Mario Jaimes-Cardenas v. William Barr ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIO ERNESTO JAIMES-CARDENAS, No. 19-71849
Petitioner,
Agency No.
v. A089-840-090
WILLIAM P. BARR, Attorney General,
Respondent. OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 7, 2020
Seattle, Washington
Filed September 1, 2020
Before: Michael Daly Hawkins, D. Michael Fisher, * and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Hawkins
*
The Honorable D. Michael Fisher, United States Circuit Judge for
the U.S. Court of Appeals for the Third Circuit, sitting by designation.
2 JAIMES-CARDENAS V. BARR
SUMMARY **
Immigration
Denying Mario Ernesto Jaimes-Cardenas’s petition for
review of a decision of the Board of Immigration Appeals
concluding that he was ineligible for cancellation of removal
under 8 U.S.C. § 1229b(b)(2), which provides a special rule
for victims of domestic violence (the “Special Rule”), the
panel held that the domestic violence waiver established
under 8 U.S.C. § 1227(a)(7), and made applicable to
cancellation of removal by 8 U.S.C. § 1229b(b)(5), is limited
to crimes of domestic violence and stalking, and therefore
does not cover Jaimes-Cardenas’s drug conviction.
The Special Rule for cancellation of removal was
enacted as part of the Violence Against Women Act of 1994
(“VAWA”). Under 8 U.S.C. § 1229b(b)(2)(A)(iv), an
applicant for such relief must demonstrate that he or she is
not inadmissible or deportable on certain grounds, subject to
§ 1229b(b)(5). Section 1229b(b)(5), in turn, provides that
“the authority provided under section 1227(a)(7) of this title
may apply under paragraphs (1)(B), (1)(C) and (2)(A)(iv) [of
§ 1229b(b)] in a cancellation of removal and adjustment of
status proceeding.” Section 1227(a)(7), in turn, establishes
a waiver that is limited to crimes of domestic violence and
stalking or violations of a domestic violence protective
order.
An immigration judge denied Jaimes-Cardenas’s
application for Special Rule cancellation of removal, finding
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
JAIMES-CARDENAS V. BARR 3
first that he was inadmissible for having been convicted of a
controlled substance offense. The IJ then considered
whether, despite his conviction, he was potentially eligible
for relief with a § 1227(a)(7) waiver. However, the IJ
concluded that § 1227(a)(7) could not waive Jaimes-
Cardenas’s controlled substance offense. The BIA adopted
and affirmed the IJ’s denial of relief.
Before this court, Jaimes-Cardenas conceded that
§ 1227(a)(7) is limited to offenses for domestic violence and
stalking and violations of a protective order, but argued that
§ 1229b(b)(5) is an independent and broader domestic
violence waiver that covers all offenses listed in (1)(B),
(1)(C), and (2)(A)(iv) of § 1229b(b), which would include
his controlled substance conviction.
The panel held that the plain meaning of § 1229b(b)(5)
allows the waiver of § 1227(a)(7) to apply in Special Rule
cancellation proceedings only to the extent of the authority
granted in § 1227(a)(7). The panel explained that
§ 1229b(b)(5) imports § 1227(a)(7)’s textual limitations and
that nothing in the text, statutory context, or statutory
purpose of VAWA otherwise allowed the panel to find that
§ 1229b(b)(5) establishes a freestanding domestic violence
waiver. The panel also noted that its approach comported
with that of the Fifth Circuit, the only other circuit that
appears to have dealt with the issue.
Because the plain meaning of § 1229b(b)(5) supports the
agency’s conclusion that the applicable domestic violence
waiver does not cover Jaimes-Cardenas’s drug conviction,
the panel concluded that he was ineligible for Special Rule
cancellation of removal.
4 JAIMES-CARDENAS V. BARR
COUNSEL
Jessica E. Rehms (argued), Northwest Immigrant Rights
Project, Tacoma, Washington; Aaron Korthuis, Northwest
Immigrant Rights Project, Seattle, Washington; for
Petitioner.
Anna Juarez (argued), Senior Litigation Counsel; Melissa
Neiman-Kelting, Assistant Director; Joseph H. Hunt,
Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
OPINION
HAWKINS, Circuit Judge:
Mario Ernesto Jaimes-Cardenas seeks review of the
Board of Immigration Appeals’ (“BIA”) order affirming the
denial of his application for relief pursuant to 8 U.S.C.
§ 1229b(b)(2), which concerns a special rule for cancellation
of removal and adjustment of status for victims of domestic
violence (the “Special Rule”). The Immigration Judge (“IJ”)
found Jaimes-Cardenas ineligible for cancellation of
removal as a battered spouse due to a prior drug conviction.
