L-L-P ( 2021 )

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Matter of L-L-P-, Respondent
Decided February 24, 2021
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An applicant for special rule cancellation of removal under section 240A(b)(2) of the
Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2) (2018), based on spousal abuse
must demonstrate both that the abuser was his or her lawful spouse and possessed either
United States citizenship or lawful permanent resident status at the time of the abuse.
FOR RESPONDENT: Laura L. Lichter, Esquire, Denver, Colorado
FOR THE DEPARTMENT OF HOMELAND SECURITY: Kalin Ivany, Assistant Chief
Counsel
BEFORE: Board Panel: GREER and GOODWIN, Appellate Immigration Judges;
PEPPER, Temporary Appellate Immigration Judge.
GOODWIN, Appellate Immigration Judge:
In a decision dated September 17, 2019, an Immigration Judge denied the
respondent’s application for special rule cancellation of removal under
section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C.
§ 1229b(b)(2) (2018), a form of relief reserved for certain victims of
domestic violence in accordance with the provisions of the Violence of
Against Women Act, enacted as Title IV of the Violent Crime Control and
Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, 1902
(“VAWA”). The respondent has appealed from this decision. During the
pendency of his appeal, he filed a motion to remand so that he may apply for
cancellation of removal for certain nonpermanent residents pursuant to
section 240A(b)(1) of the Act, based on intervening case law. The
Department of Homeland Security (“DHS”) opposes the respondent’s appeal
and motion. The appeal will be dismissed, the motion will be granted, and
the record will be remanded.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who entered the United
States without being admitted or paroled. The following facts are undisputed.
In 2001, an Immigration Judge denied his application for cancellation of
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removal under section 240A(b)(1) of the Act because he had not
demonstrated the requisite hardship to a qualifying relative and granted his
request for voluntary departure. The respondent departed from the United
States but then reentered this country without admission or parole.
In 2006, the respondent was again placed in removal proceedings through
the service of a notice to appear that failed to specify the time and date of his
removal hearing. Based on his common law marriage, which lasted from
1995 to 2011, he filed an application for adjustment of status as a battered
spouse self-petitioner. In 2012, the United States Citizenship and
Immigration Service denied his Petition for Amerasian, Widow(er), or
Special Immigrant (Form I-360) because he had not established that his
former spouse possessed lawful immigration status in the United States
during their marriage.
Before the Immigration Judge, the respondent sought special rule
cancellation of removal under section 240A(b)(2) of the Act. The
Immigration Judge denied this application because the respondent had not
met his burden of proof to show that, during his marriage, his former spouse
held the necessary status either as a United States citizen or lawful permanent
resident when she abused him. Sections 240A(b)(2)(A)(i)(I), (II) of the Act.
II. ANALYSIS
A. Special Rule Cancellation of Removal
Section 240A(b)(2)(A) of the Act provides, in relevant part, that
The Attorney General may cancel removal of, and adjust to the status of an alien
lawfully admitted for permanent residence, an alien who is inadmissible or
deportable from the United States if the alien demonstrates that—
(i)(I) the alien has been battered or subjected to extreme cruelty by a spouse or
parent who is or was a United States citizen (or is the parent of a child of a United
States citizen and the child has been battered or subjected to extreme cruelty by
such citizen parent); [or]
(II) the alien has been battered or subjected to extreme cruelty by a spouse or
parent who is or was a lawful permanent resident (or is the parent of a child of an
alien who is or was a lawful permanent resident and the child has been battered or
subjected to extreme cruelty by such permanent resident parent) . . . .
These provisions plainly state that an abusive spouse must be either a
United States citizen or a lawful permanent resident at some point in time.
This case presents a matter of first impression, namely, whether an applicant
for special rule cancellation of removal must demonstrate that his or her
spouse possessed United States citizenship or lawful permanent resident
status at the time that the applicant was abused by and married to this spouse.
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This is a legal question, which we review de novo. 8 C.F.R. § 1003.1(d)(3)(ii)
(2020).
