## Facts

- Adelina Martinez, a native and citizen of Mexico, entered the United States and later became a lawful permanent resident after approval of a VAWA self-petition as the battered spouse of a lawful permanent resident under INA § 204(a).
- She married her former husband in Mexico in 1984; they had four children, including one U.S.-citizen son.
- The record included extensive evidence that her former husband abused her physically and mentally over a number of years.
- The couple separated in 1996, and she stated she had not seen him since 1998.
- Her VAWA self-petition was approved in 2001; she divorced the abusive spouse in 2004.
- In 2004, she was placed in removal proceedings after attempting to enter the United States from Mexico at a port of entry with two minor children who were not her own.
- DHS charged her as removable for alien smuggling; she testified she brought the children as a favor to their mother and described abuse and hardship to her U.S.-citizen son.
- The Immigration Judge found her removable, but granted special-rule cancellation of removal for battered spouses under INA § 240A(b)(2) as a matter of discretion.
- DHS appealed the grant of cancellation.

## Issues

1. Whether a lawful permanent resident who qualifies as a battered spouse may apply for special-rule cancellation of removal under INA § 240A(b)(2) despite the “nonpermanent residents” heading of INA § 240A(b).
2. Whether, even if statutorily eligible, the respondent should receive INA § 240A(b)(2) relief in the exercise of discretion, including consideration of divorce from the abuser, remarriage, and having already obtained lawful permanent residence through a VAWA self-petition.

## Decision

- The Board sustained DHS’s appeal and remanded for further proceedings consistent with its opinion.
- The Board held that an LPR who qualifies as a battered spouse may be eligible to apply for cancellation of removal under INA § 240A(b)(2), notwithstanding the heading of INA § 240A(b).
- The Board held that, given the nature and purpose of INA § 240A(b)(2), divorce from the abuser, remarriage, and a prior VAWA self-petition are relevant discretionary factors.
- Applying those considerations and weighing the removal ground against the equities, the Board concluded cancellation should not be granted as a matter of discretion.

## Legal Principles

- Statutory headings do not control when the operative text is clear; INA § 240A(b)(2)’s language does not categorically exclude lawful permanent residents from seeking special-rule cancellation.
- INA § 240A(b)(2) relief is available to qualifying battered spouses who are inadmissible or deportable, and eligibility turns on the statutory text rather than the “nonpermanent residents” label in the subsection heading.
- Special-rule cancellation for battered spouses is discretionary; satisfaction of statutory criteria does not require a grant.
- In exercising discretion under INA § 240A(b)(2), adjudicators may consider post-abuse developments, including divorce from the abusive spouse, remarriage, and the fact that the applicant previously obtained immigration relief based on the abusive marriage.
- Seriousness of the charged ground of removability remains relevant in the discretionary balance, even where abuse and family hardship are supported by the record.

## Conclusion

The Board held that lawful permanent residents who qualify as battered spouses are not barred from applying for special-rule cancellation under INA § 240A(b)(2), but emphasized that the remedy remains discretionary and that divorce, remarriage, and prior VAWA-based status may weigh against a favorable exercise of discretion; it therefore sustained DHS’s appeal and remanded.


Matter of Martinez, 25 I. & N. Dec. 66 (B.I.A. 2009)