[00:00:01] Speaker 04:
Good morning.

[00:00:02] Speaker 04:
Welcome, everyone, to today's oral arguments.

[00:00:05] Speaker 04:
I am Judge Sanchez, and with me is my colleague Judge Thomas.

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And together we want to welcome Judge Liberty, who's visiting us from the District of Arizona, and thank Judge Liberty for taking time out of his busy schedule to come join us for these arguments with us.

[00:00:19] Speaker 04:
My pleasure.

[00:00:19] Speaker 04:
Thank you.

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So I want to remind counsel that we have read the briefs carefully and are familiar with the arguments.

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So please focus your attention on the most pertinent points and let me know if you have any rebuttal time that you'd like to reserve.

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We have a couple of cases that have been submitted for oral argument.

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One of them is Decathlon USA LLC versus HSC Associates, case number 24-708.

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And then Lynch versus Matterport, case number 23-4281.

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There are a few case numbers.

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And we have two arguments.

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So for argument, the first one is Alberto Calderon versus Bondi, case number 24-2619.

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And counsel may approach.

[00:01:11] Speaker 01:
It's Nikhil Shah for the petitioner, Luis Alberto Calderon.

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I'd like to reserve one minute for rebuttal at the end.

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There are two issues in this case.

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The first issue is whether the immigration judge abused his discretion in denying a continuance to the petitioner to present arguments regarding whether he was a spouse for purposes of special rule cancellation for battered spouses.

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if he was allowed to go ahead and present expert testimony from a family law expert as to the issue and also have a psychologist testify as he was being subjected to extreme cruelty at the time by his ex-partner.

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The petitioner asserts that the immigration judge did abuse his discretion in denying a continuance because this was the first time that the office had actually asked for a continuance.

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This was the first time that the judge actually brought up the issue of

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potentially the annulment barring him from relief at the hearing in 2019.

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And the continuance that we asked was reasonable.

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When we asked the judge for a continuance, he came up with his own procedure wherein he said, Mrs. Shah, I'll compromise with you.

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I'm going to issue an order denying cancellation strictly on this one narrow issue.

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If you come up with a case that tells you that there's some wiggle room on the issue and not in the context you're talking about,

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where it's a factual issue as to whether fraud was committed or not, but something where there's some wiggle room on the term spouse, to the extent whose marriage was annulled, could still be considered a spouse under the statute.

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And other than the way it's described in the statute, I'll reopen the case.

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This is part of the... Council, can I... Let me... Sure.

[00:02:50] Speaker 04:
Just as a preliminary question, the case was continued, it seemed, several times over the course of several years.

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What was the cause of that?

[00:02:58] Speaker 01:
So Your Honor, this judge in particular has his own procedures where he actually goes off the record and he continues it on his own.

[00:03:06] Speaker 01:
So all of the case, all of the master hearings were continued by the judge on his own because he had a very busy calendar and this was not on the record.

[00:03:14] Speaker 01:
If you look at the record, it goes from 2013, the transcripts, to 2019.

[00:03:19] Speaker 01:
he always has off the come off the record discussions with councils and he tells us this is what we would like from you and he would keep continuing them because of his busy schedule and he only brought this issue up in the last hearing and he didn't give us an opportunity he actually said that he was going to issue an order of removal

[00:03:37] Speaker 01:
and then we would be able to submit a motion to reopen to him within 90 days.

[00:03:42] Speaker 04:
Well, let me ask this because it seems to me that the continuance issue seems less relevant than what seems to me, at least for me, to be a question of law.

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And that is, is it the case, is the IJ and the BIA correct that California law treats annulments as void ab initio in all circumstances?

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And I have read through many of these cases that suggest to me that it does not, and that the BIA might have erred in its interpretation of California law.

[00:04:13] Speaker 01:
Well, that was the second issue in this case, Your Honor.

[00:04:15] Speaker 01:
I agree with the BIA where they actually said that the term spouse is not defined in the INA.

[00:04:20] Speaker 01:
And if you look at the dissenting opinion by Judge Brown at the BIA, they do mention that this should be considered on a case-by-case basis because they cited a case also which said that if injustice would result, then basically that should be factored into the test.

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And these are

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Complex issues of family law, and there is an issue of a continuance here because these aren't issues that are very apparent on its face.

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I think a family law expert would have actually been able to go ahead and put in his expertise as to the issue.

