No. 11-71013
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
VASCO EZZAT RUSELLO,
Petitioner,
- v. -
ERIC H. HOLDER, JR., Attorney General,
Respondent,
On Petition For Review Of A Final Order Of The Board Of Immigration Appeals
BRIEF OF ASISTA IMMIGRATION ASSISTANCE
SUPPORTING PETITIONER AND REVERSAL
DLA PIPER LLP (US)
Ryan Cobb 401 B Street, Suite 1700 San Diego, CA 92101 (619) 677-2700
David Priebe 2000 University Avenue East Palo Alto, CA 94303 (650) 833-2000
Attorneys for ASISTA Immigration Assistance, as Movant Amicus Curaie
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TABLE OF CONTENTS
STATEMENT OF INTEREST.................................................................................1
ARGUMENT ............................................................................................................2
I. INTRODUCTION AND SUMMARY OF ARGUMENT.............................3
II. QUESTION PRESENTED.............................................................................7
III. THE COURT POSSESSES JURISDICTION TO REVIEW BIA DECISIONS ON THE “EXTREME HARDSHIP” ELEMENT OF VAWA............................................................................................................7
A. Statutory Framework............................................................................7
1. Jurisdiction In General ...............................................................7
2. VAWA .....................................................................................12
B. The Court Possesses Jurisdiction Under This Statutory Framework..........................................................................................14
1. Montero-Martinez v. Ashcroft: jurisdiction exists to review BIA decisions on the element of “exceptional and extremely unusual hardship” in a parallel cancellation context ......................................................................................14
2. Hernandez v. Ashcroft: jurisdiction exists to review BIA decisions on the element of “extreme cruelty” under VAWA .....................................................................................15
3. Singh v. Holder: jurisdiction exists to review BIA decisions on the element of “extreme hardship” .....................19
C. Kalaw v. INS Does Not Deprive The Court of Jurisdiction...............23
IV. CONCLUSION.............................................................................................29
CERTIFICATE OF COMPLIANCE (Ninth Circuit Rule 32(a)(7)(C))...................v
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TABLE OF AUTHORITIES
CASES
Brezilien v. Holder, 569 F.3d 403 (9th Cir. 2009) ......................................................................5, 9, 10
Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc) ..........................................................8, 9
Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003) .......................................................................passim
INS v. St. Cyr, 533 U.S. 289 (2001)............................................................................................10
INS v. St. Cyr and Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999)............................................................................................10
Kalaw v. INS, 133 F.3d 1147 (9th Cir. 1997) .....................................................................passim
Kucana v. Holder, 588 U.S. ___, 130 S. Ct. 827 (2010).......................................................10, 11, 12
Montero-Martinez v. Ashcroft, 277 F.3d 1137 (9th Cir. 2002) ......................................................................14, 15
Oropeza-Wong v. Gonzales, 406 F.3d 1135 (9th Cir. 2005) ........................................................................8, 20
Padmore v. Holder, 609 F.3d 62 (2d Cir. 2010) ...................................................................................9
Ramadan v. Gonzales, 479 F.3d 646 (9th Cir. 2007) (en banc) ............................................................8, 9
Ramirez-Peyro v. Gonzales, 477 F.3d 637 (8th Cir. 2007) ................................................................................9
Romero-Torres v. Ashcroft, 327 F.3d 887 (9th Cir. 2003) ............................................................17, 18, 19, 25
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Singh v. Holder, 591 F.3d 1190 (9th Cir. 2010) ............................................................5, 19, 20, 22
Spencer Enters., Inc. v. United States, 345 F.3d 683 (9th Cir. 2003) ......................................................................7, 8, 20
Trejo-Mejia v. Holder, 593 F.3d 913 (9th Cir. 2010) ..............................................................................24
STATUTES
8 U.S.C. §§ 1151 et seq..............................................................................................7
8 U.S.C. § 1158(a) .....................................................................................................7
8 U.S.C. § 1186(c)(4).........................................................................................19, 20
8 U.S.C. § 1229b(b)(1).......................................................................................14, 17
8 U.S.C. § 1229b(b)(2)......................................................................................passim
8 U.S.C. §§ 1229b(b)(2)(A)(i)-(v) ...........................................................................13
8 U.S.C. §§ 1229b(b)(2)(D).....................................................................................22
8 U.S.C. § 1252(a)(2)(B) ...........................................................................................7
8 U.S.C. § 1252(a)(2)(B)(ii) ............................................................................7, 8, 11
8 U.S.C. § 1252(a)(2)(D) ...........................................................................................8
8 U.S.C. § 1252(a)(B)(i) ..........................................................................................17
8 U.S.C. § 1254(a)(1)...............................................................................................23
8 U.S.C. § 1254(a)(3).........................................................................................15, 23
Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, Tit. IV, subtit. G, § 40703, 108 Stat. 1796 .................................................12
OTHER AUTHORITIES
8 C.F.R. § 1003.1(d)(3)(i) ..........................................................................................9
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8 C.F.R. § 1240.20(c)...............................................................................................17
Fed. R. App. 29(c)(5) .................................................................................................1
Fed. R. App. P. 29(b) .................................................................................................1
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STATEMENT OF INTEREST ASISTA Immigration Assistance (“ASISTA”) respectfully submits this
memorandum in support of Petitioner Vasco Rusello’s petition seeking reversal of
the Board of Immigration Appeals’ (“BIA”) decision denying his request for
cancellation of removal filed under Immigration and Nationality Act (“INA”)
Section 240A(b)(2), 8 U.S.C. § 1229b(b)(2). The filing of this memorandum was
authorized by the Co-Director of ASISTA, who has the requisite authority.
