent
to which an assessment of good moral character can be based
only on the immediate present and whether there was substan-
tial evidence supporting the finding of lack of good moral
character for purposes of registry, 2) procedural due process,
and 3) the Fifth Amendment.
10
Assessing jurisdiction over good moral character determinations under
IIRIRA’s transitional rules, we stated that “[t]he transitional rules . . . pre-
clude direct judicial review of the BIA’s determinations of the threshold
eligibility requirements of . . . ‘good moral character.’ ” Kalaw v. INS, 133
F.3d 1147, 1152 (9th Cir. 1997), superseded by statute, 8 U.S.C.
§ 1252(a)(5), as recognized in Trejo-Mejia v. Holder, 593 F.3d 913, 915
(9th Cir. 2010). Kalaw was decided pursuant to IIRIRA’s transitional rules
under Section 309(c)(4)(E), which stripped us of jurisdiction over “discre-
tionary decision[s]” under Immigration and Nationality Act § 244 and
which governed suspension of deportation, the form of relief at issue in
Kalaw. See Kalaw, 133 F.3d at 1150. Under these transitional rules, all
that was required to strip jurisdiction was a demonstration that the case
arose under one of the listed sections, and the decision in question was dis-
cretionary. See id. Kalaw confined itself to a discussion of whether the
particular analyses at issue in the suspension of deportation decision
(which subsumed the determination of good moral character) were discre-
tionary or not. See id. at 1151-52. After the Real ID Act of 2005, we lack
jurisdiction under Section 1252(a)(2)(B)(ii) only over discretionary deci-
sions “the authority for which is specified under this subchapter to be in
the discretion of the Attorney General or the Secretary of Homeland
Security.” 8 U.S.C. § 1252(a)(2)(B)(ii). Because the statute at issue in
Kalaw did not include the “is specified” language, Kalaw provides no
guidance on the question of our jurisdiction pursuant to Section
1252(a)(2)(B)(ii).
 GUTIERREZ v. HOLDER 20089
DISCUSSION

I. Good Moral Character

Gutierrez argues that an applicant for registry need show
only that he is a person of good moral character in the imme-
diate present without reference to past negative conduct. Spe-
cifically, Gutierrez argues that the word “is” in 8 U.S.C.
§ 1259(c) refers unambiguously to the present moment with-
out reference to past events. This claim lacks merit.

[4] Although Congress has not mandated a specific tempo-
ral window for demonstration of good moral character in reg-
istry claims, for other claims the IJ can look back at evidence
of good moral character from past time periods, specifically,
five years for citizenship, 8 U.S.C. § 1427(a), ten years for
cancellation of removal, id. § 1229b(b)(1)(A), and five years
for voluntary departure, id. § 1229c(b)(1)(B). Thus, the time
periods for other moral character inquiries under immigration
law support the reasonableness of interpreting Section 1259 to
permit looking back to some past time period to determine
whether a person is of good moral character. See id.
§ 1259(c). Gutierrez’s past actions bear on his current moral
character. See Matter of Sanchez-Linn, 20 I. &. N. Dec. 362,
365 (B.I.A. 1991) (finding that the IJ must look back to some
period preceding the moment a petitioner is standing before
a judge). We need not and, for that matter, cannot restrict the
IJ or BIA to the immediate present for determining if a peti-
tioner is of good moral character. See id. “[A]n applicant for
registry must show good moral character for a ‘reasonable
period of time’ preceding the application.” Id. (quoting Matter
of De Lucia, 11 I. & N. Dec. 565, 575 (B.I.A. 1966)). “What
is a ‘reasonable period of time’ will vary depending on the
specific facts of a case.” Id. Indeed, in some circumstances,
facts from the whole sweep of a person’s life may properly be
considered by the IJ. Id.
20090 GUTIERREZ v. HOLDER
[5] Here, the IJ made a multifaceted determination based
on conduct stretching back many years, but leading up to the
time of the hearing: eight months in prison, seven or eight
DUI convictions with the most recent three years prior to the
hearing, and driving with a suspended license at the time of
the hearing. The IJ looked at facts bearing on lack of good
moral character that continued into at least the five years pre-
ceding the immigration hearing. There is no basis to find that
the IJ was restricted to a time period shorter than the shortest
time period for the good moral character inquiry specified in
other immigration provisions. Thus, the IJ looked back to a
permissible period of time in determining that Gutierrez
lacked good moral character.11

