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1087
Sticks and Stones May Break My
Bones, but Words Will Never Hurt
Me. Or Will They? The Eleventh
Circuit Expands the “Extreme
Cruelty” Definition in 8 U.S.C.
§ 1229b(b)(2) to Encompass Mental
and Physical Abuse in Ruiz v.
United States Attorney General
Sydnie N. Winter
I. INTRODUCTION
The Violence Against Women Act (VAWA),
1
originally passed in 1994,
was the first federal legislation acknowledging domestic violence as a
crime.
2
As part of this Act, Congress enacted 8 U.S.C. § 1229b(b)(2),
3
a
rule that allows battered spouses (or children) who are not citizens or
I owe my gratitude to many people for bringing me to this point in my life, but there are a
few I would like to acknowledge in particular. To Professor Steve Johnson, thank you for
providing me with invaluable guidance throughout this entire process. To Nick Bailey, your
love and support serves as a constant reminder for me to take a deep breath and enjoy the
world around me. My family, you are my biggest advocates and greatest encouragement. I
would be nowhere without you all. Most of all, thank you to my mom, Leslie Winter. It could
not have been easy raising a daughter who always needed an answer for the injustices of
the world, yet you have always encouraged me to advocate for those who cannot advocate
for themselves, and to do it loudly.
1. 34 U.S.C. § 12291 (2022).
2. Violence Against Women Act, NAT’L NETWORK TO END DOMESTIC VIOLENCE,
https://nnedv.org/content/violence-against-women-act/ [https://perma.cc/H4DC-SPCM]
(last visited Feb. 10, 2024).
3. 8 U.S.C. § 1229b(b)(2) (2008).
1088 MERCER LAW REVIEW Vol. 75
nationals of the United States of America to seek the discretionary
cancellation of the government’s removal of them from the country.
4
The
VAWA special-rule was enacted as a way to enable abuse victims to
obtain discretionary deportation relief, allowing them to leave their
abusers without fear of deportation or other immigration-related
consequences.
5
The VAWA special-rule requires that the person seeking relief has
been “battered or subjected to extreme cruelty.”
6
This phrase, along with
the purpose of the statute, seemingly refers to domestic violence.
7
When
many people think of domestic violence, they often picture a situation
involving violence of a physical nature.
8
The legal system has reflected
this mentality by implementing protections for people who are being
physically abused, without explicitly providing the same safeguards for
victims of another very real type of abuse—mental abuse.
Mental abuse, commonly interchanged with terms like “emotional
abuse” or “psychological abuse,” has no set definition but can present
itself in a variety of ways.
9
The National Domestic Violence Hotline has
defined emotional abuse as “non-physical behaviors that are meant to
control, isolate, or frighten someone.”
10
Meanwhile, the American
Psychological Association has defined emotional abuse as “a pattern of
behavior in which one person deliberately and repeatedly subjects
another to nonphysical acts that are detrimental to behavioral and
affective functioning and overall mental well-being.”
11
Mental abuse, and the detrimental effect it can have on a person, has
not always been recognized or talked about.
12
However, many sources
have begun reporting that the effects of mental abuse are equivalent to,
4. Id.
5. Ruiz v. United States Att’y Gen., 73 F.4th 852, 854–55 (11th Cir. 2023).
6. 8 U.S.C. § 1229b(b)(2)(A)(i).
7. Bedoya-Melendez v. U.S. Att’y Gen., 680 F.3d 1321, 1326 (11th Cir. 2012).
8. What is Emotional Abuse, NAT’L DOMESTIC VIOLENCE HOTLINE, https://www.thehot
line.org/resources/what-is-emotional-abuse/ [https://perma.cc/4DRD-ZXUT] (last visited
Feb. 10, 2024).
9. See APA Dictionary of Psychology: Emotional Abuse, AM. PSYCH. ASS’N, https://
dictionary.apa.org/emotional-abuse [https://perma.cc/ZE75-SU62] (last visited Feb. 10,
2024); Types of Abuse, NAT’L DOMESTIC VIOLENCE HOTLINE, https://www.thehotline.org/
resources/types-of-abuse/ [https://perma.cc/SE3M-PY2M] (last visited Feb. 10, 2024).
10. Types of Abuse, supra note 9.
11. APA Dictionary of Psychology: Emotional Abuse, supra note 9.
12. See Catherine F. Klein & Leslye E. Orloff, Symposium on Domestic Violence:
Article: Providing Legal Protection for Battered Women: An Analysis of State Statutes and
Case Law, 21 HOFSTRA L. REV. 801, 872 (1993). The article was written in 1993 and
discussed how some courts continued to underestimate the seriousness of mental and
emotional abuse.
