RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 23a0019p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JORGE HERNANDEZ,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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No. 22-3120

On Petition for Review from the Board of Immigration Appeals;

No. A 073 646 149.

Decided and Filed: February 6, 2023

Before: STRANCH, MURPHY, and DAVIS, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Justin B. Hurst, HURST LAW GROUP, Hot Springs, Arkansas, for Petitioner. 

Lisa Morinelli, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for 

Respondent.

_________________

OPINION

_________________

MURPHY, Circuit Judge. When the Attorney General or his designee, the Board of 

Immigration Appeals, denies discretionary relief to an immigrant, the immigration laws limit the 

jurisdiction of the courts to review that decision. 8 U.S.C. § 1252(a)(2)(B)(i). This jurisdictional 

limit bars us from reviewing not just the Board’s ultimate discretionary choice to deny relief but 

also any factual findings underlying that choice. See Patel v. Garland, 142 S. Ct. 1614, 1621–23 

(2022). Yet a jurisdictional safe harbor preserves our power to review “questions of law” 

>
No. 22-3120 Hernandez v. Garland Page 2

embedded in the discretionary decision, 8 U.S.C. § 1252(a)(2)(D), including a “mixed question 

of law and fact” that requires the Board to consider whether the historical facts meet the 

governing legal test, Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068–69 (2020) (citation 

omitted).

This case requires us to consider how these rules apply to the Board’s denial of one type 

of discretionary relief: cancellation of removal. The Board has discretion to cancel the removal 

of immigrants who meet four eligibility requirements—including that they have “good moral 

character” and that their removal would cause sufficient “hardship” to a qualifying relative. 

8 U.S.C. § 1229b(b)(1)(B), (D). We recently held that the Board’s conclusion that the historical 

facts did not rise to the required level of “hardship” resolved a mixed question of law and fact 

that we have jurisdiction to review. See Singh v. Rosen, 984 F.3d 1142, 1149–54 (6th Cir. 2021). 

Like Singh, we now hold that the question whether the historical facts show that an immigrant 

lacks “good moral character” also qualifies as a mixed question within our jurisdiction.

We thus may review Jorge Hernandez’s argument that the Board wrongly held that he 

lacked good moral character because his negative attributes (including two drinking-and-driving 

convictions) outweighed his positive attributes (including his support of his ill wife). That said, 

the Board properly concluded that Hernandez’s history of alcohol use and drinking-and-driving 

convictions showed his lack of “good moral character.” We thus deny his petition for review on 

the merits.

I

Born and raised in El Salvador, Hernandez came to the United States a couple of months 

before his eighteenth birthday in 1994. Admin. R. (A.R.) 1363, 1637. Hernandez entered 

without inspection and has lived in this country ever since. A.R. 1638.

At some point, immigration authorities learned of Hernandez’s presence and mailed him 

a “notice to appear” in proceedings designed to remove him to El Salvador. A.R. 1953, 2057–

59. In 1999, Hernandez did not appear at his initial hearing, so an immigration judge ordered 

him removed in his absence. A.R. 1334, 2052; see 8 U.S.C. § 1229a(b)(5)(A). Over ten years 

later, another immigration judge granted Hernandez’s motion to reopen his removal proceedings 
No. 22-3120 Hernandez v. Garland Page 3

on the ground that he had never received the notice to appear that the authorities had mailed to 

him. A.R. 1954–96, 2013–15; see 8 U.S.C. § 1229a(b)(5)(C)(ii).

In the meantime, Hernandez married his wife and became the stepfather of her four 

children. A.R. 1364–65, 1430. The couple lived in Arkansas. But Hernandez’s job laying cable 

for an oil company took him to other states, with the expectation that he would spend a month or 

more at home for every three months he spent away. A.R. 1366–68, 1432–34, 1447.

In 2012, Hernandez sought cancellation of removal. A.R. 1637–44. To qualify for this 

relief, Hernandez needed to establish: (1) that he had remained in the United States for the past 

ten years; (2) that he had “been a person of good moral character during” that time; (3) that he 

had not been convicted of certain crimes; and (4) that his “removal would result in exceptional 

and extremely unusual hardship to” his wife. 8 U.S.C. § 1229b(b)(1)(A)–(D).

