9th Circuit Overturns BIA Denial Of VAWA Suspension Based On Narrow Interpretation Of "Extreme Cruelty"

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

9TH CIRCUIT OVERTURNS BIA DENIAL OF VAWA SUSPENSION BASED ON NARROW INTERPRETATION OF "EXTREME CRUELTY"
Immigrants' RightsUpdate, Vol. 17, No. 6, October 21, 2003

The U.S. Court of Appeals for the Ninth Circuit has decided several issues of first impression in reversing a ruling of the Board of Immigration Appeals denying suspension of deportation and adjustment to an applicant under a provision of the Violence Against Women Act (VAWA). The decision establishes that the determination of whether an applicant has established that she has been "subjected to extreme cruelty" is not discretionary, and that the court of appeals has appellate jurisdiction to review a denial by the BIA on this basis. The ruling also clarifies that the statute's requirement of "extreme cruelty" must be interpreted in the context of a professional understanding of domestic violence. In addition, the court found that the BIA's decision to deny adjustment as a matter of discretion because the petitioner's marriage was not viable was contrary to controlling precedent, and that this decision is reviewable by the court because it is contrary to law.

The petitioner in this case, Laura Luis Hernandez, is a Mexican national who married Refugio Gonzalez, a lawful permanent resident, in 1990 and shared an apartment with him in Mexicali. Soon after the marriage, Gonzalez's behavior changed, and he began drinking heavily and abusing Hernandez, both verbally and physically. In several instances he seriously beat and injured her, ultimately causing Hernandez to fear that he would kill her and to flee to her sister's home in Los Angeles.

Two weeks after Hernandez fled, Gonzalez obtained the phone number of Hernandez's sister and began calling every day. When Hernandez eventually agreed to speak with him, Gonzalez begged her forgiveness, promised to change, and urged her to return to Mexico. He then came to Los Angeles and urged her to return with him, promising to see a marriage counselor, whereupon Hernandez ultimately agreed to return to Mexico. Back in Mexico, Gonzalez refused to see the counselor that Hernandez found, and after a brief period he returned to his prior pattern of abusive and violent behavior.

Several months after the return to Mexico, Gonzalez attempted to stab Hernandez with a knife. Hernandez managed to block the attack, but her hand was sliced to the bone. Although Hernandez was seriously injured, Gonzalez did not let her go to the hospital, but rather kept her at home. When he left for work two days later, Gonzalez padlocked the door in order to keep Hernandez at home. However, she had an extra key to the padlock and was able to unlock it with the help of a neighbor. Hernandez then went to the hospital, but because of the delay in obtaining treatment she suffered permanent nerve damage to her hand.

Hernandez then fled again to the United States, this time going to stay with a friend in Huron, California. After several months, she moved to Salinas, where she eventually met another man and began living with him. She remained married to Gonzalez and had no further contact with him. In 1995, Hernandez was apprehended by the Immigration and Naturalization Service and placed in deportation proceedings.

At her deportation hearing, Hernandez applied for suspension of deportation under the VAWA, and also for adjustment of status. In support of the suspension application, Hernandez testified as to the history of abuse that she suffered, also exhibiting scars she had on her head and hand from other injuries she had suffered. The adjustment application was based upon an I-130 visa petition that had been filed by Gonzalez about one year after he and Hernandez were married. Hernandez testified that on Aug. 11, 1992, she received a letter indicating that her petition had a priority date. Hernandez was unaware whether the INS sent any further communication regarding the petition after she left Gonzalez.

The immigration judge denied the suspension application, finding Hernandez not credible and concluding that she had failed to establish that she was a victim of domestic violence. The IJ also denied the adjustment application, finding that Hernandez had failed to establish that her I-130 visa petition had been approved.

On appeal from this decision, the BIA reversed the IJ's negative credibility determination. However, the BIA upheld the denial of suspension, finding that Hernandez had failed to establish that she was "battered or subjected to extreme cruelty in the United States," as was then required by the VAWA suspension statute. The BIA also upheld the denial of adjustment, finding that Hernandez had failed to establish that a visa was immediately available to her or that her visa petition had been approved. The BIA also stated that it would deny the application in the exercise of discretion because Hernandez's marriage had deteriorated and was no longer viable. Hernandez filed a petition for review of the BIA's decision with the court of appeals.

At the Ninth Circuit, the government argued that the determination of whether Hernandez had suffered "extreme cruelty" is a discretionary one which the court lacks jurisdiction to review because of the bar to review of discretionary determinations of section 309(c)(4)(E) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The government likened this issue to the determination of "extreme hardship" for suspension eligibility, which the Ninth Circuit found to be a discretionary determination in Kalaw v. INS, 133 F.3d 1147 (9th Cir. 1997). The court rejected this contention, finding that the inquiry into whether an individual has been "battered" and whether she has been subjected to "extreme cruelty" are both factual determinations-one physical, the other psychological-that can be assessed and resolved "on the basis of objective standards." The court found that, "[u]ltimately, the question of whether an individual has experienced domestic violence in either its physical or psychological manifestation is a clinical one, akin to the issue of whether an alien is a 'habitual drunkard,' which Kalaw established was clearly nondiscretionary."

Turning to the merits of the suspension application, the court noted that although the VAWA cancellation statute was amended in 2000 to delete the requirement that an applicant have been battered or subjected to extreme cruelty "in the United States," this requirement still applies to the VAWA suspension statute under which Hernandez applied. It was undisputed that all of the acts of battery against Hernandez took place in Mexico. However, the court concluded that the actions taken by Gonzalez to lure Hernandez back to him "made up an integral stage in the cycle of domestic violence" and constitute "extreme cruelty." The court cited scholarly authorities regarding the nature of domestic violence, indicating that the batterer's apologies and efforts to convince the victim that the violence has ended contributes to creating emotional dependence and is an integral part of the cycle of domestic violence. The court also noted that the statute does not require that the abuser be in the United States, since it only requires that the victim be "subjected to extreme cruelty in the United States."

The court also found support for this interpretation in the regulations. 8 CFR sec. 204.2(c)(1)(vi) states that "[p]sychological or sexual abuse . . . shall be considered acts of violence. Other abusive actions may also be acts of violence under certain circumstances, including acts that, in and of themselves, may not initially appear violent but that are part of an overall pattern of violence." Concluding that Hernandez had established that she was subjected to "extreme cruelty," the court remanded the case to the BIA to determine whether she had also established the "extreme hardship" requirement for suspension and whether she merited relief in the exercise of discretion.

With respect to the adjustment application, the court reversed the BIA, finding that Hernandez's testimony that her petition had been given a priority date established that the petition was approved and a visa was available at the time she applied for adjustment. The court also rejected the BIA's alternative ground for denying adjustment-that in the exercise of discretion the BIA would deny the application because the marriage was no longer viable. The court found that this ground is directly contrary to prior BIA precedent and court decisions finding that adjustment cannot be denied solely on the basis of the nonviability of a marriage. The court also rejected the contention that this determination is discretionary and therefore not reviewable. According to the court, "The BIA has no discretion to make a decision that is contrary to law." Moreover, the court added, "[I]f the BIA were truly at liberty to disregard the law merely by labeling its conclusions discretionary, serious constitutional problems would arise." The court thus concluded that "[w]hen the BIA acts where it has no legal authority to do so, it does not make a discretionary decision."

Hernandez v. Ashcroft, No. 02-70988 (9th Cir. Oct. 7, 2003).