Wednesday, November 13, 2013

Hernandez v. Ashcrof case brief

Hernandez v. Ashcrof case brief summary
t345 F.3d 824 (2003)

Petitioner alien sought review of a decision of the Board of Immigration Appeals (BIA) which affirmed an Immigration Judge's denial of both (1) suspension of deportation under a provision of the Violence Against Women Act of 1994 (VAWA), and (2) adjustment of status. Respondent was the U.S. Attorney General.

Petitioner applied for suspension of deportation under § 40703 of the VAWA, passed as Title IV of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, intended to protect immigrants who suffered domestic violence. She applied for adjustment of status based upon an I-130 petition.


  • The court held that the BIA erred in denying the application for suspension of deportation, concluding that extreme cruelty must be evaluated in the context of domestic violence. 
  • In this context, her husband's actions subjected her to extreme cruelty. 
  • It further concluded that the BIA erred in denying adjustment of status. 
  • The visa scheme and other regulations established that she only had to show that a visa number was immediately available to her at the time she filed her application, and she met this burden. 
  • Finally, the court determined that the BIA erred in concluding that the nonviability of her marriage was a proper basis for denying adjustment of status. 
  • The BIA itself had previously proclaimed that the denial of an adjustment of status application could not be based solely on the nonviability of the marriage at the time of the adjustment application.

The petition was granted and the matter was remanded for further proceedings, including further consideration of her eligibility for suspension of deportation.

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