The Honorable Jed S. Rakoff, Senior United States District Judge for *

the Southern District of New York, sitting by designation.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERARDO ROMERO-OCHOA,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

No. 08-74277

Agency No.

A075-660-365

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted 

February 15, 2013—Pasadena, California

Filed April 10, 2013

Before: Marsha S. Berzon and Paul J. Watford, Circuit

Judges, and Jed S. Rakoff, Senior District Judge.*

Opinion by Judge Watford
2 ROMERO-OCHOA V. HOLDER

 This summary constitutes no part of the opinion of the court. It has

**

been prepared by court staff for the convenience of the reader.

SUMMARY

**

Immigration

The panel denied Gerardo Romero-Ochoa’s petition for

review of the Board of Immigration Appeals’ decision finding

him ineligible for cancellation of removal for failure to

demonstrate good moral character, due to his conviction and

period of incarceration for vehicular manslaughter. 

The panel held that plausible reasons support 8 U.S.C.

§ 1101(f)(7)’s conclusive presumption that an individual

lacks good moral character based on a period of incarceration,

rather than on the nature of the criminal conduct, and that

Congress rationally concluded that most aliens convicted of

crimes warranting at least six months of incarceration lack the

good moral character to warrant discretionary relief from

removal. The panel also held that § 1101(f)(7)’s reliance on

periods of incarceration generated by state sentencing

regimes that are not uniform in operation did not violate

equal protection principles.

COUNSEL

Susan E. Hill (argued), Hill, Piibe & Villegas, Los Angeles,

California, for Petitioner.
ROMERO-OCHOA V. HOLDER 3

John W. Blakeley (argued), Senior Litigation Counsel; Tony

West, Assistant Attorney General; Leslie McKay, Assistant

Director, United States Department of Justice, Civil Division,

Washington, D.C., for Respondent.

OPINION

WATFORD, Circuit Judge:

Gerardo Romero-Ochoa is a native and citizen of Mexico

who first came to the United States in 1973, when he was

roughly 18 years old. His wife is a lawful permanent resident

of the United States, and three of his five children are U.S.

citizens. Mr. Romero’s mother is a lawful permanent resident

of the United States and his younger brother is a U.S. citizen

as well.

But Mr. Romero is not a lawful permanent resident; in the

eyes of the immigration laws, he is an “alien present in the

United States without being admitted or paroled,” and is thus

subject to removal. 8 U.S.C. § 1182(a)(6)(A)(i). In 2005, the

government initiated removal proceedings against him,

prompted by his then-recent 2004 conviction for vehicular

manslaughter. Mr. Romero pleaded guilty to killing a person

while unlawfully driving under the influence of alcohol in

violation of California Penal Code § 192(c). He received a

sentence of 16 months in prison and served approximately

half of that time in custody.

Mr. Romero conceded removability and filed an

application for cancellation of removal or, in the alternative,

for voluntary departure. To be eligible for such relief, Mr.

Romero had to show, among other things, that he is a person
4 ROMERO-OCHOA V. HOLDER

of “good moral character” and was so during the 10-year

period immediately preceding his application (or, in the case

of voluntary departure, the 5-year period immediately

preceding his application). 8 U.S.C. §§ 1229b(b)(1),

1229c(b)(1).

The immigration judge presiding over Mr. Romero’s

removal proceedings held that he is statutorily ineligible for

relief because he cannot meet the good moral character

requirement. Congress has not explicitly defined what it

means to have “good moral character,” but it has established

eight categories of individuals who are conclusively

presumed to lack good moral character. See 8 U.S.C.

§ 1101(f). Mr. Romero falls within one such category:

individuals who have been “confined, as the result of

conviction, to a penal institution for an aggregate period of

one hundred and eighty days or more” during the period for

which good moral character must be shown. Id. § 1101(f)(7).

Because Mr. Romero was imprisoned for more than 180 days

during the relevant time period (as a result of his vehicular

manslaughter conviction), he is conclusively presumed to

lack good moral character. The immigration judge denied

Mr. Romero cancellation of removal and voluntary departure

on that basis, and the Board of Immigration Appeals

affirmed.

Mr. Romero does not dispute that 8 U.S.C. § 1101(f)(7)

precludes him from establishing eligibility for cancellation of

removal or voluntary departure. But he asks us to declare

§ 1101(f)(7) facially unconstitutional on the ground that it

violates the equal protection component of the Fifth

Amendment’s Due Process Clause. (Mr. Romero also attacks

§ 1101(f)(7) under the rubric of “substantive due process,”

but he does not advance any independent arguments for
ROMERO-OCHOA V. HOLDER 5

invalidation under that theory.) In Mr. Romero’s view, the

constitutional vice of § 1101(f)(7) is that it conclusively

presumes an individual to lack good moral character based

solely on the length of time served in prison, rather than on

the nature of the underlying criminal conduct. Given the

wide variation in sentences imposed by different States for

the same criminal conduct, Mr. Romero argues, § 1101(f)(7)

allows disparate treatment of similarly situated individuals in

violation of equal protection principles.