1. Statutory Construction
We begin by considering whether sections 240A(b)(2)(A)(i)(I) and (II)
clearly and unambiguously specify the point in time at which the abusive
spouse must possess either United States citizenship or lawful permanent
resident status. See Republic of Sudan v. Harrison, 139 S. Ct. 1048, 1056
(2019) (“[W]e begin ‘where all such inquiries begin: with the language of
the statute itself.’” (citation omitted)); see also Bostock v. Clayton Cnty., 140
S. Ct. 1731, 1738 (2020) (stating that a court should “interpret[] a statute in
accord with the ordinary public meaning of its terms at the time of its
enactment”). “To determine whether Congress has directly spoken on [an]
issue, we use ‘traditional tools of statutory construction.’” Banuelos v. Barr,
953 F.3d 1176, 1180 (10th Cir. 2020) (quoting Chevron, U.S.A., Inc. v. Nat.
Res. Def. Council, Inc. (“Chevron”), 467 U.S. 837, 843 n.9 (1984)). Where
the language of the statute is clear and unambiguous, our inquiry ends,
because we “must give effect to the unambiguously expressed intent of
Congress.” Chevron, 467 U.S. at 842–43.
Sections 240A(b)(2)(A)(i)(I) and (II) of the Act require an alien to have
been “battered or subjected to extreme cruelty by a spouse . . . who is or was”
either a United States citizen or lawful permanent resident. We perceive,
from the plain language of the statute, more than one possible time frame for
the spouse to hold United States citizen or lawful permanent resident status.
The word “is” in these provisions could be interpreted to mean that the
spouse held United States citizenship or permanent resident status at the time
of the marriage and abuse, or, as the respondent argues, at the time the
application for cancellation of removal was filed. As the statute is
susceptible to more than one interpretation, we conclude that sections
240A(b)(2)(A)(i)(I) and (II) are ambiguous. We must therefore determine
which interpretation reasonably reflects Congress’ intentions for these
provisions. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
545 U.S. 967, 980 (2005) (stating that “ambiguities in statutes within an
agency’s jurisdiction to administer are delegations of authority to the agency
to fill the statutory gap in reasonable fashion”); Martinez-Perez v. Barr, 947
F.3d 1273, 1280 (10th Cir. 2020) (same).
2. Overall Statutory Context
“The broader context . . . of the statute provides considerable assistance”
in construing an ambiguous term or phrase. Robinson v. Shell Oil Co., 519
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U.S. 337, 345 (1997). An analysis of the overall statutory context may not
resolve an ambiguity, but it will assist in determining which meaning applies
when considering the statute’s purpose. See John Hancock Mut. Life Ins. Co.
v. Harris Trust & Sav. Bank, 510 U.S. 86, 94–95 (1993); see also Payless
Shoesource, Inc. v. Travelers Cos., Inc., 585 F.3d 1366, 1374 (10th Cir.
2009) (“[W]e must ask whether the word is used ambiguously within the
actual . . . context in which it appears. After all, when interpreting a . . .
statute, we derive meaning not just from abstract words in isolation, but from
their context . . . as a whole.”).
Here, the parentheticals in sections 240A(b)(2)(A)(i)(I) and (II) provide
context in determining the overall meaning of those provisions. For instance,
the parenthetical at section 240A(b)(2)(A)(i)(I) provides that an applicant
may be “( . . . the parent of a child of a United States citizen and the child has
