Petition for Review of an Order of the Board of Immigration Appeals.
For Jose Manuel Rodriguez-Avalos, Petitioner: Christopher John Buckley, Kasaby & Nicholls, L.L.C., Omaha, NE.
For Eric H. Holder, Jr., U.S. Attorney General, Respondent: Tim Ramnitz, Trial Attorney, Tangerlia Cox, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC; Rachel Louise Browning, Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC.
Before DAVIS, DENNIS, and COSTA, Circuit Judges.
We sua sponte RECALL the mandate, WITHDRAW the prior panel opinion, Rodriguez-Avalos v. Holder, 780 F.3d 308 (5th Cir. 2015), and SUBSTITUTE the following:
Jose Manuel Rodriguez-Avalos (Rodriguez) petitions this court for review of a Board of Immigration Appeals (BIA) decision. The BIA dismissed his appeal from the Immigration Judge's denial of his application for relief from removal. The BIA, like the Immigration Judge, held that the prison sentence Rodriguez served following his conviction for falsely and willfully representing himself as a United States citizen, in violation of 18 U.S.C. § 911, barred him from demonstrating the " good
moral character" necessary to be statutorily eligible for relief from removal pursuant to 8 U.S.C. § 1229b(b)(1). For the following reasons, we DENY Rodriguez's petition for review.
Rodriguez is a citizen of Mexico who entered the United States without having been admitted or paroled. In January 2011, a Department of Homeland Security (DHS) inspection revealed that Rodriguez was one of fourteen employees of an Omaha, Nebraska grocery store against whom identity-theft complaints had been filed with the Federal Trade Commission. On May 3, 2011, a DHS agent interviewed Rodriguez, who admitted his identity to the DHS agent and admitted that he had no documentation allowing him to enter or work in the United States. Rodriguez was then placed under arrest for administrative immigration violations.
Based on the DHS investigation, Rodriguez was indicted on May 18, 2011, and charged with, inter alia, falsely and willfully representing himself to be a United States citizen in violation of 18 U.S.C. § 911. On October 11, 2011, in the United States District Court of Nebraska, Rodriguez pleaded guilty to having committed a § 911 offense. He was sentenced on January 18, 2012 to fourteen months of imprisonment. Rodriguez later testified during immigration proceedings that he served " about seven" months of his sentence before being released.
On November 28, 2012, the DHS served Rodriguez with a notice to appear (NTA), charging him with removability under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien who had entered the United States without having been admitted or paroled. On April 29, 2013, Rodriguez appeared with counsel before an immigration judge (IJ), and submitted written pleadings admitting the allegations against him and conceding the charges of removability. His pleadings included an application for cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1), asserting that his removal to Mexico would result in hardship to his three United States citizen children. The IJ entered an oral order sustaining the charge of removability and denying Rodriguez's application for cancellation of removal,
finding that pursuant to 8 U.S.C. § 1101(f)(7), because Rodriguez spent " at least the last six months in custody for a conviction," he could not demonstrate the statutorily required good moral character. The IJ ordered Rodriguez removed to Mexico.
Rodriguez appealed to the BIA. The BIA, in a single-judge opinion, agreed with the IJ's determination that Rodriguez's service of approximately seven months following his § 911 conviction precluded him from establishing the " good moral character" required for cancellation of removal, and dismissed Rodriguez's appeal. See § 1229b(b)(1)(B). Rodriguez filed a timely petition for review. In November 2013, this court granted Rodriguez's unopposed motion for a stay of deportation and we now consider his petition for review.
Rodriguez contends that his § 911 conviction for falsely claiming to be a United States citizen is not a crime involving moral turpitude and thus his seven-month incarceration as a result of that conviction should not preclude him from establishing the good moral character necessary to be eligible for cancellation of removal under § 1229b(b)(1). He additionally argues that his prison term fell outside of the relevant time period for demonstrating good moral character because the so-called " stop-time" rule, codified at § 1229b(d)(1), operates to end the ten-year good moral character period when an NTA is served upon the petitioner. Despite stating in his petition for review that the NTA was " formally issued" on November 28, 2012, Rodriguez argues that the Government should be estopped from asserting that the date the NTA was served was anything other than May 3, 2011--the date that appears on a DHS form as the date he was served with an NTA and placed into removal proceedings. Therefore, Rodriguez argues, the relevant time period for establishing good moral character is the ten years immediately preceding May 3, 2011 and, because his prison sentence was served after May 3, 2011, he is statutorily eligible for cancellation of removal.
Primarily at issue before us are questions of statutory interpretation of various provisions of the Immigration and Nationality Act (" INA" ): first, whether 8 U.S.C. § 1101(f)(7) precludes a petitioner from demonstrating good moral character if he or she has been confined to a penal institution for 180 days or more, even if such a confinement was a result of a crime that is not a crime involving moral turpitude; and second, whether § 1229b(b)(1) and § 1229b(d)(1) together signify that the time period for establishing good moral character for purposes of cancellation of removal is the ten years preceding the final ...