Maria Lopez-Birrueta, et al v. Eric Holder, Jr.

Filing

FILED OPINION (SUSAN P. GRABER, MILAN D. SMITH, JR. and CHARLES R. BREYER) GRANTED; REMANDED. Judge: SPG Authoring, FILED AND ENTERED JUDGMENT. [7646633]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT



MARIA LOPEZ-BIRRUETA,
Petitioner,
ERIC H. HOLDER
General,

v.
JR., Attorney
Respondent.




No. 10-70128
B.I.A. No.
A079-748-289
OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
January 13, 2011—Seattle, Washington
Filed February 14, 2011
Before: Susan P. Graber and Milan D. Smith, Jr.,
Circuit Judges, and Charles R. Breyer,* District Judge.
Opinion by Judge Graber

*The Honorable Charles R. Breyer, United States District Judge for the
District of Northern California, sitting by designation.

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COUNSEL
S. Matt Adams, Northwest Immigrant Rights Project, Seattle,
Washington, for the petitioner.
M. Jocelyn Lopez Wright, Office of Immigration Litigation,
United States Department of Justice, Washington, D.C., for
the respondent.
Loni A. Mahanta, Crowell & Moring LLP, San Francisco,
California, for the amicus curiae.

OPINION
GRABER, Circuit Judge:
Petitioner Maria Lopez-Birrueta petitions for review of the
Board of Immigration Appeals’ (“BIA”) denial of special-rule
cancellation of removal under the Violence Against Women
Act of 1994 (“VAWA”). The BIA held that, although Petitioner’s children were mistreated by their lawful-permanentresident father, that mistreatment did not rise to the level of
“battery” under 8 U.S.C. § 1229b(b)(2)(A). We disagree.
Accordingly, we grant the petition and remand.
FACTUAL AND PROCEDURAL HISTORY
Petitioner is a native and citizen of Mexico. She entered the
United States without inspection in 1994 at the age of 14. In

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2002, the government served her with a notice to appear. She
conceded removability but applied for special-rule cancellation of removal under 8 U.S.C. § 1229b(b)(2)(A). To qualify,
an alien must demonstrate (1) the existence of battery or
extreme cruelty, (2) physical presence, (3) good moral character, (4) not being inadmissible for certain specified reasons,
and (5) extreme hardship. Id. Regarding the first requirement,
Petitioner sought to demonstrate that she “is the parent of a
child of an alien who is . . . a lawful permanent resident and
the child has been battered or subjected to extreme cruelty by
such permanent resident parent.” Id. § 1229b(b)(2)(A)(i)(II).
At a merits hearing in 2008, Petitioner testified as follows.
After arriving in the United States, and still at the age of 14,
Petitioner began a sexual relationship with Gill Campos, who
was then 36 years old. Campos is a legal permanent resident
of the United States.
Petitioner and Campos had two children together. At age
16, Petitioner gave birth to E—. At age 18, she gave birth to
G—. Petitioner and Campos lived together while the children
were very young.
During that time, Campos repeatedly threatened Petitioner,
insulted her, prohibited her from talking with others, acted
aggressively toward her, and threatened to alert immigration
officials if Petitioner disobeyed his orders. While they lived
together, Campos was not a loving father. He was violent
toward his children, yelled at them, and often took them for
rides in his car when he was drunk.
Petitioner described one incident in detail. In front of his
“drunken friends,” Campos struck E—, then 3 years old, three
times on the legs with a stick that was 24 inches long and onehalf inch in diameter. The strikes caused red welts to appear
on E—’s legs, which Petitioner treated with ointment and ice.
That same form of beating occurred two to three times a
week. Campos subjected G— to the same mistreatment.