been battered or subjected to extreme cruelty by such citizen parent).” 1 We
find it significant that the phrase “has been battered or subjected to extreme
cruelty by such citizen parent” in this parenthetical is in the present perfect
tense. Section 240A(b)(2)(A)(i)(I) of the Act (emphasis added). Congress
uses this tense to “denot[e] an act that has been completed.” Barrett v. United
States, 423 U.S. 212, 216 (1976); see also Carr v. United States, 560 U.S. 438,
448 (2010) (looking to “Congress’ choice of verb tense to ascertain
a statute’s temporal reach”). The parenthetical specifies that this past harm
must have been committed “by [a] citizen parent.” Thus, the ordinary
meaning of this parenthetical is that the child must have been abused by
a parent who was a citizen at the time the abuse took place. See Bostock, 140
S. Ct. at 1738.
Notably, removing the final phrase “by such citizen parent” from this
parenthetical would not change our understanding of the statute except with
regard to the abuser’s status at the time the abuse occurred. In this way,
Congress used the phrase “by such citizen parent” to explicitly tie the abusive
parent’s citizenship status to the past abuse, indicating that the abusive parent
must have possessed United States citizenship status at the time the abuse
took place. Based on our examination of sections 240A(b)(2)(A)(i)(I) and
(II) as a whole, including their parentheticals, we conclude that the abusive
spouse (or parent) must be a United States citizen or lawful permanent
resident at the time of the abuse. Moreover, because the spousal portion of
these provisions requires the abuser to be a “spouse,” this abuse must have
occurred during the course of the marriage. Section 240A(b)(2)(A)(i)(I) of
the Act (emphasis added); see also section 240A(b)(2)(A)(i)(II) of the Act.
1
The parenthetical is identical in both sections, except as to the status of the parent as
either a United States citizen or lawful permanent resident. We examine only the first
parenthetical, but our reasoning applies to both sections.
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With the context of the statute as a whole in mind, we interpret the term
“is” in sections 240A(b)(2)(A)(i)(I) and (II) as requiring that the abusive
spouse (or parent) be a United States citizen or lawful permanent resident at
the time the battery or extreme cruelty occurred. We interpret the expanded
phrase, “is or was” in the statute to mean that the spouse (or parent) may later
lose his or her citizenship or lawful permanent resident status. Yet the
applicant does not lose the opportunity to apply for special rule cancellation
of removal so long as that spouse (or parent) was a citizen or permanent
resident at the time the abuse occurred, and, in the spousal context, the
applicant was married to the abuser during this abuse. To sum up our
interpretation of the statute in the marriage context, the spouse must be a
spouse during the abuse—that is, the abuse occurs during the marriage—and
that, at the time of the abuse, the spouse is either a United States citizen or
lawful permanent resident. We next consider whether our interpretation is
reasonable given Congress’ intent in designing the VAWA.
3. Legislative Intent
Because the plain language of the statute is ambiguous, we may consider
whether the relevant legislative history of the VAWA provisions in the Act
confirms our interpretation of sections 240A(b)(2)(A)(i)(I) and (II). See
Matter of L-A-C-, 26 I&N Dec. 516, 518 (BIA 2015); see also United States
v. Manning, 526 F.3d 611, 614 (10th Cir. 2008) (“If the statute’s plain
language is ambiguous as to [c]ongressional intent, ‘we look to the legislative
history and the underlying public policy of the statute.’” (citation omitted)).
Although legislative statements have less force than the plain language of the
statute, such statements are helpful to corroborate and underscore
a reasonable interpretation of the statute. See generally, e.g., Weinberger
v. Rossi, 456 U.S. 25, 32 (1982). A review of the relevant legislative history
confirms that our interpretation of these provisions is consistent with the
underlying purpose of the VAWA.
In Matter of Pangan-Sis, 27 I&N Dec. 130, 133–34 (BIA 2017), we
discussed the legislative history of the VAWA in the context of an exception
to inadmissibility under section 212(a)(6)(A) of the Act, 8 U.S.C.
§ 1182(a)(6)(A) (2012), for certain battered women and children. 2 We
observed that Congress intended to reduce marriage fraud by requiring a
conditional permanent resident to file a joint petition with his or her United
States citizen or permanent resident spouse to remove the conditions on
residence. However, this requirement “created a situation in which abused
alien spouses were reluctant to leave their United States citizen or lawful
2
We recognize that Pagnan-Sis discussed a separate provision of the Act. We rely upon
this case solely for its discussion of legislative intent with regards to the VAWA.
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permanent resident abusers for fear of losing their potential to adjust their
status.” Id. at 133. We discussed how the House Judiciary Committee
Report accompanying the VAWA recognized that
[d]omestic battery problems can become terribly exacerbated in marriages where one
spouse is not a citizen, and the non-citizen[’]s legal status depends on his or her
marriage to the abuser. Current law fosters domestic violence in such situations by
placing full and complete control of the alien’s spouse’s ability to gain permanent
legal status in the hands of the citizen or lawful permanent resident spouse.