After holding a hearing at which Hernandez and his wife testified, an immigration judge 

denied his cancellation-of-removal motion. A.R. 1329. The judge found that Hernandez met 

two of the four elements: he had remained in this country for ten years and had not been 

convicted of disqualifying offenses. A.R. 1323, 1325. But the judge concluded that Hernandez 

did not satisfy the other elements for several reasons. According to the judge, Hernandez lacked 

good moral character because of his failure to pay taxes in recent years and because of his 

criminal record. A.R. 1323–25. Hernandez allegedly provided obfuscating testimony about his 

tax-paying history in an effort to “confuse” the court. A.R. 1319. Hernandez also had been

convicted of three criminal offenses. A.R. 1324–25. In 2003, he pleaded guilty to possessing an 

instrument of crime in violation of Arkansas law after an officer found him with a fake ID. A.R. 

1378–81. In 2007 and 2010, he pleaded guilty to drinking-and-driving offenses. A.R. 1383–84.

Alternatively, the judge found that Hernandez’s removal would not cause exceptional and 

extremely unusual hardship to his wife. A.R. 1325–28. The judge acknowledged that she could 

not work due to her many health problems, including diabetes and a heart condition. A.R. 1326, 

1436–38. Yet Hernandez’s job took him away from their home for nine months of the year, so 

he largely provided his wife with only financial support. A.R. 1327. The judge reasoned that 
No. 22-3120 Hernandez v. Garland Page 4

she received sufficient government aid to meet her monetary needs and that she could use other 

sources of income to pay for medicines not covered by insurance. Id.

After Hernandez appealed to the Board, immigration authorities approved his wife’s visa 

petition to allow him to become a permanent resident due to their relationship. A.R. 1247. This 

development, which occurred outside these removal proceedings, led the Board in 2014 to 

remand the case so that the immigration judge could consider Hernandez’s request for an 

“administrative closure” of the proceedings. Id. When doing so, the Board criticized part of the 

judge’s rationale for denying cancellation of removal. As relevant here, it noted that 

Hernandez’s conviction from 2003 (a conviction on which the judge had partially relied) now 

fell outside the ten-year window for assessing his moral character under the governing statute. 

A.R. 1247–48 n.2.

On remand, the immigration judge administratively closed Hernandez’s case. A.R. 1194. 

The judge granted this relief to give him time to apply for a certain waiver with immigration 

authorities. The waiver would allow him to receive the applied-for visa even while he remained 

in this country (rather than force him to leave the country to obtain it). A.R. 82–95, 1194.

The case remained administratively closed for over a year, but Hernandez never sought 

the contemplated waiver. A.R. 54, 520. (He alleges that he asked his attorneys to do so but that 

they declined for unknown reasons. A.R. 521–22.) At the request of immigration authorities 

who viewed Hernandez as an “enforcement priority,” a new immigration judge reopened his 

removal proceedings. A.R. 98. The judge scheduled a supplemental hearing for the parties to 

provide updated evidence concerning the cancellation-of-removal eligibility requirements. A.R. 

103.

After Hernandez and his wife testified a second time, the immigration judge again held 

that he did not qualify for cancellation of removal. A.R. 63. This time, however, the judge 

found that his removal would cause his wife exceptional and extremely unusual hardship. A.R. 

61–63. Her health had deteriorated even more in recent years, and Hernandez cared for her and 

the household. A.R. 62. Hernandez had also taken a job that allowed him to stay in Arkansas, so 

he now gave his wife more than financial support. Id.
No. 22-3120 Hernandez v. Garland Page 5

Yet the judge found that Hernandez still lacked “good moral character.” A.R. 60–61. 

According to the judge, Hernandez’s “positive” qualities did not outweigh his “negative” ones. 

A.R. 60. On the positive side, Hernandez kept a job and was the primary caregiver and financial 

provider for his wife and stepchildren. Id. On the negative side, he had three more run-ins with 

the law. A.R. 60–61. The police arrested him two more times for drinking and driving in 2016. 

One arrest led to a third drinking-and-driving conviction. A.R. 61, 146, 154–56, 162, 165. The 

police also arrested him for a domestic-violence offense in 2013. A.R. 58, 143–44, 160–61. 

