Ninth Circuit Upholds Denial of Residency to Man Who Admitted to Sex With Minor

Wednesday, January 2, 2013

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Ninth Circuit Upholds Denial of Residency to Man Who Admitted to Sex With Minor

By a MetNews Staff Writer

Permanent residency was properly denied to a petitioner who admitted to having sexual relations with a minor, despite the fact that he had not been convicted of a crime, the Ninth U.S. Circuit Court of Appeals has held.

A unanimous panel Friday said that an immigration judge did not err in considering Oscar Rojas’ admission of such acts as evidence of a bad character which would make Rojas undesirable as a permanent resident.

Rojas entered the United States without inspection in 1989. In 2007, he was served with a Notice to Appear charging him with removability as an alien present in the United States without being admitted or paroled.

At a subsequent hearing, he conceded removability, and after pursuing other forms of relief, applied for voluntary departure, which was denied based, in part, on his admission at the hearing that he had, as an adult, had sexual relations with a minor.

The Board of Immigration Appeals affirmed the immigration judge’s decision without a written opinion, and Rojas petitioned the panel for review, arguing that the immigration judge erred by considering facts which might be evidence of a crime. The evidence was not relevant to his voluntary departure hearing, and in considering it, the judge had violated Rojas’ his right not to incriminate himself, he argued.

But Ninth Circuit Senior Judge J. Clifford Wallace, citing Campos-Granillo v. INS, 12 F.3d 849 (9th Cir.1993), said that although good moral character is not a requirement for pre-conclusion voluntary departure, evidence of bad character or undesirability is nonetheless relevant to the immigration judge’s discretionary calculations.

Since the evidence of Rojas’s sexual conduct with a minor was probative as to his bad character and undesirability for permanent residency, and since he had admitted the underlying facts at the voluntary departure hearing, the immigration judge had properly considered them, even though Rojas had not been convicted of a crime for such activity.

Judge Carlos T. Bea and Judge Jane A. Restani of the U.S. Court of International Trade, sitting by designation, concurred in the opinion.

The case is Rojas v. Holder; 08-74331.