                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                     F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                    December 6, 2005

                        _______________________                Charles R. Fulbruge III
                                                                       Clerk
                              No. 05-60223
                            Summary Calendar
                        _______________________

                        NEREIDA HERNANDEZ-GRADO,

                                                               Petitioner,

                                  versus

                        ALBERTO R. GONZALES,
               ATTORNEY GENERAL OF THE UNITED STATES.

                                                               Respondent.

_________________________________________________________________

                 Petition for Review of an Order
               of the Board of Immigration Appeals
                        BIA No. A70 604 831
________________________________________________________________

Before JONES, WIENER, and DEMOSS, Circuit Judges.

PER CURIAM:*

           The Petitioner, Nereida Hernandez-Grado, seeks review of

the Board of Immigration Appeals’ (“BIA”) denial of her application

for   battered-spouse    cancellation      of   removal   pursuant    to   the

Immigration and Nationality Act (“INA”) § 240A(b)(2), 8 U.S.C. §

1229b(b)(2).     In its denial, the BIA adopted and affirmed the

Immigration Judge’s decision.         Because Ms. Hernandez-Grado has

failed to prove that she was in a valid common-law marriage under

Texas law, she cannot establish statutory eligibility for battered-


      *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
spouse cancellation of removal under INA § 240A(b)(2).           Therefore,

Ms. Hernandez-Grado’s petition for review is DENIED.

                              I.   BACKGROUND

           Nereida Hernandez-Grado is a native and citizen of Mexico

who entered the United States without inspection on September 12,

1993.   On September 9, 2003, Ms. Hernandez-Grado was served with a

Notice to Appear, charging her with removability pursuant to INA §

212(a)(6)(A)(i) as an alien present in the United States without

having been admitted or paroled.

           Ms. Hernandez-Grado appeared at a hearing on October 9,

2003, and admitted the factual allegations in the Notice to Appear

and conceded removability pursuant to INA § 212(a)(6)(A)(i).            She

subsequently applied for non-permanent resident cancellation of

removal pursuant to INA § 240A(b)(1), and for battered-spouse

cancellation   of   removal   pursuant   to     INA   §   240A(b)(2).   The

Immigration Judge denied cancellation of removal pursuant to INA §

240A(b)(1) because Ms. Hernandez-Grado fell short of accumulating

the requisite ten years of continuous physical presence.                The

Immigration Judge also denied cancellation of removal pursuant to

INA § 240A(b)(2) because he found that Ms. Hernandez-Grado did not

establish that she had a valid common-law marriage under Texas law.

The Immigration Judge did grant Ms. Hernandez-Grado sixty days

voluntary departure.




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              Ms. Hernandez-Grado subsequently appealed to the BIA, and

on March 2, 2005, the BIA adopted and affirmed the Immigration

Judge’s decision.      Ms. Hernandez-Grado has sought review in this

court, arguing that the Immigration Judge and BIA erred in holding

that she could not establish common-law marriage and therefore was

not eligible for battered spouse cancellation of removal pursuant

to INA § 240A(b)(2).1

              Ms. Hernandez-Grado testified that she married Adolfo

Hernandez on December 4, 1995. The marriage was terminated through

a divorce on June 11, 2002.      Ms. Hernandez-Grado further testified

that she met and began living with Jesus Cordova in 1998 while she

was still married to Mr. Hernandez.         She listed the date of her

“marriage” to Mr. Cordova in her application for cancellation of

removal as June 2002.      She also stated in the application that her

marriage to Mr. Cordova was terminated or ended on July 29 or

August 1, 2002 when a restraining order was issued against him.

Ms.    Hernandez-Grado    further   asserted    that   Mr.   Cordova    was

domestically violent and that sometimes he would drink and beat

her.       She asserted that during these incidents, the authorities

were called to the scene and that she went to the hospital for

medical treatment.      She contended that the last domestic violence




       1
            Petitioner also asserts that only a 3-year residency requirement
applies because of her battered spouse claim, but we do not reach this
contention.