Although Jaimes-Cardenas claimed that a domestic violence
waiver under the Special Rule waived that ineligibility
ground, the agency disagreed. The agency concluded that
the domestic violence waiver established by 8 U.S.C.
§ 1227(a)(7) is limited to crimes of domestic violence and
stalking, and that the Special Rule’s waiver provision
incorporates these textual limitations. Jaimes-Cardenas
argues that the agency erred because, in his view, the Special
Rule has a freestanding and broader domestic violence
JAIMES-CARDENAS V. BARR 5
waiver. We conclude that the plain language of the relevant
statutory provisions establishes that the domestic violence
waiver under the Special Rule only incorporates the
authority provided under § 1227(a)(7), which concededly
does not cover Jaimes-Cardenas’s drug conviction. Thus, he
is ineligible for special cancellation of removal as a domestic
violence victim. We therefore deny his petition for review. 1
I.
Jaimes-Cardenas is a native and citizen of Mexico. He
first entered the United States without inspection in or
around 2008, and shortly thereafter met U.S. citizen Flora
Rico. They coupled, eventually getting married and starting
a family. Flora, however, was addicted to
methamphetamines, which Jaimes-Cardenas urged her to
stop using. She responded with violence and abuse,
threatening to call Immigration and Customs Enforcement
(“ICE”) on him. One incident led to Jaimes-Cardenas’s
arrest, after which he was transferred to ICE custody and
voluntarily returned to Mexico. Less than a year later, he
returned to the U.S. with the help of Flora, who was then
pregnant with their first child.
After the child was born, Flora became increasingly
abusive and controlling over Jaimes-Cardenas’s life. He
suffered physical, emotional, and verbal abuse from her, but
stayed in the relationship because of his children and love
for Flora. Eventually, matters took a turn for the worse.
Flora used more drugs and started selling drugs to support
her habit. She left Jaimes-Cardenas and their children, only
initiating contact when she needed money or was in trouble.
1
We deny as moot Jaimes-Cardenas’s motion to stay removal
proceedings (ECF Docs. 1 and 9).
6 JAIMES-CARDENAS V. BARR
After one particularly bad incident, the local Department of
Human Services intervened, which resulted in Jaimes-
Cardenas losing custody of their six children (four
biological) placed in foster care. Flora later was arrested and
convicted of possession of methamphetamine.
Jaimes-Cardenas then attempted to cut ties with Flora,
but she showed up at his apartment to convince him to get
back together with her. At the time, there was an active
arrest warrant against her for failure to comply with the
terms of her sentence. Jaimes-Cardenas had to go to work
and left the apartment. Flora stayed behind, bringing in
methamphetamine and drug paraphernalia. Later that day,
Jaimes-Cardenas’s landlord informed him that police were
looking for him because they found methamphetamine in his
apartment. Despite Flora’s statement that the
methamphetamine was hers, police arrested Jaimes-
Cardenas and charged him with possession, manufacture,
and delivery of methamphetamine, as well as hindering
prosecution for his failure to report Flora in light of her
active arrest warrant. After his arrest, Jaimes-Cardenas’s
counsel informed him that “he would likely face more
detention by ICE and removal if he decided to fight the
case.” He therefore pleaded to one count of possession of
methamphetamine. 2
The Department of Homeland Security (“DHS”) then
initiated removal proceedings against Jaimes-Cardenas.
DHS charged him as inadmissible for: (1) entering without
2
Jaimes-Cardenas claims that his counsel did not inform him that
pleading guilty could make him “ineligible for any type of immigration
relief” and is currently seeking post-conviction relief in Oregon state
court. During oral argument, counsel stated that Jaimes-Cardenas’s
petition was on appeal there.
JAIMES-CARDENAS V. BARR 7
inspection under 8 U.S.C. § 1182(a)(6)(A)(i); and (2) having
been convicted of a law or regulation related to a controlled
substance offense under 8 U.S.C. § 1182(a)(2)(A)(i)(II).
Jaimes-Cardenas admitted the allegations and conceded
removability, but he applied for relief in the form of special
cancellation of removal for victims of domestic violence
under 8 U.S.C. § 1229b(b)(2).
The IJ denied Jaimes-Cardenas’s application for relief,
finding first that he was inadmissible under
§ 1182(a)(2)(a)(i)(II) as an “alien convicted of . . . a
violation of . . . any law . . . relating to a controlled
substance.” The IJ then considered Jaimes-Cardenas’s
argument that “despite his conviction, he is eligible or
potentially eligible because [of] the provisions in
[§ 1229b(b)(5)].” The IJ determined that § 1229b(b)(5)
authorizes the domestic violence waiver of § 1227(a)(7) to
apply in certain cancellation of removal or adjustment of
status proceedings. In looking at § 1227(a)(7)’s text, the IJ
found that “the authority provided for the waiver under
Section [1227](a)(7), even if granted, does not waive
[Jaimes-Cardenas’s] [§ 1182](a)(2) controlled substance
offense.” Specifically, § 1227(a)(7)’s waiver only applies to
crimes of domestic violence and stalking or violations of a
domestic violence protective order, as defined in
§ 1227(a)(2)(E)(i) and (ii). Because Jaimes-Cardenas’s
methamphetamine conviction was “not a domestic violence
conviction, nor a stalking conviction, nor a violation of a
protective order,” the IJ deemed him ineligible for special
cancellation of removal under § 1229b(b)(2)(A)(iv).
