Gonzalez-Ruano v. Holder, Jr.

Filing

OPINION issued by Kermit V. Lipez, Appellate Judge; Kenneth F. Ripple and Jeffrey R. Howard, Appellate Judge. Published. [11-1138]

Case: 11-1138

Document: 00116284227

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Date Filed: 10/31/2011

Entry ID: 5592038

United States Court of Appeals
For the First Circuit
No. 11-1138
OTTO AMILCAR GONZALEZ-RUANO,
Petitioner,
v.
ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW FROM AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lipez, Ripple,* and Howard,
Circuit Judges.
Brian Monahan and Ross & Associates on brief for petitioner.
Tony West, Assistant Attorney General, Civil Division, David
V. Bernal, Assistant Director and Jesse M. Bless, Trial Attorney,
Office of Immigration Litigation, Civil Division, on brief for
respondent.

October 31, 2011

*

Of the Seventh Circuit, sitting by designation.

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HOWARD, Circuit Judge. Petitioner Otto Amilcar GonzalezRuano is a native and citizen of Guatemala who unlawfully entered
the

United

States

in

1989

and

has

resided

here

since.

An

Immigration Judge (IJ) rejected his request for a special rule
cancellation of removal under the Nicaraguan Adjustment and Central
American Relief Act (NACARA).

See

Pub. L. No. 105-100, § 203, 111

Stat. 2160, 2196-99, amended by Pub. L. No. 105-139, 111 Stat. 2644
(1997).

He

seeks

review

of

the

decision

of

the

Board

of

Immigration Appeals (BIA) which affirmed that adverse decision. We
deny the petition in part and dismiss the remainder for lack of
jurisdiction.
I. BACKGROUND
Enacted in 1997, NACARA amended certain provisions of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA) permitting aliens from particular countries, including
Guatemala, to seek discretionary relief under prior, more generous
statutory standards.

See Peralta v. Gonzales, 441 F.3d 23, 26-27

(1st Cir. 2006) (providing background on the enactment of NACARA);
Fieran v. INS, 268 F.3d 340, 343-44 (6th Cir. 2001) (same).

In

particular, section 203 of NACARA allows qualified aliens to apply
for either suspension of deportation or "special rule" cancellation
of removal, depending upon whether the deportation proceedings
commenced prior or subsequent to April 1, 1997.

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See

Pub. L. No.

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105-100, § 203, 111 Stat. 2160, 2196-99; 8 C.F.R. §§ 1240.64-1240.66.
The

Department

of

Homeland

Security

(DHS)

served

Gonzalez-Ruano with a Notice to Appear (NTA) in September 2007. It
charged him with being removable from the United States because he
entered this country without proper admittance.
1182(a)(6)(A)(i).

See 8 U.S.C. §

He conceded the grounds for removal and applied

for a special rule cancellation of removal under NACARA.1

See 8

C.F.R. §§ 1240.64, 1240.66. To obtain such relief, he was required
to "establish by a preponderance of the evidence" that he was both
"eligible for . . . special rule cancellation of removal and that
discretion should be exercised to grant relief."

8 C.F.R. §

1240.64(a) (emphasis added); see Pub. L. No. 105-100, § 203(b), 111
Stat. 2160, 2198.

The general eligibility requirements are a

seven-year period of continuous physical presence in the United
States with

good

moral character

(preceding the date

of

the

application), and a showing that removal would result in "extreme
hardship" to himself, or to his spouse, parent, or child who is a
United States citizen or a lawful permanent resident.
1240.66(b)(2)-(4).

8 C.F.R. §

For certain qualifying aliens, there is a

presumption that deportation or removal would result in extreme
hardship, 8 C.F.R. § 1240.64(d)(1), and the burden shifts to DHS to

1

Whether Gonzalez-Ruano met the initial prerequisites for
requesting discretionary relief under NACARA is not an issue in
this case. See Pub. L. No. 105-100, § 202, 111 Stat. 2160, 219394; 8 C.F.R. §§ 1240.60, 1240.61.
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rebut that presumption, 8 C.F.R. § 1240.64(d)(2)-(3).

Again, as

noted, in addition to proving eligibility, the applicant must also
establish that favorable discretion should be exercised.
The removal hearing was twice continued in 2008 to allow
Gonzalez-Ruano time to secure legal counsel, then scheduled to take
place in June 2009. In May 2009, Gonzalez-Ruano filed a memorandum
recounting his activities in this country, including his criminal
history, and also included legal arguments regarding the proper
standard

to

apply

to

his

relief

request.

