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Although the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. As this conclusion presages, we hold that the BIA erred in concluding that the nonviability of Hernandez's marriage was a proper basis for denying her application for adjustment of status.In expressly overriding the viability test, the BIA itself had previously proclaimed that “the denial of an adjustment of status application ․ cannot be based solely on the nonviability of the marriage at the time of the adjustment application.” Thus, the BIA acted in a manner contrary to law in denying Hernandez's application for adjustment of status because of the nonviability of her marriage.While testifying about this assault Hernandez became upset and began crying.
After Hernandez submitted to his demand and returned to Mexico, the physical abuse began again.
She was awakened some time later by the shattering of the bedroom window above her head.
Refugio entered the darkened room through the broken window, landing on Hernandez.
Several months later, “we were already in love and he asked me to get married.” They were married in October 1990, in a small civil ceremony with a few friends present.
After the wedding, they continued living in the same apartment in Mexicali.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.