Romero-Ochoa v. Holder

The presumption of a lack of “good moral character” for an alien who has been incarcerated for more than six months is a reasonable restriction which Congress may impose and does not violate Equal Protection principles.

Gerardo Romero-Ochoa (“Romero”) is alien who was subject to removal from the United States because it was determined by an immigration judge that he was not a lawful permanent resident and cannot meet the “good moral character” requirement needed to be eligible for relief due to him after receiving a 16-month prison sentence for committing vehicular manslaughter. Under 8 U.S.C. § 1101(f), individuals are presumed to lack good moral character if they have been incarcerated for at least six months. Romero filed an application for cancellation of removal to the Board of Immigration Appeals (“BIA”) arguing Congress must use the nature of the criminal conduct and not the period of incarceration when determining which crimes warrant the presumption that individuals lack good moral character. BIA found Romero ineligible for cancellation of removal because of his inability to meet the requirement of “good moral character.” Romero argues that § 1101(f)(7) is factually unconstitutional and violated equal protection principles due to the use of an individual’s period of incarceration to determine “good moral character.” The Ninth Circuit held, under rational basis review, the classification drawn by § 1101(f)(7) determining that individuals lack good moral character based on their period of incarceration is reasonable because Congress rationally concluded that if an alien had been convicted of crimes warranting at least six months of incarceration, then they will lack the good moral character necessary to warrant discretionary relief from removal. The panel also held that equal protection principles are not violated by § 1101(f)(7) relying on periods of incarceration generated by un-uniform state sentencing regimes. PETITION FOR REVIEW DENIED.