Jose Luis Ortiz-Estrada v. ERIC H. HOLDER , J R ., Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2536
J OSE LUIS ORTIZ‐ESTRADA ,
Petitioner,
v.
ERIC H. HOLDER , J R ., Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A200‐837‐406.
____________________
A RGUED J UNE 11, 2014 — D ECIDED J ULY 3, 2014
____________________
Before WOOD, Chief Judge, and P OSNER and S YKES , Circuit
Judges.
P OSNER , Circuit Judge. The petitioner, a Mexican citizen,
entered the United States in 1996, when he was 20 years old,
and has lived in this country ever since; he is married and
has five children, all of whom are U.S. citizens. He admits
that he is an illegal immigrant and can avoid removal only if
he is granted cancellation of removal, 8 U.S.C. § 1229b(b), for
which he applied in 2011 after being placed in removal pro‐

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2 No. 13‐2536
ceedings. One of the requirements for cancellation of remov‐
al applicable to our petitioner is that he have lived continu‐
ously in the United States for at least 10 years prior to the
filing of his petition for cancellation of removal, and another
is that during that period he have been of “good moral char‐
acter.” §§ 1229b(b)(1)(A), (B). In 2012 the immigration judge,
seconded the following year by the Board of Immigration
Appeals, ruled that the petitioner had flunked the second
requirement.
By the time he was placed in removal proceedings in
2010 he had accumulated an impressive string of sanctions
for a variety of traffic offenses committed in the previous
decade. He had received a citation for violating traffic laws
and driving in an “aggravated manner” after his license had
been revoked. He had received citations for driving without
a valid license, driving on three occasions under the influ‐
ence of alcohol, driving with a revoked driver’s license and
on another occasion with a revoked or suspended license,
violating a license‐revocation order, twice lacking required
proof of financial responsibility, and running a traffic light.
He had also received suspensions for disregarding a
stop/yield sign, for failing to fasten his seat belt, and for his
previous violations.
In 2011, with the removal proceeding still underway, he
had again been arrested, and this time he was charged with
eight traffic offenses, four of which involved “aggravated”
driving under the influence. The immigration judge decided
to continue (meaning, suspend) the removal proceeding un‐
til the new traffic charges were resolved. The petitioner’s
lawyer hoped that critical prosecutorial evidence in the DUI
case would be suppressed, compelling dismissal of the case.

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No. 13‐2536 3
Months passed. The continuance kept getting renewed in
expectation of a resolution of the DUI case. But the immigra‐
tion judge’s patience eventually ran out and he both refused
a further continuance, even though the latest charges against
the petitioner had still not been resolved, and, proceeding to
the merits, denied cancellation of removal on the ground
that the petitioner’s multiple traffic offenses demonstrated
that he was not of good moral character; and so ordered him
removed.
The immigration judge explained in his decision that
“given the respondent’s lengthy record, not including a final
disposition on the last driving under the influence case and
the last court hearing, which is still pending in the criminal
court in Chicago, this Judge believes that given the interven‐
ing precedent decisions by the Seventh Circuit in [Portillo‐
Rendon v. Holder, 662 F.3d 815 (7th Cir. 2011), and Banuelos‐
Torres v. Holder, 461 F. App’x 509 (7th Cir. 2012) (per curi‐
am)] … the respondent lacks good moral character necessary
to qualify for cancellation of removal.” At the oral hearing
that preceded the issuance of his decision the immigration
judge had said with reference to those two cases that “the
Seventh Circuit Court of Appeals has affirmed the notion
that an individual with a record like yours lacks good moral
character to qualify for residence through cancellation of
removal.”
That’s not correct, though both cases did involve aliens
who were seeking cancellation of removal after having ac‐
cumulated impressive records of violating this country’s
traffic laws. But in Banuelos‐Torres the only issue was wheth‐
er the immigration judge had acted unreasonably in denying
a continuance, and we held that he had not; the alien’s rec‐
ord of traffic violations was so bad that the immigration

