Former President Bill Clinton's grand jury testimony will always be remembered for existential musings on a two-letter word. Years later, cases can still turn on what the meaning of "is" is.
Case in point: This Ninth Circuit Court of Appeals immigration removal case also employs the what-is-is argument.
Juan Gutierrez is a 70-year-old native and citizen of Mexico who entered the United States sometime between 1969 and 1971. In October 2001, Gutierrez received a Notice to Appear, charging him with being removable as an alien who was present in the United States without being admitted or paroled. Gutierrez conceded his removability, but requested registry, cancellation of removal, and voluntary departure, citing his good moral character.
Gutierrez was arrested and pleaded guilty approximately seven or eight times between 1978 and 2001 for driving under the influence (DUI) offenses, and arrested for driving without a license at least once. He served eight months in prison as a result of these arrests. His last offense occurred in August 2001, but he had not paid a fine as of the date of his removal hearing, and he may have been driving with an expired license.
The IJ denied Gutierrez's applications for relief, and the district court and Ninth Circuit Court of Appeals affirmed.
The Ninth Circuit was unpersuaded by Gutierrez's argument that an applicant for registry need show only that he is a person of good moral character in the immediate present without reference to past negative conduct.
Gutierrez argued that the word "is" in 8 U.S.C. § 1259(c) refers unambiguously to the present moment without reference to past events. The Ninth Circuit said that claim lacked merit.
While Congress has not mandated a specific temporal window for assessing good moral character in registry claims, it has indicated a moral character time frame for citizenship and cancellation of removal. Based on those explicit time periods, the Ninth Circuit inferred that it was reasonable to permit a multi-year character assessment in evaluating registry requests.
The Ninth Circuit Court of Appeals ruled that a registry applicant's past actions bear on his current moral character, and refused to restrict an IJ or the Board of Immigration Appeals to the immediate present for determining if a petitioner is of good moral character.
The Ninth Circuit hears a substantial number of immigration appeals every year due to the circuit's proximity to the border. While it's understandable that a petitioner would choose to exhaust the immigration appeals process, immigration attorneys should prepare their clients for the fact that the Ninth Circuit will not stop lower courts from considering a range of years - and possible bad acts - when adjudicating a registry appeal supported by a good moral character claim.
It is what it is.
- Gutierrez v. Holder (Ninth Circuit Court of Appeals)
- Vague 4th Amendment Violation Claim? No Immigration Appeal Win (FindLaw's Fourth Circuit blog)
- DOJ Files Emergency Appeal to Block Alabama Immigration Law (FindLaw's Eleventh Circuit blog)