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In the court itself, in Umanzar versus Gonzalez, found that oral testimony by experts is important, and even the case that we cited in our brief,

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Sorry, Your Honor.

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So I understand the point is your expert would have been able to elucidate what California law says about these issues.

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And I take your point.

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Case by case analysis does seem to be the BIA's precedent.

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But just circle back with me to this issue of California law.

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There's a California Supreme Court named Sefton, which is the most recent Supreme Court decision on it that says,

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Sometimes annulments are void ab initio and other times they're not.

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They're not given that retroactive effect.

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If that's the case, what should the board have done here in light of that law?

[00:05:49] Speaker 01:
I think that I agree with the dissenting opinion that they should have remanded and considered this on a case by case basis because I do understand that these are not things that are specific to one case or the other.

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And then in this case, the issue was also the annulment was tied with the abuse.

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So in some cases, the annulments may be an independent thing from an abuse.

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But in this case, we were asserting that the annulment and the abuse were tied together.

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And I think that that factor was not considered by the immigration judge, and that was something we were going to brief to him.

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How do we know on this record that the annulment was tied to the abuse?

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And I would just note that your client, the husband, was claiming that there was abuse of him, yet it was the wife who sought the annulment.

[00:06:33] Speaker 01:
Yes, Your Honor, and we were gonna actually present, we didn't get a chance to present the testimony, but we were gonna go ahead and show that that was done in retaliation to the petitioner issuing a restraining order against him.

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And if you actually look at the record, there is, when the petitioner's wife confronted the petitioner's ex-employer at his work demanding to know about his whereabouts, she actually identified herself as his spouse.

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This was on the administrative record, page 684.

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So she actually considered herself his spouse when it was convenient to her.

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What significance of any should we give to the fact that your client defaulted on the marriage, the dissolution of marriage petition?

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Yes, Your Honor.

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If you look at the record two, we submitted a psychological evaluation.

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And in the psychological evaluation,

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The psychologist diagnosed my client with having PTSD.

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This was actually on the record, page 540.

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He stated that the petitioner spends more time looking at how others may be perceiving him rather than trusting in how he feels about himself.

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This is part of the administrative record on page 541.

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If you look at someone who is an abuse, who is a victim of psychological abuse, it is understandable to know that that person may not want to confront his ex-wife, especially since she had threatened him physically.

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harmed him physically with a knife, he feared for his life.

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And that was very reasonable for him to not show up for his annulment hearing.

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So I guess what you're asking is, you believe that you should have been given the opportunity to put forward evidence as to whether the agency should have given some sort of retroactive effect to the annulment itself.

[00:08:17] Speaker 01:
Yes, Your Honor.

[00:08:18] Speaker 04:
For immigration purposes.

[00:08:19] Speaker 04:
Yes.

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And that's consistent with matter of estorga.

[00:08:22] Speaker 01:
Yes, Your Honor.

[00:08:23] Speaker 01:
We do think that it is consistent with the matter of Historia, and also the case that I was going to cite to McDonald versus Gonzalez, we cited to it in the brief, too.

[00:08:31] Speaker 01:
Expert testimony would have been vital.

[00:08:33] Speaker 01:
In that case, the court found that the state prosecutor's expert opinion regarding mens rea about unlawful voting was vital in deciding some of these complex issues, because these are issues out of the control of

[00:08:45] Speaker 01:
both the petitioners immigration council and the Department of Homeland Security and an expert would have weighed in one way or the other, but we weren't given a chance to go ahead and even have a full and complete record.

[00:08:56] Speaker 04:
But the BIA did cite matter of historical in its decision.

[00:09:00] Speaker 01:
They did your honor, but so did like the dissenting opinion I think was more persuasive.

[00:09:05] Speaker 01:
The BIA did cite to the opinion, but they didn't factor the other factors that we mentioned about abuse into it.

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They just looked at a very straightforward statutory interpretation without looking at it on a case-by-case basis.

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Do you have any other arguments or do you want to?

[00:09:28] Speaker 01:
No, yes, Your Honor.

[00:09:30] Speaker 01:
We do so the other the issue in the case we've talked about the continuum.

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So the other issue is about whether the petitioner was a spouse or special or cancellation.

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The fact that the petitioner

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wife annulled the marriage while she was abusing the petitioner should have been a factor.

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The BIA did cite matter of Magania where it says that these things should be analyzed if injustice would result at the end.

