Da Silva v. Attorney Gen. United States
| Citation | 948 F.3d 629 |
| Decision Date | 24 January 2020 |
| Docket Number | No. 18-1699,18-1699 |
| Parties | Ludimilla Ramos DA SILVA a/k/a Lulu Da Silva a/k/a Ludimilla Dasilva, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Thomas M. Griffin (Argued), Surin & Griffin, 718 Arch Street, Suite 701N, Philadelphia, PA 19106, Counsel for Petitioner
Scott G. Stewart (Argued), United States Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, DC 20530, Stefanie A. Svoren-Jay, United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent
Before: MCKEE, ROTH and RENDELL, Circuit Judges
Appellant Ludimilla Ramos Da Silva petitions for review of her final order of removal. She contends that the Board of Immigration Appeals erred when it concluded that her convictions for assaulting her husband’s mistress were not "connected to" the extreme cruelty she suffered, rendering her ineligible for cancellation of removal. We agree. For the reasons that follow, we will grant Da Silva’s petition for review and vacate the BIA’s removal order.
Da Silva, a native of Brazil, was admitted to the United States in 1994 with a B-2 visa; she was then about two years old. She overstayed her visa and has never left the United States. Da Silva married a United States citizen, Aziim Leach, on April 30, 2012. Leach, a member of the armed services, subjected Da Silva to emotional, psychological, and physical abuse throughout their marriage. For instance, he refused to file immigration paperwork that would provide her with documented status and used her undocumented status as a method to control her. Leach also hit Da Silva’s daughter and pushed Da Silva against a wall multiple times.1
Most importantly to this appeal, Leach engaged in numerous extramarital affairs, including one particularly intense relationship with his coworker, L.N. On September 1, 2014, Da Silva discovered sexually explicit text messages between Leach and L.N. Da Silva questioned Leach about the messages and called L.N. to arrange a meeting at L.N.’s house so they could talk. When Da Silva arrived, L.N. got into Da Silva’s car, and Da Silva confronted L.N. with the text messages. Da Silva claimed she feared that L.N. was about to hit her so she punched L.N. in the nose.
Next, L.N. proposed that they go to Da Silva’s house, so they could talk with Leach. When they arrived, L.N. and Leach claimed the affair was over. Da Silva and L.N. then left to return to L.N.’s house but stopped at Da Silva’s friend’s house on the way, where there was a second confrontation regarding the affair. Da Silva testified that L.N. said Leach was still her "daddy," indicating that L.N. would continue the extramarital affair.2 In response, Da Silva "exploded" and, in "a blind rage," struck L.N. in the nose again.3 The IJ recognized that Da Silva had "been provoked by a woman who was [having] an affair with her husband," and the BIA noted her violent outburst was "an aberration."4 Da Silva was arrested the following morning.
On January 19, 2016, Da Silva pleaded guilty to two counts of assault in violation of 18 U.S.C. § 113(a)(4) and was sentenced to eighteen months’ imprisonment.5 On July 31, 2017, the government served Da Silva with a Notice to Appear, charging her with removability for overstaying her visa pursuant to 8 U.S.C. § 1227(a)(1)(B). She sought cancellation of removal for battered spouses under the Violence Against Women Act (VAWA),6 but was denied relief by both the Immigration Judge and the BIA.
Petitioners are eligible for VAWA cancellation under 8 U.S.C. § 1229b(b)(2)(A) if (1) they have been "battered or subjected to extreme cruelty" by a spouse who is a United States citizen, (2) they have been "physically present in the United States for a continuous period of not less than [three] years immediately preceding the date of such application," (3) they have been "a person of good moral character" during the past three years, and (4) "the removal would result in extreme hardship to the alien, the alien’s child, or the alien’s parent."7 Da Silva concedes that she cannot satisfy the "good moral character" requirement because, as a result of her assault conviction, she was "confined ... to a penal institution for an aggregate period of one hundred and eighty days or more."8 However, she argues that she qualifies for the exception to the good moral character requirement, which provides that a petitioner is still eligible for VAWA cancellation if the and cancellation is otherwise warranted.9
The IJ held that Da Silva’s assault convictions were not "connected to" her husband’s cruelty because she was not "encouraged or induced" by him to commit the assault.10 Rather, they were "connected to her having been provoked by a woman who was carrying on an affair with her husband" and were "a result of her anger toward her husband’s infidelity and anger toward the mistress’ behavior."11 The IJ also concluded that she qualified for all other elements of VAWA cancellation. Specifically, the IJ found that Leach subjected her to extreme cruelty because he threatened to take away her children due to her undocumented status, was consistently unfaithful, verbally and physically abused her and her daughter, and refused to allow her to petition for immigration status. The I.J. also found that her removal would result in extreme hardship.
