Jaimes-Cardenas v. Barr, No. 19-71849 (9th Cir. 2020)
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Jaimes-Cardenas, a citizen of Mexico, first entered the U.S. without inspection in 2008, He married a U.S. citizen, Flora, who was addicted to methamphetamines. Flora was violent and abusive. One incident led to Jaimes-Cardenas’s arrest, after which he voluntarily returned to Mexico. Months later, he returned to the U.S. Flora was pregnant with their first child. Flora became increasingly abusive and started selling drugs. She left Jaimes-Cardenas and their children, who were placed in foster care. The police found methamphetamine in Jaimes-Cardenas's apartment. Despite Flora’s statement that the methamphetamine was hers, police charged Jaimes-Cardenas with possession, manufacture, and delivery of methamphetamine, and with hindering prosecution for his failure to report Flora. Jaimes-Cardenas’s counsel informed him that he would likely face ICE detention and removal if he fought the case. He pleaded to possession of methamphetamine.
DHS charged him as inadmissible for entering without inspection, 8 U.S.C. 1182(a)(6)(A)(i), and having been convicted of a law or regulation related to a controlled substance offense, section 1182(a)(2)(A)(i)(II). Jaimes-Cardenas applied for special cancellation of removal for victims of domestic violence 8 U.S.C. 1229b(b)(2). The BIA and the Ninth Circuit upheld the IJ's determination that the authority provided for the domestic violence waiver, even if granted, does not waive the section 1182](a)(2) controlled substance offense but only applies to crimes of domestic violence and stalking or violations of a domestic violence protective order.
Court Description: 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 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
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