2024 STICKS AND STONES MAY BREAK MY BONES 1089
if not worse than, physical abuse.
13
Coincident with the increased
awareness of the harmful effects of mental abuse, the legal field has been
tasked with analyzing phrases such as “extreme cruelty,” contained in
statutory text, and determining what kind of abuse is meant to be
encompassed within that statutory phrase.
14
Must a person be physically
abused in order to have been subjected to extreme cruelty, or could a
person have been subjected to extreme cruelty if they have been mentally
abused, separate from physical abuse?
The United States Court of Appeals for the Eleventh Circuit explored
this issue in Ruiz v. United States Attorney General,
15
where the court
was tasked with determining whether the term “extreme cruelty,” within
8 U.S.C. § 1229b(b)(2)—titled “Special rule for battered spouse or
child”
16
—should be read to encompass both physical and mental abuse,
or just physical abuse.
17
In holding that the use of “extreme cruelty”
within this VAWA special-rule should be read to encompass both physical
and mental abuse, the Eleventh Circuit made a decisive move to
recognize the effects of mental abuse on domestic violence victims beyond
physical harm.
18
II. FACTUAL BACKGROUND
Esmelda Ruiz first came to the U.S. in 2001 on a six-month
nonimmigrant visa with her one-year-old son.
19
Ruiz was in the U.S. for
eight years before the government initiated a deportation suit against
her in 2009. In the years between 2001 and 2009, there were several
major developments in Ruiz’s life.
20
Shortly after she arrived in the U.S., Ruiz married a man named Gavin
Blanco.
21
Just a year into their marriage, Ruiz developed breast cancer.
Throughout her immigration proceedings, Ruiz has alleged that, after
her diagnosis, Blanco became abusive.
22
She claimed that his general
13. See Heather L. Dye, Is Emotional Abuse as Harmful as Physical and/or Sexual
Abuse?, J. OF CHILD & ADOLESCENT TRAUMA 399, 399 (Dec. 10, 2019); Types of Abuse, supra
note 9.
14. See Ruiz, 73 F.4th 852; Bendoya-Melendez v. U.S. Att’y Gen., 680 F.3d 1321 (11th
Cir. 2012); Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003); Lopez-Birrueta v. Holder,
633 F.3d 1211 (9th Cir. 2011).
15. 73 F.4th 852 (11th Cir. 2023).
16. 8 U.S.C. § 1229b(b)(2).
17. Ruiz, 73 F.4th at 857.
18. Id. at 860.
19. Ruiz v. U.S. Att’y Gen., 73 F.4th 852, 854 (11th Cir. 2023).
20. Id.
21. Id.
22. Id.
1090 MERCER LAW REVIEW Vol. 75
attitude towards her changed, and he became “obnoxious” and “rude.”
23
Ruiz also alleged at least one circumstance of physical abuse.
24
Once immigration proceedings were commenced against Ruiz, she
filed for relief under the VAWA special-rule.
25
This code section
26
grants
the Attorney General the discretion to cancel the removal of an alien and
adjust the status for non-permanent residents in special circumstances.
27
To qualify for protection under the special rule, the person asking for
relief must meet five prerequisites.
28
The five prerequisites are:
(1) [T]hat she has been “battered or subjected to extreme cruelty” by a
spouse or parent; (2) that she has been continuously present in the
United States for at least three years immediately preceding her
application; (3) that she has been a person of good moral character
during that period; (4) that she doesn’t have any disqualifying criminal
convictions or other specified grounds of inadmissibility or
deportability; and (5) that removal would result in extreme hardship
to her, her child, or her parent.
29
The one prerequisite that this case turns on is 8 U.S.C.
§ 1229b(b)(2)(A)(i)(I), or the requirement that Ruiz has “been battered or
subjected to extreme cruelty.”
30
More specifically, this case turns on what
kind of abuse—physical, mental, or both—is encompassed within the
term “extreme cruelty.”
31
The immigration judge (IJ), who reviewed Ruiz’s request to cancel the
government’s removal of her from the country, concluded that Ruiz met
all of the requirements for cancellation of removal under the VAWA
special-rule, except the requirement that Ruiz had “been battered or
subjected to extreme cruelty.”
