Luna-Corona v. Bondi

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 17, 2025
• Docket: 24-9522
• Status: Published

Opinion

Appellate Case: 24-9522 Document: 41-1 Date Filed: 11/17/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS November 17, 2025 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

ADAN ENRIQUE LUNA-CORONA,

Petitioner,

v. No. 24-9522

PAMELA J. BONDI *, United States Attorney General,

Respondent. _________________________________

Petition for Review from the Board of Immigration Appeals _________________________________

Submitted on the briefs: **

Luis Cortes Romero and Amy Rubenstein of Novo Legal Group, LLC, Denver, Colorado, for Petitioner Adan Enrique Luna-Corona.

Brian M. Boynton, Sarah A. Byrd, and Robert P. Coleman III of United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent United States of America. _________________________________

Before HARTZ, MORITZ, and EID, Circuit Judges.

On February 5, 2025, Pamela J. Bondi became Attorney General of the *

United States. Consequently, she has been substituted for Merrick B. Garland as Respondent, per Fed. R. App. P. 43(c)(2).

After examining the briefs and appellate record, this panel has determined **

unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. Appellate Case: 24-9522 Document: 41-1 Date Filed: 11/17/2025 Page: 2

________________________________

HARTZ, Circuit Judge. _________________________________

Under this country’s immigration laws an alien who has been unlawfully

present here for a long time need not always be deported. Aliens who have lived

continuously in the United States for 10 years and satisfy certain other conditions

may be eligible for cancellation of removal. See 8 U.S.C. § 1229b(b)(1). The

condition at issue in this case is that the alien have been of good moral character for

the prior 10 years. See id. § 1229b(b)(1)(A)–(B). 1

The question presented to this court is whether Petitioner Adan Luna-Corona

was improperly denied eligibility because of a conviction for recidivist driving under

the influence (DUI). That conviction occurred within the prior 10 years, but the

convictions that made him a recidivist were all long before then. Petitioner contends

that it was unlawful for the immigration judge (IJ) and Board of Immigration Appeals

(BIA or Board) to consider the DUI convictions that were more than 10 years old. As

the government acknowledges, we have jurisdiction to review this contention because

it raises a question of law. See 8 U.S.C. § 1252(a)(2)(B), (D). We deny the petition

for review.

1 The two other conditions are that (1) the alien has not been convicted of certain offenses and (2) if the alien is removed, exceptional hardship would result to a member of the alien’s immediate family who is a citizen or permanent resident. See 8 U.S.C. § 1229b(b)(1)(C)–(D). 2 Appellate Case: 24-9522 Document: 41-1 Date Filed: 11/17/2025 Page: 3

I. BACKGROUND

Petitioner is a native and citizen of Mexico who entered the United States

unlawfully decades ago. In 2017 the Department of Homeland Security served him

with a Notice to Appear. The Notice charged that he was inadmissible under the

Immigration and Nationality Act (INA). It alleged that he had entered the United

States illegally and was therefore subject to removal from the country. Petitioner

admitted as much at his removal proceedings, and the IJ upheld the government’s

charges against him. He then applied for cancellation of removal and, in the

alternative, sought voluntary departure. The IJ denied his application but granted

voluntary departure.

In denying cancellation of removal, the IJ found that Petitioner had not shown

that “he has been a person of good moral character for the ten years immediately

preceding [the] Court’s final decision.” A.R. at 55. The IJ recognized the evidence

that Petitioner was “a good father and husband, and regarded as a hard worker and

reliable friend.” Id. But despite “these positive factors,” the IJ could not “overlook

[Petitioner’s] long history of alcohol abuse and criminal conduct.” Id.

In 2017, about two months before receiving the Notice, Petitioner had pleaded

guilty to a DUI offense committed the prior year. This was his fourth such

conviction; the prior three occurred in 1995 and 1996. The IJ recognized that

Petitioner had expressed remorse for his DUI convictions. The IJ also acknowledged

that Petitioner’s earlier DUIs fell outside the 10-year period for assessing good moral

character. Still, in the words of the IJ, “[t]o view [Petitioner’s] 2017 DUI conviction

3 Appellate Case: 24-9522 Document: 41-1 Date Filed: 11/17/2025 Page: 4

in isolation of his three prior convictions for the same offense would ignore the

widely recognized relationship between recidivist behavior and one’s moral

character.” A.R. at 56. The IJ found that Petitioner’s “recent DUI conviction was not

a ‘single lapse’ in judgment, but a continuation of multiple lapses in judgement

[sic]—weighing heavily against a finding of good moral character.” Id. Petitioner

appealed to the BIA.

