Raul Ochoa-Ortega v. ERIC H. HOLDER, JR., Attorney General of the United States

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 2, 2012
Decided October 5, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 12-1380
RAUL OCHOA-ORTEGA,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
Petition for Review of an Or-
der of the Board of Immigra-
tion Appeals.
Order
In 1990 Raul Ochoa-Ortega surreptitiously entered the United States from his native
Mexico. Immigration officials did not catch his illegal presence until 2008, when state
officials alerted them to Ochoa-Ortega’s appalling driving record, which includes three
convictions for drunk driving, plus a conviction for driving without a valid license (it
had been suspended after a DUI conviction) and an arrest for driving without insurance
(that charge was dismissed as part of a plea bargain). Ochoa-Ortega resisted the remov-
al proceedings by contending that return to Mexico would expose his family to econom-
ic hardship. He has three children who are citizens of this nation and a fourth who ap-
pears to be a citizen of Mexico. Hardship to U.S. citizens from an alien’s departure per-
mits immigration officials to withhold removal. 8 U.S.C. §1229b(b)(1).
An alien’s good moral character is one requirement for this relief. An immigration
judge concluded that Ochoa-Ortega’s driving record demonstrates a lack of good moral

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No. 12-1380 Page 2
character. The IJ relied not only on 8 U.S.C. §1101(f)(1), which says that no “habitual
drunkard” possesses good character, but also on subsection (f)’s hanging paragraph,
which says that “[t]he fact that any person is not within any of the [categorical exclu-
sions] shall not preclude a finding that for other reasons such person is or was not of
good moral character.” On appeal, the Board of Immigration Appeals bypassed
§1101(f)(1) but approved the IJ’s conclusion that Ochoa-Ortega nonetheless lacks good
moral character. Like the IJ, the BIA principally relied on three considerations: (1) the
three drunk-driving convictions (including the observation that drunk driving creates
substantial risks for other drivers, passengers, and pedestrians); (2) the fact that after his
first two convictions Ochoa-Ortega promised to reform, yet did not keep those promis-
es; and (3) the fact that Ochoa-Ortega is not now participating in alcohol counseling.
Ochoa-Ortega asks us to set aside the order of removal, but we lack jurisdiction to
review the agency’s conclusion that an alien lacks the good moral character required for
relief under §1229b(b)(1). See 8 U.S.C. §1252(a)(2)(B)(i); Portillo-Rendon v. Holder, 662
F.3d 815 (7th Cir. 2011). Review of legal issues remains possible, see §1252(a)(2)(D), and
Ochoa-Ortega contends that the IJ and BIA committed a legal error by ignoring all evi-
dence of his good character. An agency has discretion to give particular evidence little
weight, and judicial review of that decision is forbidden, but the agency lacks discretion
simply to ignore evidence. That’s the legal error that Ochoa-Ortega says occurred.
Yet in this court Ochoa-Ortega does not point to a single piece of evidence that the IJ
or BIA overlooked. His contention, rather, is that the IJ should have given his two dec-
ades of life in the U.S., the hardship to his three citizen children, and what he describes
as his progress toward fighting alcoholism, some weight in the “good moral character”
calculus as well as in the “hardship” calculus. It is not clear to us that the agency is
obliged to consider the first two of these items under both headings, but we need not
decide, because it did consider them. For example, the IJ wrote: “this Judge is mindful
that the respondent understands he has a problem. … He does have the number of [a
person] he may call in the event that he is having difficulties with the temptation to
consume alcohol. This is laudable but may not be enough given the respondent’s histo-
ries of having a relapse.” Earlier the IJ had discussed Ochoa-Ortega’s family (including
his siblings, some of whom are legal residents of the United States) and the alcohol pro-
grams in which he had participated. Ochoa-Ortega has not established even a plausible
argument that a legal error occurred. His petition for review therefore is dismissed for
lack of jurisdiction.

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