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Juan Pablo Gutierrez v. Eric H. Holder Jr.

November 7, 2011

JUAN PABLO GUTIERREZ, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A092-227-488

The opinion of the court was delivered by: Restani, Judge:

FOR PUBLICATION

OPINION

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

Before: Sidney R. Thomas and Sandra S. Ikuta, Circuit Judges, and Jane A. Restani, Judge.*fn1

Opinion by Judge Restani

OPINION

Petitioner Juan Pablo Gutierrez petitions for review of an order of the Board of Immigration Appeals ("BIA") upholding the Immigration Judge's ("IJ") denial of registry, cancellation 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 jurisdiction to review some of Gutierrez's claims, and where we 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. Gutierrez'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 removability from the United States. For relief from removal, Gutierrez requested registry, cancellation of removal, and voluntary departure. During the hearing, Gutierrez presented evidence including that of his good moral character. Gutierrez also moved to present the telephonic testimony of three witnesses regarding the issue of his good moral character, claiming 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 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 suspended 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 character 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 discretion it [is] appropriate to grant the respondent registry." Based on a lack of exceptional and extremely unusual hardship 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,*fn2 concurring with the IJ that Gutierrez failed to establish his good moral character and exceptional and extremely unusual hardship for obtaining registry and cancellation of removal, based on "the reasons stated by the Immigration Judge in his decision." 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 ...


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