Carlos Hernandez-Vasquez v. Attorney General United States


NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 21-2706 ______________ CARLOS ENRIQUE HERNANDEZ-VASQUEZ, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ______________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. 206-907-728) Immigration Judge: Emily Farrar-Crockett ______________ Submitted Under Third Circuit L.A.R. 34.1(a) October 17, 2022 ______________ Before: GREENAWAY, JR., MATEY, and ROTH, Circuit Judges. (Opinion Filed: February 1, 2023) ______________ OPINION * ______________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. GREENAWAY, JR., Circuit Judge. Petitioner Carlos Enrique Hernandez-Vasquez seeks review of an order entered by an immigration judge (IJ) and affirmed by the Board of Immigration Appeals (BIA) denying cancellation of his removal. Petitioner makes two arguments in favor of review: (a) the denial of his petition for cancellation turned on an arbitrary and capricious legal presumption relating to his character, and (b) even if that presumption was valid, the BIA erred in finding that Petitioner had not rebutted it. The Government moved for dismissal for lack of jurisdiction. Because Hernandez-Vasquez failed to exhaust the first argument and the second is a matter of unreviewable discretion, we will grant the motion to dismiss the petition for review. I. BACKGROUND Factual Background Carlos Hernandez-Vasquez is a Guatemalan citizen who entered the United States unlawfully in 2004. In 2015, the Department of Homeland Security (DHS) placed him into removal proceedings under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present without being admitted or paroled. Petitioner admitted the allegations but applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1). Eligibility for that relief required him to show, among other things, that he had been a “person of good moral character” for the ten years preceding the application. Id. § 1229b(b)(1)(B). Finding that Petitioner had failed to meet that burden, the IJ denied relief. 2 In reaching this conclusion, the IJ weighed heavily two DUI convictions Petitioner received during the ten-year period. 1 Citing In re Castillo-Perez, 27 I. & N. Dec. 664, 664, 667, 671 (A.G. 2019), the IJ concluded that where an applicant for cancellation is convicted of two or more DUI offenses, there is a rebuttable presumption that the applicant lacks “good moral character.” The IJ recognized that Petitioner had presented some evidence of good character—including evidence that he had paid taxes, that his wife described him as a loving husband who takes care of his family, that his friends described him as kind, and that his employers said that he was a good worker—but concluded that this evidence was insufficient to rebut the presumption created by Castillo-Perez. Procedural History On appeal to the BIA, Petitioner argued that the IJ erred by applying the Castillo- Perez presumption to his application because (1) the presumption could not be applied retroactively, (2) Castillo-Perez was distinguishable on its facts, and (3) he had rebutted the presumption. 2 The BIA rejected these arguments and dismissed the appeal. 1 …

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