Thursday, September 28, 2023
Courthouse News Service
Thursday, September 28, 2023 | Back issues
Courthouse News Service Courthouse News Service

‘Good Moral Character,’ but Just for Seven Years

SAN FRANCISCO (CN) - Since 1997, undocumented immigrants from Nicaragua and other war-torn Central American nations have been able to request to have their deportation orders cancelled - provided that they can prove seven years' worth of "good moral character" while living in the United States.

Jose Aragon-Salazar, a Guatemalan national who entered the United States illegally in 1988, faced deportation. He filed an application in 2006 to cancel his deportation, but an asylum officer denied his request because it appeared Aragon had persecuted guerillas as a member of the Guatemalan army in the 1980s.

Three years later, the Department of Homeland Security referred Aragon's case to an immigration judge. There, Aragon denied telling the asylum officer that his army unit had captured three to six guerrillas with every engagement, and claimed his unit had only ever arrested one guerrilla - testimony that changed to many arrests over three engagements on cross-examination.

The judge decided that Aragon's apparently false testimony - either by fabricating events to look important or by minimizing his role as a persecutor of Guatemalan guerrillas - made him a person of questionable moral character, and denied his application.

Aragon appealed unsuccessfully to the Board of Immigration Appeals, which decided the seven-year good moral character requirement continued until a final decision was made on Aragon's application, no matter how long that may take or how long he had been in the United States already.

But writing for a three-judge panel of the 9th Circuit, Judge Milan Smith said the plain wording of the cancellation statute requires only that Aragon be in the United States for at least seven years before filing an application, and that he has been a person of good moral character during that period.

"For this reason, any conduct occurring after the filing of the application is irrelevant to the good moral character determination required under the plain language of the statute," Smith wrote. "Under the plain terms of Nicaraguan Adjustment and Central American Relief Act, an application for special rule cancellation of removal is therefore not a continuing application."

That view supports long-running immigration requirements, and Congress did not change them as it could have when it passed NACARA, Smith said. He also acknowledged that the ruling could open the door to false testimony by other undocumented immigrants seeking to cancel deportation orders because they've been good for seven years.

"We decline to allow policy considerations to inject ambiguity into the text of an unambiguous statute," Smith wrote.

Smith added that the cancellation procedure is discretionary anyway, and the immigration judge may find - based on the varied testimony Aragon gave - that the man had acted as a persecutor in Guatemala and should be deported accordingly.

In dissent, Circuit Judge Consuelo Callahan said the statute was ambiguous and that she "did not agree that an applicant's responsibility to maintain a good moral character vanishes upon the filing of an application for relief."

Categories / Uncategorized

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.