After consuming alcohol, he began screaming at his wife and daughter because they would not 

let him leave their home. A.R. 160–61. Hearing the commotion, neighbors called the police out 

of fear that Hernandez was hitting his family members. A.R. 144, 160. Both Hernandez and his 

wife testified that he had not hit anyone, and the state dropped the charges. A.R. 144–45, 161. 

The judge nevertheless reasoned that Hernandez’s inability to control his drinking had led to 

another drinking-and-driving conviction, even after the prior judge had explained the importance 

of following the law. A.R. 61. And while Hernandez claimed that he no longer drinks alcohol to 

excess, he admitted that he still drinks. Id.; A.R. 164. The judge thus found that he remained a 

danger to his community. A.R. 61.

The Board upheld the immigration judge’s decision that Hernandez lacked the good 

moral character required for cancellation of removal. According to the Board, the judge properly 

concluded that Hernandez’s negative traits outweighed his positive traits. A.R. 4.

II

Hernandez petitions for our review of the Board’s denial of cancellation of removal. 

Immigrants qualify for this relief if they satisfy four eligibility requirements:

The Attorney General may cancel removal of, and adjust to the status of an alien 

lawfully admitted for permanent residence, an alien who is inadmissible or 

deportable from the United States if the alien—

(A) has been physically present in the United States for a continuous period of 

not less than 10 years immediately preceding the date of such application;

(B) has been a person of good moral character during such period;

(C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), 

or 1227(a)(3) of this title, subject to paragraph (5); and
No. 22-3120 Hernandez v. Garland Page 6

(D) establishes that removal would result in exceptional and extremely 

unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the 

United States or an alien lawfully admitted for permanent residence.

8 U.S.C. § 1229b(b)(1). Yet Congress did not give immigrants who satisfy these four 

requirements an automatic right to this relief. As the statute’s use of the verb “may” shows, the 

Attorney General retains discretion to deny relief to eligible immigrants. See Singh, 984 F.3d at 

1147. (The Attorney General has delegated this power to the Board. Id. at 1148; see 8 C.F.R. 

§ 1003.1(a)(1), (d)(3)(ii).)

The parties agree that Hernandez met all eligibility requirements but the one mandating 

that he have “good moral character.” The general “definitions” section in the immigration laws 

provides guidance on what this term of art means. The relevant subsection provides that eight 

specific classes of immigrants automatically lack “good moral character,” including those who 

are “habitual drunkard[s],” those who receive their main income “from illegal gambling 

activities,” those who have lied under oath to obtain immigration-related benefits, and those who 

have “aggravated felony” convictions. 8 U.S.C. § 1101(f). Apart from these specific categories 

of per se ineligible immigrants, a catch-all clause adds that immigrants might lack good moral 

character for other reasons: “The fact that any person is not within any of the foregoing classes 

shall not preclude a finding that for other reasons such person is or was not of good moral 

character.” Id.

Here, the immigration judge found that Hernandez did not fall within any of the specific 

categories of immigrants whom § 1101(f) treats as automatically ineligible. A.R. 60. The judge 

(and Board) instead held that Hernandez lacked good moral character under § 1101(f)’s catch-all 

provision. A.R. 3–4, 60–61. Hernandez challenges this conclusion in his petition for review. 

The government responds that we lack jurisdiction to review his challenge. We disagree with the 

government’s jurisdictional argument but reject Hernandez’s claim on the merits. 

A. Jurisdiction

All agree that the Board’s decision to deny Hernandez cancellation of removal qualifies 

as a “final order of removal” that we generally have jurisdiction to review. 8 U.S.C. 

§ 1252(a)(1). Yet the section authorizing judicial review also limits our jurisdiction over certain 
No. 22-3120 Hernandez v. Garland Page 7

issues and then carves out a safe harbor from these jurisdictional limits. See id. § 1252(a)(2)(A)–

(D). 

As for the jurisdictional limits, the judicial-review section bars courts from reviewing, 

among other things, decisions that the immigration laws leave to the Attorney General’s 

discretion. In what we will call “subparagraph (B),” the section indicates: “[E]xcept as provided 

in subparagraph (D),” “no court shall have jurisdiction to review” “any judgment regarding the 

granting of relief under” various sections, including the cancellation-of-removal section 

(§ 1229b). Id. § 1252(a)(2)(B)(i). The Supreme Court recently held that subparagraph (B) 

presumptively precludes our jurisdiction over any aspect of a cancellation-of-removal decision. 