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Asked why, Petitioner responded that Campos “probably
want[ed] to control me through the children.”
Twice, Petitioner left Campos but, both times, she returned
after Campos convinced her that he had changed. Petitioner
left for good in 1999 and moved to Yakima, Washington, with
her children. Since Petitioner left, the children have visited
Campos for one or two months at a time, and once for almost
a year. Campos no longer strikes the children.
Both children testified at the hearing. At the time, E— was
12 years old, and G— was 11 years old. E— testified that he
has not had any problems with his father in the past few years
and that, although he did not love his father when he was
younger, he loves him now. He remembers his father striking
him, “for no reason,” with a tree branch and with his hand. G
— testified that he remembers that his father would beat him
and E— with a stick, on the legs. When his father came home,
G— was scared and hid to “try[ ] to get away.” But he no longer feels that way about his father.
In a written decision, an immigration judge (“IJ”) denied
cancellation of removal. The IJ expressly found Petitioner
credible but found that she failed to establish that the children
had been “battered” or subjected to “extreme cruelty” under
the statute. Because the IJ held that Petitioner did not meet the
statutory requirement of battery or extreme cruelty, he did not
reach any of the other statutory requirements for relief.
Citing In re Burbano, 20 I. & N. Dec. 872, 874 (B.I.A.
1994), the BIA adopted and affirmed the IJ’s decision. The
BIA also added its own summary as to why no battery or
extreme cruelty occurred. Petitioner timely petitions for
review.
STANDARDS OF REVIEW
“We review the BIA’s legal determinations de novo and its
factual findings for substantial evidence.” Kyong Ho Shin v.
Holder, 607 F.3d 1213, 1216 (9th Cir. 2010).

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DISCUSSION
A.

Sources of Law

The statute provides several categories of aliens who satisfy
the “battery or extreme cruelty” requirement. The alien must
demonstrate that:
(I) the alien has been battered or subjected to
extreme cruelty by a spouse or parent who is or was
a United States citizen (or is the parent of a child of
a United States citizen and the child has been battered or subjected to extreme cruelty by such citizen
parent);
(II) the alien 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); or
(III) the alien has been battered or subjected to
extreme cruelty by a United States citizen or lawful
permanent resident whom the alien intended to
marry, but whose marriage is not legitimate because
of that United States citizen’s or lawful permanent
resident’s bigamy[.]
8 U.S.C. § 1229b(b)(2)(A)(i).
[1] Because Petitioner and Campos never married (legally
or bigamously), Petitioner cannot claim protection under
VAWA for Campos’ mistreatment of her. Instead, Petitioner
sought to demonstrate that she fell within the category protected by the parenthetical in subsection (II), that she “is the
parent of a child of an alien who is . . . a lawful permanent

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resident and the child has been battered or subjected to
extreme cruelty by such permanent resident parent.” Id.
§ 1229b(b)(2)(A)(i)(II). None of the other categories applies.
[2] The statute does not define the phrase “has been battered or subjected to extreme cruelty.” But the agency has
promulgated a regulation at 8 C.F.R. § 204.2 that pertains to
the topic. Although we ultimately agree with the BIA and the
parties that the regulation’s definitions of “battery or extreme
cruelty” apply, some explanation is required.
The first seven subsections of the regulation pertain to a
particular type of petitioner. For instance, subsection (a) is
entitled “Petition for a spouse” and contains implementing
regulations for petitions filed by a spouse of a citizen or legal
permanent resident. Relevant here, subsection (c) is entitled
“Self-petition by spouse of abusive citizen or lawful permanent resident,” and subsection (e) is entitled “Self-petition by
child of abusive citizen or lawful permanent resident.” Both
subsections (c) and (e) describe the requirements for specialrule cancellation of removal under VAWA, and both subsections contain a definition of “battery or extreme cruelty.”
Except for their respective final sentences, the two definitions
are identical:
Battery or extreme cruelty. For the purpose of this
chapter, the phrase “was battered by or was the subject of extreme cruelty” includes, but is not limited
to, being the victim of any act or threatened act of
violence, including any forceful detention, which
results or threatens to result in physical or mental
injury. Psychological or sexual abuse or exploitation,
including rape, molestation, incest (if the victim is a
minor), or forced prostitution shall be considered
acts of violence. Other abusive actions may also be
acts of violence under certain circumstances, including acts that, in and of themselves, may not initially