32
In concluding that Ruiz had failed to
establish that she had been “battered or subjected to extreme cruelty,”
the IJ stated that “there [was] [] no indication of physical violence or
physical harm to [Ruiz]” and the documents that Ruiz provided “fail[ed]
to indicate additional facts of physical abuse or violent harm that would
23. Id.
24. Id. Notably, at some point after her marriage with Blanco, Ruiz attempted to adjust
her immigration status, but was denied on the grounds that she had primarily married
Blanco so that she could circumvent U.S. immigration laws. Id. at 854 n.1.
25. Id. at 854.
26. 8 U.S.C. § 1229b (2008).
27. 8 U.S.C. § 1229b(b).
28. 8 U.S.C. § 1229b(b)(2)(A)(i)–(v).
29. Ruiz, 73 F.4th at 854.
30. Id.
31. Id. at 857.
32. Id. at 854.
2024 STICKS AND STONES MAY BREAK MY BONES 1091
support [Ruiz]’s claims.”
33
Ruiz appealed this decision to the Board of
Immigration Appeals (BIA), arguing that the IJ misinterpreted “extreme
cruelty” to require proof of physical abuse and excluded “mental or
emotional abuse.”
34
The BIA issued a non-precedential single-judge order
adopting and affirming the IJ’s decision. The BIA rejected the argument
that the IJ used the wrong interpretation of “extreme cruelty.”
35
In the order by the BIA, the agency stated that while Blanco’s
treatment of Ruiz following her diagnosis was “unfortunate,” the type of
treatment is not considered to be “extreme cruelty” under the VAWA
special-rule.
36
Ruiz appealed this decision to the United States Court of
Appeals for the Eleventh Circuit.
37
The Eleventh Circuit ultimately held
that the IJ had incorrectly interpreted the term “extreme cruelty” to only
encompass physical abuse when it should encompass both mental and
physical abuse.
38
As a result, the Eleventh Circuit held that the BIA
applied the wrong standard to Ruiz’s request and the case was remanded
to the BIA for further consideration consistent with the new definition of
“extreme cruelty.”
39
III. LEGAL BACKGROUND
The Ruiz opinion traveled through a maze of legal issues in order to
reach the final holding.
40
To fully understand how the United States
Court of Appeals for the Eleventh Circuit reached its ultimate holding, it
is necessary to first understand the procedural aspects of an appellate
court reviewing an administrative decision. Further, it is necessary to
discuss the background of the VAWA, the law that established 8 U.S.C.
§ 1229b(b)(2).
41
A. Appellate Procedure When Reviewing Administrative Decisions
Congress, by statute, has deprived courts of the authority to review
any judgment regarding discretionary relief in immigration matters
33. Id. at 855.
34. Id.
35. Id.
36. Id.
37. Id.
38. Id. at 860.
39. Id.
40. Ruiz v. U.S. Att’y Gen., 73 F.4th 852 (11th Cir. 2023).
41. Id. at 854.
1092 MERCER LAW REVIEW Vol. 75
except when the decision involves a question of law.
42
The meaning of a
statutory provision is a question of law.
43
Following the determination of whether a court has the jurisdiction to
review the relevant judgment, the reviewing court must then determine
the amount of deference, if any, the agency’s decision is entitled to.
44
In
the absence of any statutory directness, two types of deference may be
awarded to administrative decisions when an agency is interpreting
statutory language: Chevron deference or Skidmore deference.
45
Chevron deference, established in Chevron, U.S.A., Inc. v. NRDC,
Inc.,
46
is the most generous standard of deference for agencies’ statutory
interpretation.
47
Under Chevron, a court must defer to an agency’s
interpretation of a statute so long as it is reasonable and Congress has
not directly answered the statutory interpretation question resolved by
the agency.
48
This level of deference does not always apply to every
agency interpretation though, as the Supreme Court of the United States
has narrowed the application of Chevron by applying it to:
[A]dministrative implementation of a particular statutory provision
qualifies for Chevron deference when it appears that Congress
delegated authority to the agency generally to make rules carrying the
force of law, and that the agency interpretation claiming deference was
promulgated in the exercise of that authority.
49
In the absence of Chevron deference, Skidmore deference applies.
50
In Skidmore v. Swift & Co.,
51
the Supreme Court held that the
“rulings, interpretations and opinions” of administrations, “while not
controlling upon the courts by reason of their authority, do constitute a
body of experience and informed judgment . . . .”
