On October 6, 2017, the Board of Immigration Appeals (BIA or Board) sustained a DHS appeal of an Immigration Judge’s (IJ’s) termination of removal proceedings in the case of a woman charged under INA § 212(A)(6)(A)(i) as one removable for being present in the U.S. without admission or parole. The IJ had terminated proceedings, holding respondent qualified for the exception to this ground per INA § (a)(6)(A)(ii), which is granted to one who I) is a VAWA self-petitioner; II) a) has been battered or subjected to extreme cruelty by a spouse or parent or member of the spouse’s or parent’s family residing in the applicant’s household and the spouse or parent consented to the battery or cruelty or b) whose child has been battered or subjected to extreme cruelty by a spouse or parent of the applicant (without the applicant’s active participation) or by a member of the spouse’s or parent’s family residing in the applicant’s household when the spouse or parent consented to the battery or cruelty and the applicant did not actively participate in it, and III) there was a substantial connection between the battery or cruelty and the applicant’s unlawful entry into the U.S. The BIA ultimately phrased the issue as whether one who seeks to qualify for the inadmissibility exception of § (A)(6)(A)(ii) must satisfy all 3 subclauses, including the requirement that he or she be a VAWA self-petitioner.
As explained by the Board, the IJ had concluded that the section’s language indicated that Congress only intended applicants to satisfy either subclauses I) or III) or subclauses II) and III), and held that even though respondent is not a VAWA self-petitioner, she had suffered extended domestic abuse by her husband in Guatemala and was entitled to the exception. DHS disagreed and argued respondent is not so qualified.
The decision’s initial analysis focused on the statutory language of 212 § (A)(6)(A)(ii), with the BIA noting that it first looks to the statute’s plain meaning so as to give effect to that meaning when possible; the most natural reading, held the opinion, is that respondent must satisfy subclauses I), II), and III), but subclause III) may be satisfied 2 different ways. However, as III) refer to the first 2 subclauses in the disjunctive, the Board found that the language is ambiguous and the legislative history must be considered.
In parsing the legislative history, the BIA looked to the Immigration Marriage Act Fraud Amendments of 1986, when marriage fraud concerns prompted Congress to create the 2-year conditional residence period which must pass before lawful permanent resident status can be granted to a noncitizen spouse. Because, noted the decision, a U.S. citizen or LPR spouse’s consent and cooperation are required to file a joint petition to remove conditional status, the citizen or LPR gained “considerable leverage over their foreign national spouse.” This, stated the Board, created a situation in which abused foreign national spouses were reluctant to leave the U.S. citizen/LPR spouse “for fear of losing their potential to adjust their status.” In turn, Congress created the battered spouse waiver of the joint petition requirement in 1990, codified at INA § 216(c)(4)(C); its purpose found the BIA , was to ensure that no foreign spouse or child gets trapped in an abusive relationship by the threat of losing legal status.
Next, in its analysis of § 212(a)(6)(A)(ii)’s scope, the opinion found that the most reasonable reading of the section is that an applicant must satisfy all 3 subclauses, as subclause II) reflects a desire by Congress to expand protections to cover abuse not only by U.S. citizen and LPR spouses and parents but also by members of the household where the abuser acts at the direction of the citizen/LPR, e.g., coverage is extended against those who possess “immigration leverage” over a foreign national spouse. While respondent claimed that this interpretation rendered subclause II) superfluous, the Board did not find that argument persuasive, holding that while subclauses I) and II) overlap, there are important differences between them and such overlap reflects Congress’ desire to ensure there is no gap in coverage for those abused by, or with the consent of, a U.S. citizen or LPR spouse or parent. On the other hand, noted the BIA, the IJ’s interpretation would vastly expand the section’s reach by effectively removing the requirement of a U.S. citizen or LPR abuser as it would “apply to any domestic abuse situation in the world” as illustrated by respondent’s complaint of abuse by her spouse in Guatemala. This, found the Board, was not why Congress created such a broad exception to inadmissibility. Furthermore, requiring the satisfaction of only subclauses II) and III) would alleviate respondent’s removability but would leave her with no legal status in the U.S., another result that could not have been intended by Congress. Thus, the more reasonable approach is that all 3 subclauses must be satisfied to qualify for the exception found at INA § 212(a)(6)(A)(ii). The appeal was sustained, proceedings reinstated, and the record remanded to the IJ. Matter of Pangan-Sis, 27 I&N Dec. 130 (BIA 2017).
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