See Patel, 142 S. Ct. at 1622. Most obviously, its text covers the ultimate discretionary decision 

to deny relief to immigrants who meet the four eligibility requirements. See Singh, 984 F.3d at 

1149; 8 U.S.C. § 1252(a)(2)(B)(ii). But the text goes further. The Court in Patel read it also to 

cover any factual findings that underlie a grant or denial of cancellation of removal. See 142 

S. Ct. at 1621–23. This holding matches what we had recognized in Singh. There, we noted that 

courts lack jurisdiction over factual findings undergirding the conclusion that an immigrant’s 

removal would not cause “exceptional and extremely unusual hardship” to a relative. Singh, 

984 F.3d at 1149–50, 1154–55 (citing 8 U.S.C. § 1229b(b)(1)(D)). 

As for the safe harbor, a nearby provision (subparagraph (D)) allows courts to review 

certain legal questions embedded in a discretionary denial of cancellation of removal. It 

provides: “Nothing in subparagraph (B) . . . shall be construed as precluding review of 

constitutional claims or questions of law raised upon a petition for review filed with an 

appropriate court of appeals in accordance with this section.” 8 U.S.C. § 1252(a)(2)(D). The 

Supreme Court recently held that subparagraph (D) broadly saves for our review all manner of 

legal questions. See Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068–69 (2020). Most 

obviously, it allows us to review claims raising abstract legal questions, such as the claim that the 

Board misinterpreted a word or phrase in the cancellation-of-removal section. See Singh, 984 

F.3d at 1149. But its text goes further too. The Court interpreted “questions of law” in 

subparagraph (D) to include “mixed question[s] of law and fact”—that is, questions asking 

whether the historical facts that an immigration judge has found “satisfy a legal standard” in the 
No. 22-3120 Hernandez v. Garland Page 8

cancellation-of-removal statute. Guerrero-Lasprilla, 140 S. Ct. at 1068–69 (quoting U.S. Bank 

Nat’l Ass’n v. Village at Lakeridge, LLC, 138 S. Ct. 960, 967–69 (2018)). In light of GuerreroLasprilla, we held in Singh that subparagraph (D) gave us jurisdiction to review the Board’s 

conclusion that the historical facts that an immigration judge found did not rise to the required 

level of “exceptional and extremely unusual hardship.” See 984 F.3d at 1150–54. 

Putting subparagraphs (B) and (D) together, we have jurisdiction to review some aspects 

of a conclusion that an immigrant did not satisfy the “good moral character” requirement, but we 

lack jurisdiction to review other aspects of that conclusion. Subparagraph (B) makes clear that 

we lack jurisdiction over any purely factual questions underlying the conclusion. See Patel, 142 

S. Ct. at 1621–23. An immigrant thus could not challenge an immigration judge’s finding that 

he had driven “while intoxicated on several occasions” when that finding undergirded the 

holding that he lacked good moral character. Martinez-Acosta v. Garland, 2021 WL 5013813, at 

*2 (6th Cir. Oct. 28, 2021). Conversely, subparagraph (D) makes clear that we have jurisdiction 

over any purely legal question resolved in the process of reaching a “good moral character” 

conclusion. So an immigrant could raise a challenge that the “good moral character” provision 

violated the Due Process Clause because it was void for vagueness. See, e.g., Cedillo-Ramirez v. 

Rosen, 833 F. App’x 47, 47–48 (9th Cir. 2021) (memorandum); Tomaszczuk v. Whitaker, 909 

F.3d 159, 164 (6th Cir. 2018). And an immigrant could raise a challenge that the Board 

improperly interpreted the phrase “good moral character” to allow consideration of an 

immigrant’s “expunged” prior convictions. Ikenokwalu-White v. I.N.S., 316 F.3d 798, 804 (8th 

Cir. 2003). 