The

memorandum

referenced, among others, three 1997 Massachusetts convictions:
one for willful and malicious destruction of property and two for
assault and battery.

Gonzalez-Ruano had pled guilty to all three

charges.
Five

days

before

the

hearing,

the

DHS

amended

the

original Notice to Appear with Form I-261, detailing new charges
based on the 1997 convictions which, the government alleged,
comprised "crime[s] involving moral turpitude".
1182(a)(2)(A)(i)(I).

Gonzalez-Ruano

admitted

See 8 U.S.C. §
to

the

fact

of

convictions, but disputed that the crimes involved moral turpitude.
The moral turpitude designation is important because an
alien convicted of such a crime must demonstrate eligibility for
NACARA "special rule" relief under a more stringent standard.
8

C.F.R.

§

1240.66(c)(1)-(4).

This

standard

of

See

eligibility

requires a ten-year period of continuous physical presence with

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good moral character (calculated from the date of the commission of
an act or the assumption of a status constituting a ground for
removal), and a greater degree of hardship, "exceptional and
extremely

unusual"

1240.66(c)(2)-(4).

rather

than

"extreme."

See

8

C.F.R.

§

Also, such applicant loses the benefit of the

presumption under the hardship prong.

See 8 C.F.R. § 1240.64(d).

In

under

addition

requirements,

to

proving

the

eligibility

applicant

still

must

the

also

more

stringent

establish

discretion should be exercised to grant relief."

"that

8 C.F.R. §

1240.64(a).
At

the

hearing,

Gonzalez-Ruano

testified

about

his

tumultuous relationships with his purportedly unfaithful first wife
and his allegedly unstable second wife.2

Regarding his first wife,

he recalled an incident in which he approached her car (despite the
existence of a restraining order) and attacked a male passenger.
On another occasion, he again approached her car in violation of a
restraining order, reached in and slapped her.

When she attempted

to drive away he held onto the vehicle door, causing damage.

He

also admitted to following his first wife on numerous occasions
despite a court order directing him to stay away from her.

The

couple divorced in 2002.

2

Gonzalez-Ruano testified that his first wife began having
an intimate affair with another man, and eventually their marriage
failed.
He also testified that his second wife became violent
towards him, and the testimony of his sister and brother recounted
the second wife's alleged instability.
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His marriage to his second wife bears similar marks. She
secured restraining orders against him as well, and Gonzalez-Ruano
admitted

to

disturbances.

multiple

arrests

as

a

result

of

some

domestic

At the time of the hearing, he was estranged from,

though still married to, his second wife.

In short, his conduct

during his marriages gave rise to several arrests and police
incident

reports,

criminal

convictions,

and

violations

of

protective orders. Over the years, he also committed various motor
vehicle and traffic violations.

At the time of the IJ proceeding,

Gonzalez-Ruano had an abuse prevention order in place against him,
and he faced three state criminal charges, including assault and
battery

with

a

dangerous

weapon,

breaking

and

entering,

and

assault.
Testimony established that in this country Gonzalez-Ruano
has lived with his brother and sister and their families.
not have children of his own.

He does

He expressed concern to the IJ about

his ability to find work in his homeland due to his age, then 54,
and to obtain needed medication in the event he is repatriated.
While his parents live in Guatemala, they are elderly and GonzalezRuano owns no property there.
Concluding that the conviction for malicious destruction
of property qualified as a crime involving moral turpitude, the IJ
applied the more stringent eligibility standard under NACARA.

The

IJ then determined that Gonzalez-Ruano failed to establish the good

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moral character and hardship requisites for eligibility, thus
dooming his request for relief.

Alternatively, the IJ found that

Gonzalez-Ruano did not warrant a favorable exercise of discretion,
citing his "long and troubling criminal history, marked by his
repeated and continuous mistreatment of his spouses." Finally, the
IJ rejected a challenge to the propriety of the timing of Form I261 which supplemented the NTA.
Gonzalez-Ruano appealed to the BIA, which affirmed the
IJ's decision.
destruction

of

It ruled that the Massachusetts crime of malicious
property

categorically

qualified

as

a

crime

involving moral turpitude, and thus the IJ was correct to apply the
more

stringent

standard

for

eligibility.

The

BIA,

however,

concluded that it did not need to reach the remaining eligibility
factors relating to character and hardship, because it adopted the
IJ's reasoning that Gonzalez-Ruano did not warrant a favorable
exercise of discretion.

