NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARCELO MAURICIO OVIEDO, 

Petitioner, 

 v. 

MERRICK GARLAND, Attorney General, 

Respondent.

No. 18-72621 

Agency No. A096-027-040 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted March 11, 2021**

Las Vegas, Nevada

Before: NGUYEN and BENNETT, Circuit Judges, and HARPOOL,*** District 

Judge.

Marcelo Mauricio Oviedo, a native and citizen of Chile, applied for specialrule cancellation of removal under the Violence Against Women Act based on 

alleged abuse he suffered at the hands of his second wife. The immigration judge 

* 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 M. Douglas Harpool, United States District Judge for 

the Western District of Missouri, sitting by designation.

FILED

MAR 15 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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(“IJ”) determined that Oviedo’s second marriage was fraudulent and for the 

purpose of immigration benefits and that Oviedo’s testimony about that marriage 

and the alleged abuse was not credible. The IJ also determined that even if Oviedo 

was credible, he had not shown he was subject to “extreme battery.” The IJ denied 

cancellation and Oviedo’s alternative relief of voluntary departure, and the Board 

of Immigration Appeals (“BIA”) affirmed. We have jurisdiction under 8 U.S.C. 

§ 1252 and deny the petition. 

1. Substantial evidence supports the IJ’s finding that Oviedo’s second 

marriage was not bona fide. See Garcia-Martinez v. Sessions, 886 F.3d 1291, 

1293 (9th Cir. 2018) (“Where, as here, the BIA agrees with the IJ’s reasoning, we 

review both decisions.”). It appears that Oviedo and his current (third) wife have 

been in a relationship since at least September 2005. This relationship predated

and outlasted Oviedo’s second marriage, during which his second wife filed an I130, Petition for Alien Relative, on Oviedo’s behalf and Oviedo filed an I-485, 

Application to Register Residence or Adjust Status. The record supports the IJ’s

conclusion that Oviedo maintained a true partnership (along with a house, financial 

accounts, and a child) with his current wife while legally marrying his second wife

for immigration purposes. The BIA found that the IJ properly denied Oviedo 

special-rule cancellation based on the IJ’s finding that Oviedo’s testimony 

regarding his second marriage was not credible due to Oviedo’s evasive demeanor 
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and his inability or unwillingness to explain the factual record. The hearing 

transcript bears this out: he repeatedly refused to answer or stated that he did not 

remember the answer to basic questions about the timing and nature of his 

relationships, even where the answers were included in the evidence he submitted 

to the IJ.

2. Substantial evidence supports the agency’s finding that even if Oviedo 

was credible, he was not subjected to battery or extreme cruelty as required for 

special-rule cancellation under 8 U.S.C. § 1229b(b)(2)(A); see Lopez-Birrueta v. 

Holder, 633 F.3d 1211, 1214–15 (9th Cir. 2011) (applying definition of “battery or 

extreme cruelty” in 8 C.F.R. § 204.2(c)(1)(vi) to special-rule cancellation under 

8 U.S.C. § 1229b(b)(2)(A)). Oviedo alleges that his second wife was an alcoholic, 

insulted and yelled at him, demanded money, and threatened him with immigration 

consequences. This does not rise to the level of “the extreme concept of domestic 

violence” in the form of “tactics of control . . . intertwined with the threat of harm 

in order to maintain [the second wife’s] dominance through fear” or “manipulative 

tactics aimed at ensuring [the second wife’s] dominance and control.” Hernandez 

v. Ashcroft, 345 F.3d 824, 840 (9th Cir. 2003) (citation omitted). Neither the IJ nor 

the BIA was required to give a clinician’s report concluding that Oviedo is a 

domestic violence victim particular weight, and the report alone did not compel a 

finding of extreme cruelty. 
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3. Finally, substantial evidence supports the IJ’s finding, adopted by the 

BIA, that Oviedo per se lacks good moral character because he gave false 

testimony regarding his second marriage. This finding bars eligibility for 

voluntary departure, which requires that the noncitizen be and have been “a person 

of good moral character for at least 5 years immediately preceding the alien’s 

application.” 8 U.S.C. § 1229c(b)(1)(B); see 8 U.S.C. § 1101(f)(6) (stating that 

“one who has given false testimony for the purpose of obtaining any benefits under 

this chapter” per se lacks good moral character).

PETITION DENIED.