The Impact of Prior Removal on Good Moral Character and Eligibility for Cancellation of Removal
Avendano-Ramirez v. Ashcroft, 365 F.3d 813, 816–19 (9th Cir. 2004).
Substance of the Case:
The case examines whether an individual previously removed under expedited removal procedures can establish “good moral character” as required to qualify for cancellation of removal under U.S. immigration law. The court reviewed the legal question of whether a statutory bar to good moral character applies to a noncitizen who seeks reentry within five years of removal.
The petitioner, an undocumented immigrant, had lived in the U.S. for over a decade and later married a lawful permanent resident. Despite having U.S.-citizen children, she faced removal due to her previous expedited removals at the border and subsequent attempt to reenter with false documents. The primary issue was whether her recent removal disqualified her from establishing the good moral character necessary for cancellation of removal.
Outcome of the Case:
- Good Moral Character Requirement:
- The statutory bar under 8 U.S.C. § 1101(f)(3) automatically disqualified the petitioner due to her expedited removal.
- The court found no ambiguity in the statute and determined that Congress intended to preclude individuals with recent removals from qualifying for cancellation of removal.
- No Discretion to Override the Statutory Bar:
- Immigration judges and the Board of Immigration Appeals (BIA) have no discretion to ignore or waive the statutory bar to good moral character.
- Collateral Attack on Expedited Removal:
- The petitioner’s argument that her expedited removal was improperly applied was rejected because the statute limits judicial review of expedited removal orders.
- Legislative Intent:
- While acknowledging the harsh consequences of the statute, the court emphasized that its role is to apply the law as written, leaving any potential corrections to Congress.
Facts of the Case
The Petitioner’s Background:
- The petitioner, an undocumented immigrant, had lived in the U.S. since 1990. She briefly returned to Mexico in 2001 to visit her sick father. Upon attempting to reenter the U.S., she was subjected to expedited removal for lacking proper documentation.
Reentry Attempts:
- She made three reentry attempts, with the last involving false documents.
- After being apprehended, she married her U.S.-citizen children’s father (a lawful permanent resident) and sought cancellation of removal based on her family ties and long residence in the U.S.
Legal Bar to Good Moral Character:
- The petitioner’s recent removal within five years triggered a statutory bar under 8 U.S.C. § 1101(f)(3), which defines certain conduct or circumstances, including expedited removal, as inconsistent with good moral character.
Analysis by the Court:
Statutory Interpretation:
- The court interpreted the plain language of 8 U.S.C. § 1101(f)(3) and 8 U.S.C. § 1182(a)(9)(A) to bar individuals removed under expedited removal within five years from establishing good moral character.
- It rejected arguments that the inclusion of expedited removals was an unintended legislative oversight.
Limitations on Judicial Review:
- The court noted that Congress explicitly restricted judicial review of expedited removal orders under 8 U.S.C. § 1252(a)(2)(A).
- It found no basis to revisit the validity of the expedited removal order itself or its application to the petitioner.
Harsh Consequences and Congressional Intent:
- The court acknowledged that the statutory framework can impose severe consequences on individuals with sympathetic circumstances, such as long-term residents with U.S.-citizen family members.
- However, it emphasized that any remedy for such outcomes lies with Congress, not the judiciary.
Conclusion:
The Ninth Circuit upheld the denial of the petitioner’s application for cancellation of removal, concluding that her prior expedited removal barred her from establishing the good moral character required by law. This case underscores the strict statutory barriers that prevent individuals with certain immigration violations from accessing discretionary relief, even when they have significant family ties in the U.S.
While the court sympathized with the petitioner’s situation, it emphasized the need to apply the law as written, leaving any potential changes to legislative action. The decision highlights the importance of understanding how prior immigration violations can limit eligibility for relief under U.S. immigration laws.
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