Jose Alberto Portillo-Rendon v. ERIC H. HOLDER, JR., Attorney General of the United States

Of the Central District of Illinois, sitting by designation. å
In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1642
JOSE ALBERTO PORTILLO-RENDON,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
ARGUED OCTOBER 25, 2011—DECIDED NOVEMBER 7, 2011
Before EASTERBROOK, Chief Judge, HAMILTON, Circuit
Judge, and MYERSCOUGH, District Judge.å
EASTERBROOK, Chief Judge. Jose Portillo-Rendon entered
the United States from his native Mexico without inspec-
tion (in other words, unlawfully) and remained in this
nation for an extended period without detection by
immigration officials. He married another alien who

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2 No. 11-1642
likewise lacks permission to be in the United States.
The couple have three children, all U.S. citizens by birth.
He came to the attention of immigration officials fol-
lowing a series of convictions for traffic offenses—at
least four for drunk driving (one for the felony version
of that crime, given his recidivism) and three for driving
after his license had been suspended or revoked. He
has served several stints in prison. State officials finally
noticed that Portillo-Rendon is an alien and informed
federal officials, who commenced removal proceedings.
Portillo-Rendon applied for cancellation of removal
under 8 U.S.C. §1229b(b)(1), contending that he would
suffer economic hardship in Mexico and that one of his
children, who has a chronic medical condition, can
obtain better care in this nation. Among the require-
ments for cancellation of removal is “good moral charac-
ter.” The immigration judge concluded that Portillo-
Rendon lacks it, given his disdain for the rules that
govern the use of automobiles. Driving while intoxi-
cated or without a license reflects both indifference to
the welfare of other drivers and pedestrians and defiance
of known legal obligations. Portillo-Rendon told the
immigration judge that his participation in alcohol treat-
ment demonstrates rehabilitation, but the IJ replied that
several of his convictions post-date his “rehabilitation.”
His incorrigible criminal behavior (he has other driving
offenses too, including high-speed flight to avoid arrest)
is incompatible with “good moral character,” the IJ
found. The Board of Immigration Appeals agreed.
Decisions under §1229b are not subject to judicial
review. See 8 U.S.C. §1252(a)(2)(B)(i); see also Kucana v.

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No. 11-1642 3
Holder, 130 S. Ct. 827 (2010). Section 1252(a)(2)(D) states
an exception: “constitutional claims or questions of
law” are reviewable even though the discretionary com-
ponents of a decision are not. Portillo-Rendon sees an
opening in the BIA’s language. It wrote that, because of
his convictions, Portillo-Rendon lacks good moral char-
acter and thus is “statutorily ineligible for cancellation
of removal”. Eligibility must be a question of law, he
insists, and therefore must be open to plenary judicial
review.
This argument reflects a confusion that we thought
had been cleared up in Muratoski v. Holder, 622 F.3d 824
(7th Cir. 2010). Evidently not, so we will have another go
at the topic—but only a brief one, since the point is simple.
“Good moral character” is a statutory requirement—
that is, a condition of eligibility—for cancellation of
removal. But the Immigration and Nationality Act does
not define “good moral character.” Hence the decision
whether an alien has the required character reflects an
exercise of administrative discretion. That’s one holding
of Muratoski. See 622 F.3d at 831. Neither the immigra-
tion judge nor the Board compared Portillo-Rendon’s
driving record against a rule. For the purpose of
§1252(a)(2)(D), “law” means a dispute about the meaning
of a legal text, so that the alien wins if the text means one
thing and loses if it means something else. See Cevilla v.
Gonzales, 446 F.3d 658 (7th Cir. 2006); Jiménez Viracacha v.
Mukasey, 518 F.3d 511, 514–16 (7th Cir. 2008) (explaining
that eight circuits agree with Cevilla, and only the ninth
circuit does not). There is no dispute about a controlling

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4 No. 11-1642
text here; there is only a (potential) dispute about
whether Portillo-Rendon’s driving infractions are
serious and frequent enough to show that he lacks
good moral character, as opposed to making isolated
mistakes. The IJ and BIA thought that this record shows
poor moral fiber; that is a discretionary call and thus
is not subject to judicial review.
Portillo-Rendon also contends that the agency violated
the due process clause. Just where the violation lies, he
does not explain. He presents the sort of flabby, unfocused
argument that we have deprecated. See, e.g., Magala v.
Gonzales, 434 F.3d 523 (7th Cir. 2005); Rehman v. Gonzales,
441 F.3d 506 (7th Cir. 2006); Raphael v. Mukasey, 533
F.3d 521 (7th Cir. 2008). The agency’s brief observes that
an alien does not have either a liberty or a property
interest in cancellation of removal, which is discretionary.
See Kahn v. Mukasey, 517 F.3d 513 (7th Cir. 2008). To
have a liberty or property interest in some benefit, a
person must have a legitimate claim of entitlement, which
means an entitlement established by rule; hope for a
favorable exercise of administrative discretion does not
qualify. See Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005).
Portillo-Rendon’s lawyer ignored this problem in his
opening brief and did not file a reply brief, which ef-
fectively concedes the point.
Why lawyers in immigration cases continue to be
fascinated by the due process clause bewilders us—for it
is appropriate to consider the Constitution only if the
statute and regulations are deficient. Congress has given
aliens significant procedural entitlements. See 8 U.S.C.

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No. 11-1642 5
§1229a. Regulations have added more. Portillo-Rendon
does not contend that these entitlements are constitu-
tionally deficient. Nor does he contend that the agency
failed to provide him with all process required by the
statute and regulations with respect to his moral char-
acter. If the agency should fall short, then §1252(a)(2)(D)
would allow us to provide relief on statutory grounds;
the lack of a constitutional liberty or property interest
would not matter. This is yet another reason why aliens
who have procedural objections to the handling of their
cases should rely on the statute and the regulations
rather than intoning “due process” in the hope that
it will cover all bases. It won’t.
The petition for review is dismissed for want of juris-
diction.
11-7-11

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