Victor Ochoa v. Director of Uscis

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 28 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT VICTOR MARTINEZ OCHOA, No. 16-55779 16-56393 Plaintiff-Appellant, D.C. No. v. 5:15-cv-01807-JGB-KK DIRECTOR OF UNITED STATES CITIZENSHIP AND IMMIGRATION MEMORANDUM* SERVICES, Defendant-Appellee. Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding Submitted February 14, 2018** San Francisco, California Before: BEA and N.R. SMITH, Circuit Judges, and LASNIK,*** District Judge. One of the various ways an immigrant without legal status may apply to be a * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. legal permanent resident is to be classified as a battered spouse. See 8 U.S.C. § 1154(a)(1)(A)(iii); 8 C.F.R. § 204.2(c)(1). To be eligible, a petitioner must establish that, among other things, he or she is “a person of good moral character.” Id. § 204.2(c)(1)(i)(F). If a petitioner willfully committed, was convicted of, or was imprisoned for “unlawful acts that adversely reflect upon his or her moral character,” id. § 204.2(c)(1)(vii), the petitioner will be found to lack good moral character “unless he or she establishes extenuating circumstances,” id. Appellant Victor Ochoa is a native of Mexico with a history of illegal entries and removals, including one removal that stemmed from a guilty plea for domestic battery and a sixty-day jail sentence. After an April 2012 arrest, Ochoa faced the removal proceedings at the heart of this appeal. He challenged that removal order but was unsuccessful. Ochoa then petitioned U.S. Citizenship and Immigration Services (USCIS) for classification as a battered spouse, which would have made him eligible for permanent-resident status and forestalled his removal. In his petition, Ochoa claimed that the woman he pleaded guilty to battering had falsely accused him and that she had actually been the abusive one. The USCIS Administrative Appeals Office (AAO) denied Ochoa’s petition for battered-spouse classification because he failed to meet his burden of establishing that he is of good moral character. The AAO based that conclusion on his domestic battery conviction and the April 2012 arrest. 2 Ochoa challenged the AAO’s decision in a complaint under the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq.1 Ochoa also moved for a stay of removal pending the resolution of his APA claim, which the district court denied. The district court then granted summary judgment for the government. Because the district court denied Ochoa’s motion for a stay of removal, Ochoa was removed on August 23, 2016. This consolidated appeal combines Ochoa’s appeals of the district court’s grant of summary judgment for the government and its denial of Ochoa’s motion for a stay of removal. We review the district ...

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