Pursuant to Fed. R. App. P. 29(b), this brief is accompanied by a Motion for
Leave to File. Respondent has informed ASISTA that it takes no position on
whether the motion should be granted. Pursuant to Fed. R. App. 29(c)(5), no
party’s counsel authored the brief in whole or part, nor contributed money that was
intended to fund preparing or submitting the brief. No other person contributed
money that was intended to fund preparing or submitting the brief.
ASISTA has worked with Congress to create and expand routes to secure
immigration status for survivors of domestic violence, sexual assault and other
crimes, incorporated in the 1994 Violence Against Women Act (“VAWA”) and its
progeny. ASISTA serves as liaison for the field with Department of Homeland
Security personnel charged with implementing these laws, most notably
Citizenship and Immigration Services (CIS), Immigration and Customs
Enforcement (ICE), and DHS’ Office on Civil Rights and Civil Liberties. ASISTA
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also trains and provides technical support to local law enforcement officials, civil
and criminal court judges, domestic violence and sexual assault advocates, and
legal services, non-profit, pro bono and private attorneys working with immigrant
crime survivors. The Department of Justice’s Office on Violence Against Women
funds ASISTA to provide training and technical assistance to its grantees, which
include all of the above entities.
Given this mandate, ASISTA submits this brief as amicus curiae to address
an important issue: the Court’s jurisdiction over BIA decisions denying requests
for cancellation of removal authorized by VAWA on the basis of a purported lack
of “extreme hardship,” set here in the context of a BIA decision overturning an IJ’s
finding in a petitioner’s favor. ASISTA believes that the BIA should not evade
judicial review by the Ninth Circuit of its denials of this ameliorative relief by
seizing on grounds it believes the federal courts will not review. The Board’s
failure to implement the law as Congress intended, reversing grants by
Immigration Judges, results in great harm to the victims of domestic and sexual
abuse that VAWA was enacted to protect. Without this layer of judicial review,
abusers will continue to use our legal system as a weapon against their immigrant
victims, and these victims will be forced to endure the violence VAWA was
designed to forestall by protecting them from removal from the United States.
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ARGUMENT
I. INTRODUCTION AND SUMMARY OF ARGUMENT
ASISTA addresses a narrow but important issue in this Petition: whether
this Court has jurisdiction to review a decision of the BIA overturning an
Immigration Judge’s special rule cancellation of a removal application under the
Violence Against Women Act (“VAWA”), based upon the BIA’s own
determination that the petitioner did not establish “extreme hardship.”
The circumstances of this matter illustrate the importance of insuring
judicial review of BIA decisions of this type. As explained in the “Statement Of
The Facts And Procedural History” section of Petitioner’s Opening Brief (which
ASISTA incorporates by reference), the Immigration Judge in this matter (“IJ”)
thoroughly reviewed the documentary evidence and oral testimony. Based upon
this wealth of firsthand information, the IJ determined that Petitioner Vasco
Rusello had established his eligibility for special rule cancellation of removal
under INA Section 240A(b)(2), 8 U.S.C. § 1229b(b)(2). Specifically, the IJ found
that Rusello had been subjected to “extreme cruelty” by his spouse at the time and
that his removal from the United States would result in “extreme hardship”—two
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key elements of the VAWA statute enacted by Congress precisely to allow persons
such as Petitioner to remain in the United States.1
The BIA did not even address, let alone question, the IJ’s determination that
Rusello had been subjected to extreme cruelty. Instead, disregarding the IJ’s
firsthand knowledge of the facts and witnesses, and in response to a cursory
objection for which no case law was cited, the BIA reversed the IJ’s decision on
the element of “extreme hardship.” In so doing, the BIA failed to apply its own
required “clearly erroneous” standard of review and, seemingly, sought to avoid
review by this Court. Rather, the BIA engaged in its own factual analysis to decide
that, in its view, removal would not result in extreme hardship.
The BIA rendered a decision that should be reviewed. The Court possesses
jurisdiction to review it. The Illegal Immigration Reform and Immigrant
Responsibility Act (“IIRIRA”) and the REAL ID Act authorize judicial review
over petitions that raise “questions of law,” while limiting the courts from
exercising jurisdiction over immigration decisions statutorily committed purely to
the unfettered discretion of the Attorney General. The Supreme Court and the
Court recognize that statutes that purport to remove jurisdiction over
1 Significantly, the government attorney did not challenge that Petitioner satisfied the other elements of VAWA; i.e., he had lived continuously in the United States for the three years preceding his application; he was a person of “good moral character” during that period; and he was not inadmissible or deportable under immigration laws related to criminal activity.
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administrative decisions should be narrowly construed, with any doubt resolved in
favor of jurisdiction. To this end, the Court has recognized its broad jurisdiction
over petitions challenging BIA decisions. For example, in Hernandez v. Ashcroft,
345 F.3d 824 (9th Cir. 2003), the Court reasoned that whether the “extreme
cruelty” element of VAWA has been met is not a purely discretionary decision of
the Attorney General and hence is subject to judicial review; and in Brezilien v.
Holder, 569 F.3d 403, 412-14 (9th Cir. 2009), the Court found jurisdiction where
the BIA had reversed an IJ by engaging in de novo factfinding in violation of its
own requirement to apply a “clearly erroneous” standard of review to an IJ’s
factual determinations. See Section III(A)(1), infra.