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The Ninth Circuit also recited to this in the reply brief in Purganian which is Schweiker.

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They came up with a complementary role within the context of social security benefits where it did allow

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for a retroactive application of finding that there was a valid marriage, even though the marriage was later annulled.

[00:10:14] Speaker 01:
And we just also wanted to clarify on the issue, and I think that the judge brought this up on the record, partially and also off the record, but the fraud requirements also for California and for immigration purposes are very different.

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And for California, fraud could just be something about

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as simple as a spouse not wanting to live with the other spouse, a spouse not wanting to have a child with the other spouse, or a spouse just not wanting to be faithful to the other spouse.

[00:10:43] Speaker 01:
But for immigration, the courts have looked at the issue of marriage and what constitutes a good-faith marriage, and they haven't found one particular rule, and that's very understandable, but they said that the main rule should be

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what the parties intended to do at the time of their marriage.

[00:11:00] Speaker 01:
This was set out by Bark and it's been reiterated by the court in other decisions.

[00:11:05] Speaker 01:
The court also in Damien versus Ashcroft, again, reaffirmed that there's no one particular rule, but they did say look at other factors to determine if a good-faith marriage existed.

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evidence showing that the spouse and partner courted each other for several weeks before marrying, they had a wedding ceremony, they shared finances and a joint bank account together, they lived together.

[00:11:25] Speaker 01:
The petitioner and his ex-partner did all of these things and as we mentioned, she actually identified herself specifically as his spouse.

[00:11:37] Speaker 01:
The BIA and- Where?

[00:11:39] Speaker 01:
When did she- It's a part of the administrative record on page 684.

[00:11:45] Speaker 01:
It was the manager of drinks restaurant gave a declaration where he said that she came looking for the petitioner and demanded to know about his whereabouts and she identified herself as his spouse.

[00:11:58] Speaker ?:
Okay.

[00:11:59] Speaker 01:
And neither the BIA nor the immigration judge considered the psychological factors or even allowed the psychologist to bring in his opinion regarding emotional abuse and manipulation.

[00:12:09] Speaker 01:
The court in Dillard found that abusive spouses are known to manipulate

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the abuse spouse and there's like a cycle where they do use things such as annulment against them if they know that they can teach them a lesson, if they can no longer control them.

[00:12:26] Speaker 01:
None of these factors were brought in when the immigration judge denied the continuance.

[00:12:31] Speaker 01:
And I also wanted to bring up the issue of the continuance.

[00:12:35] Speaker 01:
When the immigration judge denied the case and said that we had 90 days to submit a motion to reopen, what the immigration judge failed to consider was with his busy calendar, the petitioner would not have received an automatic stay of removal.

[00:12:48] Speaker 01:
That would only be for in absentia orders.

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So if we had done the procedure that he advocated, he would still have been vulnerable to the Immigration and Customs Enforcement detaining him.

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and removing him prior to the motion to reopen.

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He would have had to rule on a stay, which with his busy calendar could have taken a month or two.

[00:13:07] Speaker 01:
When the BIA failed to give us a decision, failed to mail the decision to my address or the petitioner's address, and we didn't even know that his BIA case had been denied, the Immigration and Customs Enforcement actually did come looking for the petitioner, which is why I found out that the case had been denied and which led to me

[00:13:25] Speaker 01:
requesting that they reissue the decision, as you can see as part of the record.

[00:13:28] Speaker 04:
Which they did, I believe, right?

[00:13:30] Speaker 01:
Yes, but we had to file an emergency, a motion to reissue the decision, use our one motion option for that.

[00:13:37] Speaker 01:
And we were actually planning to get a motion to reopen for an expert.

[00:13:40] Speaker 01:
So whatever the BIA did also compromised on the petitioner's appellate rights to do a motion to reopen.

[00:13:46] Speaker 01:
But it would have

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This was a very dangerous option that the immigration judge set forth, where it would have left him open to being removed.

[00:13:55] Speaker 02:
Can you just tell me, succinctly, what is the test that you think we should apply for relation back?

[00:14:03] Speaker 02:
Is it the test from the Sefton case, or is it something else?

[00:14:10] Speaker 01:
I do think that it should be a test on a case-by-case basis.

[00:14:16] Speaker 01:
I don't think that the court has released, this is a novel issue, so I don't think that there is a particular test.

