Nimrod Hernandez-Hernandez v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 17, 2018
• Docket: 17-15289
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]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

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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

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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

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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.

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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.