The same result should apply here. No jurisdictional bar exists here, under
IIRIRA or any other statute, because the power to decide or judge whether
“extreme hardship” exists in adjudicating a VAWA cancellation of removal is not
left to the Attorney General’s unfettered discretion. To the contrary, prior
decisions culminating in Singh v. Holder, 591 F.3d 1190 (9th Cir. 2010), establish
that a decision or judgment of this type is not purely discretionary and hence is
subject to review. See Section III(B), infra. The Court should follow its prior
jurisprudence to accept jurisdiction and review the merits of this petition, which as
in Brezilien demonstrates that the BIA violated its own regulations by engaging in
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fact-finding rather than applying a “clearly erroneous” standard to the IJ’s
determination that Petitioner had established extreme hardship.
The Court also should accept jurisdiction in order to avoid creating a
loophole that would prevent the VAWA from being enforced. It cannot have
escaped the BIA’s attention that this Court frequently has concluded that it
possesses jurisdiction to reverse BIA removal decisions, particularly in Violence
Against Woman Act cases, as shown by the cases cited above and elsewhere in this
brief. It also cannot have escaped the BIA’s attention that Kalaw v. INS, 133 F.3d
1147 (9th Cir. 1997), seemingly opined the context of a different statute that
“extreme hardship” is a discretionary decision not subject to judicial review.
However, Kalaw did not address VAWA and does not apply in the VAWA context
for several critical reasons. See Section III(C), infra. The Court should reaffirm
that it possesses jurisdiction here to deter the BIA from second-guessing
Immigration Judges’ factual determinations that victims of domestic violence merit
relief from removal by predicating reversal on the “extreme hardship” element.
For these reasons, the Court has jurisdiction over this Petition and should
proceed to consider it on the merits.
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II. QUESTION PRESENTED
Does the Court possess jurisdiction to review a decision by the BIA to
overturn an Immigration Judge’s cancellation of removal under VAWA predicated
on the BIA’s de novo finding of the lack of extreme hardship?
III. THE COURT POSSESSES JURISDICTION TO REVIEW BIA DECISIONS ON THE “EXTREME HARDSHIP” ELEMENT OF VAWA
A. Statutory Framework
1. Jurisdiction In General
In 1996, Congress enacted IIRIRA, which stripped the courts of jurisdiction
to review certain discretionary decisions of the Attorney General with respect to
aliens’ applications for immigration relief. 8 U.S.C. § 1252(a)(2)(B). The statute
thus provides that “no court shall have jurisdiction to review” any
decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this title [8 U.S.C. §§ 1151 et seq.] to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 208(a) [8 U.S.C. § 1158(a), created by 8 U.S.C.].
8 U.S.C. § 1252(a)(2)(B)(ii).
In considering the scope of its jurisdiction following the passage of IIRIRA,
the Court held that while the statute deprived courts of jurisdiction to review
“purely discretionary” decisions of IJs or the BIA, the courts retain jurisdiction to
review “questions of law.” See, e.g., Spencer Enters., Inc. v. United States, 345
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F.3d 683, 690 (9th Cir. 2003). Matters of “pure discretion” are those in which “the
right or power to act is entirely within [IJ’s or BIA’s] judgment or conscience” and
stand in contrast to “discretion guided by legal standards.” Id.; see also Oropeza-
Wong v. Gonzales, 406 F.3d 1135, 1142 (9th Cir. 2005) (“it is well established in
this circuit that §1252(a)(2)(B)(ii) applies only to acts over which the statute gives
the Attorney General pure discretion unguided by legal standards or statutory
guidelines.”) (quotation omitted).
The Court’s interpretation of IIRIRA proved prescient. In 2005, Congress
passed the REAL ID Act, which confirmed that IIRIRA did not eliminate
jurisdiction over BIA decisions presenting questions of law. See 8 U.S.C.
§ 1252(a)(2)(D) (jurisdiction-stripping provisions of Section 1252(a)(2) shall not
“be construed as precluding review of constitutional claims or questions of law
….”). The Court soon held that the REAL ID Act indeed preserved jurisdiction
over constitutional questions and questions of law presented in petitions for review
of removal orders. Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1124 (9th Cir.
2006) (en banc). The Court also held that the jurisdiction-restoring provision of
the REAL ID Act also encompasses “mixed questions of law and fact,” meaning
“those situations in which the historical facts and applicable legal standard are
undisputed but the agency’s application of those facts to law are at issue.”
Ramadan v. Gonzales, 479 F.3d 646, 650, 653 (9th Cir. 2007) (en banc).
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Applying these principles, the Court has held that it possesses jurisdiction
when the BIA impermissibly revisits factual issues in a removal decision without
determining that an IJ had committed clear error, in violation of its own
regulations. 2 In Brezilien v. Holder, 569 F.3d 403 (9th Cir. 2009), the Court
considered three BIA decisions overruling IJ decisions granting relief from
removal (like the BIA ruling at issue here). The petitioner contended that the BIA
had conducted its own fact-finding without determining that the IJ’s findings were
“clearly erroneous” notwithstanding 8 C.F.R. § 1003.1(d)(3)(i), which provides:
The Board will not engage in de novo review of findings of fact determined by an immigration judge. Facts determined by the immigration judge including findings as to the credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous.