52
As a result, district
courts should defer to their decision depending on the “thoroughness
evident in its consideration, the validity of its reasoning, its consistency
42. 8 U.S.C. § 1252(a)(2)(B)–(D) (2005).
43. Ruiz, 73 F.4th at 856. Additionally, “the phrase ‘questions of law’ in [8 U.S.C.]
§ 1252(a)(2)(D) should be read to ‘include the application of a legal standard to undisputed
or established facts.’” Id. (quoting Guerroro-Lasprilla v. Barr, 140 S. Ct. 1062, 1067 (2020)).
44. Id. at 857.
45. See id. at 857–58.
46. 467 U.S. 837 (1984).
47. Id. at 844.
48. Id. at 843.
49. United States v. Mead Corp., 533 U.S. 218, 226–27 (2001).
50. Ruiz, 73 F.4th at 858.
51. 323 U.S. 134 (1944).
52. Id. at 140.
2024 STICKS AND STONES MAY BREAK MY BONES 1093
with earlier and later pronouncements, and all those factors which give
it power to persuade, if lacking power to control.”
53
B. The Background of 8 U.S.C. § 1229b(b)(2)
8 U.S.C. § 1229b allows the Attorney General to cancel the removal of
any noncitizen of the U.S. at their discretion if that person falls within
certain categories.
54
The special-rule for battered spouses or children,
passed by Congress as part of the VAWA, was enacted as a way to enable
abuse victims to obtain discretionary deportation relief, allowing them to
leave their abusers without fear of deportation or other immigration
related consequences.
55
The VAWA of 1994 initially introduced the standards under which
battered spouses or children could apply for suspension of deportation.
56
The VAWA of 2000 made several changes to this relief, including:
[T]he elimination of the requirement that the abuse have occurred in
the United States, a relaxation of previous bars to establishing good
moral character, the inclusion of hardship to the parent of an adult
applicant in the determination of whether the extreme hardship
requirement has been satisfied, and a change to the “stop-time rule”
for determining the length of the applicant’s continuous physical
presence.
57
A later edition of the VAWA “clarified and expanded the ability of VAWA
applicants to file motions to reopen deportation or removal proceedings
and expanded the use of the [Immigration and Nationality Act
section] 237(a) waiver to include cancellation of removal proceedings as
well as self-petitions.”
58
In Bendoya-Melendez v. United States Attorney General,
59
the
Eleventh Circuit sought to determine whether the BIA had the discretion
to determine whether the petitioner, Hamelt Rodolfo Bedoya-Melendez,
had been “battered or subjected to extreme cruelty.”
60
While this decision
53. Id.
54. 8 U.S.C. § 1229b.
55. Ruiz, 73 F.4th at 854–55.
56. 5 CHARLES GORDON, ET AL., IMMIGR. L. AND PROC. § 64.04 (Matthew Bender, rev.
ed. 2023) (“The IIRAIRA changed the name of this relief from suspension of deportation to
cancellation of removal, but did not change most of the substantive requirements.”).
57. Id.
58. Id.
59. 680 F.3d 1321 (11th Cir. 2012).
60. Id. at 1323.
1094 MERCER LAW REVIEW Vol. 75
was overruled on other grounds,
61
the court’s discussion of “battered or
subjected to extreme cruelty” remains relevant. In its discussion, the
Eleventh Circuit referred to the context of the original version of 8 U.S.C.
§ 1229b(b)(2).
62
This discussion led to the Eleventh Circuit’s conclusion
that, because this statute was adopted with VAWA, “the word ‘battered’
and the clause ‘subjected to extreme cruelty’ arguably refer to domestic
violence.”
63
However, the Eleventh Circuit then pointed out that there is
no rigid definition of domestic violence.
64
The Eleventh Circuit then discussed a regulation passed by the
Department of Homeland Security
65
that defined an almost identical
phrase, finding that while the regulation does not create a binding legal
standard, it can be useful for the battered-spouse determination under 8
U.S.C. § 1229b(b)(2).
66
This regulation, titled “Petitions for relatives,
widows and widowers, and abused spouses and children,” is an
immigration regulation on the adjustment of a petitioner’s immigration
status to that of a lawful permanent resident.
67
8 C.F.R. § 204.2(c)(1)(vi)
defines battery or extreme cruelty as:
For the purpose of this chapter, the phrase “was battered by or was
the subject of extreme cruelty” includes, but is not limited to, being the
victim of any act or threatened act of violence, including any forceful
detention, which results or threatens to result in physical or mental
injury. Psychological or sexual abuse or exploitation, including rape,
molestation, incest (if the victim is a minor), or forced prostitution
shall be considered acts of violence.
