Practice Pointer1 Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019) March 25, 2020 I. Introduction In Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019), the attorney general held that two or more convictions for driving under the influence (DUI)2 during the qualifying time period presumptively bar an applicant for non-lawful permanent resident cancellation of removal (“non- LPR cancellation”) from proving good moral character under section § 101(f) of the Immigration and Nationality Act (INA). Applicants with such convictions now face a rebuttable presumption that they lack good moral character. This is the first time since 2005 that the Board of Immigration Appeals (BIA) or the attorney general has issued a precedential decision on the good moral character requirement of non-LPR cancellation of removal.3 This practice pointer provides a background on Castillo-Perez, explains the good moral character requirement of non-LPR cancellation, and clarifies the practical implications of the decision. The practice pointer also suggests arguments limiting the decision’s scope and highlights some pitfalls in the attorney general’s reasoning that could be raised on appeal. 1 Copyright © 2020, the National Immigration Project of the National Lawyers Guild and the Catholic Legal Immigration Network, Inc. (CLINIC). This advisory is intended for authorized legal counsel and is not a substitute for independent legal advice provided by legal counsel familiar with a client’s case. Counsel should independently confirm whether the law in their circuit has changed since the date of this advisory. The authors of this practice pointer are Khaled Alrabe, NIPNLG Staff Attorney; Cristina Velez, NIPNLG Senior Staff Attorney; and Michelle N. Mendez, Director of the Defending Vulnerable Populations Program at CLINIC. The authors would like to thank the following individuals for their invaluable contributions to this advisory: Katherine M. Lewis, CLINIC’s Defending Vulnerable Populations Consulting Attorney; Aimee Mayer-Salins, CLINIC’s Defending Vulnerable Populations Staff Attorney; CLINIC’s Victoria Neilson, Defending Vulnerable Populations Managing Attorney; Rebecca Scholtz, CLINIC’s Defending Vulnerable Populations Senior Attorney; Denise Slavin, retired U.S. Immigration Judge. 2 Per footnote 1 of the decision, Castillo-Perez also pertains to other, similar types of convictions under state law like operating under the influence and driving while impaired, but does not apply to lesser included offenses that do not require proof of impairment, such as negligent driving. 3 See Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA 2005). 1 II. Matter of Castillo-Perez On December 3, 2018, then Acting Attorney General Matthew Whitaker directed the Board of Immigration Appeals (BIA) to refer to him for review an unpublished BIA decision that had found the respondent ineligible for non-LPR cancellation based in part on failure to show good moral character.4 On October 25, 2019, Attorney General William Barr issued Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019), holding as follows: 1. The INA’s “good moral character” standard requires adherence to the generally accepted moral conventions of the community, and criminal activity is probative of non-adherence to those conventions. 2. Evidence of two or more convictions for driving under the influence during the relevant period establishes a rebuttable presumption that a noncitizen lacks good moral character under INA § 101(f). 3. Because only noncitizens who possessed good moral character for a ten-year period are eligible for cancellation of removal under section 240A(b) of the INA, such evidence also presumptively establishes that the noncitizen’s application for that discretionary relief should be denied. III. Good Moral Character Requirement for Non-LPR Cancellation of Removal Section 240A(b)(1) of the INA requires that an applicant for non-LPR cancellation demonstrate that he or she is a “person of good moral character” during the period “not less than ten years immediately preceding the date of such application.”5 The ten-year period needed for good moral character is calculated backward from the date on which the application finally is resolved by the immigration judge (IJ) or BIA.6 The INA does not define good moral character. Instead, it describes conduct or convictions that establish a lack of good moral character. An applicant for non-LPR cancellation cannot establish good moral character if he or she falls into one of the categories listed in INA § 101(f). Most of the categories refer to conduct or convictions that occurred during the ten-year period while a couple of categories refer to conduct or offenses that have happened at any time in the non-LPR cancellation applicant’s history. 4 Matter of Castillo-Perez, 27 I&N Dec. 495 (A.G. 2018). 5 INA § 240A(b)(1). 