The Court held that it possessed jurisdiction. It reasoned that the REAL ID
Act provides for judicial review over constitutional claims, questions of law, and
the “application of statutes or regulations to undisputed facts, sometimes referred
to as mixed questions of fact and law.” 569 F.3d at 410-11, citing Fernandez-Ruiz
and Ramadan. The question of whether the BIA had violated its own regulations
by engaging in impermissible fact-finding fit within these grounds for jurisdiction.
2 The Second and Eighth Circuits have agreed that jurisdiction exists to consider whether the BIA violated its own regulations by engaging in fact-finding rather than deferring to an IJ. See Padmore v. Holder, 609 F.3d 62, 66-67 (2d Cir. 2010); Ramirez-Peyro v. Gonzales, 477 F.3d 637, 641 (8th Cir. 2007).
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Having determined that it possessed jurisdiction, the Court held on the merits that
the BIA had engaged in impermissible fact-finding.
Brezilien and the Court’s other IIRIRA jurisdiction decisions were consistent
with the Supreme Court’s admonition that there is a “strong presumption in favor
of judicial review of administrative action.” INS v. St. Cyr, 533 U.S. 289, 298
(2001). In Hernandez v. Ashcroft, 345 F.3d 824, the Court elaborated on this point
in considering whether the IIRIRA barred jurisdiction over a BIA decision that an
alien’s petition could be rejected because her marriage was nonviable. The Court
recognized that “in interpreting IIRIRA’s jurisdictional limitations, the Supreme
Court has cautioned that restrictions on jurisdiction should be construed narrowly.”
Id. at 845, quoting INS v. St. Cyr and Reno v. American-Arab Anti-Discrimination
Comm., 525 U.S. 471, 482 (1999). The Court continued that it had “distilled two
fundamental principles from the Court’s admonitions, which we apply in
evaluating jurisdiction in the immigration context:” (1) there is a “strong
presumption in favor of judicial review of administrative action,” and (2) there is a
“longstanding principal construing any [lingering] ambiguities in deportation
statutes in favor of the alien.” 345 F.3d at 846 (citations omitted, brackets in
original).
These principles apply to this day. Indeed, the Supreme Court recently
reaffirmed them in Kucana v. Holder, 588 U.S. ___, 130 S. Ct. 827 (2010).
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Kucana addressed the BIA’s denial of a motion to reopen a removal proceeding on
the basis of new evidence. There is no statute that gives the BIA the discretion to
make a decision not to reopen, but the Board had adopted a regulation
aggrandizing that decision to itself. 8 CFR § 1003.2(a) (“[t]he decision to grant or
deny a motion to reopen ... is within the discretion of the Board.”). A divided
Seventh Circuit opined that the BIA’s decision not to reopen the proceeding was
immune from judicial review under 8 U.S.C. § 1252(a)(2)(B)(ii), which at the time
barred jurisdiction to review any action “the authority for which is specified under
this subchapter to be in the discretion of the Attorney General.”
The Supreme Court reversed. It emphasized that the jurisdiction-stripping
provision applies to actions “specified under this subchapter,” meaning the
immigration statute. 130 S. Ct. at 831, 835. However, no statute conferred
discretion over a reopening decision to the BIA, and hence the text of 8 U.S.C.
§ 1252(a)(2)(B)(ii) did not remove the BIA’s decision from judicial review. The
Court rejected the contention that a decision made pursuant to a regulation
authorized by statute could be deemed to be made “under” the statute, and hence
fall within the jurisdiction-stripping provision of 8 U.S.C. § 1252(a)(2)(B)(ii). 130
S. Ct. at 836. Among the many reasons for the Court’s decision was that Congress
had not codified the regulation into law, designating it as a statute for which review
is lacking, while it had enacted other statutes restricting jurisdiction. Id. at 838-39.
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In concluding its analysis of the jurisdiction-stripping statute, the Court reaffirmed
that:
Any lingering doubt about the proper interpretation of [the statute] would be dispelled by a familiar principle of statutory construction: the presumption favoring judicial review of administrative action.
130 S. Ct. at 839.
2. VAWA
The previous section demonstrates that the Court has broadly construed its
jurisdiction over BIA decisions, and (consistent with Supreme Court directive) has
narrowly construed statutes that purport to restrict that jurisdiction. This does not
exhaust the statutory framework necessary to resolve the issue in this brief. This
Petition arises under a specific, special, and important cancellation of removal
statute: The Violence Against Women Act (VAWA).
VAWA was enacted as part of the Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. No. 103-322, Tit. IV, subtit. G, § 40703, 108
Stat. 1796. It is now codified in various sections of Titles 8, 18, and 42 of the U.S.
Code. VAWA became law in 1994 after four years of investigation focused on the
extent and severity of domestic violence and other crimes. Congress amended it in
2000 to reauthorize critical grant programs created by the 1994 Act and to extend
the protections for immigrant victims even further.
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This brief focuses on VAWA’s specific language because it is critical to a
jurisdictional analysis. VAWA added a subsection to what is now INA Section
240A, “CANCELLATION OF REMOVAL; ADJUSTMENT OF STATUS.”
Section 240A(b)(2) of the INA states: “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…” five elements are established:
1. The alien been “battered or subjected to extreme cruelty” by a spouse
who is or was a citizen or permanent resident.
2. The alien lived continuously in the United States for the three years
preceding her application.
3. The alien a person of “good moral character” during that period.
4. The alien is not inadmissible or deportable under various specific
immigration laws relating to criminal activity.
