Garcia-Mendoza v. Holder

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Petitioner Enrique Garcia-Mendoza petitioned the Tenth Circuit for review of the Board of Immigration Appeals’ (BIA) decision upholding an 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" due to his confinement in a penal institution for more than 180 days. 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. He was released after he had been confined for a total of 197 days when 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. The state court granted the motion and issued a modified mittimus nunc pro tunc to the original sentencing date. Petitioner then filed a motion for remand with the BIA based on the new evidence that his sentence was modified to 166 days. The BIA granted the motion and remanded to the IJ. On remand, the IJ again denied cancellation of removal, noting that the nunc pro tunc order modifying the sentence did not change the fact that petitioner had already been confined for more than 180 days as a result of his conviction. The BIA upheld the IJ’s decision. Petitioner then petitioned the Tenth Circuit. Seeing no reversible error, the Tenth Circuit Court of Appeals denied review. View "Garcia-Mendoza v. Holder" on Justia Law