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appear violent but that are a part of an overall pattern
of violence.
8 C.F.R. § 204.2(c)(1)(vi), (e)(1)(vi). The final sentence in the
two definitions varies depending on whether the petitioner is
a spouse or child. The subsection concerning a petition for a
spouse states: “The qualifying abuse must have been committed by the citizen or lawful permanent resident spouse, must
have been perpetrated against the self-petitioner or the selfpetitioner’s child, and must have taken place during the selfpetitioner’s marriage to the abuser.” Id. § 204.2(c)(1)(vi). The
subsection concerning a petition for a child states: “The qualifying abuse must have been committed by the citizen or lawful permanent resident parent, must have been perpetrated
against the self-petitioner, and must have taken place while
the self-petitioner was residing with the abuser.” Id.
§ 204.2(e)(1)(vi).
We have two difficulties with the regulation’s definitions of
“battery or extreme cruelty.” First, the definitions give the
meaning of the phrase “was battered by or was the subject of
extreme cruelty.” But that phrase appears nowhere in the statute or elsewhere in the regulation. Both the statute and the
regulation use the verb form “has been,” instead of the definitions’ formulation “was.” Neither the parties nor we attribute
any significance to this difference, though. The agency plainly
intended to define the phrase as it appears in the regulation
and the statute.
[3] Second, and slightly more troubling, is that the definitions do not cover Petitioner’s situation. Petitioner filed neither a petition from an abusive spouse, covered by the
definition at § 204.2(c)(1)(vi), nor a petition from a child,
covered by the definition at § 204.2(e)(1)(vi). Petitioner is the
non-married parent of a child abused by the other parent.
Even though the statute covers Petitioner’s situation, it
appears that the agency failed to promulgate regulations specifically covering that situation. Both the parties and the BIA

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assumed that the relevant part of the definitions, block-quoted
above, applies to Petitioner’s circumstances, even though the
definitions on their face do not apply. We agree that the BIA
permissibly extended the use of the definitions here. There is
no indication in the statute or elsewhere that a different definition of battery or extreme cruelty should apply depending on
the marital status of the petitioner.
B.

Battery Under VAWA

[4] “Congress’s goal in enacting VAWA was to eliminate
barriers to women leaving abusive relationships.” Hernandez
v. Ashcroft, 345 F.3d 824, 841 (9th Cir. 2003). The statute
“was a generous enactment, intended to ameliorate the impact
of harsh provisions of immigration law on abused women.”1
Id. at 840. Accordingly, when interpreting this statute, we
have “adhere[d] to the general rule of construction that when
the legislature enacts an ameliorative rule designed to forestall
harsh results, the rule will be interpreted and applied in an
ameliorative fashion.” Id. (internal quotation marks omitted).
[5] “The text of the statute reveals that Congress distinguished between ‘battery’ and ‘extreme cruelty,’ reserving the
term extreme cruelty for something other than physical
assault, presumably actions in some way involving mental or
psychological cruelty.” Id. at 838. “Under [8 C.F.R.
§ 204.2(c)(1)(vi)], any act of physical abuse is deemed to constitute domestic violence without further inquiry, while
‘extreme cruelty’ describes all other manifestations of domestic violence.” Id. at 840. Relevant here, the regulation states
that battery “includes, but is not limited to, . . . any act or
threatened act of violence, including any forceful detention,
1

As originally enacted, special-rule cancellation of removal under
VAWA was codified at a different section of the United States Code. We
agree with the parties that, because there is no relevant difference in this
case between the current statute and its predecessor, the discussion in Hernandez applies with equal force.

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which results or threatens to result in physical or mental injury.” 8 C.F.R. § 204.2(c)(1)(vi), (e)(1)(vi).
We acknowledge that those sources of law are somewhat
open-ended: The regulation defines some conduct that qualifies as battery but leaves open the full scope of what “battery”
encompasses and, in Hernandez, we did not elaborate on what
constitutes an “act of physical abuse.” But those sources provide more than adequate definitions for the challenged conduct here.
[6] Campos struck his children with a stick two or three
times a week, when they were 2 and 3 years old, in front of
his “drunken friends,” for no reason at all (that is, not as punishment), causing red welts that required home medical treatment of ointment and ice and causing his children to fear him.
We are compelled to conclude that those regular, arbitrary
beatings causing injury constituted an “act of physical abuse,”
Hernandez, 345 F.3d at 840, or an “act of violence . . . which
results . . . in physical . . . injury,” 8 C.F.R. § 204.2(c)(1)(vi),
(e)(1)(vi). We therefore hold that the BIA erred in concluding
otherwise.2
C.

The BIA’s Legal Errors

The BIA made several errors in its legal analysis. The BIA
adopted the IJ’s reasoning in full, citing Burbano. “When, as
here, the BIA adopts the IJ’s decision citing Matter of Burbano, we review the IJ’s decision as if it were the BIA’s.”
2

There is some uncertainty about the correct standard of review,
because we gave arguably conflicting indicators in Hernandez. See 345
F.3d at 834 (holding that “battery is clearly a factual determination, readily resolved by the application of a legal standard defining battery to the
facts in question”); id. at 840-41 (announcing our “hold[ing]” that the petitioner was subject to extreme cruelty, without reference to the “substantial
evidence” standard). We need not resolve that uncertainty. Even if we
review for substantial evidence the BIA’s conclusion that no battery
occurred here, substantial evidence does not support the BIA’s conclusion.