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4 No. 13‐2536
judge was rightly afraid of what further violations the alien
might commit if left at large because of the continuance:
“[he] poses a threat to the safety of the community.” 461 F.
App’x at 512. And in Portillo‐Rendon we held that because
the Immigration and Nationality Act does not define “good
moral character,” the decision whether an alien has such a
character is an exercise of administration discretion that a
court cannot review. 662 F.3d at 817.
But the immigration judge’s error was without conse‐
quence. The Board of Immigration Appeals “affirm[ed] [his]
determination” that Ortiz‐Estrada had not proved good
moral character. It based the affirmance on “the extent and
recidivist nature of [his] dangerous driving violations,” the
fact that the immigration judge had “discussed [his] undis‐
puted record of driving violations and criminal conduct
spanning 10 years which also includes multiple DUI related
charges,” and the absence of any “clear error in the Immigra‐
tion Judge’s findings of fact.” The Board did not correct the
immigration judge’s mistaken interpretations of our Portillo‐
Rendon and Banuelos‐Torres decisions, but it didn’t have to; it
said “we need not reach the other reasons identified in the
Immigration Judge’s decision for his determination that
[Ortiz‐Estrada] lacked the requisite good moral character for
relief.” By saying this, the Board implicitly disclaimed reli‐
ance on our two decisions.
It remains to consider the petitioner’s argument that the
immigration judge’s abrupt refusal to grant a further contin‐
uance of the removal proceeding (to await the conclusion of
the latest criminal prosecution) violated the petitioner’s pro‐
cedural rights. Although a determination that the alien lacks
“good moral character” is not subject to judicial review, 8

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No. 13‐2536 5
U.S.C. § 1252(a)(2)(B)(i), the Board and the immigration
judge must, on pain of reversal if they don’t, respect the al‐
ien’s right to “a reasonable opportunity … to present evi‐
dence on [his] own behalf,” 8 U.S.C. § 1229a(b)(4)(B), though
“in order to succeed in challenging the legality of such a
hearing, the alien must show not only that [his or] her ‘rea‐
sonable opportunity’ was denied, but also that [he or] she
was prejudiced.” Apouviepseakoda v. Gonzales, 475 F.3d 881,
885 (7th Cir. 2007); see also Delgado v. Holder, 674 F.3d 759,
766 (7th Cir. 2012).
The petitioner argues that the immigration judge “failed
to take into proper consideration all relevant factors in the
instant case, including the differences [between] the Peti‐
tioner’s driving history [and that of the alien in Portillo‐
Rendon v. Holder, supra], Petitioner’s lack of a felony convic‐
tion [which Portillo‐Rendon had had], Petitioner’s good faith
efforts at rehabilitation which have not been refuted, and the
fact that Petitioner’s latest pending charge against him may
still be dismissed.” The first two points are irrelevant, given
the Board’s decision not to give any weight to the immigra‐
tion judge’s reliance on the Portillo‐Rendon and Banuelos‐
Torres cases. The third point is immaterial, because it was
argued to the immigration judge before he denied the fur‐
ther continuance sought by the petitioner. The fourth point
could not have been material, for even if the petitioner had
been acquitted of the 2011 traffic offenses, the immigration
judge would have found him deficient in moral character,
because the judge based that finding on the petitioner’s
2000–2010 offense record. Anyway he wasn’t acquitted. He
pleaded guilty last November (five months after the Board’s
decision) to “aggravated DUI” and driving with a suspend‐
ed or revoked license.

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6 No. 13‐2536
His lawyer argues that the immigration judge’s abrupt
refusal to continue the removal proceeding prevented the
lawyer from presenting evidence that would have cast his
client’s moral character in a more favorable light. But his
brief does not particularize the evidence, its emphasis being
on the judge’s ruling on cancellation of removal before the
outcome of the petitioner’s latest criminal proceeding could
be known. The ruling was justified. The judge had enough
evidence before him when he denied the further continuance
to conclude that the petitioner lacked good moral character.
And the Board when it affirmed the denial had enough evi‐
dence before it to come to the same conclusion, thus making
the outcome of that latest criminal proceeding immaterial—
and now that we know the outcome we know that the peti‐
tioner was not prejudiced by the immigration judge’s refusal
to delay ruling on moral character.
The lawyer’s procedural argument amounts to a conten‐
tion that as long as his client goes on violating the traffic
laws, he can’t be removed—for even though his record gets
worse and worse, there will always be some pending charg‐
es that the immigration judge must wait to see resolved be‐
fore deciding whether to order him removed. Not a good
argument.
The petition for review is
D ENIED.

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