The Board of Immigration Appeals, or BIA, recently issued a decision where it concluded that a respondent applying for special rule cancellation of removal based on spousal abuse must show both that the abuser was the respondent’s lawful spouse and was either a United States citizen, or USC, or legal permanent resident, or LPR, at the time of the abuse. Matter of L-L-P-, 28 I&N Dec. 241 (BIA 2021).

Summary of Facts

Mr. L-L-P-, the respondent, was placed in removal proceedings in 2006. In 2012, he filed an I-360 Petition for Amerasian, Widow(er), or Special Immigrant, based on his having been abused in a common law marriage between 1995 and 2011. That petition was denied by U.S. Citizenship and Immigration Services, or USCIS, for the respondent’s apparent failure to show that his former spouse was a USC or LPR when she abused him. The respondent sought special rule cancellation of removal under INA § 240A(b)(2).

BIA Analysis and Holding

Section 240A(b)(2)(A) provides that a respondent’s removal may be cancelled and status adjusted to LPR where the respondent demonstrates, among other requirements, that he or she “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 bettered or subjected to extreme cruelty by such citizen parent); [or] the [respondent] 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)[.]”

The question in L-L-P- was whether an applicant for special rule cancellation of removal under 240A(b)(2)(A) must show that his or her spouse was either a USC or LPR at the time of the abuse and marriage to the spouse. In its analysis, the BIA first acknowledges that the statute is ambiguous since it only states that the abusive spouse must be a USC or LPR “at some point in time.” This ambiguity arises, according to the BIA, from the use of the words “is or was” when referring to the USC or LPR status of an applicant’s spouse.

Looking to the statutory context for clarification, the BIA determined that, in the parenthetical regarding children of USC or LPR abuser parents, the text’s use of the present perfect (“…has been battered or subjected to extreme cruelty by such citizen parent…”) indicates that a child must have been abused by a parent who was a USC (or LPR) at the time of the abuse. The BIA then expanded this to spouses of abusers and determined that the abusive spouse must be a USC or LPR at the time of the abuse and that the abuse must have occurred during the marriage. The BIA held that the phrase “is or was” simply denotes that the spouse or parent may later lose his or her citizenship or LPR status.

The BIA then reviewed the legislative context surrounding the Violence Against Women Act, or VAWA, provisions and determined that Congress’s concern when enacting VAWA was that an undocumented spouse could be subject to the USC or LPR spouse’s control over his or her immigration status, and undocumented individuals should not be encouraged to remain in abusive relationships because of the potential immigration consequences of leaving. The BIA held that in addressing these concerns, Congress “contemplate[d] that the abusive United States citizen or legal permanent resident spouse is actually able to use that status to benefit – or punish – his or her alien spouse.” That is something that a spouse without USC or LPR status cannot do.

Application to Facts

In Mr. L-L-P-’s case, the BIA found that there was no dispute that Mr. L-L-P-’s spouse had likely become an LPR years after the couple’s marriage and the abuse had ended. The BIA was not persuaded by the respondent’s argument that his former wife used the fact that she had applied for immigration status as leverage to keep in him in the abusive relationship. The BIA, therefore, found that the Immigration Judge in the case had correctly denied the respondent’s application for special rule cancellation of removal under INA § 240A(b)(2)(A).

Conclusion

In its decision, the BIA clarified that an applicant must show that the abuser was both his or her lawful spouse and a USC or LPR at the time of the abuse to qualify for special rule cancellation. In doing so, the BIA rejected the notion that those married to LPR applicants qualify for special rule cancellation based on their spouses’ ability to use that application to keep them in an abusive relationship. While many practitioners may long have operated with the understanding, and advised their clients, that in order to qualify for a VAWA self-petition or special rule cancellation, the clients’ spouses must have been USCs or LPRs during the abusive marriage, the statute’s plain text is ambiguous. The BIA has, through this decision, removed this ambiguity.