Lopez–birrueta v. Eric H. Holder Jr., 10–70128.

• Decision Date: 14 February 2011
• Docket Number: No. 10–70128.,10–70128.
• Citation: 633 F.3d 1211
• Parties: Maria LOPEZ–BIRRUETA, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

633 F.3d 1211

11 Cal. Daily Op. Serv. 2014

2011 Daily Journal D.A.R. 2443

Maria LOPEZ–BIRRUETA, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 10–70128.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 13, 2011.Filed Feb. 14, 2011.

Matt Adams, Northwest Immigrant Rights Project, Seattle, WA, Martha H. Rickey, Northwest Immigrant Rights Project, Granger, WA, for the petitioner.M. Jocelyn Lopez Wright, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent.Loni A. Mahanta, Crowell & Moring LLP, San Francisco, CA, for the amicus curiae.On Petition for Review of an Order of the Board of Immigration Appeals. B.I.A. No. A079–748–289.Before: SUSAN P. GRABER and MILAN D. SMITH, JR., Circuit Judges, and CHARLES R. BREYER,^* District Judge.

OPINION

GRABER, Circuit Judge:

Petitioner Maria Lopez–Birrueta petitions for review of the Board of Immigration Appeals' (“BIA”) denial of special-rule cancellation of removal under the Violence Against Women Act of 1994 (“VAWA”). The BIA held that, although Petitioner's children were mistreated by their lawful-permanent-resident father, that mistreatment did not rise to the level of “battery” under 8 U.S.C. § 1229b(b)(2)(A). We disagree. Accordingly, we grant the petition and remand.

FACTUAL AND PROCEDURAL HISTORY

Petitioner is a native and citizen of Mexico. She entered the United States without inspection in 1994 at the age of 14. In 2002, the government served her with a notice to appear. She conceded removability but applied for special-rule cancellation of removal under 8 U.S.C. § 1229b(b)(2)(A). To qualify, an alien must demonstrate (1) the existence of battery or extreme cruelty, (2) physical presence, (3) good moral character, (4) not being inadmissible for certain specified reasons, and (5) extreme hardship. Id. Regarding the first requirement, Petitioner sought to demonstrate that she “is the parent of a child of an alien who is ... a lawful permanent resident and the child has been battered or subjected to extreme cruelty by such permanent resident parent.” Id. § 1229b(b)(2)(A)(i)(II).

At a merits hearing in 2008, Petitioner testified as follows. After arriving in the United States, and still at the age of 14, Petitioner began a sexual relationship with Gill Campos, who was then 36 years old. Campos is a legal permanent resident of the United States.

Petitioner and Campos had two children together. At age 16, Petitioner gave birth to E—. At age 18, she gave birth to G—. Petitioner and Campos lived together while the children were very young.

During that time, Campos repeatedly threatened Petitioner, insulted her, prohibited her from talking with others, acted aggressively toward her, and threatened to alert immigration officials if Petitioner disobeyed his orders. While they lived together, Campos was not a loving father. He was violent toward his children, yelled at them, and often took them for rides in his car when he was drunk.

Petitioner described one incident in detail. In front of his “drunken friends,” Campos struck E—, then 3 years old, three times on the legs with a stick that was 24 inches long and one-half inch in diameter. The strikes caused red welts to appear on E—'s legs, which Petitioner treated with ointment and ice. That same form of beating occurred two to three times a week. Campos subjected G— to the same mistreatment. Asked why, Petitioner responded that Campos “probably want[ed] to control me through the children.”

Twice, Petitioner left Campos but, both times, she returned after Campos convinced her that he had changed. Petitioner left for good in 1999 and moved to Yakima, Washington, with her children. Since Petitioner left, the children have visited Campos for one or two months at a time, and once for almost a year. Campos no longer strikes the children.

Both children testified at the hearing. At the time, E— was 12 years old, and G— was 11 years old. E— testified that he has not had any problems with his father in the past few years and that, although he did not love his father when he was younger, he loves him now. He remembers his father striking him, “for no reason,” with a tree branch and with his hand. G— testified that he remembers that his father would beat him and E— with a stick, on the legs. When his father came home, G— was scared and hid to “try[ ] to get away.” But he no longer feels that way about his father.