What type of challenge does Hernandez raise here? To answer this question, we must 

look to the substance of his claim. See Singh, 984 F.3d at 1149. And for the most part, his 

challenge does not fit neatly within either the purely legal or purely factual buckets. He does not 

challenge any of the immigration judge’s findings about the historical facts. He, for example, 

accepts the findings about his prior encounters with the police and the danger that his drinking 

poses. A.R. 60–61. At the same time, Hernandez does not challenge the Board’s interpretation 

that the phrase “good moral character” turns on an evaluation of all of an immigrant’s positive 

and negative traits. A.R. 3 (citing Matter of Guadarrama de Contreras, 24 I. & N. Dec. 625, 627 
No. 22-3120 Hernandez v. Garland Page 9

(B.I.A. 2008)). Rather, he challenges the ultimate conclusion that his negative traits outweighed 

his positive ones. 

Courts have disagreed over the type of question that this challenge raises. The Eighth 

Circuit held that it represents a mixed question of law and fact that courts have jurisdiction to 

review under subparagraph (D). See Hernandez v. Garland, 28 F.4th 917, 921 (8th Cir. 2022) 

(citing Ikenokwalu-White, 316 F.3d at 803); see also Patel v. U.S. Att’y Gen., 971 F.3d 1258, 

1278 (11th Cir. 2020) (en banc), aff’d, Patel v. Garland, 142 S. Ct. 1614 (2022). Before 

Guerrero-Lasprilla, other courts offered more complex views. If the Board found that 

immigrants lacked good moral character because they fell within one of the automatically 

ineligible categories in § 1101(f) (for example, if it found that they were “habitual drunkards”), 

these courts held that the Board resolved a mixed question that they could review. See Restrepo 

v. Holder, 676 F.3d 10, 15 (1st Cir. 2012) (citing Bernal-Vallejo v. I.N.S., 195 F.3d 56, 62 (1st 

Cir. 1999)); Moran v. Ashcroft, 395 F.3d 1089, 1091 (9th Cir. 2005); Omagah v. Ashcroft, 288 

F.3d 254, 259 (5th Cir. 2002); Kalaw v. I.N.S., 133 F.3d 1147, 1151 (9th Cir. 1997). Yet if, as 

here, the Board relied on § 1101(f)’s catch-all provision, some of these courts held that they 

lacked jurisdiction because the Board had made a “discretionary” decision about an immigrant’s 

moral worth. See Restrepo, 676 F.3d at 15; Moran, 395 F.3d at 1091; see also Portillo-Rendon 

v. Holder, 662 F.3d 815, 817 (7th Cir. 2011).

The government suggests that we have yet to enter this debate. (We found two 

unpublished decisions indicating that we lack jurisdiction over a good-moral-character 

determination, but their conclusory statements predate Guerrero-Lasprilla. See Ramdane v. 

Mukasey, 296 F. App’x 440, 449 (6th Cir. 2008); Mateo v. Gonzales, 217 F. App’x 476, 481 (6th 

Cir. 2007).) We now side with the Eighth Circuit. No matter the provision in § 1101(f) on 

which the Board relies, its holding that an immigrant lacks “good moral character” resolves a 

mixed question. That type of conclusion applies a “legal standard” (good moral character) to the 

historical “facts” found by the immigration judge. Guerrero-Lasprilla, 140 S. Ct. at 1067. The 

conclusion does not make a “discretionary” determination. Patel, 971 F.3d at 1278.

We reach this result largely for the reasons that we explained in Singh. 984 F.3d at 

1150–54. As always, start with the text. Congress typically delegates discretion to an agency by 
No. 22-3120 Hernandez v. Garland Page 10

using permissive language indicating that it “may” take a certain action or that it has “discretion” 

to make a certain decision. Id. at 1151. The cancellation-of-removal section uses this discretionempowering language when describing the Attorney General’s ultimate authority to deny 

cancellation of removal to otherwise eligible immigrants. 8 U.S.C. § 1229b(b)(1). So we lack 

jurisdiction over that final choice. See Bernardino Murillo v. Barr, 795 F. App’x 437, 441 (6th 

Cir. 2019). Critically, however, this discretionary text is nowhere to be found in the section’s 

four eligibility requirements. Singh, 984 F.3d at 1151. Nothing in the text gives the Attorney 

General discretion to decide whether an immigrant has good moral character—just as nothing in 

the text gives the Attorney General discretion to decide whether an immigrant has remained in 

this country for ten years or has been convicted of a disqualifying felony. Id. at 1151–52. 