The BIA adopted and affirmed the IJ’s denial of relief,
concluding “the plain language of the pertinent statutory
sections indicate that [Jaimes-Cardenas’s] controlled
substance conviction makes him ineligible for both special
8 JAIMES-CARDENAS V. BARR
rule cancellation of removal under section [1229b](b)(2) of
the Act, and a waiver under sections [1229b](b)(5) and
[1227](a)(7).” Jaimes-Cardenas timely petitioned for our
review.
II.
We have jurisdiction under 8 U.S.C. § 1252(a). “Where,
as here, the BIA adopts the [IJ’s] decision and also adds its
own reasons, [the panel] review[s] both decisions.” Nuru v.
Gonzales, 404 F.3d 1207, 1215 (9th Cir. 2005). The BIA’s
interpretation of purely legal questions is reviewed de novo.
Id.III.
Under the Immigration and Nationality Act (“INA”),
DHS may initiate removal proceedings against any alien
deemed “inadmissib[le]” under 8 U.S.C. § 1182(a) or
“deportab[le]” under § 1227(a). See 8 U.S.C. § 1229a(a)(2).
In certain circumstances, an alien may seek to “cancel” his
removal and adjust his status to that of a lawful permanent
resident. This case concerns the INA’s “[s]pecial rule for
battered spouse[s] or child[ren],” § 1229b(b)(2)(A), enacted
as part of the Violence Against Women Act of 1994
(“VAWA”). More specifically, we must consider the
interplay between three provisions: § 1229b(b)(2)(A)(iv),
§ 1229b(b)(5), and § 1227(a)(7)(A) to determine the scope
of the domestic violence waiver applicable to cancellation of
removal and adjustment of status proceeding under the
Special Rule.
First, the Special Rule requires that an alien seeking
cancellation of removal as a battered spouse or child
demonstrate that:
JAIMES-CARDENAS V. BARR 9
the alien is not inadmissible under paragraph
(2) or (3) of section 1182(a) of this title, is
not deportable under paragraphs (1)(G) or
(2) through (4) of section 1227(a) of this title,
subject to paragraph (5), and has not been
convicted of an aggravated felony.
§ 1229b(b)(2)(A)(iv) (emphasis added).
Next, paragraph (5) of the Special Rule, titled
“Application of domestic violence waiver authority,”
provides that:
The authority provided under section
1227(a)(7) of this title may apply under
paragraphs (1)(B), (1)(C), and (2)(A)(iv) in a
cancellation of removal and adjustment of
status proceeding.
§ 1229b(b)(5) (emphasis added).
Last, the waiver codified at § 1227(a)(7) provides that:
The Attorney General is not limited by the
criminal court record and may waive the
application of paragraph (2)(E)(i) (with
respect to crimes of domestic violence and
crimes of stalking) and (ii) in the case of an
alien who has been battered or subjected to
extreme cruelty and who is not and was not
the primary perpetrator of violence in the
relationship–
(i) upon a determination that–
10 JAIMES-CARDENAS V. BARR
(I) the alien was acting is [sic] self-
defense;
(II) the alien was found to have
violated a protection order intended to
protect the alien; or
(III) the alien committed, was
arrested for, was convicted of, or pled
guilty to committing a crime–
(aa) that did not result in serious
bodily injury; and
(bb) where there was a connection
between the crime and the alien's
having been battered or subjected
to extreme cruelty.
§ 1227(a)(7)(A) (emphasis added).
The parties dispute whether § 1229b(b)(5) is a
freestanding and broader domestic violence waiver or
instead incorporates the limitations of § 1227. The agency
contends that § 1229b(b)(5) incorporates the limitations of
§ 1227(a)(7), which limit the waiver to offenses for domestic
violence and stalking under § 1227(a)(2)(E)(i) and
violations of a protective order under § 1227(a)(2)(E)(ii),
which would exclude Jaimes-Cardenas’s conviction.
Jaimes-Cardenas concedes that § 1227(a)(7) is limited in
this manner. However, he argues that § 1229b(b)(5) is an
independent and broader domestic violence waiver that
covers all the offenses covered by paragraphs (1)(B), (1)(C),
and (2)(A)(iv) of § 1229b(b), which would include his
controlled substances conviction.
