Gerardo Romero-Ochoa v. Eric H. Holder Jr.

Filing

FILED OPINION (MARSHA S. BERZON, PAUL J. WATFORD and JED S. RAKOFF) DENIED. Judge: PJW Authoring, FILED AND ENTERED JUDGMENT. [8583970]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

GERARDO ROMERO -OCHOA ,
Petitioner,

No. 08-74277

v.

Agency No.
A075-660-365

ERIC H. HOLDER, JR., Attorney
General,
Respondent.

OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 15, 2013—Pasadena, California
Filed April 10, 2013
Before: Marsha S. Berzon and Paul J. Watford, Circuit
Judges, and Jed S. Rakoff, Senior District Judge.*
Opinion by Judge Watford

*

The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.

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ROMERO -OCHOA V . HOLDER
SUMMARY**

Immigration
The panel denied Gerardo Romero-Ochoa’s petition for
review of the Board of Immigration Appeals’ decision finding
him ineligible for cancellation of removal for failure to
demonstrate good moral character, due to his conviction and
period of incarceration for vehicular manslaughter.
The panel held that plausible reasons support 8 U.S.C.
§ 1101(f)(7)’s conclusive presumption that an individual
lacks good moral character based on a period of incarceration,
rather than on the nature of the criminal conduct, and that
Congress rationally concluded that most aliens convicted of
crimes warranting at least six months of incarceration lack the
good moral character to warrant discretionary relief from
removal. The panel also held that § 1101(f)(7)’s reliance on
periods of incarceration generated by state sentencing
regimes that are not uniform in operation did not violate
equal protection principles.

COUNSEL
Susan E. Hill (argued), Hill, Piibe & Villegas, Los Angeles,
California, for Petitioner.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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John W. Blakeley (argued), Senior Litigation Counsel; Tony
West, Assistant Attorney General; Leslie McKay, Assistant
Director, United States Department of Justice, Civil Division,
Washington, D.C., for Respondent.

OPINION
WATFORD, Circuit Judge:
Gerardo Romero-Ochoa is a native and citizen of Mexico
who first came to the United States in 1973, when he was
roughly 18 years old. His wife is a lawful permanent resident
of the United States, and three of his five children are U.S.
citizens. Mr. Romero’s mother is a lawful permanent resident
of the United States and his younger brother is a U.S. citizen
as well.
But Mr. Romero is not a lawful permanent resident; in the
eyes of the immigration laws, he is an “alien present in the
United States without being admitted or paroled,” and is thus
subject to removal. 8 U.S.C. § 1182(a)(6)(A)(i). In 2005, the
government initiated removal proceedings against him,
prompted by his then-recent 2004 conviction for vehicular
manslaughter. Mr. Romero pleaded guilty to killing a person
while unlawfully driving under the influence of alcohol in
violation of California Penal Code § 192(c). He received a
sentence of 16 months in prison and served approximately
half of that time in custody.
Mr. Romero conceded removability and filed an
application for cancellation of removal or, in the alternative,
for voluntary departure. To be eligible for such relief, Mr.
Romero had to show, among other things, that he is a person

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of “good moral character” and was so during the 10-year
period immediately preceding his application (or, in the case
of voluntary departure, the 5-year period immediately
preceding his application). 8 U.S.C. §§ 1229b(b)(1),
1229c(b)(1).
The immigration judge presiding over Mr. Romero’s
removal proceedings held that he is statutorily ineligible for
relief because he cannot meet the good moral character
requirement. Congress has not explicitly defined what it
means to have “good moral character,” but it has established
eight categories of individuals who are conclusively
presumed to lack good moral character. See 8 U.S.C.
§ 1101(f). Mr. Romero falls within one such category:
individuals who have been “confined, as the result of
conviction, to a penal institution for an aggregate period of
one hundred and eighty days or more” during the period for
which good moral character must be shown. Id. § 1101(f)(7).
Because Mr. Romero was imprisoned for more than 180 days
during the relevant time period (as a result of his vehicular
manslaughter conviction), he is conclusively presumed to
lack good moral character. The immigration judge denied
Mr. Romero cancellation of removal and voluntary departure
on that basis, and the Board of Immigration Appeals
affirmed.
Mr. Romero does not dispute that 8 U.S.C. § 1101(f)(7)
precludes him from establishing eligibility for cancellation of
removal or voluntary departure. But he asks us to declare
§ 1101(f)(7) facially unconstitutional on the ground that it
violates the equal protection component of the Fifth
Amendment’s Due Process Clause. (Mr. Romero also attacks
§ 1101(f)(7) under the rubric of “substantive due process,”
but he does not advance any independent arguments for