The statutory scheme as a whole supports this view. Many other sections of the 

immigration laws use the phrase “good moral character.” See Matter of Castillo-Perez, 27 

I. & N. Dec. 664, 666 (A.G. 2019); see also, e.g., 8 U.S.C. § 1229c(b)(1)(B). Most notably, an 

immigrant who seeks to become a citizen must have been “a person of good moral character” for 

the requisite time. 8 U.S.C. § 1427(a)(3); 8 C.F.R. § 316.10. This citizenship requirement dates 

back to the earliest immigration laws. See Naturalization Act of 1795, ch. 20, 1 Stat. 414, 414; 

cf. Naturalization Act of 1790, ch. 3, 1 Stat. 103, 103. Yet, as far as we can tell, most cases 

predating subparagraph (B)’s jurisdictional limit did not treat this determination as 

“discretionary.” See Ikenokwalu-White, 316 F.3d at 803 & n.8 (citing cases); cf. Johnson v. 

United States, 186 F.2d 588, 589–90 (2d Cir. 1951) (L. Hand, J.) (reversing good-moralcharacter finding); Repouille v. United States, 165 F.2d 152, 153 (2d Cir. 1947) (L. Hand, J.) 

(same). In addition, applicants for citizenship who lie to immigration officials can find 

themselves in criminal proceedings if the lie was material to a decision to grant citizenship. See

Maslenjak v. United States, 137 S. Ct. 1918, 1923 (2017). Should a jury’s decision whether to 

send an immigrant to prison rest on an immigration official’s subjective judgment about the lie’s 

effect on the applicant’s moral character (and therefore, the applicant’s citizenship)? The 

Supreme Court did not think so. It recognized that all citizenship requirements (including the 

good-moral-character requirement) establish “objective legal criteria” and “provide little or no 

room for subjective preferences or personal whims”—that is, for discretionary decisionmaking. 

Id. at 1928. 
No. 22-3120 Hernandez v. Garland Page 11

The statutory framework in § 1101(f) governing this “good moral character” requirement 

points the same way. All courts agree that the Attorney General does not have discretion to 

decide whether an immigrant falls into one of the eight specific categories of immigrants who 

automatically lack good moral character. 8 U.S.C. § 1101(f)(1)–(9); see, e.g., Restrepo, 676 F.3d 

at 15. For example, the Attorney General lacks discretion to decide whether an immigrant 

qualifies as a “habitual drunkard,” 8 U.S.C. § 1101(f)(1), has smuggled other immigrants into the 

country, id. § 1101(f)(3), or has participated in “genocide,” id. § 1101(f)(9). Courts have instead 

used “mixed question” nomenclature when describing whether an immigrant falls into one of 

these categories, noting that the question raises “a legal determination involving the application 

of law to factual findings.” Ramos v. Holder, 660 F.3d 200, 203 (4th Cir. 2011) (quoting Jean v. 

Gonzales, 435 F.3d 475, 482 (4th Cir. 2006)) (emphasis added); see Kalaw, 133 F.3d at 1150–

51. 

It makes no textual or logical sense to treat § 1101(f)’s catch-all clause differently. 

Textually, the clause provides: “The fact that any person is not within any of the foregoing 

classes shall not preclude a finding that for other reasons such person is or was not of good moral 

character.” 8 U.S.C. § 1101(f). This language merely clarifies that the eight specified classes 

are not exhaustive and that other misbehavior can disqualify an immigrant. Id. It says nothing 

about leaving this more general moral-character inquiry to “the opinion of the Attorney 

General”—as Congress has sometimes done in other contexts. Singh, 984 F.3d at 1152. Like 

the more specific provisions, then, the catch-all provision also raises a “question of applying the 

law to the facts[.]” Ikenokwalu-White, 316 F.3d at 803. Logically, a contrary reading would 

create an odd dichotomy. Here, for example, that reading would have permitted our review if the 

Board had held that Hernandez’s drinking-and-driving history made him a “habitual drunkard[.]” 