A finding of good moral character involves subjective
assessments and weighing of types of evidence that will vary
considerably from case to case but clearly here there is
enough evidence of wrongdoing over time that it cannot be
said that the IJ’s decision was without sufficient evidenciary
support. Where this type of general and somewhat amorphous
question must be answered, considerable deference to the
fact-finder is warranted. In this case in particular, with the his-
tory of repeated criminal acts, we will not second guess the
IJ.
11
Gutierrez also argues that the IJ and BIA, unlike the BIA in Sanchez-
Linn and De Lucia, failed to consider any positive factors and violated his
right to equal protection. There is no evidence to support Gutierrez’s claim
that the IJ failed to consider positive factors before deciding that he was
not of good moral character for the purposes of registry. In fact, the IJ dis-
cusses the testimony of Gutierrez’s three family members at length, stating
that he did “not doubt the veracity of any of the witnesses.” Furthermore,
the other petitioners noted by Gutierrez did not obtain relief. See Sanchez-
Linn, 20 I. &. N. Dec. at 365-66, 367; De Lucia, 11 I. & N. Dec. at 582.
Because he cannot show that his treatment “differed from that of similarly
situated persons,” Gutierrez’s equal protection claim is unavailing. See
Dillingham v. INS, 267 F.3d 996, 1007 (9th Cir. 2001), overruled on other
grounds by Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. July 14, 2011)
(en banc).
 GUTIERREZ v. HOLDER 20091
II. Due Process

Gutierrez alleges that the IJ’s decision not to allow certain
witnesses to testify telephonically violated local procedural
rules and his right to due process. This claim lacks merit.

A full and fair hearing is one of the due process rights
afforded to aliens in deportation proceedings. See Getachew
v. INS, 25 F.3d 841, 845 (9th Cir. 1994). A court will grant
a petition on due process grounds only if the proceeding was
“so fundamentally unfair that the alien was prevented from
reasonably presenting his case.” Ibarra-Flores v. Gonzales,
439 F.3d 614, 620 (9th Cir. 2006); see Baliza v. INS, 709 F.2d
1231, 1233 (9th Cir. 1983) (“[T]he only limitation upon its
procedure [is] that a hearing, though summary, must be fair.”
(quoting Navarrette-Navarrette v. Landon, 223 F.2d 234, 237
(9th Cir. 1955)). An alien bears the burden of proving the
alleged violation prejudiced his or her interests. See United
States v. Cerda-Pena, 799 F.2d 1374, 1378-79 (9th Cir.
1986).

[6] The IJ did not violate Gutierrez’s due process rights by
excluding the telephonic testimony of three witnesses
because, in addition to the untimeliness of the request, there
were other witnesses present and prepared to testify in person
as to the same character evidence. Gutierrez failed to show
that he was prejudiced by the exclusion of these witnesses.
Additionally, petitioner’s reliance on Zolotukhin v. Gonzales,
417 F.3d 1073 (9th Cir. 2005), is misplaced because the
excluded telephonic testimony in this case was not from
uniquely qualified expert witnesses and others with specific
and noncumulative testimony, but rather from witnesses who
planned to testify to Gutierrez’s good moral character and
continuous presence in the United States, which were the
same types of evidence nine other witnesses were prepared to
provide. Gutierrez had an opportunity to fully present his
case. Accordingly, no due process violation occurred.
20092 GUTIERREZ v. HOLDER
III. Fifth Amendment

[7] Gutierrez alleges that the IJ erred in drawing an
adverse inference when he invoked the Fifth Amendment
right against self-incrimination when asked if he was driving
on a suspended license. This claim lacks merit. The IJ was
permitted to draw an adverse inference when Gutierrez
refused to answer whether he was driving on a suspended
license. See United States ex rel. Bilokumsky v. Tod, 263 U.S.
149, 154-55 (1923). In a deportation hearing there is no prohi-
bition against drawing an adverse inference when a petitioner
invokes his Fifth Amendment right against self-incrimination.
See id.; United States v. Alderete-Deras, 743 F.2d 645, 647
(9th Cir. 1984). Accordingly, there was no Fifth Amendment
violation.

CONCLUSION

For the foregoing reasons, the petition for review is
DENIED in part and DISMISSED in part.