Ruiz v. U.S. Attorney Gen.

• Docket Number: 22-10445
• Decision Date: 05 July 2023
• Parties: ESMELDA RUIZ, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

1

ESMELDA RUIZ, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 22-10445

United States Court of Appeals, Eleventh Circuit

July 5, 2023

Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A096-091-552

Before JILL PRYOR, NEWSOM, and GRANT, Circuit Judges.

OPINION

NEWSOM, CIRCUIT JUDGE.

The Court sua sponte VACATES its prior opinion, published at 67 F.4th 1321 (11th Cir. 2023), and substitutes the following in its place.

Esmelda Ruiz, a native and citizen of Peru, appeals the Board of Immigration Appeals' determination that she is ineligible for relief under 8 U.S.C. § 1229b(b)(2), a provision whose language was originally adopted as part of the Violence Against Women Act of 1994 and that outlines the conditions under which certain "battered spouse[s] or child[ren]" qualify for discretionary cancellation of removal. As relevant here, it requires a petitioning alien to show that she "has been battered or subjected to extreme cruelty" by her spouse or parent. 8 U.S.C. § 1229b(b)(2)(A)(i).

Ruiz contends that the Immigration Judge and the BIA made two errors in refusing her cancellation request. First, she maintains that, as a matter of law, they misinterpreted the statutory term "extreme cruelty" to require proof of physical-as distinguished from mental or emotional-abuse. And second, she asserts that, having misread the law, the IJ and the BIA wrongly concluded that she doesn't qualify for discretionary relief.

We agree with Ruiz that the IJ and the BIA misinterpreted § 1229b(b)(2) and thereby applied an erroneous legal standard in evaluating her request for cancellation of removal. Accordingly we grant her petition for review and remand to the BIA for further consideration.

I

A

Esmelda Ruiz entered the United States with her son on a six-month nonimmigrant visa in 2001. Shortly thereafter, she married Gavin Blanco. Only a year into her marriage, Ruiz was diagnosed with breast cancer. She received chemotherapy and as a result, lost her hair and broke out in hives. Ruiz testified that following her diagnosis Blanco's attitude toward her changed, and he became "rude" and "obnoxious." He told her that "if they remove[d] [her] breast, that was the end of it." After she underwent a mastectomy, he "got [her] out of [the] bed" in "a cruel way," grabbed her arm, forced her in front of a mirror, and said, "You are not a woman for me anymore." Ruiz's son, Cristian, corroborated that incident and testified that, in general, Blanco "scream[ed] at" her. Cristian also reported that he once heard "something break" while Ruiz and Blanco were arguing.

Following Ruiz's mastectomy, Blanco filed for divorce, sought a restraining order against her, and, she says, took $2,500 from their joint bank account. Save for the one instance in which he grabbed her arm, Ruiz has not alleged that Blanco physically abused her. She has alleged, however, that as a result of Blanco's treatment of her, she suffered from post-traumatic stress disorder and required psychotherapy. Happily, Ruiz is now cancer-free.

B

In 2009, the government initiated removal proceedings against Ruiz on the ground that she had long overstayed the six months that her nonimmigrant visa allowed her to stay in the United States.^[1] She filed for cancellation of removal under 8 U.S.C. § 1229b(b)(2), which is titled "Special rule for battered spouse or child." The cancellation proceedings have been ongoing ever since.

Congress enacted what is now § 1229b(b)(2) as part of the Violence Against Women Act to enable certain victims of domestic abuse to obtain discretionary deportation relief. See Bedoya-Melendez v. U.S. Att'y Gen., 680 F.3d 1321, 1326 (11th Cir. 2012), overruled on other grounds by Patel v. U.S. Att'y Gen., 971 F.3d 1258, 1278 (11th Cir. 2020) (en banc). To qualify for cancellation of removal under § 1229b(b)(2), an alien must establish five prerequisites: (1) that she has been "battered or subjected to extreme cruelty" by a spouse or parent; (2) that she has been continuously present in the United States for at least three years immediately preceding her application; (3) that she has been a person of good moral character during that period; (4) that she doesn't have any disqualifying criminal convictions or other specified grounds of inadmissibility or deportability; and (5) that removal would result in extreme hardship to her, her child, or her parent. 8 U.S.C. § 1229b(b)(2)(A)(i)-(v). The lone dispute here is whether Ruiz was "battered or subjected to extreme cruelty" within the meaning of the statute.

