Garcia-Mendez v. Lynch

An alien does not, by virtue of the alien’s status as an applicant for special rule cancellation of removal, meet the definition of a Violence Against Women Act self-petitioner, nor does an applicant for special rule cancellation, by virtue of that status, become eligible to seek a section 212(h) waiver.

Francisco Garcia-Mendez was an immigrant from Mexico who was subject to removal from the United States. Several months after his removal hearing, Garcia-Mendez filed an application for cancellation of removal under 8 U.S.C. § 1229b(b)(1) because removal would result in “exceptional and extremely unusual hardship to his citizen wife.” In 2003, Garcia-Mendez was charged with three crimes. Subsequently, Garcia-Mendez filed a I-360 petition seeking self-petitioner designation under the Violence Against Women Act (“VAWA”), claiming that his wife had battered him. This would enable Garcia-Mendez to seek a section 212(h) waiver of inadmissibility, and he would get relief for his 2003 convictions. Garcia-Mendez’s I-360 petition was denied for failing to show that he was previously married in good faith, along with his subsequently filed application for special rule cancellation. On appeal, Garcia-Mendez argued for eligibility under section 212(h), along with a rule for special cancellation. The Ninth Circuit noted that aliens applying for special rule cancellations are not on the list of VAWA self-petitioners because Congress did not include them. Despite this, there was ambiguity because section 212(h) of the Immigration and Nationality Act (“INA”) was unclear whether “adjustment status” referred to section 245 adjustments, or adjustments of status from special rule cancellations. The panel looked for a permissible interpretation that the agency could make, and found that the Board of Immigration Appeals held that section 212(h) waivers are unavailable to applicants for standard cancellation of removal. As a result, the panel held that by virtue of an alien’s status, an alien applicant for special rule cancellation of removal does not meet the definition of the VAWA self-petitioner. Petition for Review DENIED.