5. “[T]he removal would result in extreme hardship to the alien, the
alien’s child, or the alien’s parent.”
INA Section 240A(b)(2)(A)(i)-(v), codified as 8 U.S.C. §§ 1229b(b)(2)(A)(i)-(v).
The brief refers to the final prong of VAWA as the “extreme hardship element.”
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B. The Court Possesses Jurisdiction Under This Statutory Framework
Applying the statutory framework, in addition to the cases cited above, three
decisions of the Court establish that jurisdiction exists over Petitioner’s petition.
1. Montero-Martinez v. Ashcroft: jurisdiction exists to review BIA decisions on the element of “exceptional and extremely unusual hardship” in a parallel cancellation context
An initial decision supporting jurisdiction here is Montero-Martinez v.
Ashcroft, 277 F.3d 1137, 1144 (9th Cir. 2002). Montero-Martinez addressed a BIA
determination that petitioners were ineligible for cancellation of removal under 8
U.S.C. § 1229b(b)(1). This form of cancellation’s requirements are much stricter
than those for VAWA cancellation, requiring ten years of continuous presence and
showing not merely “extreme hardship” upon removal as required by VAWA, but
“that removal would result in exceptional and extremely unusual hardship to the
alien’s spouse, parent, or child who is a U.S. citizen or a legal permanent resident,”
among other elements. Id.
The Court determined that it possessed jurisdiction to determine whether a
petitioner’s adult daughter qualified as a “child” for purposes of this element. The
Court reasoned that the question “would require us to review the BIA’s
construction of the INA, which is a pure question of law.” In contrast, it would not
require review of a discretionary determination by the BIA, and hence did not fall
within the jurisdiction-stripping provisions of the IIRIRA. Id. at 1141.
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Montero-Martinez establishes that even before the REAL ID Act, the Court
did not regard portions of cancellation of removal statutes that require a petitioner
to establish hardship—at the time, “exceptional and extremely unusual
hardship”—as matters that involve unreviewable discretionary decisions or
judgments of the Attorney General. As shown below, the Court followed up on
Montero-Martinez by recognizing jurisdiction over BIA decisions in VAWA cases
and over an “extreme hardship” element of a cancellation of removal statute.
2. Hernandez v. Ashcroft: jurisdiction exists to review BIA decisions on the element of “extreme cruelty” under VAWA
One year after Montero-Martinez, the Court again addressed its jurisdiction
over a BIA decision denying cancellation of removal—this time in the critical
context of VAWA, albeit a prior version of the statute.
In Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003), the Court addressed
a BIA determination that a petitioner was ineligible for cancellation of removal
under a prior version of VAWA called suspension of deportation, which at the time
was INA Section 244(a)(3) and codified at 8 U.S.C. § 1254(a)(3). See Hernandez,
354 F.3d at 832 (explaining that statute had since been amended and recodified).
The BIA and IJ had decided that the petitioner had not been subjected to extreme
cruelty because the acts of physical violence to which she had been subjected
occurred outside the United States, when at the time VAWA referred to “extreme
cruelty in the United States.” Id. at 831.
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The Court determined that it possessed jurisdiction to review the BIA’s
determination that the petitioner had not demonstrated extreme cruelty. In so
doing, it rejected the government’s contention that this was a necessarily
discretionary determination and hence unreviewable under IRRIRA. Id. at 833.
The Court instead reasoned that “extreme cruelty” involved questions of fact, not
the Attorney General’s unfettered opinion. Id. at 834. The Court also found
support in the legislative history, which demonstrated that Congress did not intend
to commit determinations of what constitutes domestic violence under VAWA to
the sole discretion of immigration judges. Id. at 835. The Court further noted that
the extreme cruelty element of VAWA did not include any language conferring
discretion, when another element of the statute at the time did confer discretion by
referring to “the opinion of the attorney general.” Id. at 834 & n.8.
Applied to VAWA as it reads today, Hernandez shows that jurisdiction over
this Petition exists for three reasons. First, it demonstrates that BIA determinations
of whether a petitioner has satisfied an element of VAWA are reviewable. Second,
the “extreme hardship” element of VAWA as it reads today, like the “extreme
cruelty” element of VAWA as considered in Hernandez, does not include any
language conferring discretion to the Attorney General: it simply states, “the
removal would result in extreme hardship to the alien, the alien's child, or the
alien's parent.” See Section III(A)(2), supra.
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Third, the determination of “extreme hardship” today, like the determination
of “extreme cruelty” in Hernandez, involves questions of fact. In Hernandez, the
Court relied on the INS’ own regulations defining battery and extreme cruelty in
assessing whether the extreme cruelty element had been established. 354 F.3d at
839. By so doing, the Court reaffirmed the wisdom of its jurisdictional finding that
the issue was a reviewable issue of fact; that the government had attempted to
define “extreme cruelty” signified that it was not a matter of unfettered discretion,
but instead was subject to testable guidelines. Moreover, the EOIR has issued
regulations governing the kinds of facts to be considered in determining “extreme
hardship” for VAWA suspension and cancellation. See Petitioner’s Opening Brief
at 36-37, citing 8 C.F.R. § 1240.20(c). By analogy, “extreme hardship” is also a
reviewable matter of fact, not a matter of unfettered discretion or mere opinion.
