Ninth Circuit Can Review Immigration Case, Widening Court Divide

The Ninth Circuit ruled Thursday that it has jurisdiction to review a decision by the Board of Immigration Appeals, but ultimately agreed with the board’s choice to uphold the removal of an undocumented Mexican immigrant.

Judge Milan D. Smith, writing for a three-judge panel for the US Court of Appeals for the Ninth Circuit, said recent US Supreme Court precedent means the Ninth Circuit can review the BIA’s determination that Lucila Magana-Magana can’t reopen her removal proceedings.

That widens a divide among federal appeals courts, with the Third and Seventh Circuit finding that they don’t have jurisdiction, while the Fifth Circuit has said it does, Smith said.

Magana-Magana, a citizen of Mexico who fled domestic violence and entered the US illegally in 1995, argued that she faced “extraordinary circumstances” that allowed her to waive the one-year deadline to reopen her removal proceedings under the federal Violence Against Women Act.

Smith said the Ninth Circuit hasn’t yet addressed the question of whether it can review the BIA’s extraordinary circumstances decision in a precedential opinion.

In 2007, Magana-Magana was arrested by a border patrol officer, and an immigration judge determined that she should be removed. However, she remained in the US and married an Arizona man Clyde Wakefield in 2017, but she later faced physical and verbal abuse and feared that she would be killed after a fight with Wakefield in 2020.

Magana-Magana sought to reopen her removal proceedings before the BIA in 2022, arguing that under the VAWA she qualified for immigration benefits and the cancellation of her removal as a result of the abuse she faced.

The BIA in 2023 determined that she had failed to file the motion to reopen within the one-year time limit prescribed by the VAWA. It also rejected her argument that it should excuse the untimely filing because she faced extraordinary circumstances from abuse inflicted by her husband and domestic violence throughout her life.

Magana-Magana appealed the decision to the Ninth Circuit.

Smith said the Supreme Court’s recent immigration precedents, including the 2024 case Wilkinson v. Garland, “clearly mark our path forward” on the issue of whether the appeals court can review the case in the first place. Those decisions say that federal courts can review issues that apply a legal standard to an undisputed set of facts, he said.

“That is precisely what is present here: the extraordinary circumstances inquiry” under the VAWA “is a legal standard that can be applied to specific facts,” Smith said.

On the merits of Magana-Magana’s appeal, the judge said the BIA hadn’t committed a reversible error in determining that she didn’t meet the extraordinary circumstances standard.

“Although the abuse inflicted on Magana-Magana by Wakefield (and her other partners) is no doubt tragic, abuse will be present in most, if not all, VAWA-based motions to reopen,” Smith said. “The ‘extraordinary circumstances’ demanded by the statute must constitute something more than abuse.”

Judges Bridget S. Bade and Danielle J. Forrest joined Smith’s opinion.

Alcaraz Tocchini LLP represents Magana-Magana.

The case is .Magana-Magana v. Garland, 9th Cir., No. 23-1887, 12/26/24