Sanchez v. Keisler

• Decision Date: 04 October 2007
• Docket Number: No. 06-2745.,No. 06-3424.,06-2745.,06-3424.
• Citation: 505 F.3d 641
• Parties: Ana M. SANCHEZ, Petitioner, v. Peter D. KEISLER, Acting Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

505 F.3d 641

Ana M. SANCHEZ, Petitioner, v. Peter D. KEISLER, Acting Attorney General of the United States, Respondent.

No. 06-2745.

No. 06-3424.

United States Court of Appeals, Seventh Circuit.

Argued April 2, 2007.

Decided October 4, 2007.

Maria T. Baldini-Potermin (argued), Gostynska Frakt, Chicago, IL, for Petitioner.

James A. Hunolt, Andrew B. Insenga (argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

David R. Fine, Kirkpatrick & Lockhart Nicholson Graham, Harrisburg, PA, for Amicus Curiae.

Before RIPPLE, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

In 2005, Congress amended the Violence Against Women Act ("VAWA") to make it easier for victims of domestic abuse who face removal from the United States to file motions to reopen their immigration proceedings. See Pub.L. No. 109-162, 119 Stat. 2960 (2005). Ordinarily, strict time limitations apply to these motions. See 8 C.F.R. § 1003.2(c)(2). For persons qualifying under VAWA, however, Congress has lengthened the period within which a motion to reopen may be filed, has altered the numerical limit that applies to ordinary motions, and has provided for a stay of removal upon the filing of the motion. See 8 U.S.C. §§ 1229a(c)(7)(C)(iv)(III) (time), 1229a(c)(7)(A) & (C)(iv) (numerical limit), 1229a(c)(7)(iv) (stay). When Ana Sanchez tried to take advantage of this law, however, she was rebuffed by the Board of Immigration Appeals. The BIA found that her motion to reopen was barred by the 90-day time limitation set forth in 8 U.S.C. § 1003.2(c)(2); it rejected her effort to invoke the special rules for battered spouses, finding that she should have raised this point before the immigration judge (IJ) and further finding that her counsel's failure to do so did not prejudice her. The BIA ruled, in the alternative, that it would deny even a proper motion to reopen from Sanchez in the exercise of its discretion.

We conclude that the BIA's first two reasons for denying the motion to reopen were based on legal error; VAWA permits the filing of a motion to reopen such as Sanchez's, and the Board has the independent power to accept such a motion, whether or not an attorney mentioned this law before the IJ. Ordinarily, the fact that the BIA ruled in the alternative that Sanchez's case did not merit relief as a matter of discretion would be enough to doom her petition independently. Here, however, there was a prior question that the BIA resolved incorrectly—whether Sanchez's attorney rendered ineffective assistance. We conclude, on this record, that he did. The record on which the BIA would have assessed its discretionary ruling would have been quite different had the lawyer performed adequately. We thus grant the petition for review and return this case to the BIA for a re-evaluation of the merits of Sanchez's motion.

I

Ana Sanchez entered the United States on August 1, 1989, "without inspection," as immigration specialists would say. With the exception of a brief trip to visit her mother in Mexico in 1993, which was short enough not to amount to a legal interruption of her residency, she has remained in the United States ever since. In 1991, Sanchez married Francisco Mendez, a legal permanent resident. The couple had a daughter, Adanely Mendez, on December 23, 1991, but Mendez never petitioned to adjust Sanchez's status. Sanchez alleges that she suffered physical, emotional, and psychological abuse at Mendez's hands. Sanchez and Mendez divorced on May 26, 1995.

Five years later, in February 2000, Sanchez met Robert Bozynski, who was a manager at a car dealership at which Sanchez and her sister purchased a vehicle. After a number of calls from Bozynski, Sanchez agreed to go out with him for dinner. The two began dating, and Bozynski proposed marriage to Sanchez on several occasions. She declined initially. In February 2001, the two went out for dinner. Sanchez had two drinks over the course of the evening, but they had a powerful effect on her. She lost consciousness and woke up later in Bozynski's bed, with him on top of her. She had trouble opening her eyes and could not defend herself; later, she concluded that the drinks must have been drugged. When she tried to discuss this incident with Bozynski, he insisted that the sexual encounter was consensual.

A few weeks later, Sanchez went to Los Angeles with Adanely and her sister to visit her sick father. During that trip, she learned that she was pregnant. She informed Bozynski of this fact as soon as she returned to Chicago. He became upset and accused her of lying; he also accused her of cheating on him and having sex with another man. Nonetheless, the discovery of the pregnancy prompted Sanchez to agree to marry Bozynski; they were married right away, on April 13, 2001.

