Friday, March 27, 2009
Court: Aliens Who Smuggle Family Lack ‘Moral Character’
By STEVEN M. ELLIS, Staff Writer
A Mexican man who paid a “coyote” to smuggle himself and his wife into the United States automatically lacked the “good moral character” necessary to cancel removal, the Ninth U.S. Circuit Court of Appeals, sitting en banc, ruled yesterday.
Overruling a 2005 opinion, nine judges held that federal law allowing the attorney general to waive inadmissibility for those who smuggled only immediate family was irrelevant because alien smugglers—whether inadmissible or not—cannot be found to have good moral character.
Mario Sanchez was ordered removed in 2000, but requested cancellation on the ground that it would result in exceptional and extremely unusual hardship to his U.S. citizen children and lawful permanent resident father.
He first entered the country in 1988 without inspection, and resided here without lawful status until 1993, when he returned home to marry his childhood sweetheart. After the wedding, Sanchez paid a coyote $1,000 to smuggle himself and his new wife into the United States.
An immigration judge found Sanchez’s physical presence, lack of criminal convictions and showing of hardship met statutory qualifications to cancel removal. However, the judge denied relief, reasoning Sanchez’s conduct made him “a member of one or more of the classes of persons” who by statute cannot be found to have good moral character.
Federal law includes in those classes “smugglers,” which are defined as aliens who “knowingly…encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.”
The Board of Immigration Appeals affirmed, but a panel of the Ninth Circuit ruled in 2008 that Sanchez was eligible for cancellation, easoning that the court’s 2005 opinion in Moran v. Ashcroft 395 F.3d 1089 controlled.
In Moran, the court ruled that a “family unity” waiver of inadmissibility allowed an alien who had smuggled only close family members to be eligible for cancellation of removal.
But after rehearing en banc, Judge Barry G. Silverman wrote that the waiver had “no bearing” on establishing moral character.
“[The statute] authorizes the Attorney General to waive inadmissibility if an alien has only smuggled immediate family members, but does not authorize the Attorney General to waive the ‘alien smuggling’ bar to establishing good moral character for purposes of cancellation of removal,” he said.
“A statute giving the Attorney General discretion to grant relief from inadmissibility does not give the Attorney General discretion to grant relief from removal.”
Silverman also commented that Sanchez would not qualify for the waiver anyway, given that it applies only to aliens lawfully admitted for permanent residence who temporarily proceeded abroad and who are not subject to an order of removal and are otherwise admissible, and to aliens seeking admission or adjustment of status as a family-sponsored immigrant.
Chief Judge Alex Kozinski, and Judges Diarmuid F. O’Scannlain, Pamela Ann Rymer, Andrew J. Kleinfeld, M. Margaret McKeown, Raymond C. Fisher, Consuelo M. Callahan and N. Randy Smith joined Silverman in his opinion.
Judge Richard A. Paez wrote separately to concur that Sanchez would not qualify for the inadmissibility waiver, but commented he was not persuaded that statutory language made “plain” that Congress intended the waiver not to apply to an evaluation of moral character.
Citing Moran, he explained:
“In short, a person who leaves his family behind as he seeks better opportunities in the United States may have good moral character, but a person who attempts to bring a spouse or child along may not. This not only makes little sense in the context of a family unity provision, but ‘grossly distorts the meaning of’ the term ‘good moral character.’ ”
In dissent, Judge Harry Pregerson contended the Moran court was correct, writing:
“How can we possibly say members of Congress intended that a man who married his hometown sweetheart, brought her here for a better life, worked hard for twenty-one years to provide for his three children, bought a home, attended church regularly, and cared for his ailing father is a man of bad moral character?
“Most would say, instead, that this is the story of a good man making every attempt for himself, his wife, and his three American citizen children to live the American dream. In our nation’s history, millions of immigrants have done the same. How can we condemn this behavior as ‘bad moral character’ after honoring this dream since the birth of our nation?”
The case is Sanchez v. Holder, 04-75584.
Copyright 2009, Metropolitan News Company