This factor is one of the reasons why Romero-Torres v. Ashcroft, 327 F.3d
887 (9th Cir. 2003), does not apply to this Petition. Romero-Torres assessed
whether another provision of IIRIRA, 8 U.S.C. § 1252(a)(B)(i) (“no court [has]
jurisdiction to review ... any judgment regarding the granting of relief” for
cancellation of removal), precluded judicial review of a cancellation of removal
decision in a petition pursuant to a statute codified as 8 U.S.C. § 1229b(b)(1), a
separate cancellation of removal statute than the VAWA statute upon which
Petitioner relies here. The final element of Section 1229b(b)(1) included an
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“exceptional and extremely unusual hardship” element, which the BIA rejected.
The Court did not reach the merits of petitioner’s argument that the absence of
language of discretion in the hardship element of that different cancellation of
removal statute rendered it reviewable. Rather, the Court decided that a textual
analysis was irrelevant because the petitioner failed to challenge the government’s
argument that whether hardship exists is always a matter of discretion, left purely
to subjective whim. To the contrary, the petitioner had agreed with the
government: he acknowledged “that the existence of ‘exceptional and extremely
unusual hardship’ is a subjective inquiry about which reasonable minds can differ,”
and hence was under the discretion of the Attorney General. 327 F.3d at 891.
Here, Petitioner Rusello does not concede that whether extreme hardship
exists is a matter of purely subjective, standardless discretion and hence
unreviewable under IIRIRA. And Hernandez, which was decided after Romero-
Torres, supports Petitioner’s position.3 Hernandez recognized that the existence of
regulations defining an element of VAWA signified that the element was not a
matter of pure discretion, but rather was subject to fact-based standards. The EOIR
has issued regulations governing the kinds of facts to be considered in determining
“extreme hardship” for VAWA suspension and cancellation, and hence under
Hernandez extreme hardship also is not a matter of pure discretion. Therefore, the
3 Hernandez was decided on October 7, 2003, while Romero-Torres was decided on April 28, 2003.
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Court must consider the statutory-text-based analysis of whether extreme hardship
under VAWA is an unreviewable decision that the Court did not reach in Romero-
Torres. The next subsection demonstrates that the results of such an analysis show
that jurisdiction exists here.
3. Singh v. Holder: jurisdiction exists to review BIA decisions on the element of “extreme hardship”
Singh v. Holder, 591 F.3d 1190 (9th Cir. 2010), removes any doubt that the
Court possesses jurisdiction over BIA decisions regarding the extreme hardship
element of VAWA.
In Singh, a noncitizen jointly petitioned with his then-wife to become a
conditional permanent resident, but the wife later withdrew her signature from the
petition. Id. at 1192 & n.1. The noncitizen spouse moved for waiver of the joint
filing requirement under subpart (A) of INA Section 216(c)(4), 8 U.S.C.
§ 1186(c)(4), which allows waiver if the petitioner demonstrates that “extreme
hardship” would result if he or she was removed. The IJ found against him and the
BIA affirmed. 591 F.3d at 1193.
The Court held that it had jurisdiction to review the BIA’s decision that
Singh had failed to show “extreme hardship.” The first clause of Section 216(c)(4)
allows but does not require the Attorney General to remove the conditional basis of
permanent resident status if the petitioner demonstrates “extreme hardship” or one
of the other bases for waiver set forth in the statute: “The Attorney General, in the
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Attorney General’s discretion, may remove the conditional basis … if the alien
demonstrates that …” 591 F.3d at 1194. Under this statutory language (which
includes “may” and “in the Attorney General’s discretion”), even if a petitioner
establishes one of the grounds for waiver, the Attorney General retains discretion
to not grant a waiver and his “ultimate decision” is not reviewable. Id. The Court
also noted that another provision of the same Section 216(c)(4) contained language
conferring discretion to the Attorney General, as it provided that “[t]he
determination of what evidence is credible and the weight to be given to that
evidence shall be within the sole discretion of the Attorney General.” 591 F.3d at
1195.
The Court nevertheless held that despite the Attorney General’s (possible)
ultimate discretion to deny a waiver even if “extreme hardship” was shown, the
Attorney General did not have unfettered discretion to determine whether “extreme
hardship” had been shown, and hence the Court possessed jurisdiction over the
BIA’s decision as to that element.4 The Court reasoned that the statute “provides
that the Attorney General may grant a waiver ‘if the alien demonstrates … that
extreme hardship would result.’” 591 F.3d at 1194-95, quoting Section 216(c)(4)
(emphasis in original). “There is no language at all committing to the Attorney
4 See 591 F.3d at 1194 (Section 216(c)(4) “does not specify that the power to determine where extreme hardship exists ‘is entirely within [the Attorney General’s] judgment or conscience.’”) (citing Oropeza-Wong, 406 F.3d at 1142, in turn quoting Spencer Enters., 345 F.3d at 690).
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General’s discretion the question whether the alien has successfully demonstrated
extreme hardship,” whereas in contrast the two other provisions of the statute cited
in the previous paragraph did contain language providing for discretion. 591 F.3d
at 1195. The Court reasoned that Congress’ exclusion of any language conferring
discretion in the extreme hardship element, when it had provided for discretion in
two other portions of the statute, was not accidental under traditional principles of
statutory construction. It thus concluded:
The absence of any similar language specifying that the Attorney General has discretion to determine whether extreme hardship exists compels us to conclude that this determination is not committed to the Attorney General’s discretion and so is reviewable.
Id.