8 U.S.C. § 1101(f)(1). Why foreclose review simply because the Board held that Hernandez’s 

drinking-and-driving history disqualified him more generally? Ikenokwalu-White, 316 F.3d at 

803.

The government responds with one potential answer: Because the catch-all provision 

invokes the totality of an immigrant’s circumstances, it is too fact-intensive for us to treat it as 

anything other than a discretionary exercise. True, as Judge Learned Hand once noted, “people 
No. 22-3120 Hernandez v. Garland Page 12

differ as much about moral conduct as they do about beauty.” Johnson, 186 F.2d at 589. But, as 

Singh recognized when rejecting the same complaint about the “hardship” requirement, 

Congress’s choice to set a seemingly malleable standard does not give us the right to throw up 

our hands. 984 F.3d at 1152. Courts, for example, have long found it impossible to define with 

precision phrases like “reasonable suspicion” or “probable cause” and have instead said that 

these phrases trigger the totality of the circumstances. See Ornelas v. United States, 517 U.S. 

690, 695–96 (1996). But that fact has not led them to give police officers or magistrates 

discretion to decide whether probable cause exists to search a home or reasonable suspicion to 

frisk a suspect. Rather, these inquiries raise mixed (not discretionary) questions subject to 

de novo review on appeal. Id. at 696–97; see U.S. Bank, 138 S. Ct. at 967 n.4. Both “[l]ongstanding judicial precedent” and agency regulations have given the phrase “good moral 

character” as much “discernible content” as probable cause. Castillo-Perez, 27 I. & N. Dec. at 

667. The test requires the decisionmaker to grade an immigrant’s behavior against “the 

standards of the average citizen in the community of residence.” 8 C.F.R. § 316.10(a)(2). 

Because the test does not raise a discretionary question, we have jurisdiction to review it.

B. Merits

As we also said in Singh, just because we possess jurisdiction to review this mixed 

question does not mean that we must closely scrutinize the Board’s answer. 984 F.3d at 1154. 

When choosing a standard of review, the Supreme Court has told us to ask both historical and 

practical questions. As for the historical: Do appellate courts have a long practice of applying a 

particular standard to a particular question? U.S. Bank, 138 S. Ct. at 967 n.3 (citing Pierce v. 

Underwood, 487 U.S. 552, 558 (1988)). As for the practical: Which entity is best situated to 

possess primary decisionmaking authority? See Guerrero-Lasprilla, 140 S. Ct. at 1069. If a 

mixed question requires a court to “expound on the law” by fleshing out “a broad legal 

standard,” appellate courts should take on primary decisionmaking authority by applying 

de novo review. U.S. Bank, 138 S. Ct. at 967. If, however, a mixed question requires a court to 

“immerse” itself in a case’s unique facts by “weigh[ing]” all evidence for and against an answer, 

appellate courts should give trial courts primary decisionmaking authority by applying 

deferential review. Id. 
No. 22-3120 Hernandez v. Garland Page 13

These considerations might point to a deferential standard here. As a matter of history, 

the Eighth Circuit suggested that circuit courts have long evaluated the initial decisionmaker’s 

answer to this question (which again dates to the founding) under a deferential “substantial 

evidence standard” of review. Ikenokwalu-White, 316 F.3d at 803 & n.8 (citing cases). As a 

matter of practicalities, the Board has long applied a fact-specific test to decide whether an 

immigrant has good moral character. As noted, this test asks whether an immigrant has lived up 

to “the standards of the average citizen in the community” based on all of the immigrant’s 

characteristics. 8 C.F.R. § 316.10(a)(2); Matter of U-, 2 I. & N. Dec. 830, 831–32 (B.I.A. 1947). 

The initial decisionmaker (not an appellate court) is typically better suited to answer a mixed 

question like this one that turns on the totality of the circumstances. See Singh, 984 F.3d at 1154 

(discussing Monasky v. Taglieri, 140 S. Ct. 719, 730 (2020); U.S. Bank, 138 S. Ct. at 967–69). 

Ultimately, though, the parties’ inadequate briefing on this topic leads us to reserve the 

proper standard of review for another case. Cf. id. We would uphold the Board’s conclusion 

that Hernandez failed to prove his good moral character under any standard of review. 

