Hernandez-Grado v. Gonzales , 159 F. App'x 562 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 6, 2005
_______________________ Charles R. Fulbruge III
Clerk
No. 05-60223
Summary Calendar
_______________________
NEREIDA HERNANDEZ-GRADO,
Petitioner,
versus
ALBERTO R. GONZALES,
ATTORNEY GENERAL OF THE UNITED STATES.
Respondent.
_________________________________________________________________
Petition for Review of an Order
of the Board of Immigration Appeals
BIA No. A70 604 831
________________________________________________________________
Before JONES, WIENER, and DEMOSS, Circuit Judges.
PER CURIAM:*
The Petitioner, Nereida Hernandez-Grado, seeks review of
the Board of Immigration Appeals’ (“BIA”) denial of her application
for battered-spouse cancellation of removal pursuant to the
Immigration and Nationality Act (“INA”) § 240A(b)(2), 8 U.S.C. §
1229b(b)(2). In its denial, the BIA adopted and affirmed the
Immigration Judge’s decision. Because Ms. Hernandez-Grado has
failed to prove that she was in a valid common-law marriage under
Texas law, she cannot establish statutory eligibility for battered-
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
spouse cancellation of removal under INA § 240A(b)(2). Therefore,
Ms. Hernandez-Grado’s petition for review is DENIED.
I. BACKGROUND
Nereida Hernandez-Grado is a native and citizen of Mexico
who entered the United States without inspection on September 12,
1993. On September 9, 2003, Ms. Hernandez-Grado was served with a
Notice to Appear, charging her with removability pursuant to INA §
212(a)(6)(A)(i) as an alien present in the United States without
having been admitted or paroled.
Ms. Hernandez-Grado appeared at a hearing on October 9,
2003, and admitted the factual allegations in the Notice to Appear
and conceded removability pursuant to INA § 212(a)(6)(A)(i). She
subsequently applied for non-permanent resident cancellation of
removal pursuant to INA § 240A(b)(1), and for battered-spouse
cancellation of removal pursuant to INA § 240A(b)(2). The
Immigration Judge denied cancellation of removal pursuant to INA §
240A(b)(1) because Ms. Hernandez-Grado fell short of accumulating
the requisite ten years of continuous physical presence. The
Immigration Judge also denied cancellation of removal pursuant to
INA § 240A(b)(2) because he found that Ms. Hernandez-Grado did not
establish that she had a valid common-law marriage under Texas law.
The Immigration Judge did grant Ms. Hernandez-Grado sixty days
voluntary departure.
2
Ms. Hernandez-Grado subsequently appealed to the BIA, and
on March 2, 2005, the BIA adopted and affirmed the Immigration
Judge’s decision. Ms. Hernandez-Grado has sought review in this
court, arguing that the Immigration Judge and BIA erred in holding
that she could not establish common-law marriage and therefore was
not eligible for battered spouse cancellation of removal pursuant
to INA § 240A(b)(2).1
Ms. Hernandez-Grado testified that she married Adolfo
Hernandez on December 4, 1995. The marriage was terminated through
a divorce on June 11, 2002. Ms. Hernandez-Grado further testified
that she met and began living with Jesus Cordova in 1998 while she
was still married to Mr. Hernandez. She listed the date of her
“marriage” to Mr. Cordova in her application for cancellation of
removal as June 2002. She also stated in the application that her
marriage to Mr. Cordova was terminated or ended on July 29 or
August 1, 2002 when a restraining order was issued against him.
Ms. Hernandez-Grado further asserted that Mr. Cordova was
domestically violent and that sometimes he would drink and beat
her. She asserted that during these incidents, the authorities
were called to the scene and that she went to the hospital for
medical treatment. She contended that the last domestic violence
1
Petitioner also asserts that only a 3-year residency requirement
applies because of her battered spouse claim, but we do not reach this
contention.
