A New Reading of VAWA's "Is or Was": The Third Circuit's Decision in Cardenas v. Attorney General

The Third Circuit has clarified that special rule cancellation of removal is available to battered children even when the abuser was not yet a lawful permanent resident at the time the abuse occurred, overturning a Board of Immigration Appeals precedent.

Background: The Cardenas Family

Samuel Cardenas entered the United States without authorization from the Dominican Republic in 1999 at the age of fourteen. He lived with his mother, Maria Perdomo, and his stepfather, Francisco Escolastico, a man who subjected both Cardenas and his mother to severe domestic violence. Escolastico beat Perdomo daily, isolated her from the outside world, and physically attacked Cardenas when the boy tried to intervene.

Cardenas eventually left home as a teenager to escape the abuse, but remained his mother's primary emotional and financial support. After Perdomo finally ended the relationship , only after securing lawful permanent resident (LPR) status, because Escolastico had repeatedly threatened to have her deported, she was diagnosed with Major Depressive Disorder and PTSD and attempted suicide at least three times. Cardenas called 911 on at least one occasion to save her life.

Critically for the legal analysis: Escolastico, who was undocumented at the time the abuse occurred, later obtained LPR status and thereafter threatened Cardenas directly. There is also record evidence suggesting Escolastico may have become a U.S. citizen before Cardenas filed for relief.

When the government sought to remove Cardenas in 2019, he applied for two forms of relief: special rule cancellation under the Violence Against Women Act (VAWA) provisions for battered children, and standard cancellation of removal for non-LPRs.

The Legal Question on Special Rule Cancellation

The VAWA special rule cancellation statute permits the Attorney General to cancel removal for an alien who demonstrates that they have been battered or subjected to extreme cruelty by a parent "who is or was" a lawful permanent resident or U.S. citizen. The statute reads:

8 U.S.C. § 1229b(b)(2)(A)(i)(II)

"the alien has been battered or subjected to extreme cruelty by a . . . parent who is or was a lawful permanent resident"

The Immigration Judge and BIA denied Cardenas's special rule cancellation claim, relying on Matter of L-L-P-, which held that the abuser must have been an LPR at the time of the abuse. The BIA reasoned the statute was ambiguous and that "is" could mean either "at the time of abuse" or "at the time the application was filed."

The Third Circuit flatly rejected this reading.

The Court's Plain-Language Analysis

Writing for the panel, Judge Shwartz applied straightforward grammatical and statutory interpretation principles. "Is" is unambiguously a present-tense verb. It refers to the present moment, which under the statute runs through the adjudication of the application. "Was" refers to the past. Together, "is or was" means the abuser held LPR or citizen status at any point before the application was adjudicated… not necessarily at the precise moment the abuse occurred.

The court also pointed out that the BIA's narrow reading rendered the phrase "or was" entirely superfluous. If the statute only cared about the abuser's status at the time of abuse, there would be no need for a disjunctive then "was" would be the only relevant verb. Courts are obligated to give effect to every word of a statute, and reading "is or was" to mean only "was at the time of abuse" collapses a purposeful two-word phrase into a single, narrower concept.

The court added that had Congress intended to limit relief to cases where the abuser was already an LPR at the time of abuse, it could easily have said so, using language like "who was then a lawful permanent resident." It did not. Instead, it chose broader temporal language that encompasses abusers who gain status before the application is resolved.

Rejecting Matter of L-L-P-

The BIA's precedential decision in L-L-P- found the statute "susceptible to more than one interpretation" and therefore ambiguous. The Third Circuit found this conclusion violated basic rules of grammar. "Is" is present tense. Full stop. To read it as referring to past status at the time of abuse requires rewriting the word itself.

The court also criticized the BIA's resort to legislative history and a neighboring parenthetical provision to support its interpretation. Because the statute's plain text is unambiguous, neither device was appropriate to consult. As the court noted, it is the provisions of the law, not the principal concerns of legislators, that govern.

Because Escolastico was an LPR (and potentially a U.S. citizen) by the time Cardenas sought relief, Cardenas satisfied the statutory requirement. The court remanded for the IJ to evaluate whether he met the statute's remaining conditions, including the hardship showing specific to the special rule cancellation provision.

The Hardship Ruling: Standard Cancellation Denied

For standard cancellation of removal under § 1229b(b)(1), an applicant must show that removal would result in "exceptional and extremely unusual hardship" to a qualifying U.S. citizen or LPR family member, a notoriously demanding standard requiring hardship "substantially beyond the ordinary hardship that would be expected when a close family member leaves this country."

Cardenas presented a psychoanalyst who testified that his mother's abuse history was the worst she had ever encountered, and that Perdomo would face an elevated risk of suicide if Cardenas were deported due to increased cognitive distortions and worsening depression.

Nonetheless, the Third Circuit upheld the IJ and BIA's denial under the deferential substantial evidence standard. The agencies had considered the full record, including Perdomo's suicide history and the expert's predictions, but concluded that her changed circumstances, she had remarried, was fully employed, no longer feared Escolastico, and had the support of other family members — mitigated the projected mental health consequences. The court was careful to note it did not minimize the severity of Perdomo's trauma, but found the evidence did not compel a contrary conclusion.

A Note on the Hardship Standard Before EOIR

The Third Circuit's treatment of the hardship question is a reminder of just how exacting the "exceptional and extremely unusual hardship" standard is in practice. The IJ and BIA acknowledged Perdomo's PTSD diagnosis, her multiple suicide attempts, and expert testimony predicting mental decompensation, and still found the standard unmet, based on her employment, remarriage, and access to other family support.

For advocates, this underscores the importance of building a robust evidentiary record that goes beyond the applicant's family member's mental health history in isolation. Documenting the specific and irreplaceable role the applicant plays — as Cardenas did as his mother's primary support during and after years of abuse, is essential. So is anticipating and addressing the agency's likely mitigating factors before they appear in a denial order.

The dissenting BIA member in this case would have found exceptional hardship, citing the "extreme nature of the abuse" Perdomo experienced. The Third Circuit's affirmance, despite that dissent, illustrates why the standard continues to be among the most challenging thresholds in removal defense.