Jorge Hernandez v. Merrick B. Garland

RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 23a0019p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ┐ JORGE HERNANDEZ, │ Petitioner, │ > No. 22-3120 │ v. │ │ MERRICK B. GARLAND, Attorney General, │ Respondent. │ ┘ On Petition for Review from the Board of Immigration Appeals; No. A 073 646 149. Decided and Filed: February 6, 2023 Before: STRANCH, MURPHY, and DAVIS, Circuit Judges. _________________ COUNSEL ON BRIEF: Justin B. Hurst, HURST LAW GROUP, Hot Springs, Arkansas, for Petitioner. Lisa Morinelli, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. _________________ OPINION _________________ MURPHY, Circuit Judge. When the Attorney General or his designee, the Board of Immigration Appeals, denies discretionary relief to an immigrant, the immigration laws limit the jurisdiction of the courts to review that decision. 8 U.S.C. § 1252(a)(2)(B)(i). This jurisdictional limit bars us from reviewing not just the Board’s ultimate discretionary choice to deny relief but also any factual findings underlying that choice. See Patel v. Garland, 142 S. Ct. 1614, 1621–23 (2022). Yet a jurisdictional safe harbor preserves our power to review “questions of law” No. 22-3120 Hernandez v. Garland Page 2 embedded in the discretionary decision, 8 U.S.C. § 1252(a)(2)(D), including a “mixed question of law and fact” that requires the Board to consider whether the historical facts meet the governing legal test, Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068–69 (2020) (citation omitted). This case requires us to consider how these rules apply to the Board’s denial of one type of discretionary relief: cancellation of removal. The Board has discretion to cancel the removal of immigrants who meet four eligibility requirements—including that they have “good moral character” and that their removal would cause sufficient “hardship” to a qualifying relative. 8 U.S.C. § 1229b(b)(1)(B), (D). We recently held that the Board’s conclusion that the historical facts did not rise to the required level of “hardship” resolved a mixed question of law and fact that we have jurisdiction to review. See Singh v. Rosen, 984 F.3d 1142, 1149–54 (6th Cir. 2021). Like Singh, we now hold that the question whether the historical facts show that an immigrant lacks “good moral character” also qualifies as a mixed question within our jurisdiction. We thus may review Jorge Hernandez’s argument that the Board wrongly held that he lacked good moral character because his negative attributes (including two drinking-and-driving convictions) outweighed his positive attributes (including his support of his ill wife). That said, the Board properly concluded that Hernandez’s history of alcohol use and drinking-and-driving convictions showed his lack of “good moral character.” We thus deny his petition for review on the merits. I Born and raised in El Salvador, Hernandez came to the United States a couple of months before his eighteenth birthday in 1994. Admin. R. (A.R.) 1363, 1637. Hernandez entered without inspection and has lived in this country ever since. A.R. 1638. At some point, immigration authorities learned of Hernandez’s presence and mailed him a “notice to appear” in proceedings …

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