Singh resolves the jurisdictional issue in Petitioner’s favor. There is no
language in INA Section 240A(b)(2) that confers discretion on the Attorney
General to determine whether the “extreme hardship” element of VAWA has been
met. In contrast, the introductory clause of VAWA provides that the Attorney
General “may” cancel removal. See Section III(A)(2), supra. Moreover, a second,
separate portion of Section 240A uses the language of discretion on a topic
separate from “extreme hardship”—indeed, on the same topic considered in Singh,
credibility determinations:
(D) CREDIBLE EVIDENCE CONSIDERED- In acting on applications under this paragraph, the Attorney General shall consider any credible evidence relevant to the application. The determination of what evidence is
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credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General.
INA Section 240A(b)(2)(D), codified as 8 U.S.C. §§ 1229b(b)(2)(D).
Thus, as in Singh, the absence of language providing discretion to the
Attorney General over the “extreme hardship” element of a statute that would
forestall removal cannot be considered an accident, given that VAWA uses the
language of discretion in other places. It follows that Congress did not confer
unfettered discretion on the Attorney General, and hence the BIA, to determine or
judge whether an alien has demonstrated extreme hardship under VAWA. It
follows that there is no jurisdictional bar to this Petition.
Singh also explains why any suggestion in Hernandez that the extreme
hardship element of VAWA is left to the Attorney General’s unfettered discretion
is not good law, assuming for the sake of argument that Hernandez suggests this.5
At the time of Hernandez, VAWA used different language: it referred to “a person
whose deportation would, in the opinion of the Attorney General, result in extreme
hardship to the alien or the alien’s parent or child.” 345 F.3d at 832, quoting 8
U.S.C. § 1254(a)(3) (emphasis added). VAWA does not use that language today;
5 As explained above, Hernandez considered whether a prior version of VAWA rendered decisions on the “extreme cruelty” element a matter of the Attorney General’s discretion (and concluded that it did not). In passing, by contrast, Hernandez referred to Kalaw v. INS’ statement that the “extreme hardship” of a separate statute (at the time, INA Section 244(a)(1)) was left to the Attorney General’s discretion. See Section III(C), infra; Hernandez, 345 F.3d at 833.
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as noted above, the element simply states, “the removal would result in extreme
hardship to the alien, the alien’s child, or the alien’s parent.” See Section
III(A)(2), supra. As in Singh, discretion cannot be read into a statutory element
that does not include the language of discretion.
C. Kalaw v. INS Does Not Deprive The Court of Jurisdiction
Notwithstanding the foregoing, Respondent may contend that Kalaw v. INS,
133 F.3d 1147, establishes that whether a petitioner has established “extreme
hardship” is always a purely discretionary decision of the Attorney General, and
hence is insulted from any appellate review.
Such an argument would be incorrect. Kalaw did not address VAWA or the
extreme hardship element of VAWA. Rather, it considered a separate, very
different statute: an IIRIRA transitional provision covering only cases pending
prior to April 1, 1997, involving among other forms of discretionary relief,
suspension of deportation under INA Section 244(a)(1) and codified at 8 U.S.C.
§ 1254(a)(1). Even by the time Kalaw was issued, the statute had been repealed
and had no effect going forward. See Kalaw, 133 F.3d at 1151 (noting that statute
was “now repealed.”). Hence, on its own terms, Kalaw is no longer applicable.
See Trejo-Mejia v. Holder, 593 F.3d 913 (9th Cir. 2010).
More importantly, the language differences between the statute addressed in
Kalaw and the VAWA statute at issue in this Petition (INA Section 240A(b)(2))
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have profound implications for jurisdiction. Section 244(a)(1) permitted the
Attorney General to suspend deportation if the alien:
1. Had been physically present in the United States at least seven years preceding her application.
2. Proves that he or she was a person of “good moral character” during
that period. 3. “[I]s a person whose deportation would, in the opinion of the Attorney
General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.”
Kalaw, 133 F.3d at 1151. Kalaw found that the third, extreme hardship element
was left to the discretion of the Attorney General (and hence was unreviewable)
because it textually committed the issue to “the opinion of the Attorney General.”
Id. at 1152. Section 240A(b)(2), by contrast, does not contain language in the
extreme hardship element that commits that decision to the opinion or discretion of
the Attorney General. See Section III(A)(2), supra. Thus, applying Singh, the
extreme hardship element in VAWA is not a matter of discretion and is not
insulated from the Court’s jurisdiction.
That this Petition arises under VAWA when Kalaw did not is important to
jurisdiction for another reason. The absence of the language of discretion in the
extreme hardship element of VAWA is not the only difference between the
statutes. Turning back to the elements of Section 244(a)(1) (the statute considered
in Kalaw) set forth above, there is a striking absence of any provision suggesting
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that the cancellation of removal allowed by the statute was designed to remedy a
particular social ill or to address a category of applicants suffering from a
particular harm. It was and is a very general humanitarian statute that provided a
last-minute reprieve from removal. Unlike VAWA, there is no inherent social goal
remedying harm caused by US citizens and lawful permanent residents in the
statute considered in Kalaw.
The same is true of the cancellation of removal statute considered in
Romero-Torres, 327 F.3d 887, which relied upon Kalaw in pertinent part. The
statute permitted the Attorney General to suspend deportation if the alien:
1. Had been physically present in the United States at least ten years preceding her application.
2. Had been a person of “good moral character” during that period. 3. Had not been convicted of an offense under certain provisions. 4. “[E]stablishes that removal would result in exceptional and extremely
unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.”