[00:14:21] Speaker 01:
The test may be set forth in Damon versus Ashcroft, just doing it on a case by case basis, especially since abusers are likely to use annulment as a weapon against the person that they're abusing.

[00:14:34] Speaker 01:
And I think that that should be a factor taken into consideration.

[00:14:39] Speaker 04:
We'll reserve the rest of your time.

[00:14:41] Speaker 04:
I'm sorry, Your Honor?

[00:14:42] Speaker 04:
We'll reserve the rest of your time.

[00:15:02] Speaker 03:
Good morning, your honors, and may it please the court, Lauren Tacklet on behalf of the Attorney General.

[00:15:09] Speaker 03:
The board's interpretation of spouse grounded in the text and structure of the statute is the best reading of the statute and should be entitled to do respect under Lope or Bright.

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The plain meaning of spouse requires a legal marriage.

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and the interpretation of spouse for federal law purposes should be informed by state law according to the rules of construction at chapter one, section seven of the U.S.

[00:15:32] Speaker 03:
Code.

[00:15:32] Speaker 00:
Okay, but here it seems that the BIA just gets state law wrong because the BIA says that under California law, judgment of nullity renders a marriage void from its inception and that's just not correct.

[00:15:46] Speaker 00:
California looks at the

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public policy purposes when determining whether or not the marriage was void from its inception, or is voidable?

[00:15:57] Speaker 03:
Your Honor, I would highly point to cases such as in marriage of Garcia, which is a 2017 California appellate court stating void ab initio, and also I would

[00:16:15] Speaker 03:
point to the other cases in our brief, such as the matter of Simmedetti.

[00:16:24] Speaker 02:
Well, and also you have a judgment.

[00:16:27] Speaker 02:
The Superior Court entered judgment

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that the marriage was void.

[00:16:32] Speaker 02:
Correct.

[00:16:33] Speaker 02:
That's correct.

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And in part because the petitioner didn't appear to contest it.

[00:16:40] Speaker 02:
Correct.

[00:16:40] Speaker 02:
OK.

[00:16:41] Speaker 02:
So when we're reading these cases involving whatever this Sefton balancing test, whatever we want to call it, it seems to me it's usually in these collateral proceedings, right?

[00:16:56] Speaker 02:
So in Sefton, it involved

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A spouse who wanted to reactivate spousal maintenance.

[00:17:07] Speaker 02:
Okay, so I guess what I'm saying is, wouldn't this be a collateral proceeding?

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That's my word for it.

[00:17:17] Speaker 03:
Yes, I understand, and I think it's important here to note that Petitioner never challenged the effect of the California annulment.

[00:17:24] Speaker 03:
He challenged whether or not California should have granted an annulment in these proceedings, which would not be appropriate, but he never actually challenged that the effect of California annulment is that it's void ab initio, which is what the immigration judge was reliant upon, and therefore he

[00:17:42] Speaker 04:
this type of argument would be un-exhausted to this court and would be... So, I mean, this is my concern with this is Sefton's the most recent California Supreme Court case on the matter.

[00:17:53] Speaker 04:
You know, the matter of Garcia cited to a Millard case from 1917.

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And it talks about how there are exceptions to the relation back doctrine.

[00:18:03] Speaker 04:
So in my view, it's not just about whether the marriage has been nullified, but whether it's been nullified ab initio as if it had never existed.

[00:18:13] Speaker 04:
And in that sense, the state courts seem to apply it in a, you know, on a case by case basis.

[00:18:19] Speaker 04:
So if that was the premise by which the IJ and BIA started from, that seems to be an erroneous interpretation of California law.

[00:18:28] Speaker 04:
And what do we do with that?

[00:18:29] Speaker 03:
My understanding, first of all, is that Sefton is stating the exception, not the rule.

[00:18:37] Speaker 03:
It acknowledges that the general premise is we understand a annulment is void ab initio.

[00:18:43] Speaker 04:
But even if it's an exception, that means it's not categorical, which is what the BIA said.

[00:18:48] Speaker 04:
The BIA said in all instances, void ab initio.

[00:18:52] Speaker 04:
And so Sefton clearly disproves that.

[00:18:57] Speaker 03:
respectfully disagree, but assuming the board did get California wrong.

[00:19:01] Speaker 04:
Well then what does the exception language in Sefton mean in your view then?

