Victor Ochoa v. Director of Uscis ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 28 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR MARTINEZ OCHOA, No. 16-55779
16-56393
Plaintiff-Appellant,
D.C. No.
v. 5:15-cv-01807-JGB-KK
DIRECTOR OF UNITED STATES
CITIZENSHIP AND IMMIGRATION MEMORANDUM*
SERVICES,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Submitted February 14, 2018**
San Francisco, California
Before: BEA and N.R. SMITH, Circuit Judges, and LASNIK,*** District Judge.
One of the various ways an immigrant without legal status may apply to be a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
legal permanent resident is to be classified as a battered spouse. See 8 U.S.C.
§ 1154(a)(1)(A)(iii); 8 C.F.R. § 204.2(c)(1). To be eligible, a petitioner must
establish that, among other things, he or she is “a person of good moral character.”
Id. § 204.2(c)(1)(i)(F). If a petitioner willfully committed, was convicted of, or was
imprisoned for “unlawful acts that adversely reflect upon his or her moral
character,” id. § 204.2(c)(1)(vii), the petitioner will be found to lack good moral
character “unless he or she establishes extenuating circumstances,” id.
Appellant Victor Ochoa is a native of Mexico with a history of illegal entries
and removals, including one removal that stemmed from a guilty plea for domestic
battery and a sixty-day jail sentence. After an April 2012 arrest, Ochoa faced the
removal proceedings at the heart of this appeal. He challenged that removal order
but was unsuccessful. Ochoa then petitioned U.S. Citizenship and Immigration
Services (USCIS) for classification as a battered spouse, which would have made
him eligible for permanent-resident status and forestalled his removal. In his
petition, Ochoa claimed that the woman he pleaded guilty to battering had falsely
accused him and that she had actually been the abusive one.
The USCIS Administrative Appeals Office (AAO) denied Ochoa’s petition
for battered-spouse classification because he failed to meet his burden of
establishing that he is of good moral character. The AAO based that conclusion on
his domestic battery conviction and the April 2012 arrest.
2
Ochoa challenged the AAO’s decision in a complaint under the
Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq.1 Ochoa also moved
for a stay of removal pending the resolution of his APA claim, which the district
court denied. The district court then granted summary judgment for the
government. Because the district court denied Ochoa’s motion for a stay of
removal, Ochoa was removed on August 23, 2016. This consolidated appeal
combines Ochoa’s appeals of the district court’s grant of summary judgment for
the government and its denial of Ochoa’s motion for a stay of removal.
We review the district court’s grant of summary judgment de novo.
Cameron v. Craig, 713 F.3d 1012, 1018 (9th Cir. 2003). Our review of the AAO’s
final decision asks whether that decision was arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law. Family Inc. v. U.S. Citizenship
& Immigration Servs., 469 F.3d 1313, 1315 (9th Cir. 2006) (citing 5 U.S.C.
§ 706(2)(A)).
Ochoa challenges the AAO’s conclusion regarding his domestic battery
conviction. The AAO concluded that the conviction indicated Ochoa lacked good
moral character, and that he did not establish extenuating circumstances. To the
extent Ochoa claimed he was actually innocent of domestic battery, the AAO
1
The district court had jurisdiction under 5 U.S.C. §§ 702, 704, and 28 U.S.C.
§ 1331. We have jurisdiction under 28 U.S.C. § 1291.
3
correctly concluded that Ochoa could not collaterally attack a valid state conviction
in immigration proceedings.2 See Urbina-Mauricio v. INS, 989 F.2d 1085, 1089
(9th Cir. 1993). The AAO’s decision was not arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.
Ochoa also challenges the AAO’s conclusion regarding his April 2012
arrest. A state report indicated Ochoa was arrested for possession of
methamphetamines, and the AAO concluded that Ochoa failed adequately to
explain the arrest’s disposition. Ochoa disputed the arrest and submitted a county
report stating that a record search for his name yielded no arrest records. The AAO
found the report insufficient because the search omitted aliases Ochoa used on
public documents such as his children’s birth certificates. Given the state report
and Ochoa’s failure otherwise to explain the arrest or why he was in custody, the
AAO’s decision that the arrest weighed against Ochoa’s good moral character was
not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.
For the foregoing reasons, the AAO did not abuse its discretion when it
concluded that Ochoa failed to establish that he is of good moral character and
denied Ochoa’s battered-spouse petition.
2
Ochoa tried to withdraw the guilty plea in state court and have the domestic
battery charge dismissed, but he was unsuccessful.
4
Ochoa’s appeal of the district court’s denial of his motion for a stay of
removal is dismissed as moot because Ochoa was removed on August 23, 2016.
See Dream Palace v. Cty. of Maricopa, 384 F.3d 990, 999–1000 (9th Cir. 2004).
AFFIRMED.
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