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Keywords

hearingtestimonydomestic violencedue processimmigration lawcredibility
hearingtestimonydomestic violencedue processimmigration lawcredibility

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Lopez-Umanzor v. Gonzales

Facts

Petitioner is a native and citizen of Honduras who entered the United States without inspection in 1989. Nine years later, the government sought her removal. The IJ denied her application for cancellation of removal, finding a 'reason to believe' that she had been involved in drug trafficking and concluding that her testimony regarding domestic violence was not credible. The BIA affirmed the IJ's adverse credibility finding and his conclusion that Petitioner was ineligible for cancellation of removal and voluntary departure.

Petitioner is a native and citizen of Honduras who entered the United States without inspection in 1989. Nine years later the government sought her removal. Petitioner conceded removability, but applied for cancellation of removal under 8 U.S.C. 1229b(b)(2), a provision available to certain victims of domestic violence. The IJ denied her application because he found a 'reason to believe' that Petitioner had been involved in drug trafficking and, consequently, that she lacked good moral character; he also concluded that her testimony regarding domestic violence was not credible.

Issue

The central issue in this case is whether Petitioner met the fourth criterion of 8 U.S.C. 1229b(b)(2)(A)–specifically, whether she demonstrated that she is not inadmissible under 8 U.S.C. 1182(a)(2)(C), which relates to involvement in illegal drug trafficking.

The central issue in this case is whether Petitioner met the fourth criterion–specifically, whether she demonstrated that she is not inadmissible under 8 U.S.C. 1182(a)(2)(C), which relates to involvement in illegal drug trafficking.

Rule

To qualify for cancellation of removal under 8 U.S.C. 1229b(b)(2), a provision added as part of the Violence Against Women Act of 1994, Petitioner had to demonstrate that she met each of the following five criteria: (1) that she had been 'battered or subjected to extreme cruelty' by a spouse who is or was a United States citizen or lawful permanent resident; (2) that she had lived continuously in the United States for the three years preceding her application; (3) that she was a person of 'good moral character' during that period; (4) that she is not inadmissible or deportable under various other specific immigration laws relating to criminal activity; and (5) that her removal 'would result in extreme hardship' to herself, her children, or her parents.

To qualify for cancellation of removal under 8 U.S.C. 1229b(b)(2) ('Special rule for battered spouse or child'), a provision added as part of the Violence Against Women Act of 1994, Petitioner had to demonstrate that she met each of the following five criteria: (1) that she had been 'battered or subjected to extreme cruelty' by a spouse who is or was a United States citizen or lawful permanent resident; (2) that she had lived continuously in the United States for the three years preceding her application; (3) that she was a person of 'good moral character' during that period; (4) that she is not inadmissible or deportable under various other specific immigration laws relating to criminal activity; and (5) that her removal 'would result in extreme hardship' to herself, her children, or her parents.

Analysis

The court found that the IJ's assessment of Petitioner's credibility was skewed by prejudgment, personal speculation, bias, and conjecture. The IJ's refusal to allow Petitioner to challenge those views by presenting expert testimony violated her right to due process. The court could not assume that the IJ would have struck the same balance had the weighing begun on an even plane.

The court found that the IJ's assessment of Petitioner's credibility was skewed by prejudgment, personal speculation, bias, and conjecture. The IJ's refusal to allow Petitioner to challenge those views by presenting expert testimony violated her right to due process. The court could not assume that the IJ would have struck the same balance had the weighing begun on an even plane.

Conclusion

The petition was granted, and the matter was remanded for a new hearing, to ensure that the alien had a full and fair opportunity to establish her credibility.

The petition was granted, and the matter was remanded for a new hearing, to ensure that the alien had a full and fair opportunity to establish her credibility.

Who won?

Petitioner prevailed in the case because the court found that her due process rights were violated when the IJ refused to allow her to present expert testimony that could have supported her credibility.

Petitioner prevailed in the case because the court found that her due process rights were violated when the IJ refused to allow her to present expert testimony that could have supported her credibility.

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