68
The United States Court of Appeals for the Ninth Circuit has similarly
used 8 C.F.R. § 204.2(c)(1)(vi) as a guide for determining whether a
spouse has been “battered or subjected to extreme cruelty” specifically
related to the special battered spouse provision.
69
61. Id.
62. Id. at 1326.
63. Id.
64. Id.
65. 8 C.F.R. § 204.2(c)(1)(vi) (2007).
66. Bedoya-Melendez, 680 F.3d at 1328.
67. 8 C.F.R. § 204.2 (2007).
68. 8 C.F.R. § 204.2(c)(1)(vi).
69. Hernandez v. Ashcroft, 345 F.3d 824, 839 (9th Cir. 2003); Lopez-Birrueta v. Holder,
633 F.3d 1211, 1216 (9th Cir. 2011).
2024 STICKS AND STONES MAY BREAK MY BONES 1095
IV. COURT’S RATIONALE
The United States Court of Appeals for the Eleventh Circuit held that
“extreme cruelty,” as used in 8 U.S.C. § 1229b(b)(2)(A)(i), encompasses
both mental and physical abuse.
70
This determination was made by an
analysis of the purpose for which the VAWA special-rule was created and
the history of the legal use of “extreme cruelty.”
71
A. Jurisdiction
As an initial matter, the government contended that the Eleventh
Circuit did not have the jurisdiction to hear Ruiz’s challenge since it
involved the review of a BIA judgment rendered regarding discretionary
relief.
72
The Eleventh Circuit rejected this theory under 8 U.S.C.
§ 1252(a)(2)(D), holding that the BIA’s determination of the statutory
provision “extreme cruelty” in 8 U.S.C. § 1229(b)(2) was a question of law
and was reviewable under 8 U.S.C. § 1252(a)(2)(D).
73
The government relied on Bendoya-Melendez, where the Eleventh
Circuit ultimately determined that the BIA did have the discretion to
determine whether the petitioner had been “battered or subjected to
extreme cruelty,” and ultimately determined that the court lacked the
jurisdiction to review the BIA decision.
74
However, the Eleventh Circuit
in Ruiz pointed out that this reliance was misguided, as
Bendoya-Melendez was expressly overruled by Patel v. United States
Attorney General,
75
which distinguished “between questions of fact, over
which [the court] lack[s] jurisdiction, and questions of law, over which
[the court] retain[s] it.”
76
B. BIA’s Interpretation of the Statute
The Eleventh Circuit then analyzed whether the BIA interpreted the
phrase “extreme cruelty” in the VAWA special-rule to require proof of
physical abuse.
77
Ruiz argued that the BIA did construe the statute to
mean that “extreme cruelty” required proof of physical abuse, while the
70. Ruiz v. U.S. Att’y Gen., 73 F.4th 852, 860 (11th Cir. 2023).
71. Id. at 858–60.
72. Id. at 855.
73. Id. at 855–56. Additionally, the court held that they had jurisdiction to decide
whether Ruiz met the statutory standard based on the grounds that 8 U.S.C.
§ 1252(a)(2)(D) allowed courts to decide the application of a legal standard to undisputed or
established facts. Id. at 856.
74. Bedoya-Melendez v. U.S. Att’y Gen., 680 F.3d 1321, 1323 (11th Cir. 2012).
75. 971 F.3d 1258 (2020).
76. Ruiz, 73 F.4th at 856.
77. Id.
1096 MERCER LAW REVIEW Vol. 75
government argued that the BIA did not construe the statute in that
manner. If the Eleventh Circuit were to find that the BIA did not
construe the statute in that manner, then the court could not consider
whether the alleged interpretation would be improper.
78
Due to the BIA “expressly ‘adopt[ing] and affirm[ing] the Immigration
Judge’s decision,’”
79
the Eleventh Circuit began with the IJ’s opinion.
80
In reviewing the IJ’s opinion, the Eleventh Circuit stated that it seemed
“perfectly clear . . . that the IJ imposed a physical-abuse requirement.”
81
This decision was made by analyzing the language of the IJ’s opinion
which stated, with emphasis supplied by the court:
Even taking into account Cristian’s testimony that Respondent and
Mr. Blanco would often fight after she was diagnosed with cancer, and
that he once heard something break when they were fighting, there is
still no indication of physical violence or physical harm to Respondent.