JAIMES-CARDENAS V. BARR 11
Because this appeal boils down to a question of statutory
interpretation, we start with the text. Bottinelli v. Salazar,
929 F.3d 1196, 1199 (9th Cir. 2019). “Whether the statutory
text has a plain and unambiguous meaning depends on the
language itself, the specific context in which that language
is used, and the broader context of the statute as a whole.”
Id. (citation and quotation marks omitted). Here, the plain
language of § 1229b(b)(5) supports the agency’s
interpretation.
Section 1229b(b)(5)’s title, “Application of domestic
violence waiver authority,” demonstrates its purpose is to
simply allow the domestic violence waiver codified at
§ 1227(a)(7) to apply in proceedings under § 1229b(b). This
purpose is borne out by the text of § 1229b(b)(5), which
says, “The authority provided under section 1227(a)(7) of
this title may apply under paragraphs (1)(B), (1)(C), and
(2)(A)(iv) in a cancellation of removal and adjustment of
status proceeding.” 8 U.S.C. § 1229b(b)(5) (emphasis
added).
Read plainly, § 1229b(b)(5) incorporates only the
authority provided in § 1227(a)(7)’s waiver of deportability.
There is no indication that it either adds to or expands that
authority. Section 1229b(b)(5) imports § 1227(a)(7)’s
textual limitations, starting with the offenses to which
§ 1227(a)(7) is limited (domestic violence and stalking
under § 1227(a)(2)(E)(i) and violations of protective orders
under § 1227(a)(2)(E)(ii)), and then the determinations that
must be made under § 1227(a)(7)(A)(i)(I) through (III) (the
alien acted in self-defense, the alien violated a protective
order intended to protect the alien, or the crime did not result
in serious bodily injury and was connected to the alien’s
abuse). In other words, § 1227(a)(7)’s textual limitations do
not disappear when the waiver is applied to cancellation of
12 JAIMES-CARDENAS V. BARR
removal under § 1229b(b)(5). They remain, and thus
circumscribe the waiver’s application to cancellation of
removal and adjustment of status proceedings under the
Special Rule.
We are unpersuaded by the arguments that Jaimes-
Cardenas advances to support his expansive reading of
§ 1229b(b)(5). Jaimes-Cardenas’s arguments omit
§ 1229b(b)(5)’s language that expressly incorporates the
“authority provided under § 1227(a)(7).” We are not free to
do so. See Ariz. State Bd. for Charter Sch. v. U.S. Dep’t of
Educ., 464 F.3d 1003, 1007 (9th Cir. 2006). Nothing in the
text, statutory context, or statutory purpose of VAWA
otherwise allows us to find that § 1229b(b)(5) establishes a
freestanding domestic violence waiver that may be applied
differently than the textual limitations of § 1227(a)(7).
Therefore, we hold the plain meaning of § 1229b(b)(5)
allows the waiver of § 1227(a)(7) to apply in proceedings
under § 1229b(b)(5) only to the extent of the authority
granted in § 1227(a)(7). It does not create a separate waiver
that would apply more broadly to all the offenses that “fall
under” § 1229b(b)(1)(B), (1)(C), and (2)(A)(iv) as Jaimes-
Cardenas suggests. The domestic violence waiver that
applies to the Special Rule proceedings thus does not cover
his methamphetamine possession conviction. 3
Our approach here comports with the Fifth Circuit’s in
Rodriguez-Benitez v. Holder, 763 F.3d 404 (5th Cir. 2014),
the only other circuit who appears to have dealt with this
issue. There, the Fifth Circuit found “the clear language” of
3
We express no opinion on the viability of Jaimes-Cardenas’s
eligibility for special cancellation of removal should his collateral attack
on his drug conviction under Kentucky v. Padilla, 559 U.S. 356 (2010),
prove fruitful.
JAIMES-CARDENAS V. BARR 13
§ 1229b(b)(5) does not permit a judge to waive grounds of
inadmissibility under § 1182(a)(2) “for offenses other than
those related to domestic violence.” Id. at 407. Looking to
§ 1229b(b)(5)’s title and text, as well as the language of
§ 1227(a)(7), the Fifth Circuit found “no support for an
argument that [it] should pull from [§ 1227(a)(7)] a general
authority to waive all crimes instead of the specific authority
described therein.” Id. at 408. That conclusion comports
with our statutory analysis.
IV.
The plain meaning of § 1229b(b)(5) supports the
agency’s conclusion that the applicable domestic violence
waiver does not cover Jaimes-Cardenas’s drug possession
conviction. He was therefore ineligible for special
cancellation of removal. His petition for review is denied.
PETITION FOR REVIEW DENIED.