973 F.3d 940
9th Cir.2020Background
- Jaimes-Cardenas, a Mexican national, entered the U.S. without inspection, married a U.S. citizen (Flora Rico), and alleged he suffered domestic abuse by her.
- Flora’s drug use and related conduct led to incidents that resulted in loss of custody of their children and police finding methamphetamine in Jaimes-Cardenas’s apartment.
- Jaimes-Cardenas pleaded guilty to possession of methamphetamine; DHS placed him in removal proceedings charging inadmissibility and a controlled-substance conviction.
- He applied for special cancellation of removal under the VAWA “special rule” for battered spouses, 8 U.S.C. § 1229b(b)(2).
- The IJ and BIA held he was ineligible because his controlled-substance conviction falls under § 1182(a)(2) and § 1229b(b)(5) only permits the domestic-violence waiver in § 1227(a)(7), which is limited to domestic-violence, stalking, or protective-order-related offenses — not his drug conviction.
- The Ninth Circuit affirmed, holding § 1229b(b)(5) incorporates § 1227(a)(7)’s textual limits and does not create a broader independent waiver; petition for review denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of the domestic-violence waiver under 8 U.S.C. § 1229b(b)(5) | § 1229b(b)(5) creates an independent, broader waiver that can cover offenses like controlled-substance convictions | § 1229b(b)(5) merely allows application of the waiver authority in § 1227(a)(7), which is limited to domestic-violence, stalking, and protective-order offenses | The court held § 1229b(b)(5) incorporates § 1227(a)(7)’s textual limits; it does not authorize waivers for controlled-substance convictions, so Jaimes-Cardenas is ineligible |
Key Cases Cited
- Nuru v. Gonzales, 404 F.3d 1207 (explaining review where BIA adopts IJ decision)
- Bottinelli v. Salazar, 929 F.3d 1196 (statutory-text/plain-meaning interpretation guidance)
- Rodriguez-Benitez v. Holder, 763 F.3d 404 (rejecting broader-waiver reading of § 1229b(b)(5))
- Ariz. State Bd. for Charter Sch. v. U.S. Dep’t of Educ., 464 F.3d 1003 (courts must follow express statutory text)
- Kentucky v. Padilla, 559 U.S. 356 (recognized governing case on counsel’s advice about immigration consequences; district collateral-attack context referenced)