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Ninth Circuit:
Immigration Board Erred in Finding Relief for Abused Spouse Inapplicable Due to Annulment
Opinion Says Body Failed to Follow Own Precedent Requiring Looking to All Circumstances, Drawing Dissent Saying ‘Conscious’ Departure Was Reasonably Explained
By a MetNews Staff Writer
A divided panel of the Ninth U.S. Circuit Court of Appeals has held that the Board of Immigration Appeals erred in finding a petitioner statutorily ineligible for relief from deportation—under a law allowing cancellation of immigration proceedings for a party who has suffered abuse at the hands of a U.S. citizen or permanent resident “spouse”—based on the fact that the marriage at issue had been legally annulled.
In Tuesday’s memorandum decision, signed by Circuit Judges Gabriel P. Sanchez and Holly A. Thomas, the court found that the agency misapplied California law—pointing to evolving jurisprudence on whether annulments will “relate back” to void a union from its inception—and abused its discretion by not following its own precedent requiring the agency to independently consider whether to give the nullification retroactive effect for immigration purposes.
At issue is 8 U.S.C. §1229b(b)(2) which provides, in relevant part, that “[t]he Attorney General may cancel removal of…an alien who is…deportable…if the alien demonstrates that…the alien has been battered or subjected to extreme cruelty by a spouse…who is or was a United States citizen.”
After Luis Calderon petitioned for the cancellation of his deportation proceedings under the section, the Board of Immigration Appeals (“BIA”) determined that he did not qualify under the law because his marriage had been annulled in California, rendering the union void from its inception.
Majority’s View
Sanchez and Thomas wrote:
“The BIA erred in concluding that a judgment of nullity of marriage in California must always be given retroactive effect such that an annulled marriage is rendered void ab initio (also known as the ‘relation back’ doctrine). Neither the Family Code nor the nullity judgment here states that a judgment of nullity required that the voidable marriage be construed void ab initio.”
They noted that the BIA relied on a 1917 California Supreme Court case holding that annulments act retroactively, but pointed to more recent cases not cited by the agency, remarking:
“Under the California Supreme Court’s controlling interpretation of state law…an annulment in California does not categorically void a marriage ab initio. Rather, courts must apply the relation back doctrine on a case-specific basis after analyzing whether voiding the marriage ab initio accords with sound public policy and effects substantial justice between the parties-in-interest….The BIA thus erred in concluding that California law categorically required it to give retroactive effect to Calderon’s state court judgment of nullity of marriage.”
As to whether the board acted arbitrarily, Sanchez and Thomas said:
“[T]he BIA’s general practice had been to construe an annulment retroactively for immigration purposes if the relevant state’s law would relate back an annulment to void a marriage ab initio….But the BIA did not always adhere to this policy, including in cases involving California annulments.”
Citing the 1979 BIA opinion in Matter of Astorga—dealing with whether a petitioner, who married a U.S. citizen before securing the legal annulment of a prior union, could seek legal residency based on the second wedding—the judges noted that the decision called for a case-by-case analysis of whether treating the marriage as void at its inception would result in an injustice. They explained:
“Under the BIA’s own controlling precedents, the BIA must consider all the circumstances of the instant case, such as whether relating back Calderon’s annulment would result in an ‘injustice to an innocent respondent,’…a ‘gross miscarriage of justice,’…or would cure an immigration law violation…before deciding whether to give his annulment retroactive effect for immigration purposes. We reverse and remand to the BIA to consider, in the first instance, what effect Calderon’s annulment should have for immigration purposes after considering all the circumstances of his case and correctly applying California law.”
Liburdi’s Dissent
District Court Judge Michael T. Liburdi of the District of Arizona, sitting by designation, penned a partial dissent, saying:
“I join the majority’s well-reasoned conclusion that the BIA erred in its application of California’s relation back doctrine. I disagree…as to whether the BIA abused its discretion in arbitrarily departing from its own precedent….Here, the BIA provided a reasonable explanation for its decision, grounded in statutory analysis and analogical reasoning.”
Saying that the BIA’s decision to “decline[] to extend special rule cancellation to other non-spousal relationships not specifically enumerated in the statute” was a reasonable “conscious departure from its past decisions,” Liburdi argued that the agency did not act arbitrarily or abuse its discretion.
The case is Calderon v. Bondi, 24-2619.
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