Gutierrez v. Holder

In deportation hearings, an IJ can look into a person’s past record for a reasonable period of time to determine their good moral character. In deportation hearings, IJ’s can make adverse inferences based on a person’s silence without violating Fifth Amendment rights.

Gutierrez entered the United States between 1969 and 1971, and on October 2001 he was issued a notice to appear in Court for a violation on the Immigration and Nationality Act for not being admitted or paroled. Gutierrez admitted that he was removable, but moved for relief under the theories of registry, cancellation of removal, and voluntary removal. The Immigration Judge ("IJ") denied his claims stating that Gutierrez had failed to show he had good moral character, and did not demonstrate “exceptional and extremely unusual hardship.” Gutierrez appealed to the Board of Immigration Appeals ("BIA"), who denied his appeal and adopted the IJ’s findings. Gutierrez appealed to the Ninth Circuit. Gutierrez argued that the issue of good moral character was decided wrongly, as an IJ is not supposed to look to past events to aid in the determination of good moral character. The Ninth Circuit determined that “an applicant for registry must show good moral character for a reasonable period of time preceding the application,” and as such, the IJ was not in error to look to previous conduct in making the good moral character determination. The Ninth Circuit also denied Gutierrez’s claim that the IJ denied him the opportunity to present telephonic witness testimony in violation of his due process rights as Gutierrez failed to show that he was prejudiced by this ruling. Finally, the Ninth Circuit denied Gutierrez’s Fifth Amendment claim that the IJ wrongfully inferred a negative fact based on Guiterrez’s silence, because there is no prohibition of drawing negative inferences in deportation hearings. Petition for Review is DENIED in part, and DISMISSED in part.