Submitted on the briefs:[*]
Sandra Saltrese-Miller, Saltrese, Faville & DeSeguin, LLC, Denver, Colorado, Ingrid J. DeFranco, Law Office of Ingrid J. DeFranco, Brighton, Colorado, and Ben Winograd, Immigrant & Refugee Appellate Center, LLC, Alexandria, Virginia, for Petitioner.
Stuart F. Delery, Assistant Attorney General, Civil Division, Douglas E. Ginsburg, Assistant Director, Office of Immigration Litigation, and Julie S. Saltman, Trial Attorney, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for Respondent.
Maris J. Liss, Farmington Hills, Michigan, Aaron C. Hall, Aurora, Colorado, and Mark R. Barr, Denver, Colorado, filed an amicus brief on behalf of American Immigration Lawyers Association.
Before BRISCOE, Chief Judge, PORFILIO and O'BRIEN, Circuit Judges.
BRISCOE, Chief Judge.
Enrique Garcia-Mendoza petitions for review of the Board of Immigration Appeals' (BIA) decision upholding the Immigration Judge's (IJ) denial of his request for cancellation of removal. The agency determined that he was ineligible for such relief because he could not establish that he " ha[d] been a person of good moral character," 8 U.S.C. § 1229b(b)(1)(B), due to his confinement in a penal institution for more than 180 days, see 8 U.S.C. § 1101(f)(7). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition.
Petitioner is a native and citizen of Mexico. He was admitted in January 1996 as a temporary visitor for six months, but he remained in the United States beyond that time without authorization.
In 2010, he was arrested and charged with driving under the influence and leaving the scene of an accident. He could not afford bond and remained confined during his pretrial criminal proceedings for a total of 104 days. He then entered a guilty plea and was sentenced to a term of 270 days with credit for time served. He was released in 2011, after he had been confined for a total of 197 days (104 served before his conviction and credited towards his term of imprisonment and 93 served after his conviction).
After he was released, the Department of Homeland Security (DHS) took him into custody and initiated removal proceedings. Petitioner conceded that he was removable for remaining in the United States beyond his authorized period of stay and applied for cancellation of removal. The IJ denied his request because petitioner had been confined for more than 180 days for his 2010 conviction and therefore he could not establish the requisite good moral character.
While petitioner's appeal of that decision was pending with the BIA, he filed a motion with the state trial court seeking to amend his sentence. In the motion, he alleged that his counsel failed to advise him of the immigration consequences of his sentence before he entered his guilty plea. He asked the court to resentence him to 166 days with no credit for time served, because this sentence " would satisfy the court's desire and the District Attorney's request to have Mr. Garcia-Mendoza actually serve a total of 270 days (a 9 month sentence), but the mittimus would be such that he would be able to avail himself to a defense before the United States Department of Justice." ...