BIA Holds That An Applicant For Special Rule Cancellation Of Removal Under INA §240A(b)(2) Based On Spousal Abuse Must Demonstrate Both That The Abuser Was His Or Her Lawful Spouse And Possessed Either U.S. Citizenship Or Lawful Permanent Residence At The Time Of The Abuse.
On February 24, 2021, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of a decision by the Immigration Judge (IJ) denying Respondent’s application for special rule cancellation of removal under INA §240A(b)(2), relief reserved for certain victims of domestic violence; granted Respondent’s motion, filed during the appellate process, to remand so that he might apply for cancellation of certain nonpermanent residents under INA §240A(b)(1), based on intervening case law; and, remanded the record to the IJ for further proceedings (regarding Respondent’s cancellation application).
Respondent entered the U.S. without inspection (EWI) and his subsequent application for cancellation under INA §240A(b)(1) was denied by the IJ because he did not demonstrate the requisite hardship to a qualifying relative; his request for voluntary departure was granted, though, and Respondent departed the U.S. but reentered EWI. Five years later, he was again placed into removal proceedings “through the service of a notice to appear that failed to specify the time and date of his removal hearing.” Based on his 16-year long common law marriage, Respondent filed for adjustment of status as a battered self-petitioner, but USCIS denied his I-130 Special Immigrant Petition because he did not establish that his former spouse possessed lawful immigration status during his marriage. Before the IJ, Respondent sought special rule cancellation per §240A(b)(2) but the IJ denied relief on the basis that he failed to show that his former spouse held lawful status as a citizen or permanent resident when she abused him.
At the beginning of its analysis, the BIA examined the special rule cancellation statute, finding that the law plainly states that an abused spouse must be either a USC or LPR “at some point in time” and noted that this case presented a matter of first impression, whether an applicant must prove that his or her spouse possessed U.S. citizenship or permanent residence “at the time that the applicant was abused by and married to this spouse,” a legal question it would review de novo. In terms of statutory construction, the opinion admitted that the statute’s plain language allowed for “more than one possible time frame” during which the abusive spouse needed to be a USC or LPR, e.g. at the time of the marriage and abuse or, as Respondent contended, at the time the cancellation application was filed. As the law was susceptible to more than one interpretation, it was found to be ambiguous; the decision thus concluded that it had to determine which interpretation “reasonably reflects Congress’ intentions for these provisions.”
The Board next looked to the law’s overall statutory context, a process which, it stated, would provide considerable assistance. The parenthetical phrases of the statute’s 2 sections (abuse by a spouse or parent who was I) a USC or II) an LPR) were parsed and the opinion found it significant that “has been battered or subjected to extreme cruelty by such citizen parent” in §240A(b)(2)(A)(i)(I) is in the present perfect tense; Congress used this tense to denote an act that has been completed. As the past harm needed to be committed by a citizen parent, the ordinary meaning of the phrase was that “the child must have been abused by a parent who was a citizen at the time of the abuse took place.” Based on its examination of §§240A(b)(2)(A)(i)(I) and (II), the BIA held that the abusive spouse or parent must be a USC or LPR at the time of the abuse. Moreover, because the spousal portion of the law requires the abuser to be a “spouse”, the abuse must have occurred during the course of the marriage. Further, the expanded phrase “is or was” in the statute meant that the spouse or parent could later lose his or her citizenship or permanent residence but that the applicant could still apply for special rule cancellation if the abuser was his or her spouse during the abuse. The next question was whether this interpretation was reasonable, given Congress’ intent.
In examining the legislative intent issue, the Board initially cited to its decision in Matter of Pangan-Sis, 27 I&N Dec. 130 (BIA 2017) where it had noted that “Congress intended to reduce marriage fraud by requiring a conditional permanent resident to file a joint petition with his or her United States citizen or permanent resident spouse to remove the condition on residence.” Yet this requirement engendered a situation where abused noncitizen spouses were reluctant to leave their USC or LPR abusers out of fear they would thus be unable to adjust status. This concern motivated Congress to enact the VAWA legislation to ensure that noncitizens “do not remain in abusive relationships because of immigrant consequences.” In light of this discussion from Pangan-Sis, the opinion concluded that its interpretation of §§240A(b)(2)(A)(i)(I) and (II) is reasonable and consistent with congressional intent, e.g., where the abuser is the spouse of a special rule cancellation applicant, the respondent must prove that the abuser held legal status as his or her lawful spouse and was a USC or LPR at the time of the abuse, even if the abuser’s spousal status, citizenship, or permanent residence is later terminated or revoked, or the abuser, “can no longer use an immigrant benefit to control the applicant.”
Applied to Respondent’s case, this formulation led the BIA to find that he had not shown that his former spouse was a USC or LPR when they were married and when she abused him; in fact, the parties agreed she held no such status during the marriage and abuse. Because she obtained permanent residence after the marriage and abuse ended, Respondent was ineligible for special rule cancellation under §240A(b)(2). The IJ had correctly denied the application.
Finally, as to Respondent’s contention that remand was warranted so that he can apply for cancellation per §240A(b)(1) because he may be able to prove the required 10 years of continuous physical presence “under intervening case law from the United States Court of Appeals for the Tenth Circuit, in whose jurisdiction this case arises,” the Board held that the relevant notice to appear “failed to specify the time and date” of Respondent’s court hearing and it was therefore incomplete. The opinion thus agreed that Respondent may now be able to establish the requisite period of physical presence. The appeal was dismissed, the motion to remand granted, and the record remanded to the IJ. Matter of L-L-I-, 28 I&N Dec. 241 (BIA 2021).