Introduction: Matter of Castillo-Perez, 27 I&N Dec. 495 (A.G. 2018)

On December 3, 2018, Acting Attorney General Matthew Whitaker published a precedential referral in the Matter of Castillo-Perez, 27 I&N Dec. 495 (A.G. 2018) [PDF version]. In the decision, the Acting Attorney General directed the Board of Immigration Appeals (BIA), under 8 C.F.R. 1003.1(h)(1)(i), to this decision involving questions about good moral character and cancellation of removal to himself for review. Notably, two of the questions involve what effect multiple convictions for driving under the influence should have on an alien’s ability to establish good moral character and eligibility for cancellation of removal. In this article, we will examine the Acting Attorney General’s referral and what it may mean going forward.

Questions Presented for Briefing

Acting Attorney General Whitaker requested briefing from the parties and interested amici on the following questions:

1. In connection with an application for cancellation of removal under [INA 240A(b)], what is the appropriate legal standard for determining when an individual lacks ‘good moral character’ under [INA 101(f)]?
2. What impact should multiple convictions for driving while intoxicated or driving under the influence have in determining whether an individual lacks ‘good moral character’ under [INA 101(f)]?
3. What impact should multiple such convictions have in determining whether to grant discretionary relief under [INA 240A(b)]?

Briefing Schedule

The Acting Attorney General posted the following briefing schedule in his decision:

The parties shall file briefs not exceeding 15,000 words on or before January 4, 2019
Interested amici may submit briefs not exceeding 9,000 words on or before January 18, 2019
The parties may submit reply briefs not exceeding 6,000 words on or before January 18, 2019

Analysis

On December 3, Acting Attorney General Whitaker referred two BIA decisions to himself for review, suggesting that the resignation of former Attorney General Jeff Sessions [see blog] will not slow the pace of Attorney General referrals of BIA decisions.

The instant referral presents three very important questions. The first question is the broadest, wherein the Acting Attorney General asks for briefing on what the legal standard should be in general for determining whether a cancellation applicant was of good moral character for the statutory period. Although the question arises in the context of cancellation of removal for non-permanent residents, it is worth noting that good moral character comes up in other immigration contexts, most notably as a requirement for naturalization.

The next two questions deal specifically with convictions for driving under the influence and driving while intoxicated. The second question asks what effect multiple such convictions should have on an alien’s ability to establish good moral character generally. The phrasing of the question appears to presuppose that multiple convictions for driving under the influence do have an effect, and asks for views on how broad that effect should be. The third question asks what effect multiple driving under the influence convictions should have on an adjudicator’s decision of whether to grant cancellation of removal under section 240A(b). Again, the question appears to presuppose that multiple such convictions should have some effect, but requests briefing on how big the effect should be.

The fact of the referral and the wording of the questions presented suggests that, regarding question 2, the Acting Attorney General is looking to create new rules restricting the availability of relief and benefits depending on good moral character — to some extent or another — to aliens with multiple convictions for driving under the influence. Question 3 suggests that he is also looking at assigning specific negative weight to multiple convictions for driving under the influence in the context of cancellation of removal for non-permanent residents. Question 1 sweeps more broadly, and suggests that the Acting Attorney General may craft a framework for evaluating whether an alien is conditionally barred from establishing good moral character in the cancellation context.

However, it is important to note that we cannot say for certain how the Acting Attorney General will decide these issues until he publishes a decision. Furthermore, Acting Attorney General Whitaker is limited to a tenure of 120 days from the date of his appointment or until his successor is confirmed, whichever is sooner. This leaves open the possibility that the Acting Attorney General’s successor will ultimately resolve the case.

Conclusion

We will update the website with more information on the case as it becomes available. We discuss cancellation of removal in our section on removal and deportation defense [see category]. We discuss good moral section there and also in our growing section on naturalization [see category]. Finally, you can find a full list of all of our articles on immigration precedent decisions in our growing article index on the issue [see index].