Kelly Vega-zazueta, Petitioner, v. Immigration and Naturalization Service, Respondent, 120 F.3d 269 (9th Cir. 1997)

Before: FLETCHER and PREGERSON, Circuit Judges, and WEXLER,^*  District Judge.

ORDER^** 

Petitioner Kelly Vega-Zazueta ("Ms.Vega") seeks review before this court of the Board of Immigration Appeals' ("BIA") decision denying her motion to reopen her application for suspension of deportation. Petitioner has resided in the United States for 15 years and has four children who are United States citizens. During these years, she has received little support from her legally residing spouse, who has repeatedly abused and threatened her.

Because Ms. Vega has recently filed for suspension of deportation under a provision of the Violence Against Women Act ("VAWA"), 8 U.S.C. § 1254(a) (3) (1996), we stay proceedings before this court until the BIA resolves her application.

Kelly Zazueta came to the United States in 1982, at the age of 16, to visit her aunt. In 1984, she met Jose Vega and married him in 1985. Over the next few years, their first two children were born. Soon after their marriage, Jose became physically abusive. He failed to provide financial support for his wife and their children, and he had affairs with other women. Jose never submitted an immigrant petition for his wife, and often threatened to report her to the Immigration and Naturalization Service ("INS"). He also threatened to take their children away from her. Ms. Vega has lived with friends, and on her own with her children for the past several years. Throughout these years, despite her difficult situation, Ms. Vega has worked at various jobs to help support herself and her children, all of whom suffer from asthma and require constant medical attention.

In July 1992, the INS found Ms. Vega deportable. She was granted until September 29, 1992, to file an application for suspension of deportation;¹  her trial date was set for April 21, 1993. Ms. Vega failed to submit her application by September 29, 1992. On appeal, she explains that she was unable to gather and deliver all of the required documents to her counsel by the deadline because of emotional trauma resulting from her being abused by her husband, lack of spousal support, and a sick child who required constant medical attention prior to the application deadline.

Because Ms. Vega missed the deadline, on October 14, 1992, the Immigration Judge ("IJ") ordered her deported and cancelled the April 21,:993 hearing date "as the respondent did not file, as promised, a suspension of deportation application." This order was "published by mail" on October 19, 1992. The next day, Frances Tobin, counsel for Ms. Vega, filed a timely Notice of Appeal to the BIA, followed by a thoroughly documented application for suspension of deportation on November 2, 1992.

The BIA denied Ms. Vega's petition to reopen her suspension of deportation proceeding. The BIA decided that because Ms. Vega had not "reasonably explain [ed]" her failure to timely submit her application, this alone was valid grounds for denying her petition to reopen. In denying Ms. Vega's petition to reopen, the BIA did not consider the merits of Ms. Vega's application.

The parties urge us to decide whether the BIA abused its discretion by not considering Ms. Vega's prima facie eligibility for relief under 8 U.S.C. § 1254(a) (1) before finding Ms. Vega's application abandoned. We find it unnecessary to rule on this issue at this time, however, because Ms. Vega's recent application for suspension of deportation under VAWA, 8 U.S.C. § 1254(a) (3), is currently pending before the BIA. VAWA amended the Immigration and Nationality Act to allow an abused non-citizen spouse to gain legal status independent of her abuser through an application for suspension of deportation.²  Ms. Vega filed a Motion to Reopen and to Stay Deportation based on VAWA with the BIA on March 1, 1996.

Because Ms. Vega never had a hearing on the merits of her claim for suspension of deportation due to "extreme hardship," and because of Ms. Vega's likelihood of success for suspension of deportation under VAWA, we hereby stay the proceedings until the BIA resolves Ms. Vega's application under VAWA. See Olivar v. INS, 967 F.2d 1381, 1383 (9th Cir. 1992) (staying petition for review pending BIA's disposition of a motion to reopen); Alvarez-Ruiz v. INS, 749 F.2d 1314, 1316 (9th Cir. 1984) (ruling on the merits, but staying the mandate for as long as is required for petitioner to submit a motion to reopen and an application for stay).

The stay shall remain in effect, and this petition for review is withdrawn from submission, until further order of the court. The parties shill keep the court advised of any change in circumstances. The panel retains jurisdiction of this matter.