Before explaining why we reject this challenge, it is

helpful to isolate the narrow pivot of Mr. Romero’s argument.

He does not contest Congress’s authority to order the removal

of those present in this country unlawfully, nor Congress’s

judgment that leniency should be extended to certain classes

of removable aliens but not others—for example, by offering

discretionary forms of relief like cancellation of removal and

voluntary departure only to those who can show good moral

character. See Fiallo v. Bell, 430 U.S. 787, 798 (1977) (such

policy judgments are reserved to the political branches alone).

Nor does he contest Congress’s authority to declare that those

who have committed sufficiently serious crimes are

conclusively presumed to lack good moral character. Mr.

Romero’s sole contention is that, in deciding which crimes

are sufficiently serious to warrant that presumption, Congress

may not use the length of time served in custody as a proxy

for seriousness. Instead, Mr. Romero argues, Congress must

use conduct-based classifications, as it has elsewhere in

§ 1101(f), by specifying the particular criminal offenses

which trigger the conclusive presumption that an individual

lacks good moral character. See 8 U.S.C. § 1101(f)(3), (8),

(9).
6 ROMERO-OCHOA V. HOLDER

Our task in evaluating the constitutionality of Congress’s

chosen method of designating offenses that render an alien

ineligible for relief is a limited one. The sentence-based

classification drawn by § 1101(f)(7) does not implicate a

fundamental right or target a suspect class, so it is subject to

rational basis review. FCC v. Beach Commc’ns, Inc.,

508 U.S. 307, 313 (1993); Sudomir v. McMahon, 767 F.2d

1456, 1464-65 (9th Cir. 1985). Such review does not provide

“a license for courts to judge the wisdom, fairness, or logic of

legislative choices.” Beach Commc’ns, 508 U.S. at 313; see

Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 316–17 (1976)

(per curiam). Thus, the question for us is not whether basing

ineligibility on conviction of a specified offense, as opposed

to sentence length, provides a superior means of

accomplishing Congress’s end. See Armour v. City of

Indianapolis, 132 S. Ct. 2073, 2083 (2012); Murgia, 427 U.S.

at 316. We ask only whether there are “plausible reasons for

Congress’ action,” and if there are, “our inquiry is at an end.”

U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980).

We think there are plausible reasons supporting the

classification drawn by § 1101(f)(7). Congress rationally

concluded that, in most cases, aliens who have been

convicted of crimes serious enough to warrant at least six

months of incarceration will lack the good moral character

necessary to warrant discretionary relief from removal.

Congress was entitled to rely on that judgment to create the

conclusive presumption erected by § 1101(f)(7) even though

it may prove over- or under-inclusive in individual cases. See

Fiallo, 430 U.S. at 799; Mathews v. Diaz, 426 U.S. 67, 83

(1976); Weinberger v. Salfi, 422 U.S. 749, 776–77, 781

(1975). Although the conclusive presumption denies

individuals like Mr. Romero an opportunity to show that they

possess the requisite good moral character notwithstanding
ROMERO-OCHOA V. HOLDER 7

their service of more than six months in custody, Congress

could rationally conclude that “the expense and other

difficulties of individual determinations justified the inherent

imprecision of a prophylactic rule.” Salfi, 422 U.S. at 777.

Whether Congress should have drawn the line at six months

in custody, or one year or ten years, is not for us to secondguess. See Fritz, 449 U.S. at 179; Mathews, 426 U.S. at

83–84.

All that remains is Mr. Romero’s contention that

§ 1101(f)(7) violates equal protection principles because it

relies on the periods of incarceration generated by state

sentencing regimes that are not uniform in operation. We do

not think this aspect of § 1101(f)(7) renders it irrational.

There may well be cases in which the same underlying crime

results in a period of incarceration of seven months in one

State but only five months in another. But that sort of

disparity at the margins does not render the classification

invalid under rational basis review. See Murgia, 427 U.S. at

316. Drawing any line “inevitably requires that some persons

who have an almost equally strong claim to favored treatment

be placed on different sides of the line.” Mathews, 426 U.S.

at 83. And we have held that when determining which

offenders should be eligible for immigration relief, Congress

may rationally rely on “the adjudicating forum’s judgment

concerning the seriousness of [an] offense.” Rangel-Zuazo v.

Holder, 678 F.3d 967, 969 (9th Cir. 2012) (per curiam). That

remains true even though different forums impose different

sentences for the same offense. See Vieira Garcìa v. INS,

239 F.3d 409, 414–15 (1st Cir. 2001).

PETITION FOR REVIEW DENIED.