Academic journal article Vanderbilt Law Review

What Is Extreme Cruelty? Judicial Review of Deportation Cancellation Decisions for Victims of Domestic Abuse

Academic journal article Vanderbilt Law Review

What Is Extreme Cruelty? Judicial Review of Deportation Cancellation Decisions for Victims of Domestic Abuse

Article excerpt


In the 1990s, Congress began to devote increased attention to the problem of domestic violence,1 a rampant national problem with social and economic costs.2 At the same time, concerns about immigrants draining the social welfare service system and taking jobs away from U.S. citizens gave rise to an interest in more stringently monitoring and eradicating the illegal alien population in the United States.3 As part of the 1994 Violence Against Women Act ("VAWA"), Congress passed the battered spouse provision, attempting to reconcile its desires to address domestic violence and tighten immigration laws.4

Illegal immigrants are subject to removal procedures. However, because of the harshness of deportation, Congress passed statutes creating safe havens for aliens seeking to escape that fate. Aliens may apply to the Attorney General for cancellation of removal in one of two ways. First, and most commonly, aliens may invoke 8 U.S.C. § 1229b(b)(1)(D), which allows the Attorney General to cancel the removal of an alien who "establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence."5 Litigation has settled the boundaries of the "extreme hardship" provision.6

Second, aliens may invoke the battered spouse provision. Pursuant to 8 U.S.C.S. § 1229b(b)(2)(A)(i)(I), part of the Violence Against Women Act, the Attorney General may cancel removal if an alien proves that she "has been battered or subjected to extreme cruelty by a spouse or parent who is or was a United States citizen."7 An alien who applies for removal cancellation pursuant to this statute will be granted a hearing before an Immigration Judge.8 The alien may appeal the Immigration Judge's decision to the Board of Immigration Appeals ("BIA"), also within the agency.9 However, circuit courts have split as to whether a federal court may review the BIA's determination that an alien has not been subjected to "extreme cruelty."10

As a general matter, courts cannot review a "discretionary" removal decision by the Attorney General.11 However, courts disagree whether a finding of "extreme cruelty" constitutes a discretionary decision. Most courts regard the determination that an alien's family would suffer "extreme hardship" due to deportation as discretionary.12 On the other hand, courts view the determination that a family member "battered" an immigrant as a non-discretionary factual decision reviewable by the courts.13 "Extreme cruelty" lies between these two tests, and courts disagree as to whether it should be treated as discretionary, and therefore non-reviewable, or non-discretionary, and therefore reviewable. The courts' interpretation of "extreme cruelty" is significant especially because it implicates domestic abuse issues and the legal defense of battered woman syndrome.

In Hernandez v. Ashcroft, the Ninth Circuit held that determining whether an act constitutes "extreme cruelty" is a nondiscretionary decision.14 The Tenth and Fifth Circuits disagreed with the Ninth Circuit, holding that "extreme cruelty" is a subjective determination requiring balancing multiple factors.15 These divergent holdings reflect the courts' attitudes towards domestic violence and opinions concerning how immigration law should respond to allegations of abuse in the home. Although the Ninth Circuit errs on the side of protecting a vulnerable demographic, the Fifth and Tenth Circuits have chosen a solution that bolsters the efficiency of the judicial system and helps prevent abuses of immigration law, even if it may sometimes result in harsh application of an otherwise ameliorative law. To resolve the conflict between the circuits, the Supreme Court should consider holding that, although extreme cruelty generally is a discretionary determination, there are certain categories of "per se" abuses that, when present, render the decision non-discretionary. …

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