Rosalba Mendoza Cardenas v. Loretta E. Lynch

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT OCT 12 2016 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS ROSALBA MENDOZA CARDENAS, No. 13-71180

Petitioner, Agency No. A087-264-469

v. MEMORANDUM* LORETTA E. LYNCH, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted June 7, 2016 Submission Vacated June 8, 2016 Resubmitted October 12, 2016 Pasadena, California

Before: REINHARDT and WARDLAW, Circuit Judges, and KORMAN,** District Judge.

Rosabela Mendoza Ortiz (“Mendoza”), née Rosabela Mendoza Cardenas,

petitions for review of an order of the Board of Immigration Appeals (“BIA”)

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. denying her motion to reopen and cancel removal under 8 U.S.C. § 1229a(c)(4)(A).

We have jurisdiction under 8 U.S.C. §1252. We grant the petition and remand to

the BIA for further proceedings.

1. We have jurisdiction to review Mendoza’s claim that the BIA

erroneously applied the “extraordinary circumstances” exception of the Violence

Against Women Act (“VAWA”), 8 U.S.C. § 1229a(c)(7)(C)(iv)(III), to excuse her

failure to comply with VAWA’s one-year time limit for filing motions to reopen.

While we lack jurisdiction to review the BIA’s purely discretionary decisions, see

8 U.S.C. § 1252(a)(2)(B)(ii), we retain jurisdiction over its legal determinations,

see 8 U.S.C. § 1252(a)(2)(D). The determination of whether extraordinary

circumstances are present is legal in nature, because it involves the application of

the law to undisputed facts. Husyev v. Mukasey, 528 F.3d 1172, 1178–79 (9th Cir.

2008).

2. We agree with Mendoza that the BIA abused its discretion in failing

to consider all the evidence before it as to whether extraordinary circumstances

were present in her case. Vitug v. Holder, 723 F.3d 1056, 1064 (9th Cir. 2013).

Specifically, the BIA did not consider Mendoza’s testimony—found credible by

the asylum officer—that she suffered severe physical and sexual abuse between

1993 and 1998, received her brother’s warning about Montes de Oca’s threat to

2 kill her in 2008, and continued to live in fear, Despite this testimony, the BIA

found there was “no evidence” supporting her claim of extraordinary

circumstances. While the BIA may be correct that domestic violence “alone”

cannot be deemed extraordinary for purposes of 8 U.S.C. § 1229a(c)(7)(C)(iv)(III),

Mendoza did more than simply recite that she had been a victim of domestic

violence.

3. The BIA also abused its discretion in finding that Mendoza failed to

establish that she had been “battered or subjected to extreme cruelty by a spouse or

parent who is or was a lawful permanent resident” under VAWA, 8 U.S.C.

§ 1229b(b)(2)(A), and thus was not eligible for relief under 8 U.S.C.

§ 1229a(c)(4)(A). Mendoza stated in her sworn testimony, which the asylum

officer found credible, that she and Montes de Oca had been married from 1993 to

1998. Thus, the BIA misstated the record in concluding that Mendoza provided

“no proof” of her marriage to Montes de Oca. Even assuming that the Board could

properly have disregarded Mendoza’s supporting evidence, which it generally must

credit at the motion-to-reopen stage, see Tadevosyan v. Holder, 743 F.3d 1250,

1256 (9th Cir. 2014), this misstatement warrants remand, because the BIA “abuses

its discretion where it ignores arguments or evidence,” see Vitug, 723 F.3d at 1064.

3 4. The Board also abused its discretion in failing to consider evidence

that Montes de Oca had been a lawful permanent resident—a fact that may have

made Mendoza eligible for relief. See 8 U.S.C. §1229b(b)(2)(A). Before the IJ,

the government noted USCIS’s initial finding that Mendoza had not demonstrated

that Montes de Oca was a citizen or a lawful permanent resident.. However, after

the BIA hearing, USCIS informed Mendoza that Montes de Oca had in fact been a

lawful permanent resident. While our review is generally “confined to the

administrative record before the BIA,” we do not “interpret this rule absurdly, so

that injustice may be done if the government successfully shields its documents

from a person who ought to have access to them, particularly when the documents

might change the result of the proceedings.” Dent v. Holder, 627 F.3d 365,

371–73 (9th Cir. 2010). Here, injustice would be done because USCIS, an

executive agency, had in its possession evidence that Montes de Oca was a lawful

permanent resident, and this evidence was critical to Mendoza’s VAWA claim.

We take judicial notice of USCIS’s letter to Mendoza of April 17, 2013, impute

knowledge of this letter to the government agency, and instruct the BIA to consider

the information recited in the letter on remand.

Petition for review GRANTED; REMANDED.