The IJ concluded that although Ruiz met the statute's other requirements, she hadn't been "battered or subjected to extreme cruelty." He explained his determination as follows:

Even taking into account Cristian's testimony that Respondent and Mr. Blanco would often fight after she was diagnosed with cancer, and that he once heard something break when they were fighting, there is still no indication of physical violence or physical harm to Respondent. Additionally, Respondent has failed to submit any documentary evidence that supports her contention of abuse, aside from her own written statement and a letter from a mental health counselor stating that she is attending psychotherapy sessions as of July 2015 as "ordered" by the court and that she suffers from posttraumatic stress disorder. Both of these documents fail to indicate additional facts of physical abuse or violent harm that would support Respondent's claims.

Ruiz appealed the IJ's decision to the BIA. Specifically, she argued that the IJ improperly interpreted § 1229b(b)(2)'s phrase "extreme cruelty" to require proof of physical violence and to exclude mental or emotional abuse. In a non-precedential singlejudge order, the BIA "adopt[ed] and affirm[ed]" the IJ's decision and expressly "disagree[d] that the [IJ] used the wrong standard in this case." The BIA went on to explain itself as follows:

[W]e concur with the Immigration Judge that the respondent did not establish extreme cruelty at the hands of her former husband. The primary issue here is that the respondent's former husband abandoned the respondent once she became ill. He was no longer willing to act in support of the respondent and made hurtful comments to her about this fact. His rejection of her when she was ill and especially after her mastectomy is exceedingly unfortunate. However, this kind of abandonment is not the type of treatment that we generally consider to be "extreme cruelty" for purposes of the VAWA. See Matter of AM-, 25 I&N Dec. 66, 72 (BIA 2009) (explaining that "[a]ccording to the legislative history, the purpose of the VAWA provisions amending the Act was to permit battered spouses to leave their abusers without fear of deportation or other immigration consequences.").

The Immigration Judge properly considered the "insults and lack of support [the respondent] endured during such a difficult time." Like the Immigration Judge, we are not unsympathetic with the respondent's situation. Nevertheless, we concur that the respondent did not establish eligibility for cancellation of removal under the VAWA.

Ruiz timely petitioned this Court for review of the BIA's decision.

II

First things first: The government contends that we lack jurisdiction over Ruiz's petition under 8 U.S.C. § 1252(a)(2). That statute contains two relevant subsections. The first is a jurisdiction-stripping provision. In pertinent part, it states that "[n]otwith-standing any other provision of law . . . no court shall have jurisdiction to review . . . any judgment regarding the granting of relief under section . . . 1229b . . . of this title." Id. § 1252(a)(2)(B)(i). The second, as relevant here, preserves jurisdiction over "questions of law": "Nothing in subparagraph (B) . . . which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review ...." Id. § 1252(a)(2)(D).

As an initial matter, we clearly have jurisdiction to consider Ruiz's threshold contention that the IJ and the BIA misinterpreted § 1229b(b)(2) to require proof of physical abuse as a precondition to showing "extreme cruelty." That argument-about "the meaning of a statutory . . . provision"-presents a quintessential "question of law." McFarlin v. Conseco Servs LLC, 381 F.3d 1251, 1258 (11th Cir. 2004). In Patel v. U.S. Attorney General, 971 F.3d 1258, 1278 (11th Cir. 2020) (en banc), we expressly overruled our earlier decision in Bedoya-Melendez v. U.S. Attorney General, 680 F.3d 1321 (11th Cir. 2012), on which the government relies here, and in so doing distinguished between questions of fact, over which we lack jurisdiction, and questions of law, over which we retain it. See Patel, 971 F.3d at 1278. The Supreme Court thereafter granted certiorari and affirmed our decision, emphasizing the same distinction. See Patel v. Garland, 142 S.Ct. 1614, 1623 (2022).

We conclude that we also have jurisdiction to consider the question whether Ruiz's particular case meets the statutory standard. In Guerrero-Lasprilla v. Barr the Supreme Court held that the phrase "questions of law" in § 1252(a)(2)(D) should be read to "in-clude[] the application of a legal standard to undisputed or established facts." 140 S.Ct. 1062, 1067 (2020); see also Patel, 971 F.3d at 1275-76 (citing Guerrero-Lasprilla for the proposition that while § 1252 strips our jurisdiction to review purely factual determinations, an "[a]pplicant[] who ha[s] been denied a form of discretionary relief enumerated in § 1252(a)(2)(B)(i)"-including § 1229b- "can still obtain review of constitutional and legal challenges to the denial of that relief, including review of mixed questions of law and...