In a written decision, an immigration judge (“IJ”) denied cancellation of removal. The IJ expressly found Petitioner credible but found that she failed to establish that the children had been “battered” or subjected to “extreme cruelty” under the statute. Because the IJ held that Petitioner did not meet the statutory requirement of battery or extreme cruelty, he did not reach any of the other statutory requirements for relief.

Citing In re Burbano, 20 I. & N. Dec. 872, 874 (B.I.A.1994), the BIA adopted and affirmed the IJ's decision. The BIA also added its own summary as to why no battery or extreme cruelty occurred. Petitioner timely petitions for review.

STANDARDS OF REVIEW

“We review the BIA's legal determinations de novo and its factual findings for substantial evidence.” Kyong Ho Shin v. Holder, 607 F.3d 1213, 1216 (9th Cir.2010).

DISCUSSION

A. Sources of Law

The statute provides several categories of aliens who satisfy the “battery or extreme cruelty” requirement. The alien must demonstrate that:

(I) the alien has been battered or subjected to extreme cruelty by a spouse or parent who is or was a United States citizen (or is the parent of a child of a United States citizen and the child has been battered or subjected to extreme cruelty by such citizen parent);

(II) the alien has been battered or subjected to extreme cruelty by a spouse or parent who is or was a lawful permanent resident (or is the parent of a child of an alien who is or was a lawful permanent resident and the child has been battered or subjected to extreme cruelty by such permanent resident parent); or

(III) the alien has been battered or subjected to extreme cruelty by a United States citizen or lawful permanent resident whom the alien intended to marry, but whose marriage is not legitimate because of that United States citizen's or lawful permanent resident's bigamy[.]

8 U.S.C. § 1229b(b)(2)(A)(i).

Because Petitioner and Campos never married (legally or bigamously), Petitioner cannot claim protection under VAWA for Campos' mistreatment of her. Instead, Petitioner sought to demonstrate that she fell within the category protected by the parenthetical in subsection (II), that she “is the parent of a child of an alien who is ... a lawful permanent resident and the child has been battered or subjected to extreme cruelty by such permanent resident parent.” Id. § 1229b(b)(2)(A)(i)(II). None of the other categories applies.

The statute does not define the phrase “has been battered or subjected to extreme cruelty.” But the agency has promulgated a regulation at 8 C.F.R. § 204.2 that pertains to the topic. Although we ultimately agree with the BIA and the parties that the regulation's definitions of “battery or extreme cruelty” apply, some explanation is required.

The first seven subsections of the regulation pertain to a particular type of petitioner. For instance, subsection (a) is entitled “Petition for a spouse” and contains implementing regulations for petitions filed by a spouse of a citizen or legal permanent resident. Relevant here, subsection (c) is entitled “Self-petition by spouse of abusive citizen or lawful permanent resident,” and subsection (e) is entitled “Self-petition by child of abusive citizen or lawful permanent resident.” Both subsections (c) and (e) describe the requirements for special-rule cancellation of removal under VAWA, and both subsections contain a definition of “battery or extreme cruelty.” Except for their respective final sentences, the two definitions are identical:

Battery or extreme cruelty. For the purpose of this chapter, the phrase “was battered by or was the subject of extreme cruelty” includes, but is not limited to, being the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence. Other abusive actions may also be acts of violence under certain circumstances, including acts that, in and of themselves, may not initially appear violent but that are a part of an overall pattern of violence.

8 C.F.R. § 204.2(c)(1)(vi), (e)(1)(vi). The final sentence in the two definitions varies depending on whether the petitioner is a spouse or child. The subsection concerning a petition for a spouse states: “The qualifying abuse must have been committed by the citizen or lawful permanent resident spouse, must have been perpetrated against the self-petitioner or the self-petitioner's child, and must have taken place during the self-petitioner's marriage to the abuser.” Id. § 204.2(c)(1)(vi). The subsection concerning a petition for a child states: “The qualifying abuse must have been committed by the citizen or lawful permanent resident parent, must have been perpetrated against the self-petitioner, and must have taken place while the self-petitioner was residing with the abuser.” Id. § 204.2(e)(1)(vi).

We have two difficulties with the regulation's definitions of “battery or extreme cruelty.” First, the definitions give the meaning of the phrase “was battered by or was the subject of extreme cruelty.” But that phrase appears nowhere in the statute or elsewhere in the regulation. Both the statute and the regulation use the verb form “has been,” instead of the definitions' formulation “was.” Neither the parties nor we attribute any significance to this...