6 Matter of Ortega-Cabrera, 23 I&N Dec. 793, 798 (BIA 2005). Note that the calculation of the ten years for good moral character differs from the continuous physical presence calculation. For more information on non-LPR cancellation generally see ILRC, Non-LPR Cancellation of Removal (2018), https://www.ilrc.org/ sites/default/files/resources/non_lpr_cancel_remov-20180606.pdf; CLINIC, Practice Advisory: Non-Lawful Permanent Resident Cancellation of Removal Under INA § 240A(b) for DACA Recipients (2018), https://cliniclegal. org/resources/removal-proceedings/practice-advisory-non-lawful-permanent-resident-cancellation-removal. 2 The INA § 101(f) bars to establishing good moral character within the ten-year period include anyone who is or was within that period: • a habitual drunkard (INA § 101(f)(1)), • convicted of, or admitted to committing the elements of,7 a crime that would make him or her inadmissible (whether or not the individual is found to be inadmissible), pursuant to INA § 212(a)(2)(A) [crime involving moral turpitude (CIMT)8 or controlled substance violation9], (B) [conviction for two or more offenses with an aggregate sentence of five years or more], (C) [controlled substance traffickers and certain family members thereof], (D) [prostitution and unlawful commercialized vice] (INA § 101(f)(3), • engaged in “alien smuggling” as described in INA § 212(a)(6)(E) (whether or not found to be inadmissible) (INA § 101(f)(3), • coming to the United States to practice polygamy as described in INA § 212(a)(10)(A) (INA § 101(f)(3)), • an individual whose income is derived principally from illegal gambling activities (INA § 101(f)(4)), 7 To determine whether there must be conviction or the exact evidentiary standard, practitioners should consult the statute. For example, an individual who admits to having committed a crime of moral turpitude is inadmissible for conviction of a crime of moral turpitude under section 212(a)(2)(A), but there are rigid evidentiary requirements for such a finding. See Matter of K-, 7 I&N Dec. 594, 597-98 (BIA 1957) (stating that to sustain a ground of deportation under section 241(a)(1) of the INA, based on excludability under section 212(a)(9) as one who admits acts constituting the essential elements of a crime involving moral turpitude, the noncitizen must have admitted all the elements of the crime involved and must have been furnished a definition of the offense in understandable terms, and similarly, where the charge is based on admission of the commission of a crime involving moral turpitude, an adequate definition must be provided and all the elements of the offense, in addition to the legal conclusion, must be admitted); Matter of G-M-, 7 I&N Dec. 40 (BIA 1955) (holding that to sustain a finding of inadmissibility as one who has admitted acts constituting the essential elements of a crime involving moral turpitude, the noncitizen must have admitted all the elements of the crime involved and must have been furnished with a definition of the crime in comprehensible terms); see also 9 FAM 302.3-2(B)(4)(U) (explaining what constitutes a legally valid admission for purposes of INA § 212(a)(2)(A)); USCIS, Policy Manual, vol. 12, Part F, Ch. 2 § E, https://www.uscis.gov/policy- manual/volume-12-part-f-chapter-2#S-E. 8 Individuals who fall within the CIMT petty offense or juvenile offender exception found at INA § 212(a)(2)(A)(ii) would not be inadmissible and thus would not have a good moral character bar. However, while individuals with these convictions may not have a good moral character bar, they are likely to be barred from non-LPR cancellation eligibility if their conviction is a CIMT offense with a maximum potential sentence of 365 days or more. See INA § 240A(b)(1)(C) (providing that non-LPR cancellation of removal is available only if the applicant “has not been convicted of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3)”); Matter of Cortez, 25 I&N Dec. 301 (BIA 2010); Matter of Ortega-Lopez, 27 I&N Dec. 382, 397 (BIA 2018). 9 For good moral character purposes, there is one exception to the controlled substance offense ground found at INA § 212(a)(2)(A) for a single offense of simple possession of 30 grams or less of marijuana. However, a non-LPR cancellation applicant would likely still be barred even for a conviction for simple possession of 30 grams or less of marijuana pursuant to the criminal convictions bar of INA § 240A(b)(1)(C). 3 • an individual who has been convicted of two or more gambling offenses (INA § 101(f)(5)), • an individual who has given false testimony for the purpose of obtaining any benefits under the INA (INA § 101(f)(6)), or • an individual who has been confined, as a result of a conviction, to a penal institution for an aggregate period of 180 days or more, regardless of whether the offense or offenses for which they have been confined were committed within or outside the required period (INA § 101(f)(7)).