Notwithstanding his support of his wife, Hernandez’s criminal history shows his lack of good 

moral character under our community’s “generally accepted moral conventions[.]” CastilloPerez, 27 I. & N. Dec. at 667 (quoting United States v. Francioso, 164 F.2d 163, 163 (2d Cir. 

1947) (L. Hand, J.)). As the criminal laws in all 50 states show, our country has formed “a 

national consensus” against drunk driving—an illegal practice that causes tragedies every day of 

the year. Id. at 669–70. Yet Hernandez had two drinking-and-driving convictions within the 

relevant ten-year period. A.R. 61. He also had a third such conviction outside that period and a 

fourth arrest for it within the period. Id. Most of these incidents, moreover, occurred while he 

was litigating his removal proceedings and thus well knew his obligations to follow the law. Id.

Significant judicial and administrative precedent supports this conclusion that 

Hernandez’s drinking-related criminal history shows his lack of “good moral character.” The 

Attorney General has instructed the Board to adhere to a legal presumption that an immigrant 

lacks good moral character if the immigrant has two or more drinking-and-driving convictions in 

the relevant time period. See Castillo-Perez, 27 I. & N. Dec. at 664, 669, 673. Many cases have 

also relied on similar criminal histories to uphold a finding that an immigrant lacked good moral 
No. 22-3120 Hernandez v. Garland Page 14

character. See, e.g., Llanas-Trejo v. Garland, 53 F.4th 458, 463 (8th Cir. 2022); Meza v. 

Garland, 5 F.4th 732, 736–37 (7th Cir. 2021); see generally Beth Holliday, Annotation, 

Construction and Application of “Good Moral Character” Requirement for Cancellation of 

Removal of Alien Under 8 U.S.C.A. § 1229b(b)(1)(B), 87 A.L.R. Fed. 2d 231, § 24 (2014 & 

Supp. 2022) (collecting cases). For his part, Hernandez identifies not a single contrary 

precedent. 

One final point: Hernandez conclusorily asserts that the Board wrongly considered his 

domestic-assault and drinking-and-driving arrests because those arrests did not lead to 

convictions. But § 1101(f) allows the Board to consider “other reasons” why an immigrant lacks 

good moral character without limit—so its text places no restriction on the Board’s consideration 

of arrests. 8 U.S.C. § 1101(f). The Board’s precedent also permits it to consider the 

“unfavorable conduct” underlying an arrest—as long as it accounts for all of the circumstances, 

including an immigrant’s assertions of innocence. See Matter of Thomas, 21 I. & N. Dec. 20, 

23–24 (B.I.A. 1995). Yet we need not decide how arrests can factor into this analysis. The 

immigration judge’s opinion (which the Board adopted) relied mainly on Hernandez’s 

convictions. And Hernandez’s single sentence on this topic did not make a sufficiently 

“coherent argument” to preserve it for our review. Mbonga v. Garland, 18 F.4th 889, 898 (6th 

Cir. 2021). 

* * *

In his statement of issues and at the end of his brief, Hernandez alternatively asserts that 

the Board at least should have allowed him to depart the United States voluntarily. The 

immigration laws permit immigrants to seek voluntary departure in lieu of removal at the 

conclusion of their removal proceedings. See 8 U.S.C. § 1229c(b)(1). But those laws likewise 

limit our jurisdiction over the discretionary refusal to grant this relief. Id. § 1229c(f); see Singh 

v. Holder, 326 F. App’x 378, 381–82 (6th Cir. 2009). And while we may have the authority to 

review legal questions embedded in that denial, see Patel v. Gonzales, 470 F.3d 216, 219 (6th 

Cir. 2006), the conclusory arguments in Hernandez’s brief do not identify any such questions, 

see Mbonga, 18 F.4th at 898. Indeed, his counsel told the immigration judge that he did “not 

seek voluntary departure in any regard.” A.R. 174. Even if he had adequately briefed the issue, 
No. 22-3120 Hernandez v. Garland Page 15

then, his failure to request this relief in his removal proceedings would also bar our consideration 

of any legal questions that he raised. See Singh v. Garland, 2022 WL 4283249, at *8 (6th Cir. 

Sept. 16, 2022).

We deny Hernandez’s petition for review.