Da Silva appealed to the BIA, and the government filed for summary affirmance of the IJ’s decision. In a nonprecedential opinion, the BIA affirmed the IJ’s decision, agreeing that, although she had been subjected to extreme cruelty, the assault convictions were not "connected to" the cruelty. The BIA reasoned that Leach did not "ask, encourage, compel, or coerce" her to commit the assault and that she "did not commit the assault on behalf of or for her husband."12 Da Silva timely appeals, arguing that she is eligible for cancellation of removal because her convictions are "connected to" the cruelty. The government has filed a motion to remand to the BIA so that it may conduct a more thorough analysis of the term "connected to." In the alternative, the government asks that we deny the petition, arguing that the BIA properly interpreted and applied "connected to."
We have jurisdiction under 8 U.S.C. § 1252(a). Where, as here, the BIA expressly adopts portions of the IJ’s decision, we review both the BIA and IJ decisions.13 We review findings of fact "under the deferential substantial evidence standard,"14 and we review legal conclusions de novo, subject to established rules of deference.15 The BIA’s decision is not entitled to Chevron deference because it is nonprecedential.16
Our analysis proceeds in two parts. First, we address the government’s motion to remand to the BIA and conclude that remand is not appropriate here. Next, we apply our principles of statutory interpretation to the term "connected to." We hold that the term has a clear and unambiguous meaning and that the BIA’s construction of "connected to" was overly narrow and contrary to the plain language of the statute.
The government urges us to remand to the BIA so that it may re-interpret the term "connected to." The government does not concede that the BIA’s construction of the term was improper but rather argues that remand is warranted to permit the BIA an opportunity to fully consider the "ambiguous" phrase "connected to." We decline the government’s invitation to remand because the factors supporting remand are not present here. Indeed, we conclude that the phrase "connected to" is unambiguous, leaving no statutory gaps for the BIA to fill.
Remand is appropriate where an agency has yet to consider the issue presented to the court. For instance, in I.N.S. v. Orlando Ventura ,17 the Supreme Court held that the Ninth Circuit "committed clear error" when it decided a question itself in the first instance rather than remanding to the BIA.18 Remand is also called for where there has been a change in law or an intervening event.19 Neither factor is present in this case. The BIA has already interpreted and applied the term "connected to," and thus, we would not be conducting a de novo inquiry as in Ventura and its progeny. Moreover, there has been no change in law or intervening event that would affect the BIA’s analysis. The government asked the BIA to summarily affirm the IJ’s decision. If it wanted the BIA to conduct a re-analysis of "connected to," it should have asked the BIA to do so the first time around.20
We might be more inclined to remand if the BIA’s subsequent, precedential interpretation of "connected to" would receive Chevron deference.21 But it would not. Under Chevron step one, we determine "if the statute is silent or ambiguous with respect to the specific issue of law in the case."22 If the statute is unambiguous, there are no statutory gaps for the agency to fill, and our inquiry ends.23 Only where the statute is ambiguous do we move to step two and determine if the agency’s interpretation of the statute is reasonable and thus entitled to deference.24
As a threshold matter, we are not convinced that the Chevron framework applies here because interpreting "connected to" does not implicate the BIA’s "expertise in a meaningful way,"25 Rather it appears to be "a pure question of statutory construction for the courts to decide."26 Even if the Chevron framework did apply, "connected to" is unambiguous as discussed below and therefore, the meaning of "connected to" is resolved under the first step of Chevron .
Accordingly, we will deny the government’s motion to remand to the BIA to re-interpret "connected to."
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