Denial of Cancellation of Removal Based on Fraud Under §1101(f) Catchall and the Waiver of Fifth Amendment Privilege

Introduction

The Fourth Circuit’s decision in Adolfo Acevedo Ibarra v. Pamela Bondi addresses two central issues in removal proceedings under the Immigration and Nationality Act: (1) the extent to which unconvicted fraudulent conduct may support a finding that an applicant lacks “good moral character” under 8 U.S.C. § 1101(f) (the so-called catchall clause), thus barring cancellation of removal under 8 U.S.C. § 1229b(b); and (2) the procedural requirement that an individual, not counsel, personally invoke the Fifth Amendment privilege against self-incrimination. Adolfo Ibarra, a Mexican national who entered the United States unlawfully and obtained identity documents and a mortgage by fraud, sought cancellation of removal on the ground that his deportation would cause hardship to his U.S.-citizen children. The immigration judge (IJ) and the Board of Immigration Appeals (BIA) denied relief, finding that Ibarra failed to establish good moral character. The Fourth Circuit affirmed, applying the substantial‐evidence standard and holding that Ibarra had waived any Fifth Amendment claim by testifying without personally asserting the privilege.

Summary of the Judgment

The Fourth Circuit’s published opinion, authored by Judge Richardson and joined by Judges King and Floyd, disposes of Ibarra’s petition for review in two parts:

1. Good Moral Character: Under 8 U.S.C. § 1229b(b), an alien seeking cancellation of removal must demonstrate, among other things, that he has been a person of good moral character during the relevant period. The court reviewed the IJ’s finding that Ibarra lacked good moral character based on the catchall clause of 8 U.S.C. § 1101(f) for substantial evidence. The record showed repeated identity fraud—obtaining Social Security and driver’s licenses, a mortgage, insurance and a vehicle title under a stolen identity—which constituted crimes of moral turpitude. Although Ibarra was never convicted for those frauds, the IJ permissibly weighed the evidence under the catchall and concluded that Ibarra’s misconduct outweighed any evidence of character. The Fourth Circuit held that no reasonable factfinder could be compelled to find differently.
2. Fifth Amendment Privilege: Ibarra argued that the IJ violated his Fifth Amendment privilege against self-incrimination by permitting government questioning after his counsel attempted to assert the privilege on his behalf. The court rejected the claim, reiterating that the privilege is personal and must be invoked by the witness, not counsel. Ibarra answered questions without personally asserting the privilege, thereby waiving any right to relief on that ground.

Analysis

Precedents Cited

• Statutory Framework
  • 8 U.S.C. § 1229b(b): Eligibility criteria for cancellation of removal—including good moral character and hardship.
  • 8 U.S.C. § 1101(f): Definition of “good moral character,” listing specific disqualifying conduct and a residual “catchall” clause.
• Standards of Review
  • Wilkinson v. Garland, 601 U.S. 209 (2024): Mixed questions of law and fact are reviewed for substantial evidence.
  • Garcia v. Holder, 732 F.3d 308 (4th Cir. 2013): Substantial evidence standard in cancellation decisions.
  • Universal Camera Corp. v. N.L.R.B., 340 U.S. 474 (1951): The appellate court may overturn only if evidence compels the opposite result.
• Good Moral Character and Moral Turpitude
  • Pereida v. Wilkinson, 592 U.S. 224 (2021): Fraud-based crimes are crimes of moral turpitude.
  • Fischer v. United States, 603 U.S. 480 (2024): Interpreting residual clauses by reference to statutory examples.
• Fifth Amendment Privilege
  • Garner v. United States, 424 U.S. 648 (1976): If a witness testifies without claiming the privilege, there is no compulsion.
  • Minnesota v. Murphy, 465 U.S. 420 (1984): To invoke the privilege, a witness must personally refuse to answer.
  • U.S. ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103 (1927): Privilege is personal to the witness.

Legal Reasoning

The court began by characterizing the good‐character inquiry as a mixed question of law and fact subject to substantial‐evidence review. It observed that § 1101(f) lists several categorical disqualifications (e.g., convictions for crimes of moral turpitude) but also a residual clause permitting the IJ to find an applicant lacking good moral character “for other reasons.” Ibarra’s extensive use of a friend’s identity to procure governmental documents and financial instruments—conduct that the Supreme Court treats as involving moral turpitude—supported the IJ’s catchall finding. Although Ibarra had no conviction for the identity frauds, the court refused to read a conviction requirement into the catchall, noting that Congress expressly omitted such a requirement from that clause. Given the weight of Ibarra’s misconduct, the IJ’s adverse conclusion was sustainable on the record.

On the Fifth Amendment issue, the court reaffirmed that the privilege against self‐incrimination can be waived by failure to assert it. Because counsel’s attempted invocation cannot substitute for a client’s personal refusal to answer, and because Ibarra continued to testify voluntarily, his self‐incrimination claim was forfeited.

Impact

This decision clarifies several points of importance in immigration law:

• It confirms that serious unconvicted wrongdoing—particularly fraud involving moral turpitude—may justify a denial of good moral character under the residual clause of § 1101(f).
• It underscores the deference due to immigration judges and the BIA under the substantial‐evidence standard when mixed legal‐factual questions are at issue.
• It reinforces the principle that Fifth Amendment rights must be invoked personally by the alien and can be forfeited by voluntary testimony.
• Practitioners will note the importance of advising clients to assert constitutional privileges on the record, rather than relying solely on counsel’s objections.

Complex Concepts Simplified

Good Moral Character: A statutory requirement for cancellation of removal, defined by a list of disqualifying conditions (e.g., certain convictions) and a catchall allowing the IJ to find an applicant lacking character based on other serious misconduct.

Crime of Moral Turpitude: Conduct that is inherently base or dishonest, such as fraud; conviction or admission of such a crime automatically bars a finding of good moral character, but similar uncharged misconduct may be weighed under the catchall.

Substantial Evidence Standard: A deferential review test under which an appellate court will uphold the IJ’s or BIA’s factual finding unless the record compels a different conclusion.

Fifth Amendment Privilege: The right not to be forced to testify against oneself in criminal matters; it must be personally asserted by the witness to be effective in any proceedings.

Conclusion

The Fourth Circuit’s decision in Acevedo Ibarra v. Bondi affirms that an alien’s unconvicted but well‐documented fraudulent misconduct can supply a valid basis for denying “good moral character” under the catchall clause of 8 U.S.C. § 1101(f), and that such a finding will survive substantial‐evidence review. The opinion also reinforces that constitutional privileges must be personally invoked by the alien, lest they be waived. Moving forward, immigration practitioners and courts will rely on this precedent to assess moral‐character determinations and to ensure proper assertion of Fifth Amendment rights in removal proceedings.