Additionally, Respondent has failed to submit any documentary
evidence that supports her contention of abuse, aside from her own
written statement and a letter from a mental health counselor stating
that she is attending psychotherapy sessions as of July 2015 as
“ordered” by the court and that she suffers from posttraumatic stress
disorder. Both of these documents fail to indicate additional facts of
physical abuse or violent harm that would support Respondent’s
claims.
82
Although the BIA’s decision to uphold the IJ’s opinion was somewhat
confusing, the Eleventh Circuit noted that the BIA explicitly adopted and
affirmed the IJ’s decision, meaning that the BIA interpreted 8 U.S.C.
§ 1229(b)(2) to require proof of physical abuse and reviewed the BIA’s
interpretation based on that assumption.
83
C. Deference (Standard of Review)
The next matter that the Eleventh Circuit discussed was what level of
deference, if any, should be given to the IJ’s interpretation of “extreme
cruelty.”
84
The Eleventh Circuit quickly dismissed the applicability of
Chevron deference, stating that Skidmore deference applies in this
78. Id.
79. Id.
80. Id.
81. Id.
82. Id. at 856–57.
83. Id. at 857.
84. Id.
2024 STICKS AND STONES MAY BREAK MY BONES 1097
matter.
85
The Eleventh Circuit stated that Chevron deference applies to
non-precedential single-member orders “only when it ‘relies on’ existing
federal-court or BIA precedent—and, in turn, that such an order will be
deemed to ‘rely on’ existing precedent only when it is ‘actually dictated’
or ‘compelled’ by that precedent.”
86
The court did note, however, one
Chevron-related loose end:
The portion of the Immigration and Nationality Act that includes
§ 1229b is subject to a general provision, 8 U.S.C. § 1103(a)(1),
87
which
states, in part, that “determinations and rulings by the Attorney
General with respect to all questions of law shall be controlling.”
Although, on one reading, § 1103(a)(1) might appear on its face to
embody a freestanding rule of deference (or even obeisance) to BIA
interpretations of immigration-related statutes, in practice the
provision has been cited only as a basis for applying ordinary Chevron
principles.
88
This point was later discussed in great detail in the concurring
opinion, written by Judge Newsom. The majority, however, concluded
their discussion by reiterating that Chevron deference does not apply and
that none of the litigants had suggested that 8 U.S.C. § 1103(a)(1) had
done anything to change that.
89
D. Statutory Interpretation
The Eleventh Circuit then began its analysis of whether the
interpretation by the IJ has the “power to persuade” that is essential to
the Skidmore standard.
90
The Eleventh Circuit analyzed the
persuasiveness of the IJ’s decision by reviewing the history of the
definition of “cruelty,” as well as the legal definition of “cruelty” and how
“extreme cruelty” had been used in prior legal contexts.
91
In interpreting the meaning of “cruelty,” the Eleventh Circuit
consulted dictionaries in use at the original time of enactment of the
VAWA.
92
When the VAWA was first enacted, the term “cruelty” had both
“(1) [] an ordinary meaning that generally entails both physical and
mental abuse and (2) more specifically, is a term of art in the family-law
85. Id. at 858.
86. Id. at 857.
87. 8 U.S.C. § 1103(a)(1) (2009).
88. Ruiz, 73 F.4th at 858 n.3.
89. Id.
90. Id. at 858.
91. Id. at 858–60.
92. Id. at 858–59.
1098 MERCER LAW REVIEW Vol. 75
context that plainly encompasses both.”
93
Additionally, the Eleventh
Circuit referred to Black’s Law Dictionary, providing the following
definition of “cruelty” with added emphasis:
The intentional and malicious infliction of physical or mental suffering
upon living creatures, particularly human beings; or, as applied to the
latter, the wanton, malicious, and unnecessary infliction of pain upon
the body, or the feelings and emotions; abusive treatment; inhumanity;
outrage. Chiefly used in the law of divorce, in such phrases as “cruel
and abusive treatment,” “cruel and barbarous treatment,” or “cruel
and inhuman treatment.” In domestic relations, term includes mental
injury as well as physical.
94
The Eleventh Circuit noted that Black’s Law Dictionary further defined
“extreme cruelty” as a term of art that denotes a ground for divorce and
specifically included mental injury.
95
Following the analysis of Black’s Law Dictionary’s definitions, the
Eleventh Circuit supported its reading of the statute by focusing on how
“extreme cruelty” had been used in other legal contexts.