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Cortez-Pineda v. Holder, 610 F.3d 1118, 1121 (9th Cir.
2010). The IJ’s errors, described below, therefore apply to the
BIA’s decision as well.
[7] First, the IJ held that “[t]he regulatory definition of
‘battery or extreme cruelty’ requires a heightened level of violence that ‘results or threatens to result in physical or mental
injury.’ ” (Quoting 8 C.F.R. § 204.2(c)(1)(vi).) But the regulation states that battery “includes, but is not limited to” an act
of violence resulting in injury. 8 C.F.R. § 204.2(c)(1)(vi)
(emphasis added). The definition does not require that the
violence be “heightened” or result in injury, though physically
injurious acts of violence qualify per se as battery.
[8] Second, and perhaps most egregious, the IJ turned to
California’s criminal-law definition of “battery” and its definition of “injury” for certain sentencing purposes. From that
premise, the IJ held that the term “injury” in the federal regulation “means ‘any physical injury which requires professional medical treatment.’ ” (Quoting Cal. Penal Code
§ 243(f)(5)). As an initial matter, nothing in the federal statute
suggests that the acts required to constitute battery depend on
state law. Given the strong uniformity sought by Congress in
the area of immigration law and its remedial purpose in enacting VAWA, we doubt that acts of violence would qualify (or
fail to qualify) as battery depending on locale.
In any event, examining the cited definitions in context
reveals the fatal flaws of the IJ’s analysis here. The definition
of “injury” found in California Penal Code section 243(f)(5)
has a very limited application. It applies only if a state criminal defendant battered certain emergency workers (such as an
ambulance driver or lifeguard) such that the battery caused an
“injury.” Id. § 243(c)(1). If the battery caused an “injury,”
then the defendant is subject to increased criminal penalties.
Id. It is wholly illogical to reason that Congress intended to
import a narrow, specialized state-law sentencing enhancement definition as the proper definition of “injury” in the

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immigration context. It is completely arbitrary that California
chose to use a generic term “injury” in its sentencingenhancement statute and then provide a definition for that
term. The fact that the common term “injury” is used in both
the California sentencing-enhancement statute and the federal
immigration regulations is happenstance.
[9] Finally,3 the BIA also suggested (as does the government on appeal) that no battery occurred for reasons that,
while facially appealing, are in fact irrelevant. For example,
it is true that the children now love their father and that he no
longer beats them. But Congress chose to provide protection
for anyone who “has been” battered while residing with the
abuser. Petitioner and the amicus point out that, in the context
of an abusive relationship, the abuser may re-start the abuse
when he or she once again has that opportunity, for instance,
if Petitioner is removed and the children move in with their
father again and, if they wish to remain in the United States,
have no choice but to remain with their father. Congress
chose to prevent that opportunity by granting relief to those
who had been subjected to battery. The BIA’s suggestion that
no battery occurred in the past because of the state of the relationship today is irrelevant under the plain text of the statute.4
3

We also note that the IJ improperly looked to an unpublished decision
by this court and an unpublished decision by the BIA. This court’s decision was issued in 2006 and therefore may not be cited for any reason
(other than reasons plainly inapplicable here). 9th Cir. R. 36-3(c). Similarly, the BIA decision states, as the very first line “** THIS IS AN
UNPUBLISHED DECISION THAT CANNOT BE CITED **.”
4

We note that the statute’s use of the term “child” might suggest a time
limitation on a parent’s ability to seek relief under VAWA. The text of the
statute suggests that, at the time of application, the petitioner’s child must
still be a minor. But because Petitioner’s children here were minors at the
time of application (and are still minors), we have no occasion to consider
that issue.

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CONCLUSION
[10] We hold that Petitioner demonstrated that her children
had been battered by Campos within the meaning of 8 U.S.C.
§ 1229b(b)(2)(A)(i)(II). We therefore grant the petition. The
BIA also held that Petitioner failed to establish that the children had been subjected to extreme cruelty. Because we grant
the petition on other grounds, we do not reach the issue of
extreme cruelty.
The BIA did not reach the other four statutory requirements
for relief. We remand for consideration of those requirements
and any other issues not addressed by this opinion.
Petition GRANTED; case REMANDED.