[00:19:05] Speaker 04:
If it's, if it's, how can you square it being categorically void of ab initio, but there being absections at the same time?

[00:19:14] Speaker 03:
I believe I'm reliant upon the more recent.

[00:19:17] Speaker 03:
My understanding is that Sefton is from 1955 and I'm relying upon the more recent state appellate courts, Supreme Court.

[00:19:25] Speaker 04:
But there are also California appellate courts like Matter of Seton that are more recent.

[00:19:30] Speaker 04:
I think that was 2011.

[00:19:33] Speaker 04:
There are a number of other cases that have also recognized this more nuanced, I guess, context for this California law.

[00:19:41] Speaker 03:
If the board got California law wrong, I think it's still within this court's purview to acknowledge that it correctly interpreted the INA as the definition of spouse should be dependent upon the state law treatment.

[00:19:57] Speaker 03:
If it got California law wrong, we could remand for the purposes of reconsidering under the appropriate California standard.

[00:20:05] Speaker 04:
However, let me, can I ask you this?

[00:20:07] Speaker 04:
I'm sorry to interrupt, but it seems that there's another problem that I had with the board's decision in that it didn't follow matter of historical, which says once upon a time, the board just followed the state law determination of annulment.

[00:20:23] Speaker 04:
But now we look at things on a case-by-case basis to see whether to relate back for immigration purposes.

[00:20:30] Speaker 04:
And it cites a number of cases like Castillo-Sedano and Wang and others and Matter of Magana.

[00:20:38] Speaker 04:
So it seems like the board also was incorrect in its statement of its own prior precedent.

[00:20:43] Speaker 04:
You know that even if it cites a matter of Astorga, it wasn't actually doing a totality of the circumstances analysis in this case.

[00:20:53] Speaker 04:
So in my view, when the board doesn't follow its own precedent, we send it back in order to do so in the first instance again.

[00:21:01] Speaker 03:
Boards prior cases actually support its reading of the statute here and I would point to one matter of historical is reiterates that general principle of validity of marriages are coming from state law and then relates an annulment back because.

[00:21:16] Speaker 03:
in part because that's what the state law does.

[00:21:18] Speaker 03:
I also would point to, again, matter of semedi, which is categorical in saying the relation of doctrine applies to all annulments in California, irrespective of the ground.

[00:21:29] Speaker 03:
The result of the decree is no marriage ever existed, and then revokes adjustment of status based on that determination.

[00:21:37] Speaker 03:
And in relation to the cases that you were citing in respect to Matter of Wong, Matter of Magana, I would point out that in those cases, they are visa petitions and the non-citizen is attempting to benefit from the annulment, not benefit from the marriage here.

[00:21:58] Speaker 03:
We're looking at a different statutory context.

[00:22:01] Speaker 03:
So we're looking at the VAWA cancellation of removal as opposed to visa petitions.

[00:22:07] Speaker 03:
And here, the petitioner is trying to benefit from the marriage, not benefit from the annulment.

[00:22:12] Speaker 03:
And it would seem wrong.

[00:22:13] Speaker 04:
Can you explain, what do you mean by that, trying to benefit from the marriage and not the annulment?

[00:22:18] Speaker 03:
So here, petitioner is reliant, his entire case is reliant upon the idea that he was married at the time of the abuse.

[00:22:24] Speaker 03:
Yes.

[00:22:25] Speaker 03:
In the other cases, matter of Magana, matter of Wong, these types of cases, their claim is that they were not married

[00:22:34] Speaker 03:
based on the fact of the annulment.

[00:22:37] Speaker 03:
And the board there, well, INS there is going back and saying, no, you were married at the time.

[00:22:42] Speaker 03:
We're not going to allow you to lie now and say you weren't married because you subsequently got an annulment.

[00:22:48] Speaker 03:
Right.

[00:22:49] Speaker 04:
Exactly right.

[00:22:51] Speaker 04:
I think that's correct.

[00:22:52] Speaker 04:
And that's why I think Astorga, which post-dated Semity, for example, and sort of charted a different path,

[00:22:59] Speaker 04:
That's why the BIA has said, let's take this on a case by case basis and analyze what the immigration effects would be and whether it, you know, carries out an injustice or there are other immigration policies at issue here.

[00:23:13] Speaker 04:
And I just don't see the board having done so in this instance.

[00:23:17] Speaker 03:
And that was appropriate in this instance because the statute is limiting on the types of relationships that qualify.

