No. 11-71013 UNITED STATES COURT OF APPEALS FOR · PDF fileUNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT VASCO ... BRIEF OF ASISTA ... The Facts And Procedural History” section

No. 11-71013

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

VASCO EZZAT RUSELLO,

Petitioner,

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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

Case: 11-71013 12/12/2011 ID: 7997428 DktEntry: 18-2 Page: 1 of 36

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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


- vi-

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


Documents

No. 11-71013 UNITED STATES COURT OF APPEALS FOR · PDF fileUNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT VASCO ... BRIEF OF ASISTA ... The Facts And Procedural History” section