327 F.3d at 889. As in Kalaw, there is no provision suggesting that the
cancellation of removal allowed by the statute was designed to remedy a particular
social ill or to address a category of applicants suffering from a particular harm.
VAWA stands in stark contrast. VAWA applies to a specific (but
unfortunately large) subset of aliens: those who have been battered or subjected to
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extreme cruelty by their citizen or resident spouses. It allows this specific subset
of aliens to remain in the United States because in Congress’ judgment such
persons deserve to remain in the United States because of the harm they have
suffered. To do otherwise would allow US citizens and lawful permanent residents
to use the immigration system as a tool of power and control over their noncitizen
family members. The statute is not a blank check. Petitioners such as Rusello
must prove that they have been subjected to battery or a level of abuse that rises to
the level of extreme cruelty. Once this is shown, however, he or she enters the
class of persons whom Congress sought to protect from removal for specific,
carefully considered policy reasons. Removing those who have shown they are
victims of domestic violence as defined by this statute should be based on sound
factual determinations, not reversals by the Board of IJ grants using an evidentiary
prong it believes will evade review.
The foregoing suggests a final reason why the extreme hardship element of
VAWA should not be regarded as a discrete, purely discretionary element of the
statute (as was the case in Kalaw). The same conditions that cause domestic abuse
to reach to the level of “extreme cruelty” under VAWA also often create “extreme
hardship” if removal is ordered.
As Hernandez explained, “extreme cruelty” as used in VAWA encompasses
“psychological abuse, coercive behavior and the ensuing dynamics of control and
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power” operating as an ongoing pattern. 345 F.3d at 827; see also id. at 840
(“[n]on-physical actions rise to the level of domestic violence when ‘tactics of
control are intertwined with the threat of harm in order to maintain the
perpetrator’s dominance through fear.’”) (citation omitted). As the Court
summarized:
With the passage of VAWA, Congress provided a mechanism for women who have been battered or subjected to extreme cruelty to achieve lawful immigration status independent of an abusive spouse.
Id. at 827.6
These passages from Hernandez show the close relationship between the
extreme cruelty and extreme hardship elements in VAWA. The abuse endured by
VAWA petitioners creates a power disparity between the abusive spouse with
secure status and the noncitizen spouse, who may be deported if he or she
challenges the abuse. Removal is the ultimate sanction for challenging abusers,
rendering the victim completely powerless in the hands of our immigration system.
VAWA seeks to thwart this result–a result that harms not only just the individuals
victimized but also our society’s campaign to stop domestic violence and hold
abusers accountable. Staying in the United States is the relief VAWA provides to
the extreme hardship of being forced to leave as a result of experiencing the
extreme cruelty of domestic abuse. Given the interconnectedness of these
6 Notwithstanding the gender-specific language (which is not in VAWA), VAWA applies to abused spouses, not merely abused wives.
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elements, we suggest this Court recognize the same type of judicial review over the
extreme hardship element in this case as Hernandez recognized for the extreme
cruelty element in that case.
To come full circle, the circumstances of this Petition illustrate how extreme
cruelty produces the extreme hardship that VAWA seeks to forestall, and hence
how the elements are interrelated. As a direct consequence of his spouse’s abuse,
Petitioner Rusello was cut off from his friends, diverted from a high-technology
job that would have allowed him to use and develop his prior skills, prevented
from attending a university to further develop his skills, and left in debt and
physical disarray. See Petitioner’s Opening Brief at 11-16. His former spouse’s
extreme cruelty has placed Rusello in a weakened state in which it would be
difficult for him to start life anew in a new country. Not unimportantly, removing
petitioner Rusello will reinforce abusers’ belief that our legal system is a weapon
of power and control they may use against their noncitizen spouses and children.
Fortunately, VAWA provides the remedy to avoid this extreme hardship:
cancellation of removal.
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IV. CONCLUSION
For the reasons set forth above, the Court should conclude that it possesses
jurisdiction and consider Mr. Rusello’s petition on its merits.
Respectfully submitted,
December 12, 2011
DLA PIPER LLP (US)
/s/ David Priebe David Priebe
Attorneys for ASISTA Immigration Assistance
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CERTIFICATE OF COMPLIANCE (Ninth Circuit Rule 32(a)(7)(C))
1. This brief complies with the type-volume limitations of Fed. R. App.
P. 29(d) and Fed. R. App. P. 32(a)(7)(b) because:
this brief contains 6291 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(b)(iii), or
this brief uses a monospaced typeface and contains [not applicable]
number of lines of text, excluding the parts of the brief exempted by
Fed. R. App. P. 32(a)(7)(b)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:
this has been prepared in a proportionally spaced typeface using Word
in 14 point Times New Roman, or
this brief has been prepared in a monospaced typeface using [not
applicable] with [not applicable].
December 12, 2011
Respectfully submitted,
DLA PIPER LLP (US)
/s/ David Priebe David Priebe Attorneys for ASISTA Immigration Assistance
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CERTIFICATE OF SERVICE
I hereby certify that on December 12, 2011, I electronically filed the
foregoing with the Clerk of the Court using the CM/ECF system, which will send
notification of such filing to the e-mail addresses denoted on the Service List with
an ECF Filing Status of Active.
I declare under penalty of perjury of the laws of the United States that the
foregoing is true and correct. Executed on December 12, 2011in East Palo Alto,
California.
/s/ David Priebe DAVID PRIEBE
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