[00:23:25] Speaker 03:
So very specifically, if you look at subsection three that discusses putative marriages based on bigamy, that is Congress limiting the board's ability to recognize a relationship that

[00:23:38] Speaker 03:
has been terminated.

[00:23:40] Speaker 03:
In fact, actually, this is pretty important.

[00:23:43] Speaker 03:
The petitioner cites a 1997 INS memo in their brief.

[00:23:49] Speaker 03:
And that statute at the time, it says, perhaps you can get cancellation of removal because it is more broad than adjustment of status, any terminated relationship.

[00:24:02] Speaker 03:
However, after 1997 and 2000,

[00:24:05] Speaker 03:
That is when Congress added the limiting provision in terms of putative spouses due to bigamy.

[00:24:11] Speaker 02:
In fact, my apologies for interrupting you because this is a question I've been waiting to ask you.

[00:24:16] Speaker 02:
Do you think that the congressional amendments in the 1990s had any effect on

[00:24:23] Speaker 02:
the application of these earlier cases decided in the 1970s.

[00:24:31] Speaker 02:
What I'm particularly referring to are the BIA's decisions from the 1970s.

[00:24:35] Speaker 03:
I would point out that yes, the statute here, I can't speak to what the statute said in relation to the visa petition context in the 1970s, but the statute here at issue is- And that was the focus of my question?

[00:24:49] Speaker 03:
Yes, exactly.

[00:24:50] Speaker 03:
That is limiting to the board's ability to consider these kind of case-by-case analyses because it could result in spouse meeting different things in different times

[00:25:03] Speaker 03:
in different cases, and the meaning of a word in the statute should be consistent across cases.

[00:25:09] Speaker 02:
And you raise an interesting point, because what if California law's definition of spouse is different from Alabama's law?

[00:25:17] Speaker 02:
And then would that be a problem to have inconsistent application of Section 1229B in different parts of the United States?

[00:25:27] Speaker 03:
It would be consistent application with respect to

[00:25:32] Speaker 03:
We are defining it based on state law.

[00:25:34] Speaker 03:
However, the states have defined their marriage.

[00:25:36] Speaker 03:
And that is what Chapter 1, Section 7 contemplates in the U.S.

[00:25:41] Speaker 03:
Code when it says that the marriage will be valid based on the state.

[00:25:44] Speaker 04:
Let me see if I understand your argument.

[00:25:47] Speaker 04:
I had been meaning to ask this as well.

[00:25:50] Speaker 04:
Is it your view under special rule cancellation that Congress has decided that all annulments, regardless of state law, avoid ab initio, or that Congress wanted courts to still, and the agency to still look to state law to see whether there's a valid marriage, and then find exceptions within that?

[00:26:10] Speaker 03:
My understanding is that Congress limited the board's ability to look through the details of an annulment by limiting the types of relationships here that would be valid, i.e.

[00:26:25] Speaker 03:
only those- I'm not sure.

[00:26:27] Speaker 04:
Does Congress consider an annulled marriage void ab initio in all circumstances, in your view?

[00:26:36] Speaker 03:
In my view, it would be dependent on how the state law treats the

[00:26:40] Speaker 03:
how state law treats the annulment based on, again, one in seven.

[00:26:44] Speaker 04:
Okay.

[00:26:44] Speaker 04:
Because, I mean, the bigamy example is an interesting one, but you sort of have to back-end it into this assumption that because that bigamy exception exists, that means annulments mean void ab initio.

[00:27:01] Speaker 04:
And now you're telling me that it's not necessarily the case that it would be state by state.

[00:27:06] Speaker 04:
So I guess the problem I have a little bit with that interpretation is that the special rule cancellation isn't just about spouses.

[00:27:14] Speaker 04:
It also protects alien children.

[00:27:17] Speaker 04:
And so it has other protective features that aren't just about the status of a marriage.

[00:27:22] Speaker 04:
And so it's hard for me to see in the absence of something more explicit why Congress would say in an old marriage, no one can get VAWA protection if you've been abused unless you were in a bigamist relationship.

[00:27:41] Speaker 03:
The purpose was to extend relief to victims of abuse, but Congress did not open the floodgates to everyone.

[00:27:47] Speaker 03:
It was very specific in the types of relationships that it was considering eligible, and Congress is allowed to draw those lines.