The BIA dismissed the appeal. Like the IJ, the BIA determined that

Petitioner’s “2017 DUI conviction does not represent a ‘single lapse’ in judgment,

but rather is recidivist in nature.” Id. The BIA agreed with the IJ that “the seriousness

and repeat nature of [Petitioner’s] offense outweigh[ed] his positive equities.” Id.

And “[t]o the extent that [Petitioner] allege[d] a due process violation” by the IJ, the

BIA also rejected that claim. Id. The Board said that the IJ “properly considered all

relevant evidence in this case, including the circumstances surrounding [Petitioner’s]

2016 DUI arrest and subsequent conviction in 2017.” A.R. at 4. In particular, the IJ

did not err in considering “[t]he fact that [Petitioner] drove under the influence in

2016, after having been previously convicted of multiple DUIs in the past,” which

was “an egregious factor.” Id.

Petitioner sought review in this court. He contends that the IJ and BIA

improperly considered convictions outside the 10-year good-moral-character period.

He asks that we remand the matter for reconsideration of the equities in favor of

granting him cancellation of removal.

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II. STANDARD OF REVIEW

The decision before us is that of the BIA. See Aguayo v. Garland, 78 F.4th

1210, 1216 (10th Cir. 2023). We review its legal rulings de novo. See Igiebor v.

Barr, 981 F.3d 1123, 1131 (10th Cir. 2020). We do not consider an IJ’s ground for a

decision unless it is adopted by the BIA. See Aguayo, 78 F.4th at 1216. But “[w]here,

as here, a single member of the BIA affirms an IJ decision, . . . we are not precluded

from consulting the IJ’s more complete explanation of those same grounds.” Id.

(internal quotation marks omitted). In this case, therefore, we review only the BIA’s

determination that Petitioner failed to establish his good moral character because of

the recidivist nature of his 2017 DUI conviction. We cannot consider the IJ’s separate

ruling that Petitioner had not established that he merits discretionary relief, because

the BIA did not address that issue.

III. DISCUSSION

To be eligible for cancellation of removal, Petitioner bears the burden of

showing that he “has been a person of good moral character” for a “continuous period

of not less than 10 years immediately preceding the date of [his] application.”

8 U.S.C § 1229b(b)(1)(A)–(B); see also Garcia v. Holder, 584 F.3d 1288, 1289–90

(10th Cir. 2009) (alien has burden of persuasion). Petitioner filed his application for

cancellation of removal in October 2017. For reasons that we need not explore here,

the BIA has read the statutory language “date of . . . application” to mean the date of

“the issuance of an administratively final decision.” Ortega-Cabrera, 23 I. & N. Dec.

793, 797 (B.I.A. 2005); see also Orellana v. Bondi, 141 F.4th 560, 567 (4th Cir.

5 Appellate Case: 24-9522 Document: 41-1 Date Filed: 11/17/2025 Page: 6

2025) (“Petitioner was required to maintain good moral character and remain worthy

of a favorable exercise of discretion until a final decision issued in his case, whether

from an IJ or following an appeal to the BIA.”). But regardless of whether the end

date of the applicable ten-year period was Petitioner’s application in 2017 or the date

of the IJ order in 2019 or the 2024 dismissal by the BIA, the analysis is the same for

our purposes. Neither party disputes that Petitioner’s 2016 DUI arrest occurred

within the statutory good-moral-character period. The dispute concerns only the

relevance of his three prior DUI convictions from 1995 and 1996, which predated the

statutory period.

Petitioner argues that the BIA improperly relied on his DUI convictions from

more than 20 years ago. We are not persuaded.

To begin with, the BIA’s opinion on its face answers the proper question,

saying that Petitioner “has not established that he has been a person of good moral

character for the requisite time period.” A.R. at 3. The Board explained that

Petitioner “has a criminal history which includes a 2017 conviction for [DUI], his

fourth such offense.” Id. It explicitly recognized that his “other DUI offenses

occurred in 1995 and 1996, well outside of the relevant good moral character period.”