Id. at 134 (quoting H.R. Rep. No. 103-395, at 26, 37 (1993), 1993 WL
484760).
This concern of Congress—that an alien spouse would be subject to
a United States citizen or lawful permanent resident spouse’s control over his
or her immigration status—motivated the VAWA legislation to ensure that
aliens do not remain in abusive relationships because of immigration
consequences. See H.R. Rep. No. 106-939, at 111 (2000) (Conf. Rep.) (Joint
Explanatory Statement), 2000 WL 1479163, at *111 (stating that the VAWA
was “designed . . . to prevent immigration law from being used by an abusive
citizen or lawful permanent resident spouse as a tool to prevent an abused
immigrant spouse from reporting abuse or leaving the abusive relationship”);
see also 140 Cong. Rec. H10,693, H10,693 (daily ed. Oct. 4, 1994)
(statement of Rep. Schumer), 1994 WL 545675, at *H10,693-01 (stating that
the VAWA “permits immigrant spouses of United States citizens to escape
from their abusive spouses without risking deportation”).
This Board and the circuit courts have recognized that Congress intended
the VAWA to prevent abusive citizens and residents from using immigration
benefits as a means to control their alien spouses. See, e.g.,
Perales-Cumpean v. Gonzales, 429 F.3d 977, 983 (10th Cir. 2005)
(recognizing that Congress enacted the VAWA to protect victims of abuse);
see also Da Silva v. Att’y Gen. U.S., 948 F.3d 629, 636 (3d Cir. 2020)
(“VAWA cancellation of removal is ‘intended to ameliorate the impact of
harsh provisions of immigration law on abused women.’” (citation omitted));
Toro v. Sec’y, U.S. Dep’t Homeland of Sec., 707 F.3d 1224, 1230 (11th Cir.
2013) (stating that the purpose of the VAWA’s self-petitioning provisions
“is to prevent the citizen or resident from using the petitioning process as a
means to control or abuse an alien spouse” (quoting H.R. Rep. No. 103-395,
at 37)); Matter of Pangan-Sis, 27 I&N Dec. at 134 (quoting same); Matter of
M-L-M-A-, 26 I&N Dec. 360, 364 (BIA 2014) (“[A] purpose of VAWA relief
is to empower aliens to leave abusive relationships.”); Matter of A-M-,
25 I&N Dec. 66, 77 (BIA 2009) (stating that “the underlying purpose of the
battered spouse provisions of the Act . . . is to enable aliens to leave their
abusive citizen or lawful permanent resident spouses who may use the threat
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of deportation or sponsorship for an immigration benefit to maintain control
over them”).
Although the VAWA has been amended several times to include
a self-petitioning visa provision, special rule cancellation of removal for
battered aliens, and an exception to inadmissibility, we recognize that, in
enacting all these benefits, one of Congress’ goals was to free abused spouses,
who are married to United States citizens or lawful permanent residents, from
the fear that remaining in an abusive marriage is the only way to obtain lawful
immigration status. This goal clearly contemplates that the abusive United
States citizen or lawful permanent resident spouse is actually able to use that
status to benefit—or punish—his or her alien spouse. We made this
particularly clear in Matter of Pangan-Sis, 27 I&N Dec. at 135, where we
stated that the VAWA exception to inadmissibility in that case covers
“a spouse of a United States citizen or lawful permanent resident who suffers
abuse . . . . However, coverage is not extended to aliens who are married to
non-United States citizens and non-lawful permanent residents, because such
persons lack ‘immigration leverage’ over their spouses.”
In light of this discussion from Pangan-Sis, we conclude that our
interpretation of sections 240A(b)(2)(A)(i)(I) and (II) is reasonable and
consistent with congressional intent. Where the abuser is the spouse of an
applicant seeking special rule cancellation of removal based on spousal abuse,
the applicant must demonstrate that the abuser held both legal status as the
applicant’s legally recognized spouse and United States citizenship or lawful
permanent resident status at the time of the abuse.
