Third Circuit Opens the Door to Judicial Review of “Good Moral Character” Findings in Cancellation-of-Removal Cases

Introduction

Josue Roman Sanchez v. Attorney General marks a pivotal moment in U.S. immigration jurisprudence. Although the case ultimately ended with dismissal and denial of Sanchez’s petition, the Court of Appeals for the Third Circuit articulated a significant doctrinal clarification: determinations of “good moral character” (GMC) for non-lawful-permanent-resident (non-LPR) cancellation of removal are judicially reviewable as mixed questions of law and fact. This commentary unpacks the decision, explains the path the court took, and anticipates its practical implications.

Parties and posture:

Petitioner: Josue Roman Sanchez, Mexican citizen, long-term undocumented resident, multiple DUI convictions.
Respondent: Attorney General of the United States (Department of Homeland Security / Department of Justice).
Procedural history: Immigration Judge (IJ) denial → BIA dismissal → Petition for review to the Third Circuit.

Summary of the Judgment

The Third Circuit (Judges Shwartz, Restrepo, and Chung; opinion by Judge Restrepo) ruled as follows:

Waiver / Exhaustion: Sanchez failed to meaningfully challenge denials of asylum, withholding of removal, and CAT protection before the BIA. Those claims are unexhausted; jurisdiction dismissed.
Cancellation of Removal: Substantial evidence supported the BIA’s conclusion that Sanchez lacked GMC because of multiple DUI convictions. The petition was therefore denied on the merits.
Due Process: Excluding live testimony from Sanchez’s wife and psychologist did not violate the Fifth Amendment; Sanchez could not show prejudice.
New Precedent: In reaching point 2, the court expressly held that GMC determinations are reviewable under 8 U.S.C. §1252(a)(2)(D) as “mixed questions of law and fact,” aligning the analysis with the Supreme Court’s Wilkinson v. Garland mixed-question framework.

Analysis

1. Precedents Cited and Their Influence

8 U.S.C. §1252(a)(2)(B)(i) & (D) – Jurisdictional bars and the statutory “constitutional claims or questions of law” carve-out.
Wilkinson v. Garland, 601 U.S. 209 (2024) – Supreme Court held “exceptional and extremely unusual hardship” is a reviewable mixed question. The Third Circuit analogized GMC analysis to this hardship standard.
Patel v. Garland, 596 U.S. 328 (2022) – Distinguished; Patel involved pure factual findings (credibility) not subject to review.
Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020) – Defined “questions of law” to include application of law to undisputed facts.
In re Castillo-Perez, 27 I. & N. Dec. 664 (A.G. 2019) – Established rebuttable presumption that multiple DUIs vitiate GMC; used by IJ/BIA to deny relief.
Santos-Zacaria v. Garland, 598 U.S. 411 (2023) & Uddin v. Att’y Gen., 870 F.3d 282 (3d Cir. 2017) – Reinforced exhaustion and waiver doctrines.
Serrano-Alberto v. Att’y Gen., 859 F.3d 208 (3d Cir. 2017) – Standard for removal-proceeding due-process claims; applied to dismiss prejudice argument.

2. Legal Reasoning of the Court

Waiver / Exhaustion: Failure to raise arguments before the BIA constitutes waiver. The court found the BIA acted within discretion, depriving Article III courts of jurisdiction.
Reviewability of “Good Moral Character”:
- Statutory bar (§1252(a)(2)(B)(i)) removes jurisdiction over “any judgment” regarding cancellation.
- Yet §1252(a)(2)(D) restores jurisdiction for constitutional claims or “questions of law.”
- Following Wilkinson, the court treated GMC as a mixed question: applying a legal standard (GMC) to undisputed facts (number and circumstances of DUIs). Mixed questions fall within §1252(a)(2)(D).
- Standard of review: substantial-evidence (deferential but not toothless).
Merits – Presumption from Multiple DUIs:
- Under Castillo-Perez, multiple DUIs during the ten-year statutory period trigger a rebuttable presumption of lack of GMC.
- Sanchez’s four alcohol-related driving incidents in three states over 19 months were not “aberrational.”
- Mitigating evidence (rehabilitation, family ties) insufficient to rebut presumption.
Due Process Claim:
- Even assuming error by the IJ in declining live testimony, Sanchez failed to show prejudice—the testimony would have replicated documentary evidence.
- Without prejudice, no Fifth Amendment violation.

3. Impact of the Decision

The court’s explicit statement that GMC determinations are reviewable will reverberate well beyond this case:

Uniformity across circuits: Other circuits have split on whether GMC is reviewable. The Third Circuit’s reasoning, tethered to Wilkinson, adds persuasive weight for nationwide convergence.
Strategic litigation: Non-LPRs denied cancellation due to criminal incidents (especially non-CIMT DUIs) may bring petitions emphasizing legal misapplication rather than pure fact challenges.
BIA practice: IJs must craft explicit findings showing how adverse conduct outweighs rebuttal evidence, anticipating possible judicial scrutiny.
Due process advocacy: The case reinforces the need to demonstrate concrete prejudice when alleging procedural violations.

Complex Concepts Simplified

Cancellation of Removal (Non-LPR) – A discretionary remedy letting long-time undocumented residents avoid deportation if they: (1) have 10 years’ continuous physical presence; (2) possess GMC; (3) lack disqualifying criminal convictions; and (4) prove exceptional hardship to a U.S. spouse/parent/child.
Good Moral Character (GMC) – A holistic statutory concept examining conduct during the relevant period. Certain acts (e.g., serious crimes, habitual drunkenness) statutorily bar GMC; others, like multiple DUIs, create a rebuttable presumption under Castillo-Perez.
Mixed Question of Law and Fact – A question requiring the application of a legal standard to established (or undisputed) facts. Courts can review mixed questions even in areas supposedly shielded from review by statute.
Exhaustion / Waiver – A petitioner must present every alleged error to the BIA. Failure to do so “waives” the issue, and federal courts lack jurisdiction to examine it.
Substantial Evidence Review – An appellate court asks whether the administrative record contains reasonable, adequate evidence to support the agency’s conclusion, not whether the court might have reached a different outcome.

Conclusion

Sanchez did not ultimately obtain relief, but his case stands for an important proposition: the determination of “good moral character” in non-LPR cancellation cases is a reviewable legal issue, not an unassailable factual judgment. By aligning GMC analysis with the Supreme Court’s recent mixed-question jurisprudence, the Third Circuit has expanded the scope of judicial oversight and provided a clearer procedural roadmap for future litigants. Practitioners should now frame GMC challenges as applications of law to undisputed facts and meticulously develop documentary support that can survive—or overcome—the rebuttable presumption created by multiple DUI convictions.