                                     3
incident occurred on June 29, 2002, and that she and Mr. Cordova

are now separated.

                       II.    STANDARD OF REVIEW

            On a petition for review of a BIA decision, we review the

BIA’s “rulings of law de novo, but we will defer to the BIA’s

interpretation of immigration regulations if the interpretation is

reasonable.”   Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir.

2001).   We review the BIA’s findings of fact for substantial

evidence.    Roy v. Ashcroft, 389 F.3d 132, 137-38 (5th Cir. 2004).

We will not reverse the BIA unless “the evidence is so compelling

that no reasonable fact finder could fail to find the petitioner

statutorily eligible for relief.”        Id. at 138 (internal quotations

and citations omitted).

                             III.   DISCUSSION

            Under 8 C.F.R. § 1240.8(d), Ms. Hernandez-Grado, in

asking for relief from removal, has “the burden of establishing

that [] she is eligible for any requested benefit or privilege and

that it should be granted in the exercise of discretion.”            Ms.

Hernandez-Grado argues that she qualifies for cancellation of

removal under INA § 240A(b)(2).          To prove that she qualifies for

relief, she must show that she “has been battered or subjected to

extreme cruelty by a spouse . . . who is or was a lawful permanent

resident.” 8 U.S.C. § 1229b(b)(2)(A)(i)(II). The Immigration Judge

ruled that, because Ms. Hernandez-Grado did not prove that she had


                                     4
a valid common-law marriage to Mr. Cordova (her batterer), she was

not battered “by a spouse” as required under INA § 240A(b)(2) and

therefore did not qualify for relief from removal.

           In Texas, to establish a common-law marriage, a party

must prove that:    (1) the parties agreed to be married, (2) after

the agreement the parties lived together in Texas, and (3) the

parties represented to others in Texas that they were married.

Flores v. Flores, 847 S.W.2d 648, 650 (Tex. App.      1993) (citations

omitted). Ms. Hernandez-Grado was divorced from her first husband,

Mr. Hernandez, on June 11, 2002. Her relationship with Mr. Cordova

prior to that date is irrelevant to a determination as to whether

they entered into a common-law marriage.       See Home Indem. Co. v.

Edwards, 488 S.W.2d 561, 563 (Tex. Civ. App. 1972); Edelstein v.

Brown, 80 S.W. 1027, 1028 (Tex. Civ. App. 1904).        Ms. Hernandez-

Grado must produce evidence that her former illicit relationship

with Mr. Codova changed to a legal marital relationship after her

divorce from Mr. Hernandez.        See Edwards, 488 S.W.2d at 563.

Because   Ms.   Hernandez-Grado   terminated   her   relationship   with

Cordova on July 29 or August 1, 2002, that is the relevant period

for determining whether Ms. Hernandez-Grado and Mr. Cordova had

participated in a common-law marriage.

           Ms. Hernandez-Grado has failed to prove at least two of

the three necessary elements of common-law marriage in Texas.

First, she has failed to demonstrate that she and Cordova agreed to

be married at any time between June 11, 2002 and July 29 or

                                   5
August 1, 2002.    Second, she has not provided any evidence that she

lived with Mr. Cordova during that period.          Indeed, the June 11,

2002 hospital report reflects that on that date, Ms. Hernandez-

Grado and Mr. Cordova had different addresses, and Ms. Hernandez-

Grado offers no proof that she and Cordova ever cohabited during

the required period.     Last, although there is some evidence in the

record that Ms. Hernandez-Grado represented to others in Texas that

she and Mr. Cordova were married during the relevant interval, it

appears that they were inconsistent in their representations of

their relationship. We need not analyze the third element further,

however, because Ms. Hernandez-Grado’s failure to prove the first

two elements renders untenable her claim of a Texas common-law

marriage.

            The   Immigration   Judge   correctly   determined   that   Ms.

Hernandez-Grado was not battered “by a spouse”, as required under

INA § 240A(b)(2), and does not qualify for relief from removal.

Accordingly, Ms. Hernandez-Grado’s petition for review is DENIED.




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