### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 13

‐ 2536

J OSE L UIS O RTIZ

‐ E STRADA

,

Petitioner

,

v.

E RIC H. H OLDER

, J R

., Attorney General of the United States,

Respondent

.

____________________

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A200

‐ 837

‐ 406.

____________________

A RGUED J UNE 11, 2014

— D ECIDED J ULY 3, 2014

____________________

Before W OOD

, Chief Judge

, and P OSNER and S YKES

, Circuit

Judges

.

P OSNER

, 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 pro

‐2 No. 13

‐ 2536

ceedings. One of the requirements for cancellation of remov

‐

al applicable to our petitioner is that he have lived continu

‐ ously 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 char

‐

acter.” §§ 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been revoked.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 influ

‐

ence 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 un

‐

til 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.No. 13

‐ 2536 3

Months passed. The continuance kept getting renewed in

expectation of a resolution of the DUI case. But the immigra

‐

tion 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 interven

‐ ing 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 curi

‐

am)]

... 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 individual with a record like yours lacks good moral

character to qualify for residence through cancellation of

removal.”

That’s not correct, though both cases did involve aliens

who were seeking cancellation of removal after having ac

‐

cumulated impressive records of violating this country’s

traffic laws. But in Banuelos

‐ Torres the only issue was wheth

‐

er the immigration judge had acted unreasonably in denying

a continuance, and we held that he had not; the alien’s rec

‐

ord of traffic violations was so bad that the immigration4 No. 13

‐ 2536

judge was rightly afraid of what further violations the alien

might commit if left at large because of the continuance:

“[he] poses a threat to the safety of the community.” 461 F.

App’x at 512. And in Portillo

‐ Rendon we held that because

the Immigration and Nationality Act does not define “good

moral character,” the decision whether an alien has such a

character is an exercise of administration discretion that a

court cannot review. 662 F.3d at 817.

But the immigration judge’s error was without conse

‐

quence. The Board of Immigration Appeals “affirm[ed] [his]

determination” that Ortiz

‐ Estrada had not proved good

moral character. It based the affirmance on “the extent and

recidivist nature of [his] dangerous driving violations,” the

fact that the immigration judge had “discussed [his] undis

‐ puted record of driving violations and criminal conduct

spanning 10 years which also includes multiple DUI related

charges,” and the absence of any “clear error in the Immigra

‐

tion Judge’s findings of fact.” The Board did not correct the

immigration judge’s mistaken interpretations of our Portillo

‐

Rendon and Banuelos

‐ Torres decisions, but it didn’t have to; it

said “we need not reach the other reasons identified in the

Immigration Judge’s decision for his determination that

[Ortiz

‐ Estrada] lacked the requisite good moral character for

relief.” By saying this, the Board implicitly disclaimed reli

‐

ance on our two decisions.

It remains to consider the petitioner’s argument that the

immigration judge’s abrupt refusal to grant a further contin

‐

uance of the removal proceeding (to await the conclusion of

the latest criminal prosecution) violated the petitioner’s pro

‐

cedural rights. Although a determination that the alien lacks

“good moral character” is not subject to judicial review, 8No. 13

‐ 2536 5

U.S.C. § 1252(a)(2)(B)(i), the Board and the immigration

judge must, on pain of reversal if they don’t, respect the al

‐

ien’s right to “a reasonable opportunity

... to present evi

‐

dence on [his] own behalf,” 8 U.S.C. § 1229a(b)(4)(B), though

“in order to succeed in challenging the legality of such a

hearing, the alien must show not only that [his or] her ‘rea

‐

sonable opportunity’ was denied, but also that [he or] she

was prejudiced.” Apouviepseakoda v. Gonzales

, 475 F.3d 881,

885 (7th Cir. 2007); see also Delgado v. Holder

, 674 F.3d 759,

766 (7th Cir. 2012).

The petitioner argues that the immigration judge “failed

to take into proper consideration all relevant factors in the

instant case, including the differences [between] the Peti

‐

tioner’s driving history [and that of the alien in Portillo

‐

Rendon v. Holder

, supra ], Petitioner’s lack of a felony convic

‐

tion [which Portillo

‐ Rendon had had], Petitioner’s good faith

efforts at rehabilitation which have not been refuted, and the

fact that Petitioner’s latest pending charge against him may

still be dismissed.” The first two points are irrelevant, given

the Board’s decision not to give any weight to the immigra

‐

tion judge’s reliance on the Portillo

‐ Rendon and Banuelos

‐

Torres cases. The third point is immaterial, because it was

argued to the immigration judge before he denied the fur

‐

ther continuance sought by the petitioner. The fourth point

could not have been material, for even if the petitioner had

been acquitted of the 2011 traffic offenses, the immigration

judge would have found him deficient in moral character,

because the judge based that finding on the petitioner’s

2000–2010 offense record. Anyway he wasn’t acquitted. He

pleaded guilty last November (five months after the Board’s

decision) to “aggravated DUI” and driving with a suspend

‐

ed or revoked license.6 No. 13

‐ 2536

His lawyer argues that the immigration judge’s abrupt

refusal to continue the removal proceeding prevented the

lawyer from presenting evidence that would have cast his

client’s moral character in a more favorable light. But his

brief does not particularize the evidence, its emphasis being

on the judge’s ruling on cancellation of removal before the

outcome of the petitioner’s latest criminal proceeding could

be known. The ruling was justified. The judge had enough

evidence before him when he denied the further continuance

to conclude that the petitioner lacked good moral character.

And the Board when it affirmed the denial had enough evi

‐

dence before it to come to the same conclusion, thus making

the outcome of that latest criminal proceeding immaterial—

and now that we know the outcome we know that the peti

‐

tioner was not prejudiced by the immigration judge’s refusal

to delay ruling on moral character.

The lawyer’s procedural argument amounts to a conten

‐

tion that as long as his client goes on violating the traffic

laws, he can’t be removed—for even though his record gets

worse and worse, there will always be some pending charg

‐

es that the immigration judge must wait to see resolved be

‐

fore deciding whether to order him removed. Not a good

argument.

The petition for review is

D ENIED

.