Following its earlier ruling on hardship determinations, the Sixth Circuit held that it can review “good moral character” determinations in cancellation-of-removal cases.
February 14, 2023
Since the Supreme Court’s 2020 decision in Guerrero-Lasprilla v. Barr, several courts of appeals have reexamined the scope of their jurisdiction in immigration appeals. Last week produced another example. In Hernandez v. Garland, the Sixth Circuit held that it could review “good moral character” determinations in immigration appeals, as those determinations involve a mixed question of law and fact.
The Hernandez Litigation
The petitioner in Hernandez was ordered deported to El Salvador. He eventually sought cancellation of removal under 8 U.S.C. § 1229b(b)(1)—a discretionary form of relief that requires showing (among other things) that the petitioner has “good moral character.” Simplifying a bit, an immigration judge determined that the petitioner had not demonstrated sufficiently good moral character and denied relief. The Board of Immigration Appeals upheld this determination. The petitioner then sought review in the Sixth Circuit.
Appellate Jurisdiction in Immigration Appeals
Appellate jurisdiction in immigration cases can get complicated. That’s because a some provisions of immigration law strip the courts of appeals of jurisdiction to review certain issues, while other provisions state that those courts retain jurisdiction over other issues. More specifically, 8 U.S.C. § 1252(a)(2)(B) says (among other things) that appellate courts lack jurisdiction to review the denial of relief under a variety of statutes as well as almost every discretionary decision. But under § 1252(a)(2)(D), the courts of appeals retain jurisdiction to review “constitutional claims or questions of law raised upon a petition for review.”
Among the statutes listed in § 1252(a)(2)(B) is the above-mentioned cancellation of removal provision in § 1229b(b)(1). Until recently, the courts of appeals generally held that they lacked jurisdiction to review whether a petitioner satisfied the criteria for cancellation of removal, including whether the petitioner showed good moral character. Courts often said that these criteria were discretionary and thus beyond the scope of review.
But in Guerrero-Lasprilla, the Supreme Court held that courts of appeals can review the application of law to facts when hearing immigration appeals. This decision has caused several courts of appeals the rethink the scope of their jurisdiction over various determinations made in removal proceedings.
Of particular relevance to Hernandez, a split soon developed over one of the cancellation criteria—the requirement that removal “would result in exceptional and extremely unusual hardship” to the petitioner’s family members who are citizens or lawful permanent residents. (A recent cert petition asks the Supreme Court to resolve this split.) And the Sixth Circuit took sides in that split: in Singh v. Rosen, the Sixth Circuit read read Guerrero-Lasprilla to mean that it could review hardship determinations in immigration appeals.
Jurisdiction Over Good-Moral-Character Determinations
In Hernandez, the Sixth Circuit extended Singh’s reasoning to the good-moral-character determination. Like the hardship requirement, the good-moral-character requirement is not written in terms of discretion. Also, other determinations of moral character in the immigration laws are not discretionary. And however malleable the standard might be, that indeterminacy does not make the standard discretionary.
The good-moral-character determination thus involved application of a legal standard to historical facts. It was accordingly within the Sixth Circuit’s jurisdiction.
One last note: in so holding, the Sixth Circuit joined the Eighth Circuit. I’m not aware of any other courts that have addressed this issue after Guerrero-Lasprilla.
Hernandez v. Garland, 2023 WL 1776586 (6th Cir. Feb. 6, 2023), available at the Sixth Circuit and Westlaw