It also ruled that the purportedly late

filing of Form I-261 did not cause prejudice, and that GonzalezRuano failed to preserve certain arguments before the IJ relative
to the status of his Massachusetts crimes (and alternatively ruled
that such arguments lacked merit).

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This petition followed.

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II. ANALYSIS
Our authority to review the BIA's decision in this case
is significantly circumscribed.

Review of a decision invoking

special rule cancellation of removal under NACARA is subject to the
jurisdiction-stripping provision codified at 8 U.S.C. § 1252.

See

Pub. L. 105-100, § 203(b), 111 Stat. 2160, 2198; see also Blandon
v. United States, No. 11-10206, 2011 WL 3903408, at *1 (11th Cir.
Sept. 7, 2011); Argueta v. Holder, 617 F.3d 109, 111-12 (2d Cir.
2010); Cruz Agustin v. U.S. Att'y Gen., No. 09-4073, 2011 WL
1798070, at *1

(3d Cir. May 12, 2011); Yat v. Holder, 341 F. App'x

990, 991 (5th Cir. 2009); Castro-Saravia v. Ashcroft, 122 F. App'x
303, 304 (9th Cir. 2004). That provision divests federal courts of
jurisdiction to review "any judgment regarding the granting of
relief" relative to cancellation of removal, 8 U.S.C. § 1229b. See
8 U.S.C. § 1252(a)(2)(B)(i).

We do, however, have jurisdiction to

consider constitutional claims and questions of law raised in the
petition.

8 U.S.C. § 1252(a)(2)(D).

Consequently, we cannot

review discretionary determinations regarding requests for special
rule

cancellation

of

constitutional error.

removal

under

NACARA,

absent

legal

or

See, e.g., Argueta, 617 F.3d at 111-12

(decided in the NACARA context); cf. Cruz-Camey v. Gonzales, 504
F.3d 28, 29 (1st Cir. 2007) (holding that the "Attorney General has
the

discretion

to

cancel

removal,

and

absent

any

colorable

constitutional issue or question of law, [federal courts] lack

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jurisdiction

to

review

Page: 9

the

.

.

Date Filed: 10/31/2011

.

exercise

vel

non

Entry ID: 5592038

of

that

discretion"); Elysee v. Gonzales, 437 F.3d 221, 223 (1st Cir. 2006)
(same).
On appeal, Gonzalez-Ruano argues that the merits decision
denying him relief is tainted by errors of law and that his due
process rights were violated. Many of his specific claims of error
relate solely to his eligibility for relief (including the factors
of good moral character and hardship). See 8 C.F.R. § 1240.64(a).
As noted, however, while the BIA rendered a ruling relating to that
prong -- the moral turpitude analysis -- it went no further and
ultimately affirmed the IJ's decision on the alternative and
independent basis that Gonzalez-Ruano did not warrant a favorable
exercise of discretion.
the

IJ's

See id.

discretionary

exclusively

focus

on

discretionary prong.3

We lack jurisdiction to review

decision

claims

of

denying

legal

relief

error

and,

relative

to

thus,
that

See Berrio-Barrera v. Gonzales, 460 F.3d

163, 167 (noting that where BIA adopts IJ's findings and rulings,
federal court treats IJ decision as that of the BIA).
Gonzalez-Ruano's

constitutional

claim

attacks

the

propriety of the timing of Form I-261 which alleged that the 1997

3

We need not consider Gonzalez-Ruano's additional argument
that the time lapse between the 1997 convictions and the final
decision of the BIA requires that we remand the matter for further
proceedings relative to the good moral character inquiry. This
inquiry is strictly tied to Gonzalez-Ruano's potential eligibility
for relief, which is not a live issue given that this case turns on
the BIA's independent discretionary ground for denying relief.
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convictions constituted crimes involving moral turpitude.
assuming

that

this

claim

is

colorably

related

to

the

Even
BIA's

discretionary decision, we conclude that no due process violation
occurred. Gonzalez-Ruano asserts that DHS's "eleventh hour" filing
of the additional charges was "fundamentally unfair."

He does not

dispute the government's ability to amend the charges, nor does he
have any reasonable basis to do so.

See 8 C.F.R. § 1240.10(e);

accord 8 C.F.R. § 1003.30; see also De Faria v. I.N.S., 13 F.3d
422, 424 (1st Cir. 1993) (per curiam).