96
The first
example provided was 8 C.F.R. § 204.2(c)(1)(vi), which was a regulation
that Ruiz pointed to.
97
While the court noted that § 204.2(c)(1)(vi) was
promulgated under different statutes, 8 U.S.C. § 1154
98
and 8 U.S.C.
§ 1255,
99
than the one at issue, it defined an “almost identical phrase,
‘battery or extreme cruelty.’”
100
Moreover, both statutes are related to
immigration matters, with 8 U.S.C § 1154 detailing the procedure for
granting immigration status
101
and 8 U.S.C. § 1255 detailing the
procedure for adjusting the status of a nonimmigrant to that of a person
admitted for permanent residence.
102
This regulation defines battery or
93. Id.
94. Id. at 859 (quoting Cruelty, BLACK’S LAW DICTIONARY (6th ed. 1990)).
95. Id. The definition provided by Black’s Law Dictionary, with emphasis supplied by
the court, is the following: “As grounds for divorce, may consist of personal injury or
physical violence or it may be acts or omissions of such character as to destroy peace of mind
or impair bodily or mental health of person upon whom inflicted or be such as to destroy
the objects of matrimony.” Id. (quoting Extreme Cruelty, BLACK’S LAW DICTIONARY (6th ed.
1990)).
96. Id.
97. Id.
98. 8 U.S.C § 1154 (2022).
99. 8 U.S.C. § 1255 (2022).
100. Ruiz, 73 F.4th at 859.
101. 8 U.S.C § 1154.
102. 8 U.S.C. § 1255.
2024 STICKS AND STONES MAY BREAK MY BONES 1099
extreme cruelty to include threatened acts of violence and psychological
abuse.
103
The Eleventh Circuit then discussed 42 U.S.C. § 608,
104
although the
court did note that the statute is a bit further removed from 8 U.S.C.
§ 1229b(b)(2) than 8 C.F.R. § 204.2(c)(1)(vi).
105
42 U.S.C. § 608 describes
“certain conditions regarding federal grants to states providing welfare
assistance to needy families.”
106
Among these conditions is one exception
that allows a state to use federal funds to provide assistance to a family
for more than five years if an individual in the family has been battered
or subjected to extreme cruelty.
107
The statute expressly defined
“battered or subjected to extreme cruelty” to “include not only ‘physical
acts’ that threaten or result in ‘physical injury’ but also, as relevant here,
‘mental abuse.’”
108
The aforementioned review of the history of the definition of “cruelty,”
as well as the legal definition of “cruelty” and how “extreme cruelty” had
been used in prior legal contexts led the Eleventh Circuit to hold that
“extreme cruelty” is “best understood to include mental and emotional,
as well as physical, abuse.”
109
That holding led to the conclusion that the
BIA’s interpretation of the statute was unpersuasive and therefore, they
were not entitled to Skidmore deference.
110
While the above-referenced
material was used in the Eleventh Circuit’s evaluation of whether the
BIA’s interpretation of “extreme cruelty” was entitled to Skidmore
deference, the court utilized the same evidence to conclude that the BIA
misinterpreted 8 U.S.C. § 1229b(b)(2) and applied the incorrect standard
in Ruiz’s case.
111
E. Judge Newsom’s Concurring Opinion
Judge Newsom wrote a concurring opinion, thoroughly discussing 8
U.S.C. § 1103(a)(1). This statute does not pertain to the definition of
“extreme cruelty,” but rather the level of deference that the Eleventh
Circuit should award to the BIA, who acts under the delegation of the
Attorney General in immigration cases.
112
Judge Newsom pointed out
103. 8 C.F.R. § 204.2(c)(1)(vi).
104. 42 U.S.C. § 608 (2012).
105. Ruiz, 73 F.4th at 859.
106. Id.
107. Id. at 859–60.
108. Id. at 860.
109. Id.
110. Id.
111. Id.
112. 8 U.S.C. § 1103(a)(1).
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that there are inconsistencies in the reading of the statute by other courts
and the Supreme Court of the United States.
113
He stated that 8 U.S.C.
§ 1103(a)(1) could have two meanings:
First, it could mean that the Attorney General’s legal determinations
are “controlling” vis-à-vis the other Executive Branch officials
mentioned in § 1103(a)(1)—the President, Secretary of State,
diplomatic and consular officers, etc. On that understanding, the
proviso has nothing to say about—nothing to do with—the question of
how reviewing courts should treat the Attorney General’s legal
determinations. Second, the proviso could (at least as a linguistic
matter) mean that the Attorney General’s legal determinations are
“controlling” more generally—including on the judiciary.