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invalidation under that theory.) In Mr. Romero’s view, the
constitutional vice of § 1101(f)(7) is that it conclusively
presumes an individual to lack good moral character based
solely on the length of time served in prison, rather than on
the nature of the underlying criminal conduct. Given the
wide variation in sentences imposed by different States for
the same criminal conduct, Mr. Romero argues, § 1101(f)(7)
allows disparate treatment of similarly situated individuals in
violation of equal protection principles.
Before explaining why we reject this challenge, it is
helpful to isolate the narrow pivot of Mr. Romero’s argument.
He does not contest Congress’s authority to order the removal
of those present in this country unlawfully, nor Congress’s
judgment that leniency should be extended to certain classes
of removable aliens but not others—for example, by offering
discretionary forms of relief like cancellation of removal and
voluntary departure only to those who can show good moral
character. See Fiallo v. Bell, 430 U.S. 787, 798 (1977) (such
policy judgments are reserved to the political branches alone).
Nor does he contest Congress’s authority to declare that those
who have committed sufficiently serious crimes are
conclusively presumed to lack good moral character. Mr.
Romero’s sole contention is that, in deciding which crimes
are sufficiently serious to warrant that presumption, Congress
may not use the length of time served in custody as a proxy
for seriousness. Instead, Mr. Romero argues, Congress must
use conduct-based classifications, as it has elsewhere in
§ 1101(f), by specifying the particular criminal offenses
which trigger the conclusive presumption that an individual
lacks good moral character. See 8 U.S.C. § 1101(f)(3), (8),
(9).

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Our task in evaluating the constitutionality of Congress’s
chosen method of designating offenses that render an alien
ineligible for relief is a limited one. The sentence-based
classification drawn by § 1101(f)(7) does not implicate a
fundamental right or target a suspect class, so it is subject to
rational basis review. FCC v. Beach Commc’ns, Inc.,
508 U.S. 307, 313 (1993); Sudomir v. McMahon, 767 F.2d
1456, 1464-65 (9th Cir. 1985). Such review does not provide
“a license for courts to judge the wisdom, fairness, or logic of
legislative choices.” Beach Commc’ns, 508 U.S. at 313; see
Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 316–17 (1976)
(per curiam). Thus, the question for us is not whether basing
ineligibility on conviction of a specified offense, as opposed
to sentence length, provides a superior means of
accomplishing Congress’s end. See Armour v. City of
Indianapolis, 132 S. Ct. 2073, 2083 (2012); Murgia, 427 U.S.
at 316. We ask only whether there are “plausible reasons for
Congress’ action,” and if there are, “our inquiry is at an end.”
U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980).
We think there are plausible reasons supporting the
classification drawn by § 1101(f)(7). Congress rationally
concluded that, in most cases, aliens who have been
convicted of crimes serious enough to warrant at least six
months of incarceration will lack the good moral character
necessary to warrant discretionary relief from removal.
Congress was entitled to rely on that judgment to create the
conclusive presumption erected by § 1101(f)(7) even though
it may prove over- or under-inclusive in individual cases. See
Fiallo, 430 U.S. at 799; Mathews v. Diaz, 426 U.S. 67, 83
(1976); Weinberger v. Salfi, 422 U.S. 749, 776–77, 781
(1975). Although the conclusive presumption denies
individuals like Mr. Romero an opportunity to show that they
possess the requisite good moral character notwithstanding

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their service of more than six months in custody, Congress
could rationally conclude that “the expense and other
difficulties of individual determinations justified the inherent
imprecision of a prophylactic rule.” Salfi, 422 U.S. at 777.
Whether Congress should have drawn the line at six months
in custody, or one year or ten years, is not for us to secondguess. See Fritz, 449 U.S. at 179; Mathews, 426 U.S. at
83–84.
All that remains is Mr. Romero’s contention that
§ 1101(f)(7) violates equal protection principles because it
relies on the periods of incarceration generated by state
sentencing regimes that are not uniform in operation. We do
not think this aspect of § 1101(f)(7) renders it irrational.
There may well be cases in which the same underlying crime
results in a period of incarceration of seven months in one
State but only five months in another. But that sort of
disparity at the margins does not render the classification
invalid under rational basis review. See Murgia, 427 U.S. at
316. Drawing any line “inevitably requires that some persons
who have an almost equally strong claim to favored treatment
be placed on different sides of the line.” Mathews, 426 U.S.
at 83. And we have held that when determining which
offenders should be eligible for immigration relief, Congress
may rationally rely on “the adjudicating forum’s judgment
concerning the seriousness of [an] offense.” Rangel-Zuazo v.
Holder, 678 F.3d 967, 969 (9th Cir. 2012) (per curiam). That
remains true even though different forums impose different
sentences for the same offense. See Vieira Garcìa v. INS,
239 F.3d 409, 414–15 (1st Cir. 2001).
PETITION FOR REVIEW DENIED.