On October 25, 2019, Attorney General (AG) William Barr issued a decision in a case previously decided by the Board of Immigration Appeals (BIA or Board). On December 3, 2018, Acting AG Matthew Whitaker had directed the BIA to refer the case to him for review. As background, the Immigration Judge (IJ) had granted Respondent’s application for cancellation of removal under INA §240A(b), a form of relief that requires the applicant to show that removal would result in exceptional and extremely unusual hardship to his family and, among other things, that he had been a “person of good moral character” for the 10 years preceding the application – despite Respondent’s multiple convictions for driving under the influence (DUI) and other criminal history. On appeal, the Board vacated the IJ’s ruling and ordered Respondent removed to Mexico. Acting AG Whitaker subsequently directed the BIA to refer the matter to him, inviting the parties and interested amici to brief relevant issues, including the correct standard for assessing good moral character under the INA and the impact of multiple DUI convictions on whether one should be granted cancellation. Matter of Castillo-Perez 27 I&N Dec. 495 (A.G. 2018). AG Barr affirmed the Board’s order in this subsequent decision.
In essence, the AG concluded that, when assessing good moral character under INA §101(f), evidence of two or more DUI convictions during the relevant period establishes a rebuttable presumption that a respondent lacked good moral character during that time. Because the IJ can only cancel removal for an applicant who has been a person of good moral character (GMC) during the 10-year period described in INA §240A(b), the AG held that such evidence also presumptively establishes that one is not eligible for this relief. In the instant case, found AG Barr, because the evidence of Respondent’s efforts to rehabilitate himself is insufficient to overcome this presumption, the BIA correctly overturned the IJ’s grant of cancellation of removal.
Early in his analysis, the AG noted that the INA does not specially define what “good moral character” is – but quite explicitly states what it is not. He then discussed INA §101(f), which provides 8 categories of persons who shall not be regarded as, or found to be, of GMC during the period for which GMC is required to be established; the provision’s so-called “catch-all clause”, stated AG Barr, means that one need not to be within any of the 8 classes listed to be found for other reasons not to be of good moral character.
The AG went on to describe Respondent’s extensive criminal record: arrested twice for assault and battery on his wife, charged with public drunkenness, convicted of negligent driving, and convicted of DUI in 2010 and 2012. Respondent stopped drinking and completed an alcohol-safety program after the 2nd DUI and, found AG Barr, still regularly attends Alcoholics Anonymous meetings. But DHS had initiated proceedings in 2010; Respondent applied for cancellation, which the IJ granted in 2016, concluding he had proven GMC. But the Board held Respondent had failed to establish that his removal would result in the requisite “exceptional and extremely unusual hardship” to a qualifying relative. The BIA concluded that, in the alternative, Respondent had not demonstrated GMC and did not warrant relief in the exercise of discretion.
In this vein, AG Barr found that cancellation is “a coveted and scarce form of relief”, limited to 4000 applicants per year. He went on to note that multiple DUI conviction during the statutory period are strong evidence that one lacks GMC during that time and “is thus not eligible for cancellation of removal”. And, setting GMC aside, concluded the opinion, one with multiple DUI convictions would likely be denied cancellation as “a purely discretionary matter.” Although there is no inflexible standard regarding who should be granted relief as a matter of discretion, held the AG, the BIA has listed an array of factors to be considered in deciding whether to grant discretionary relief like cancellation; one’s criminal record – including its nature, recency, and seriousness – is a key factor and more serious misconduct weighs more heavily against the exercise of discretion than does less serious misconduct.
AG Barr went on to explain that multiple DUI convictions during the relevant period are “strong evidence” that one is not a person of GMC and is thus ineligible for cancellation. But he explicitly did not hold that such convictions are conclusive evidence; one might, he stated, prove that the convictions were an aberration and establish GMC. However, to do so, a respondent “must show that he had good moral character even during the period within which he committed the DUI offenses.” Thus, absent “substantial relevant and credible contrary evidence”, multiple DUI convictions require the IJ to deny cancellation. This rebuttable presumption, concluded the AG, similar to those regularly employed by the BIA, will serve to promote the consistent application of the immigration laws. Under these principles, the Board was right to hold that Respondent’s criminal record, along with his “longstanding alcohol abuse and negative immigration history” foreclosed his establishment of the GMC required for cancellation of removal. The BIA’s decision was therefore affirmed. Matter of Castillo-Perez, 27 I&N Dec.664 (A.G. 2019).