We have recognized that special rule cancellation of removal is
a continuing application since an applicant continues to accrue physical
presence and good moral character until the final administrative order is
entered. See Matter of M-L-M-A-, 26 I&N Dec. at 363. However, the
continuing nature of this form of relief does not relieve an applicant of the
burden to demonstrate that, at the time of abuse occurring during the
marriage, the abuser was his or her lawful spouse and either a United States
citizen or lawful permanent resident. Our decision in M-L-M-A- supports
this conclusion. There, we granted special rule cancellation of removal to an
applicant who had divorced her abuser, after the abuse had taken place. Since
her abuser was her lawful spouse and either a citizen or permanent resident
at the time of the abuse, her divorce was irrelevant to her statutory eligibility
for this form of relief.
Our interpretation of sections 240A(b)(2)(A)(i)(I) and (II) gives full
effect to the language enacted by Congress and is consistent with
congressional intent. We therefore hold that an applicant for special rule
cancellation of removal under section 240A(b)(2) based on spousal abuse
must demonstrate both that the abuser was his or her lawful spouse and
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possessed either United States citizenship or lawful permanent resident status
at the time of the abuse, even if the abuser’s spousal status, citizenship, or
lawful permanent resident status was later terminated or revoked, or the
abuser can no longer use an immigration benefit to control the applicant.
4. Application to the Respondent’s Case
The respondent has not demonstrated that his former spouse was a United
States citizen or lawful permanent resident at the time they were married and
when she abused him. The parties agreed below, and do not otherwise
dispute on appeal, that the respondent’s former spouse was not a United
States citizen or permanent resident during the marriage and abuse. The
parties further agreed below, and do not dispute on appeal, that she had likely
obtained permanent residence some years after the marriage and abuse ended.
Because the respondent has not shown that his former spouse was a citizen
or permanent resident during the marriage and abuse, he is ineligible for
special rule cancellation of removal pursuant to section 240A(b)(2) of the
Act. 3
We are not persuaded by the respondent’s argument that his former wife
used the fact that she had applied for, but had not yet obtained, immigration
status during their marriage as “leverage” to keep him in the abusive marriage.
An abusive spouse must have the actual ability to affect an alien’s
immigration status in order to threaten the alien in the manner contemplated
by the VAWA. Thus, the Immigration Judge correctly denied the
respondent’s application for special rule cancellation of removal.
B. Motion to Remand
The respondent argues that remand is warranted so that he can apply for
cancellation of removal under section 240A(b)(1) of the Act because he may
be able to establish the requisite 10 years of continuous physical presence for
this form of relief under intervening case law from the United States Court
of Appeals for the Tenth Circuit, in whose jurisdiction this case arises. See
3
On appeal, the respondent renews his argument that the DHS has access to the
respondent’s former spouse’s immigration records, and it refuses to share them, despite
formal requests that it do so. The Immigration Judge properly determined that the
respondent was responsible for demonstrating eligibility for relief. 8 C.F.R. § 1240.8(d)
(2020). The DHS is not required to provide documentation of immigration status for
persons not a party to these matters. Moreover, the refusal to share information about the
ex-wife’s current lawful immigration status is not a due process violation, as it would not
affect the outcome in the respondent’s case. See Matumona v. Barr, 945 F.3d 1294, 1308
(10th Cir. 2019) (“To prevail on a due-process challenge, the petitioner must show
prejudicial error.”).
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Banuelos, 953 F.3d at 1184 (holding that the “stop-time” rule ending the
period of continuous physical presence for cancellation of removal is not
triggered by the combination of two documents containing the date and time
of the removal hearing). Because the relevant notice to appear failed to
specify the time and date of the respondent’s hearing, it was incomplete, and
we agree with the respondent that he may now be able to establish the
requisite period of physical presence under section 240A(b)(1)(A).
Accordingly, the respondent’s appeal is dismissed and his motion to remand
is granted so that he may pursue cancellation of removal under section
240A(b)(1) of the Act.
ORDER: The respondent’s appeal is dismissed.
FURTHER ORDER: The respondent’s motion to remand is granted,
and the record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing opinion and the entry of a new decision.
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