Id. And in explaining why Petitioner’s positive equities do not establish good moral

character, the BIA relied on only one negative factor: “his 2017 DUI conviction,”

declaring that the DUI “does not represent a ‘single lapse’ in judgment, but rather is

recidivist in nature.” Id. The Board agreed with the IJ that “the seriousness and repeat

6 Appellate Case: 24-9522 Document: 41-1 Date Filed: 11/17/2025 Page: 7

nature of [Petitioner’s] offense [not offenses] outweigh his positive equities.” Id.

(emphasis added). That singular “offense” was his 2016 DUI violation.

The IJ’s reasoning was essentially the same as that of the BIA. He

acknowledged that Petitioner’s earlier DUIs “fall outside the purview of the ten-year

period for good moral character.” A.R. at 56. But the IJ recognized that he was

“tasked with assessing [Petitioner’s] moral character against ‘the generally accepted

moral conventions’ of the community.” Id. (quoting Castillo-Perez, 27 I. & N. Dec.

664, 667 (2019) (quoting United States v. Francioso, 164 F.2d 163, 163 (2d Cir.

1947) (L. Hand, J.))); see Good Moral Character, Black’s Law Dictionary 833 (12th

ed. 2024) (defining good moral character as a “pattern of behavior that is consistent

with the community’s current ethical standards and that shows an absence of deceit

or morally reprehensible conduct”). And applying that standard, the IJ said that he

could not view Petitioner’s “2017 DUI conviction in isolation of his three prior

convictions for the same offense.” A.R. at 56. To do so “would ignore the widely

recognized relationship between recidivist behavior and one’s moral character.” Id.

Petitioner responds that “[t]he statutory period for good moral character

determinations is 10 years” and “precedent does not provide exceptions to this

limitation broad enough to encompass . . . convictions from twenty years before the

hearing date.” Aplt. Br. at 10 (emphasis omitted); see also Aplt. Reply Br. at 8

(“Precedent dictates that the [BIA] may only look at convictions within the good

moral character period to make its determination.” (emphasis omitted)). That

argument has some appeal. But Petitioner provides no support in the caselaw for his

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treatment of recidivist convictions. At most, he attempts to distinguish two cases

cited by the IJ: Castillo-Perez, 27 I. & N. Dec. 664 (Att’y Gen. 2019) and Siniauskas,

27 I. & N. Dec. 207 (B.I.A. 2018). But even if these cases can be distinguished on

their pertinent facts, neither opinion contains any suggestion contrary to the

reasoning of the BIA or IJ in this case.

What Petitioner ignores is the traditional rationale, long recognized by federal

courts, for the treatment of recidivists. The Supreme Court has made clear that an

“enhanced punishment imposed” for recidivism is not an “additional penalty for the

earlier crimes.” Witte v. United States, 515 U.S. 389, 400 (1995) (internal quotation

marks omitted). Instead, that punishment is a “stiffened penalty for the latest crime,

which is considered to be an aggravated offense because a repetitive one.” Id.

(internal quotation marks omitted). Well over a century ago, in Moore v. Missouri,

the Court explained why: “the last offense . . . is rendered more severe in

consequence of the situation into which the party had previously brought himself.”

159 U.S. 673, 677 (1895). “[T]he punishment for the second [offense] is increased,

because, by his persistence in the perpetration of crime, he has evinced a depravity,

which merits a greater punishment . . . . [R]epetition of the offense aggravates guilt.”

Id. (internal quotation marks omitted); accord United States v. Rodriguez, 553 U.S.

377, 385 (2008) (“[T]his Court consistently has sustained repeat-offender laws as

penalizing only the last offense committed by the defendant.” (original brackets and

internal quotation marks omitted)).

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This principle well explains this case. The BIA and IJ treated Petitioner’s

2017 DUI conviction so seriously because it was his fourth such conviction. In doing

so, the BIA and IJ were not reflecting on what Petitioner’s moral character had been

back in 1995 or 1996. Rather, they were saying that his moral character was bad in

2017 because he was unable to keep himself from repeating serious misconduct for

which he had been convicted.

Having determined that the BIA properly considered the recidivist nature of

Petitioner’s 2017 conviction, we need not address his arguments regarding other

conditions of eligibility.

IV. CONCLUSION

We DENY Petitioner’s Petition for Review.