Marcelo Oviedo v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCELO MAURICIO OVIEDO, No. 18-72621
Petitioner, Agency No. A096-027-040
v.
MEMORANDUM*
MERRICK GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 11, 2021**
Las Vegas, Nevada
Before: NGUYEN and BENNETT, Circuit Judges, and HARPOOL,*** District
Judge.
Marcelo Mauricio Oviedo, a native and citizen of Chile, applied for special-
rule cancellation of removal under the Violence Against Women Act based on
alleged abuse he suffered at the hands of his second wife. The immigration judge
*
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 M. Douglas Harpool, United States District Judge for
the Western District of Missouri, sitting by designation.
(“IJ”) determined that Oviedo’s second marriage was fraudulent and for the
purpose of immigration benefits and that Oviedo’s testimony about that marriage
and the alleged abuse was not credible. The IJ also determined that even if Oviedo
was credible, he had not shown he was subject to “extreme battery.” The IJ denied
cancellation and Oviedo’s alternative relief of voluntary departure, and the Board
of Immigration Appeals (“BIA”) affirmed. We have jurisdiction under 8 U.S.C.
§ 1252 and deny the petition.
1. Substantial evidence supports the IJ’s finding that Oviedo’s second
marriage was not bona fide. See Garcia-Martinez v. Sessions, 886 F.3d 1291,
1293 (9th Cir. 2018) (“Where, as here, the BIA agrees with the IJ’s reasoning, we
review both decisions.”). It appears that Oviedo and his current (third) wife have
been in a relationship since at least September 2005. This relationship predated
and outlasted Oviedo’s second marriage, during which his second wife filed an I-
130, Petition for Alien Relative, on Oviedo’s behalf and Oviedo filed an I-485,
Application to Register Residence or Adjust Status. The record supports the IJ’s
conclusion that Oviedo maintained a true partnership (along with a house, financial
accounts, and a child) with his current wife while legally marrying his second wife
for immigration purposes. The BIA found that the IJ properly denied Oviedo
special-rule cancellation based on the IJ’s finding that Oviedo’s testimony
regarding his second marriage was not credible due to Oviedo’s evasive demeanor
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and his inability or unwillingness to explain the factual record. The hearing
transcript bears this out: he repeatedly refused to answer or stated that he did not
remember the answer to basic questions about the timing and nature of his
relationships, even where the answers were included in the evidence he submitted
to the IJ.
2. Substantial evidence supports the agency’s finding that even if Oviedo
was credible, he was not subjected to battery or extreme cruelty as required for
special-rule cancellation under 8 U.S.C. § 1229b(b)(2)(A); see Lopez-Birrueta v.
Holder, 633 F.3d 1211, 1214–15 (9th Cir. 2011) (applying definition of “battery or
extreme cruelty” in 8 C.F.R. § 204.2(c)(1)(vi) to special-rule cancellation under
8 U.S.C. § 1229b(b)(2)(A)). Oviedo alleges that his second wife was an alcoholic,
insulted and yelled at him, demanded money, and threatened him with immigration
consequences. This does not rise to the level of “the extreme concept of domestic
violence” in the form of “tactics of control . . . intertwined with the threat of harm
in order to maintain [the second wife’s] dominance through fear” or “manipulative
tactics aimed at ensuring [the second wife’s] dominance and control.” Hernandez
v. Ashcroft, 345 F.3d 824, 840 (9th Cir. 2003) (citation omitted). Neither the IJ nor
the BIA was required to give a clinician’s report concluding that Oviedo is a
domestic violence victim particular weight, and the report alone did not compel a
finding of extreme cruelty.
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3. Finally, substantial evidence supports the IJ’s finding, adopted by the
BIA, that Oviedo per se lacks good moral character because he gave false
testimony regarding his second marriage. This finding bars eligibility for
voluntary departure, which requires that the noncitizen be and have been “a person
of good moral character for at least 5 years immediately preceding the alien’s
application.” 8 U.S.C. § 1229c(b)(1)(B); see 8 U.S.C. § 1101(f)(6) (stating that
“one who has given false testimony for the purpose of obtaining any benefits under
this chapter” per se lacks good moral character).
PETITION DENIED.
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