Lopez-Birrueta v. Holder (9th Cir. 2/17/2011)

Congress enacted the Violence Against Women Act (“VAWA”) in 1994 as a means of allowing persons of foreign birth who have been in physically or mentally abusive relationships with U.S. citizens or permanent residents to self petition for permanent residence.  The reason why this became necessary is because often times, the abuser in the relationship will use the alien’s immigration status (or lack thereof) to threaten or intimidate the alien into submission.  It is common that the abuser would threaten the alien with being reported to ICE if the alien did not obey the abuser and put up with the abuse.  I have seen this scenario many times in my years of practice.  Although VAWA is directed at abuse suffered by foreign women, the statute itself is gender-neutral.  A man can easily apply for VAWA if he meets the criteria.  Another little known fact is that the parent of a child who has been abused by a U.S. citizen or permanent resident may also qualify for VAWA.

This obscure provision is the subject matter of this case.  The petitioner, who was from Mexico, entered the country illegally in 1994 when she was fourteen years old.  Soon after, she entered into a relationship with a man who was thirty-six years old.  The man was a lawful permanent resident.  The petitioner lived with the man, and when she was sixteen years old, had her first child with the man.  She had a second child with the man when she was eighteen years old.  She never married the father of her children.

When the children were young, the man had a violent relationship with them and the petitioner.  He was a brutal figure who often insulted the petitioner, threatened to have her deported if she disobeyed his orders, and generally acted aggressively towards her.  To his children, he would administer beatings with a stick for no reason whatsoever 2-3 times each week.  His beatings caused sores and welts.  He also beat the petitioner in the same manner, who tried to leave him twice before finally doing so for good in 1999.  She eventually moved to another state with her children. When the children became older, they reestablished a relationship with their father.  He had stopped beating them (probably because they no longer lived with him), and he seemed to have changed his ways.  The children and the man were able to form a loving familial relationship.

In 2002, DHS placed the petitioner in removal proceedings, wherein she applied for special rule cancellation based upon her status as the parent of victims of domestic violence.  She was never married to her abuser, so she did not qualify to apply as a spousal victim of domestic violence.  In order to qualify under VAWA, the petitioner must demonstrate that: (1) battery or extreme cruelty occurred; (2) she had been physically present in the country; (3) she had good moral character; (4) she was not otherwise inadmissible for specific reasons; and (5) she would suffer extreme hardship if removed.  The section of 8 U.S.C. § 1229(b)(2)(A)(i) which the petitioner relied on to apply for VAWA pertained to an alien who, “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)…”

Despite the government’s argument to the contrary, the petitioner was able to establish that she met all the prerequisites for VAWA.  The government made two arguments which the court rejected.  First, that battery or extreme cruelty required a heightened level of violence which resulted in physical or mental injury which required professional medical treatment.  This argument did not convince the court because neither the statute or the regulation dealing with VAWA eligibility required that the victim be physically or mentally injured, let alone injured to the extent of needing professional care.  Second, the government argued that the children’s relationship with their father, the abuser, was now a loving one, so therefore, the petitioner no longer qualified.  The court also rejected this argument because the VAWA statute and regulations did not require that the abuse was taking place in the present, but only that it took place at some point, even in the past.  It was clear that the man battered his children when they were small children.  The fact that he no longer beats them regularly and has a loving relationship with them today does not alter the petitioner’s eligibility.

For all these reasons, the petitioner was able to establish that she qualified for special-rule cancellation of removal under VAWA based on her status as a parent of children who were battered by their permanent resident father.