[00:27:56] Speaker 03:
Perhaps it's

[00:27:57] Speaker 04:
the idea that I mean of course it's allowed but I just what in the statutory text tells us that congress intended annulled marriages those those subject to an old marriage to be outside of the bounds of vowa protection unless it involved an annulment based on bigamy I you know it's

[00:28:17] Speaker 04:
I agree that there's that protection for bigamy.

[00:28:20] Speaker 04:
It just doesn't follow, especially when Congress hasn't defined spouse, that the premise begins that way.

[00:28:28] Speaker 03:
I read subsection three as showing that Congress considered the messy factual situations that may arise in this context.

[00:28:37] Speaker 03:
And it was being very specific that we only want to extend the protections of VAWA to a very specific subset.

[00:28:48] Speaker 03:
And that is the reading that the board

[00:28:54] Speaker 03:
decided on and that is a, you know, best reading of the statute given that limiting provision.

[00:29:00] Speaker 04:
So let me ask you this.

[00:29:01] Speaker 04:
Suppose you had a state decree that annuls a marriage but is not void ab initio.

[00:29:09] Speaker 04:
So that's the state determination is that.

[00:29:13] Speaker 04:
And it's not based on bigamy.

[00:29:16] Speaker 04:
Would a petitioner be entitled to VAWA protection in that circumstance under your reading of the statute?

[00:29:22] Speaker 03:
If that such a order would exist, I think that that would therefore be acting like a divorce, how we generally conceive of divorce.

[00:29:35] Speaker 03:
And in this case, divorce would mean that no, there was a marriage that ended.

[00:29:42] Speaker 03:
And as long as the abuse occurred during that valid marriage, yes, they would be entitled to VAWA.

[00:29:49] Speaker 04:
So in some ways it all circles back to how the state law determines this issue to some extent and the facts of that case.

[00:29:57] Speaker 03:
Yes.

[00:30:00] Speaker 04:
Do my colleagues have any other questions?

[00:30:03] Speaker 04:
Thank you.

[00:30:17] Speaker 01:
This is a very unique case.

[00:30:20] Speaker 01:
One of the things that was done in this case was we weren't given the actual BIA decision until a certified administrative record was filed.

[00:30:30] Speaker 01:
Our office did attempt to actually get a family law expert to do a motion to reopen to the BIA, but because of what transpired in the case on the record.

[00:30:37] Speaker 04:
Council, can I ask you to respond to government council's arguments about how to interpret VAWA and what was Congress's intent in creating this bigamy exception, for example, and the effect of annulments in cases?

[00:30:52] Speaker 01:
Yes.

[00:30:53] Speaker 01:
And it actually ties in, Your Honor.

[00:30:54] Speaker 01:
So I'm going to get to the congressional intent in a second.

[00:30:58] Speaker 01:
The family law expert that was going to testify was actually going to discuss California law in general and even talk about potential options that the petitioner had to fix the annulment issue.

[00:31:08] Speaker 01:
And we were compromised on that just because of the way the BIA issued the decision and us rushing to having to use the one motion rule to file a motion to reissue the decision.

[00:31:18] Speaker 04:
Why don't you answer my question because you have limited time.

[00:31:21] Speaker 01:
So the issue is that congressional intent does seem vague when I look at it.

[00:31:27] Speaker 01:
It seems that it would be odd that they were trying to protect victims of physical abuse as well as severe psychological trauma or emotional abuse.

[00:31:36] Speaker 01:
It would seem odd that they would want to go ahead and foreclose someone whose spouse was using the annulment as a weapon against him.

[00:31:44] Speaker 01:
to not be considered applicable for that relief, especially since it follows the pattern with Haggard of emotional abuse.

[00:31:54] Speaker 04:
So in your view, has Congress taken away some discretion from the board in order to look at these cases or is it still under the 1970s decisions supposed to look at this on a case-by-case perspective?

[00:32:09] Speaker 01:
I, we do believe that it still would be on a case by case basis.

[00:32:13] Speaker 01:
It would just be in keeping with the intention of the act.

[00:32:17] Speaker 04:
Okay.

[00:32:18] Speaker 04:
Any other questions?

[00:32:20] Speaker 04:
Thank you, Councilman.

[00:32:22] Speaker 04:
Thank you both for your helpful arguments.

[00:32:23] Speaker 04:
The matter will stand submitted.