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The Ninth Circuit held that INA § 101(f)(7) (8 U.S.C. § 1101(f)(7)), which establishes an irrebuttable presumption that an individual lacks good moral character if he has been incarcerated for an aggregate period of 180 days or more during the relevant period, is constitutional.

The petitioner in this case served approximately 8 months in prison for vehicular manslaughter. As a result, the IJ found that he lacked good moral character under § 101(f)(7) and therefore denied his applications for cancellation of removal and voluntary departure. The petitioner argued that § 101(f)(7) is unconstitutional because Congress may not use length of time served in custody as a proxy for seriousness and must instead specify the criminal offenses which trigger the presumption that an individual lacks good moral character. The court applied rational-basis review and rejected the argument. The court agreed that § 101(f)(7) might produce disparate outcomes based on variations in state sentencing schemes and might prove over- or under-inclusive in individual cases but held that it was nevertheless rational for Congress to conclude that most aliens who have been convicted of crimes serious enough to warrant 6 months of imprisonment will lack good moral character.

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The Ninth Circuit held that an aggravated felony conviction entered on or after November 29, 1990, permanently prohibits a permanent resident from establishing good moral character for naturalization, even if an immigration judge has granted 212(c) relief from removal. The applicant for naturalization here had been convicted in 1991 of assault with intent to commit rape in violation of section 220 of the California Penal Code.

The Ninth Circuit rejected the argument that the Supreme Court's decision INS v. St. Cyr prohibited the attachment of that new penalty to an offense that was not defined as an aggravated felony at the time of conviction. It reasoned that, unlike removal proceedings where the government must prove removability, in naturalization proceedings the applicant bears the burden of establishing eligibility and no potential applicant could have a settled expectation that a conviction for assault with intent to commit rape would not affect the requirement of proving good moral character.

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The Board of Immigration Appeals held that INA § 101(a)(13)(C)(v) only exempts returning permanent residents with an inadmissible conviction from being considered to be seeking admission after travel abroad. It does not prevent the conviction from making the noncitizen inadmissible to re-adjust status to permanent residence if the noncitizen is later put in removal proceedings on another basis and needs to qualify for relief from removal.

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The Ninth Circuit upheld the denial of relief from removal for lack of good moral character The immigration judge and BIA found the applicant lacked good moral character because he had 7 or 8 DUI convictions spanning 23 years, including one that resulted in an 8 month prison sentence immediately before he was put in removal proceedings. He also continued to drive without a license even after he was put in proceedings.

The applicant was seeking registry, a form of relief for persons who have continuously resided in the U.S. since before 1972 and who have good moral character and no disqualifying acts. The court found that the immigration judge properly considered past conduct to determine the applicant's current character, even though registry does not require good moral character for a specified period of time.

Given the egregious facts of this case, the outcome was not surprising. The opinion is significant only because the Ninth Circuit found jurisdiction to review the good moral character finding at all. The Act prohibits judicial review of discretionary decisions specified to be in the authority of the Attorney General. The ultimate decision to grant registry is specified to be in the AG's discretion, but the underlying decision regarding whether good moral character exists is not. Thus, the court found it could review that determination.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2011/11/07/06-71680.pdf

The Supreme Court granted cert to review the Ninth Circuit's line of precedent that imputes the residence of parents to their minor children for purposes of the 7 years required for LPR cancellation of removal.  The two cases are consolidated.

The dockets are available at:

http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-1542.htm

http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-1543.htm

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