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Viewing entries tagged
VAWA cancellation of removal
The Eleventh Circuit has determined that the term “extreme cruelty,” as used in the VAWA cancellation of removal statutes, includes non-physical forms of abuse.
The full text of Ruiz v. Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/202210445.pdf
An amended opinion can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/202210445.op2.pdf
The Fifth Circuit has determined that a petitioner who is subject to a reinstated removal order is not eligible for VAWA cancellation of removal. The panel also suggested that there may not be jurisdiction to review the reinstatement order.
“Nasrallah and Johnson may mean that a petitioner who wishes to challenge a reinstatement order in federal court must file within 30 days of the reinstatement order—without waiting for withholding-only proceedings to conclude. That’s what the Second Circuit recently held in Bhaktibhai-Patel v. Garland, 32 F.4th 180, 190–95 (2d Cir. 2022). But even that conclusion relies on the premise that a reinstatement order is a final order of removal under Section 1252. Again, we have held that it is. That conclusion, too, may require reassessment in the wake of Nasrallah and Johnson. One might think that a reinstatement order is not a final order concluding that the alien is deportable or ordering deportation because a reinstatement order presupposes a prior order of removal and because the statute does not authorize a new removal order—it reinstates one from its original date.”
Though the court did not ultimately resolve this issue, but raised it for future litigants to consider.
The full text of Ruiz Perez v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/20/20-61133-CV0.pdf
The Fifth Circuit has determined that the standards for reopening to pursue VAWA cancellation of removal —found at 8 USC 1229a(c)(7)(C)(iv)(III) — present a mixed question of fact and law that the court has jurisdiction to review. Thus, the court examined whether the petitioner had established extreme hardship or extraordinary circumstances that warranted reopening.
“We need not—and do not—determine the precise contours of ‘extraordinary circumstances or extreme hardship to the alien’s child’ with our opinion today. Nor, indeed, did the BIA in its decision. But whatever the precise contours of that standard, we can say confidently that the ordinary (terrible) circumstances of a VAWA-based motion to reopen and the usual hardships of a relocation do not suffice. Congress has given petitioners an opportunity to seek relief beyond the usual filing deadline, but it limits that opportunity to extraordinary or extreme cases.”
The full text of Pena-Lopez v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/20/20-60911-CV0.pdf
The Board of Immigration Appeals has determined that an applicant for VAWA cancellation of removal must prove that their abusive relative was a U.S. citizen or lawful permanent resident at the time of the abuse. In addition, if the abuser is the applicant’s spouse, the abuse must have taken place during the marriage.
The full text of Matter of L-L-P- can be found here: https://www.justice.gov/eoir/page/file/1370261/download
The Ninth Circuit has determined that the domestic violence waiver - which applies to applicants for VAWA cancellation of removal - only waives domestic violence and stalking convictions related to the abuse. As such, the petitioner, who had been convicted of a drug possession offense, remained ineligible for VAWA cancellation of removal.
The full text of Jaime-Cardenas v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/01/19-71849.pdf
The Third Circuit has disagreed with the Board of Immigration Appeals' (BIA) assessment of when a crime is “connected to” the abuse an applicant for VAWA cancellation has endured.
“As a threshold matter, we are not convinced that the Chevron framework applies here because interpreting ‘connected to’ does not implicate the BIA’s ‘expertise in a meaningful way.’ Rather it appears to be ‘a pure question of statutory construction for the courts to decide.’ Even if the Chevron framework did apply, ‘connected to’ is unambiguous as discussed below and therefore, the meaning of ‘connected to’ is resolved under the first step of Chevron.”
“Dictionaries define the word ‘connected’ similarly. Miriam-Webster defines it as ‘having the parts or elements logically linked together;’ the Oxford English Dictionary defines it as ‘related, associated (in idea or nature);’ and Black’s Law Dictionary defines it as ‘to associate as in occurrence or in idea.’ Together, these definitions indicate that the term ‘connected to’ means ‘having a causal or logical relationship.’
“A narrow construction, like the one the BIA adopted here, would frustrate this statute’s larger goal by limiting the exception to those who committed crimes at the direction of their abuser. There are other reasons for which an abused spouse might commit acts that, absent the abuse, would indicate bad character. We do not need to develop that list in connection with this case, but at the same time we should not limit the applicability of the exception in a way that is contrary to the intent of the statute.”
The court also rejected a USCIS memo with a more narrow definition of “connected to,” finding it unpersuasive.
The full text of Ramos de Silva v. Attorney General can be found here:
https://www2.ca3.uscourts.gov/opinarch/181699p.pdf
The First Circuit has determined that it has no jurisdiction to review the denial of a motion to reopen to seek VAWA cancellation of removal. The Board of Immigration Appeals (Board) also denied the petitioner’s motion to reopen to seek asylum based on domestic abuse perpetrated by her ex-spouse. The Board determined the harm was too remote in time to support eligibility for asylum. The First Circuit remanded, finding that the Board implicitly accepted that the abuse qualified as persecution on account of a protected ground, and as such, should have applied a presumption of future persecution.
The full text of Twum v. Barr can be found here:
An applicant is ineligible for VAWA cancellation of removal for non-lawful permanent residents if he is inadmissible for commission of two crimes involving moral turpitude. The Eleventh Circuit has determined that a petitioner cannot use a 212(h) waiver to waive this ground of inadmissibility in order to make himself eligible for VAWA cancellation. In so doing, the court deferred to the Board of Immigration Appeals' decision in Matter of Y-N-P-.
The full text of Arevalo v. US Attorney General can be found here:
http://media.ca11.uscourts.gov/opinions/pub/files/201611458.pdf