Rather, he contends that

the timing of Form I-261 failed to provide him with "reasonable
notice" and, thus, deprived him of his right to a fair and full
hearing and sufficient opportunity to prepare his defense against
the new charges.

We disagree.

The BIA determined that the legal memorandum GonzalezRuano filed the month preceding the hearing aptly displayed his
awareness

of

both

his

criminal

record

and

of

its

potential

consequences in advance of the DHS lodging the amended charges.
The record bears out this conclusion.

Indeed, the supplemental

charges directly mirrored information Gonzalez-Ruano provided in
that document. The BIA also correctly observed that the IJ offered
to continue the June 9 hearing, but Gonzalez-Ruano elected to
proceed.

Accordingly, the claim of unreasonable notice depriving

him of an opportunity to meet the new charges rings hollow.

See

Magasouba v. Mukasey, 543 F.3d 13, 16 (1st Cir. 2008) (rejecting

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claim of unreasonable notice due to filing of amended charge).
Next, Gonzalez-Ruano sets forth two claims of legal error
which arguably relate to the BIA's decision that he did not warrant
a favorable exercise of discretion.

We briefly address each in

turn.
First, Gonzalez-Ruano contends that the disposition of
the malicious destruction of property charge does not qualify as a
"conviction," because the Massachusetts court did not impose a
"punishment,

penalty,

or

restraint

on

liberty."

8

U.S.C.

§

1101(a)(48)(A). He raised this same argument before the BIA, which
ruled that he had failed to preserve it during the IJ proceedings.
See 8 U.S.C. § 1252(d)(1); Makhoul v. Ashcroft, 387 F.3d 75, 80
(1st Cir. 2004) (alien's argument not raised before IJ is not
preserved for appellate review).

Yet, here, Gonzalez-Ruano makes

no effort to challenge the BIA's ruling on preservation.

In any

event, we conclude that his argument rests on faulty premises. The
statutory language he relies upon applies only when "adjudication
of guilt has been withheld."

8 U.S.C. § 1101(a)(48)(A).

Yet, the

record plainly shows that Gonzalez-Ruano was convicted of the
charged crime, via his guilty plea, and that the Massachusetts
court ordered probation and restitution with the amount to be
determined in a later proceeding.
readily distinguishable.

The single case he cites is

See De Vega v. Gonzales, 503 F.3d 45, 47

(1st Cir. 2007) (alien admitted to facts sufficient for a finding

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of guilt and court issued a continuance without a finding of guilt,
contingent on payment of restitution).

This argument warrants no

further attention.
We also quickly dispose of the second claim of legal
error.

Gonzalez-Ruano contends that the BIA erred in finding his

argument challenging the legitimacy of his state court convictions
also was not preserved for its review.

Again, he makes no attempt

to identify how this argument was preserved before the IJ.
Moreover,

the

BIA

alternatively

rejected

the

merits

of

his

argument, yet he makes no effort to demonstrate how the BIA's
analysis is erroneous.
(1st

Cir.

1992)

See Gouveia v. I.N.S., 980 F.2d 814, 817

(criminal

convictions

attacked during immigration proceedings).

cannot

be

collaterally

Finally, his convoluted

argument rests on the premise that the BIA did not address his due
process claim.

This foundation plainly fails because the BIA

properly rejected the due process claim.
In the end, Gonzalez-Ruano has failed to demonstrate that
the BIA's discretionary decision was tainted with constitutional or
legal error. In rendering its decision that Gonzalez-Ruano did not
warrant a favorable exercise of discretion, the BIA fully adopted
the reasoning of the IJ. The discretionary decision to deny relief
was based on Gonzalez-Ruano's convictions for assaulting his former
wife and maliciously damaging her personal property, incidents
resulting in arrests and multiple violations of protective orders

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relating to both his former and current spouses, his own admission
of stalking his former wife on multiple occasions, and a thencurrent abuse prevention order.

These facts were considered in

light of Gonzalez-Ruano's testimony regarding his first wife's
alleged infidelity and his second wife's purported battle with
depression and behavioral issues.
determined

that

Gonzalez-Ruano's

Ultimately, the IJ and BIA
criminal

history

and

conduct

during his marriages displayed numerous substantial adverse factors
which outweighed any favorable factors, causing them to decline to
extend him discretionary favor.

We lack jurisdiction to review

this decision.
III. CONCLUSION
For the foregoing reasons, we deny the petition in part
and dismiss it in part for lack of jurisdiction.

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