Victor Ochoa v. Director of Uscis

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 28, 2018
• Docket: 16-55779
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 28 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

VICTOR MARTINEZ OCHOA, No. 16-55779 16-56393 Plaintiff-Appellant, D.C. No. v. 5:15-cv-01807-JGB-KK

DIRECTOR OF UNITED STATES CITIZENSHIP AND IMMIGRATION MEMORANDUM* SERVICES,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding

Submitted February 14, 2018** San Francisco, California

Before: BEA and N.R. SMITH, Circuit Judges, and LASNIK,*** District Judge.

One of the various ways an immigrant without legal status may apply to be a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. legal permanent resident is to be classified as a battered spouse. See 8 U.S.C.

§ 1154(a)(1)(A)(iii); 8 C.F.R. § 204.2(c)(1). To be eligible, a petitioner must

establish that, among other things, he or she is “a person of good moral character.”

Id. § 204.2(c)(1)(i)(F). If a petitioner willfully committed, was convicted of, or was

imprisoned for “unlawful acts that adversely reflect upon his or her moral

character,” id. § 204.2(c)(1)(vii), the petitioner will be found to lack good moral

character “unless he or she establishes extenuating circumstances,” id.

Appellant Victor Ochoa is a native of Mexico with a history of illegal entries

and removals, including one removal that stemmed from a guilty plea for domestic

battery and a sixty-day jail sentence. After an April 2012 arrest, Ochoa faced the

removal proceedings at the heart of this appeal. He challenged that removal order

but was unsuccessful. Ochoa then petitioned U.S. Citizenship and Immigration

Services (USCIS) for classification as a battered spouse, which would have made

him eligible for permanent-resident status and forestalled his removal. In his

petition, Ochoa claimed that the woman he pleaded guilty to battering had falsely

accused him and that she had actually been the abusive one.

The USCIS Administrative Appeals Office (AAO) denied Ochoa’s petition

for battered-spouse classification because he failed to meet his burden of

establishing that he is of good moral character. The AAO based that conclusion on

his domestic battery conviction and the April 2012 arrest.

2 Ochoa challenged the AAO’s decision in a complaint under the

Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq.1 Ochoa also moved

for a stay of removal pending the resolution of his APA claim, which the district

court denied. The district court then granted summary judgment for the

government. Because the district court denied Ochoa’s motion for a stay of

removal, Ochoa was removed on August 23, 2016. This consolidated appeal

combines Ochoa’s appeals of the district court’s grant of summary judgment for

the government and its denial of Ochoa’s motion for a stay of removal.

We review the district court’s grant of summary judgment de novo.

Cameron v. Craig, 713 F.3d 1012, 1018 (9th Cir. 2003). Our review of the AAO’s

final decision asks whether that decision was arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law. Family Inc. v. U.S. Citizenship

& Immigration Servs., 469 F.3d 1313, 1315 (9th Cir. 2006) (citing 5 U.S.C.

§ 706(2)(A)).

Ochoa challenges the AAO’s conclusion regarding his domestic battery

conviction. The AAO concluded that the conviction indicated Ochoa lacked good

moral character, and that he did not establish extenuating circumstances. To the

extent Ochoa claimed he was actually innocent of domestic battery, the AAO

1 The district court had jurisdiction under 5 U.S.C. §§ 702, 704, and 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.

3 correctly concluded that Ochoa could not collaterally attack a valid state conviction

in immigration proceedings.2 See Urbina-Mauricio v. INS, 989 F.2d 1085, 1089

(9th Cir. 1993). The AAO’s decision was not arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.

Ochoa also challenges the AAO’s conclusion regarding his April 2012

arrest. A state report indicated Ochoa was arrested for possession of

methamphetamines, and the AAO concluded that Ochoa failed adequately to

explain the arrest’s disposition. Ochoa disputed the arrest and submitted a county

report stating that a record search for his name yielded no arrest records. The AAO

found the report insufficient because the search omitted aliases Ochoa used on

public documents such as his children’s birth certificates. Given the state report

and Ochoa’s failure otherwise to explain the arrest or why he was in custody, the

AAO’s decision that the arrest weighed against Ochoa’s good moral character was

not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.

For the foregoing reasons, the AAO did not abuse its discretion when it

concluded that Ochoa failed to establish that he is of good moral character and

denied Ochoa’s battered-spouse petition.

2 Ochoa tried to withdraw the guilty plea in state court and have the domestic battery charge dismissed, but he was unsuccessful.

4 Ochoa’s appeal of the district court’s denial of his motion for a stay of

removal is dismissed as moot because Ochoa was removed on August 23, 2016.

See Dream Palace v. Cty. of Maricopa, 384 F.3d 990, 999–1000 (9th Cir. 2004).

AFFIRMED.