669 F. App'x 354
9th Cir.2016Background
- Mendoza, a former spouse of Montes de Oca, petitioned for review after the BIA denied her motion to reopen and cancel removal under VAWA-related provisions for untimely filing.
- She testified (credibly, per an asylum officer) that she suffered severe physical and sexual abuse from 1993–1998, received a 2008 threat to kill her, and continued to live in fear.
- The BIA concluded there was “no evidence” of extraordinary circumstances to excuse Mendoza’s failure to file within VAWA’s one-year time limit and found she had not shown she was battered by a spouse who was or had been an LPR.
- USCIS initially informed the government that Montes de Oca was not a citizen or LPR, but after the BIA hearing USCIS sent Mendoza a letter stating Montes de Oca was in fact a lawful permanent resident.
- The Ninth Circuit granted review, found the BIA abused its discretion by failing to consider material evidence and mischaracterizing the record, took judicial notice of the USCIS letter, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review BIA’s application of VAWA “extraordinary circumstances” exception | Mendoza: Court can review BIA’s legal determination whether extraordinary circumstances exist | Government: discretionary aspects are unreviewable | Court: Federal courts retain jurisdiction over legal determinations; review allowed (8 U.S.C. §1252(a)(2)(D)) |
| Whether BIA considered all evidence showing extraordinary circumstances to excuse untimely VAWA motion | Mendoza: BIA ignored credible testimony of severe abuse, later threats, and ongoing fear amounting to extraordinary circumstances | BIA: domestic violence alone is insufficient; found no evidence here | Court: BIA abused discretion by failing to consider all relevant credible evidence; remand required |
| Whether Mendoza established she was a VAWA "battered" spouse and thus eligible for relief | Mendoza: Sworn testimony (credited) established marriage to Montes de Oca (1993–1998) and abuse qualifying under VAWA | BIA: No proof of marriage or VAWA eligibility | Court: BIA misstated record and improperly ignored evidence; abused discretion; remand required |
| Whether the BIA should have considered evidence that Montes de Oca was an LPR | Mendoza: USCIS letter (post-hearing) showed Montes de Oca was an LPR and is material to VAWA eligibility; agency had possession of this evidence | Government: pointed to USCIS’s earlier (contrary) finding before the IJ | Court: Took judicial notice of USCIS letter, imputed government knowledge, and instructed BIA to consider the letter on remand; failure to consider was abuse of discretion |
Key Cases Cited
- Husyev v. Mukasey, 528 F.3d 1172 (9th Cir. 2008) (determination whether extraordinary circumstances exist is legal in nature and reviewable)
- Vitug v. Holder, 723 F.3d 1056 (9th Cir. 2013) (BIA abuses discretion by ignoring relevant arguments or evidence)
- Tadevosyan v. Holder, 743 F.3d 1250 (9th Cir. 2014) (at motion-to-reopen stage, credibility determinations and supporting evidence generally must be credited)
- Dent v. Holder, 627 F.3d 365 (9th Cir. 2010) (courts may take judicial notice of agency documents when government possession of such documents would make exclusion unjust)