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Seeing her, Refugio lifted her by her hair and threw her forcefully against the wall. Refugio stumbled drunkenly into the kitchen, seized a chair, and broke it across Hernandez's back.He continued hitting and kicking her while uttering insults and other verbal abuse.
After the wedding, they continued living in the same apartment in Mexicali.Hernandez's head was wounded by the assault, and it was noted during the hearing that she still bears a visible scar from the injury.However, Refugio refused to allow her to leave the house or seek medical treatment.Moreover, because a priority date is not assigned until a petition is approved, the possession of a priority date, as well as other indicia, establishes that Hernandez had an approved petition. 3009-546 (1996), removes our jurisdiction over discretionary decisions regarding adjustment of status, the BIA has no discretion to act in a manner contrary to law.Additionally, we conclude that we have jurisdiction to consider the BIA's determination that the nonviability of Hernandez's marriage constituted a proper discretionary ground for denial of her application for adjustment of status. Because the BIA's own precedent states that nonviability of a marriage is an improper basis for denial of an adjustment of status application, we retain jurisdiction over this determination.Although the verbal and physical abuse appear to have been constant throughout the marriage, Hernandez described several specific instances of particularly serious physical assault.
On the first occasion, a few months after their marriage, Refugio and Hernandez had gone to the movies.
Accordingly, we grant the petition for review and remand for further proceedings. Background Hernandez was thirty years old when she met her future husband, Refugio Acosta Gonzalez (“Refugio”), early in 1990.
Refugio frequently ate at a restaurant where Hernandez worked in Mexicali, and after a short while they began dating. Hernandez believed that Refugio “was a marvelous person, a good person ․ he used to give me flowers ․ everything was marvelous.” After dating for a few months, the two decided to move in together.
However, the Board of Immigration Appeals (“BIA”) affirmed the immigration judge's (“IJ's”) denial of Hernandez's application because it determined that Hernandez had not “been battered or subjected to extreme cruelty in the United States,” as the statute then required.
Hernandez also applied for adjustment of status on the basis of a petition for permanent residency that her husband had filed for her while they were still together.
She fled to the United States, but her husband tracked her down, promised not to hurt her again, and begged her to return to Mexico with him.