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Ortiz-Estrada v. Holder

United States Court of Appeals, Seventh Circuit

July 3, 2014

JOSE LUIS ORTIZ-ESTRADA, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent

Argued June 11, 2014

Petition for Review of an Order of the Board of Immigration Appeals. No. A200-837-406.

For Jose Luis Ortiz-Estrada, also known as: JAVIER BONILLA, Petitioner: Ira Benjamin Kahn, Attorney, Chicago, IL.

For ERIC H. HOLDER, JR., Attorney General of the United States, Respondent: OIL, Attorney, Rosanne M. Perry, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC.

Before WOOD, Chief Judge, and POSNER and SYKES, Circuit Judges.

OPINION

Page 678

Posner, Circuit Judge 

The petitioner, a Mexican citizen, entered the United States in 1996, when he was 20 years old, and has lived in this country ever since; he is married and has five children, all of whom are U.S. citizens. He admits that he is an illegal immigrant and can avoid removal only if he is granted cancellation of removal, 8 U.S.C. § 1229b(b), for which he applied in 2011 after being placed in removal proceedings. One of the requirements for cancellation of removal applicable to our petitioner is that he have lived continuously in the United States for at least 10 years prior to the filing of his petition for cancellation of removal, and another is that during that period he have been of " good moral character." § § 1229b(b)(1)(A), (B). In 2012 the immigration judge, seconded the following year by the Board of Immigration Appeals, ruled that the petitioner had flunked the second requirement.

By the time he was placed in removal proceedings in 2010 he had accumulated an impressive string of sanctions for a variety of traffic offenses committed in the previous decade. He had received a citation for violating traffic laws and driving in an " aggravated manner" after his license had been revoked. He had received citations for driving without a valid license, driving on three occasions under the influence of alcohol, driving with a revoked driver's license and on another occasion with a revoked or suspended license, violating a license-revocation order, twice lacking required proof of financial responsibility, and running a traffic light. He had also received suspensions for disregarding a stop/yield sign, for failing to fasten his seat belt, and for his previous violations.

In 2011, with the removal proceeding still underway, he had again been arrested, and this time he was charged with eight traffic offenses, four of which involved " aggravated" driving under the influence. The immigration judge decided to continue (meaning, suspend) the removal proceeding until the new traffic charges were resolved. The petitioner's lawyer hoped that critical prosecutorial evidence in the DUI case would be suppressed, compelling dismissal of the case.

Months passed. The continuance kept getting renewed in expectation of a resolution of the DUI case. But the immigration judge's patience eventually ran out and he both refused a further continuance, even though the latest charges against the petitioner had still not been resolved, and, proceeding to the merits, denied cancellation of removal on the ground that the petitioner's multiple traffic offenses demonstrated that he was not of good moral character; and so ordered him removed.

The immigration judge explained in his decision that " given the respondent's lengthy record, not including a final disposition on the last driving under the influence case and the last court hearing, which is still pending in the criminal court in Chicago, this Judge believes that given the

Page 679

intervening precedent decisions by the Seventh Circuit in [ Portillo-Rendon v. Holder, 662 F.3d 815 (7th Cir. 2011), and Banuelos-Torres v. Holder, 461 F. App'x 509 (7th Cir. 2012) (per curiam)] ... the respondent lacks good moral character necessary to qualify for cancellation of removal." At the oral hearing that preceded the issuance of his decision the immigration judge had said with reference to those two cases that " the Seventh Circuit Court of Appeals has affirmed the notion that an ...


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