3
incident occurred on June 29, 2002, and that she and Mr. Cordova
are now separated.
II. STANDARD OF REVIEW
On a petition for review of a BIA decision, we review the
BIA’s “rulings of law de novo, but we will defer to the BIA’s
interpretation of immigration regulations if the interpretation is
reasonable.” Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir.
2001). We review the BIA’s findings of fact for substantial
evidence. Roy v. Ashcroft, 389 F.3d 132, 137-38 (5th Cir. 2004).
We will not reverse the BIA unless “the evidence is so compelling
that no reasonable fact finder could fail to find the petitioner
statutorily eligible for relief.” Id. at 138 (internal quotations
and citations omitted).
III. DISCUSSION
Under 8 C.F.R. § 1240.8(d), Ms. Hernandez-Grado, in
asking for relief from removal, has “the burden of establishing
that [] she is eligible for any requested benefit or privilege and
that it should be granted in the exercise of discretion.” Ms.
Hernandez-Grado argues that she qualifies for cancellation of
removal under INA § 240A(b)(2). To prove that she qualifies for
relief, she must show that she “has been battered or subjected to
extreme cruelty by a spouse . . . who is or was a lawful permanent
resident.” 8 U.S.C. § 1229b(b)(2)(A)(i)(II). The Immigration Judge
ruled that, because Ms. Hernandez-Grado did not prove that she had
4
a valid common-law marriage to Mr. Cordova (her batterer), she was
not battered “by a spouse” as required under INA § 240A(b)(2) and
therefore did not qualify for relief from removal.
In Texas, to establish a common-law marriage, a party
must prove that: (1) the parties agreed to be married, (2) after
the agreement the parties lived together in Texas, and (3) the
parties represented to others in Texas that they were married.
Flores v. Flores, 847 S.W.2d 648, 650 (Tex. App. 1993) (citations
omitted). Ms. Hernandez-Grado was divorced from her first husband,
Mr. Hernandez, on June 11, 2002. Her relationship with Mr. Cordova
prior to that date is irrelevant to a determination as to whether
they entered into a common-law marriage. See Home Indem. Co. v.
Edwards, 488 S.W.2d 561, 563 (Tex. Civ. App. 1972); Edelstein v.
Brown, 80 S.W. 1027, 1028 (Tex. Civ. App. 1904). Ms. Hernandez-
Grado must produce evidence that her former illicit relationship
with Mr. Codova changed to a legal marital relationship after her
divorce from Mr. Hernandez. See Edwards, 488 S.W.2d at 563.
Because Ms. Hernandez-Grado terminated her relationship with
Cordova on July 29 or August 1, 2002, that is the relevant period
for determining whether Ms. Hernandez-Grado and Mr. Cordova had
participated in a common-law marriage.
Ms. Hernandez-Grado has failed to prove at least two of
the three necessary elements of common-law marriage in Texas.
First, she has failed to demonstrate that she and Cordova agreed to
be married at any time between June 11, 2002 and July 29 or
5
August 1, 2002. Second, she has not provided any evidence that she
lived with Mr. Cordova during that period. Indeed, the June 11,
2002 hospital report reflects that on that date, Ms. Hernandez-
Grado and Mr. Cordova had different addresses, and Ms. Hernandez-
Grado offers no proof that she and Cordova ever cohabited during
the required period. Last, although there is some evidence in the
record that Ms. Hernandez-Grado represented to others in Texas that
she and Mr. Cordova were married during the relevant interval, it
appears that they were inconsistent in their representations of
their relationship. We need not analyze the third element further,
however, because Ms. Hernandez-Grado’s failure to prove the first
two elements renders untenable her claim of a Texas common-law
marriage.
The Immigration Judge correctly determined that Ms.
Hernandez-Grado was not battered “by a spouse”, as required under
INA § 240A(b)(2), and does not qualify for relief from removal.
Accordingly, Ms. Hernandez-Grado’s petition for review is DENIED.
6