114
Judge Newsom ultimately concluded that, in his opinion, 8 U.S.C.
§ 1103(a)(1) should be read to mean that the legal determinations by the
Attorney General, and the BIA as a result, are “controlling” only in
relation to other Executive Branch officials.
115
He goes on to give three
reasons for his conclusion: (1) it is the best understanding of 8 U.S.C.
§ 1103(a)(1) on its own terms; (2) the context in which 8 U.S.C.
§ 1103(a)(1) is situated confirms the plain meaning interpretation; and
(3) 8 U.S.C. § 1103(a)(1)’s unique history suggests the same
interpretation.
116
Judge Newsom ends his concurrence by asking for an
explanation from the Supreme Court.
117
V. IMPLICATIONS
Following the United States Court of Appeals for the Eleventh
Circuit’s decision in Ruiz v. United States Attorney General, what the
legal system recognizes as abuse under the definition of “extreme cruelty”
has been expanded.
118
With this expansion, however, comes a slew of
unknowns.
Electing not to resolve whether Ruiz’s particular facts meet the
“extreme cruelty” standard, the Eleventh Circuit remained silent on how
a victim may prove their emotional abuse and where the threshold is to
meet the “extreme cruelty” standard.
119
Subsequent decisions could
result in the Eleventh Circuit adopting an approach similar to that of the
113. Ruiz, 73 F.4th at 865–66.
114. Id. at 861.
115. Id. at 862.
116. Id. at 862–63.
117. Id. at 866.
118. Ruiz v. U.S. Att’y Gen., 73 F.4th 852 (11th Cir. 2023).
119. Id. at 860.
2024 STICKS AND STONES MAY BREAK MY BONES 1101
United States Court of Appeals for the Ninth Circuit. The Ninth Circuit
has defined “extreme cruelty” in reference to the VAWA special-rule as
more than just “mere unkindness” but rather “manipulative tactics
aimed at ensuring the batterer’s dominance and control.”
120
However, the Eleventh Circuit could choose to define “extreme cruelty”
in a different way or expand the Ninth Circuit rule. Could emotional
abuse entail something like economic abuse, which is defined under the
VAWA to mean, in the context of domestic violence, dating violence, and
abuse in later life, “behavior that is coercive, deceptive, or unreasonably
controls or restrains a person’s ability to acquire, use, or maintain
economic resources to which they are entitled . . . .”?
121
Or better yet,
could the scope of “extreme cruelty” be expanded in a way that creates
new categories of abuse (beyond mental and physical) for things such as
economic abuse?
Additionally, applicants under the VAWA special-rule have
historically been granted more leniency regarding the burden of proof for
establishing things such as continuous physical presence in the U.S.,
being of good moral character during that time period, and extreme
hardship on herself or others.
122
Could this tradition of allowing lower
standards of proof on VAWA special-rule applicants, as compared to
applicants under other immigration cancellation and/or adjustment
provisions, result in the burden of proving “extreme cruelty” being lower
than that of someone required to show “extreme cruelty” in a completely
different context?
Further, this new interpretation of “extreme cruelty” may potentially
increase the number of individuals seeking discretionary relief under the
VAWA special-rule. Without a clear standard of what level of emotional
abuse is enough to meet the “extreme cruelty” standard, allowing for the
applicant to qualify for discretionary relief, immigration lawyers, judges,
and the courts alike will have to grapple with finding a workable
standard.
Beyond the implications detailed above, the legal field may also face
implications about deference in immigration cases moving forward.
While the majority opinion concluded that the standard of review was
under Skidmore deference, the concurring opinion points out an
important ambiguity.
123
That ambiguity is that no one really knows what
8 U.S.C. § 1103(a)(1) means.
124
The majority stated that while 8 U.S.C.
120. Hernandez v. Ashcroft, 345 F.3d 824, 840 (9th Cir. 2003).
121. 34 U.S.C. § 12291(a)(13).
122. GORDON, ET AL., supra note 56.
123. Ruiz, 73 F.4th at 865.
124. Id.
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§ 1103(a)(1) does not create a higher level of deference than Chevron, its
principals should apply, even though further clarification could impact
the deference analysis in the future.
125
125. Id. at 858 n.3.