Problems with the marriage surfaced quickly. Right after the wedding, Sanchez, Bozynski, and Adanely took a trip to North and South Carolina. During this time, Bozynski became rude and accusatory. He began to denigrate Sanchez because she was a Mexican immigrant; he became angry when she spoke Spanish to Adanely because he could not understand what she was saying; he demanded that she return the wedding ring; and he threatened to have her deported to Mexico by reporting her to the immigration authorities. She believed that he was angry because she was feeling ill as a result of the pregnancy and thus did not want to have sex during the trip, but she complied with his request to return the ring.

When they returned to the Chicago area, Sanchez and Adanely returned to their home in Maywood, Illinois, and Bozynski stayed at his home in Crystal Lake. Before the marriage, they had agreed that this would be their temporary arrangement, so that Adanely could finish the school semester before moving to Crystal Lake. Bozynski refused to provide medical coverage for Sanchez during her pregnancy, because he took the position that the baby was not his. Sanchez therefore applied for and received public assistance in her own name. At the time, Sanchez did have health insurance through her employer, but it was under an assumed name. On November 20, 2001, Valerie Sanchez was born; DNA testing later confirmed that Valerie is Bozynski's daughter.

Relations remained bad between Sanchez and Bozynksi. On April 22, 2002, Bozynski made good on his threat to report Sanchez to the Immigration and Naturalization Service. He told the INS that Sanchez "claimed to have requested the marriage for the sole purpose of obtaining lawful status in the United States. She informed the complainant [Bozynski] that since she was now married to him (a United States citizen) and pregnant with a child to be born in the United States, there was nothing anyone could do to remove her from the United States." Bozynski also told the INS that Sanchez was working under an assumed name. The next day, April 23, 2002, Sanchez was arrested by the INS and served with a Notice to Appear ("NTA"); she was released the same day on her own recognizance. Bozynski and Sanchez were divorced effective January 16, 2003.

The NTA included four factual allegations:

1. You are not a citizen or national of the United States;

2. You are a native of Mexico and a citizen of Mexico;

3. You entered the United States at or near El Paso, Texas on August 01, 1989;

4. You were not then admitted or paroled after inspection by an Immigration Officer.

On the basis of those allegations, the INS charged that Sanchez was subject to removal pursuant to § 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(6)(A)(i).

On July 3, 2002, Sanchez attended an initial master calendar hearing, at which she was represented by Attorney Ralph M. Schelly. On her behalf, Attorney Schelly admitted the factual allegations in the initial NTA and notified the IJ that Sanchez was going to apply for cancellation of removal as a battered spouse. The IJ ordered the attorney to prepare the proper application and to obtain the records of any criminal convictions she had. The IJ scheduled another hearing for October 30, 2002. On July 5, 2002, the INS added two more allegations to the NTA: first, that Sanchez had been convicted of battery on August 4, 1995, in violation of 720 ILCS 5/12-3, and second, that she had been convicted of battery on December 21, 1994, in violation of the same statute. These two convictions, INS asserted, made her removable under § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), which covers inadmissibility for committing a crime of moral turpitude. Sanchez denied that she had committed such a crime. Later, on August 5, 2002, Sanchez was convicted in Illinois of possession of a fake identification card, for which she was sentenced to six months' court supervision and community service and had her driver's license suspended. It appears that these charges were not formally added to the NTA, but evidence of them was eventually introduced into the administrative record.

On July 11, 2002, Sanchez filed applications for cancellation of removal under both 8 U.S.C. § 1229b(b)(1) (covering ordinary cancellation) and § 1229b(b)(2) (covering VAWA cancellation). At the October 30, 2002, hearing, the IJ explained to Sanchez the difference between requesting cancellation generally and requesting cancellation under the VAWA rules. The general rules require continuous physical presence within the United States for 10 years, good moral character, lack of convictions of certain offenses, and a showing of exceptional and extremely unusual hardship to the U.S. citizen or permanent resident spouse, parent, or child. 8 U.S.C. § 1229b(b)(1). The VAWA rules are more lenient. They require (as applied to Sanchez's case) the applicant to establish that she was "battered or subjected to extreme cruelty" by a spouse or parent who is a U.S. citizen or lawful permanent resident, 8 U.S.C. § 1229b(b)(2)(A)(i), and that she had resided continuously...