Credible Testimony Is Not Enough: Fifth Circuit Confirms IJs May Demand Reasonably Obtainable Corroboration for VAWA Cancellation and Enforces Exhaustion of Niz‑Chavez Stop‑Time Claims

Introduction

In Calderon‑Uresti v. Bondi, No. 24‑60445 (5th Cir. Nov. 6, 2025), the U.S. Court of Appeals for the Fifth Circuit denied a petition for review from a Board of Immigration Appeals (BIA) decision that had affirmed an Immigration Judge’s (IJ’s) denial of “special rule cancellation” under the Violence Against Women Act (VAWA), 8 U.S.C. § 1229b(b)(2). The petitioner, Marilu Calderon‑Uresti, testified credibly that she suffered physical and emotional abuse at the hands of her U.S. citizen spouse, but she failed to produce reasonably obtainable corroborating records (such as police and hospital documentation) despite the IJ’s express request under the REAL ID Act corroboration provision, 8 U.S.C. § 1229a(c)(4)(B).

The panel (Higginbotham, Ho, and Douglas, JJ.; opinion by Judge Higginbotham) held that, even accepting the petitioner’s testimony as credible, substantial evidence supported the IJ’s finding that she did not meet her evidentiary burden to establish “battery or extreme cruelty” because she did not supply the corroboration the IJ had reasonably required. The court also refused to consider the petitioner’s separate “regular rule cancellation” claim under 8 U.S.C. § 1229b(b)(1) because she failed to exhaust it before the BIA—even though her argument relied on the Supreme Court’s intervening decision in Niz‑Chavez v. Garland, 593 U.S. 155 (2021), concerning the stop‑time rule.

This decision cements, within the Fifth Circuit, two important propositions: (1) an IJ may require corroboration for VAWA cancellation even where testimony is credited, and the failure to provide reasonably available corroboration can be “fatal” to eligibility; and (2) petitioners must administratively exhaust stop‑time arguments grounded in Niz‑Chavez (or other legal changes) before seeking judicial review.

Summary of the Opinion

Jurisdiction and standard of review: The court confirmed jurisdiction to review the BIA’s eligibility determination for VAWA special rule cancellation as a mixed question of law and fact, but applied deferential substantial evidence review to the predominantly factual determinations. It lacks jurisdiction to review a discretionary denial at step two of cancellation decisions, but here the agency resolved eligibility, not discretion.
VAWA special rule cancellation (8 U.S.C. § 1229b(b)(2)): Although the IJ found Calderon‑Uresti’s testimony credible, the IJ required corroboration under § 1229a(c)(4)(B). The petitioner admitted she did not obtain the police report and hospital records documenting the alleged incidents; her explanations (including that she “forgot” to obtain hospital records and faced logistical barriers in obtaining the police report) did not show that evidence was not reasonably obtainable. The BIA affirmed, and the Fifth Circuit held that substantial evidence supported the agency’s conclusion that she failed to prove “battery or extreme cruelty” for eligibility purposes.
Regular rule cancellation (8 U.S.C. § 1229b(b)(1)) and the stop‑time rule: The petitioner argued she is now newly eligible for regular cancellation due to Niz‑Chavez’s single‑document rule for triggering the stop‑time statute. The court held it could not consider this argument because she did not exhaust it before the BIA—even though Niz‑Chavez issued before her BIA briefing. Consequently, the court denied the petition with respect to VAWA and dismissed the regular‑cancellation issue for lack of jurisdiction due to non‑exhaustion.

Detailed Analysis

Precedents and Statutes Cited

Wilkinson v. Garland, 601 U.S. 209 (2024): Clarifies the two‑step structure of cancellation: (1) eligibility under statutorily enumerated criteria (reviewable as questions of law, including mixed questions applying law to established facts), and (2) discretionary relief (unreviewable under 8 U.S.C. § 1252(a)(2)(B)(i)). The panel invoked Wilkinson to frame its limited review over the VAWA eligibility determination.
Guerrero‑Lasprilla v. Barr, 589 U.S. 221 (2020): Confirms that “questions of law” under § 1252(a)(2)(D) include mixed questions applying a legal standard to established facts. The court applied this to recognize reviewability of the eligibility standard for VAWA cancellation, while emphasizing deferential review of factual underpinnings.
U.S. Bank N.A. v. Village at Lakeridge, 583 U.S. 387 (2018) and Pullman‑Standard v. Swint, 456 U.S. 273 (1982): Cited for the nature of mixed questions—legal standards applied to found facts—and how appellate courts calibrate standards of review.
Wang v. Holder, 569 F.3d 531 (5th Cir. 2009): States the substantial evidence test: reversal is warranted only if the evidence compels the opposite conclusion; the petitioner bears the heavy burden to show that no reasonable factfinder could decide as the agency did.
Shaikh v. Holder, 588 F.3d 861 (5th Cir. 2009): Establishes the practice of reviewing the BIA’s decision and considering IJ reasoning only insofar as it influenced the BIA.
Avelar‑Oliva v. Barr, 954 F.3d 757 (5th Cir. 2020): Endorses the principle that failure to provide reasonably available corroborating evidence when requested by the IJ can be fatal to relief claims; also cited on exhaustion principles requiring issues to be first raised to the BIA.
Simantov v. Bondi, No. 24‑60487, 2025 WL 2587112 (5th Cir. Sept. 8, 2025) (published): A closely analogous, recent Fifth Circuit case involving VAWA cancellation. The court relied heavily on Simantov to reiterate that credible testimony may not suffice if corroboration is reasonably available and demanded by the IJ.
Matter of Mendoza‑Hernandez & Capula‑Cortes, 27 I. & N. Dec. 520 (BIA 2019) (en banc): The pre–Niz‑Chavez rule that a subsequent Notice of Hearing could “perfect” a defective Notice to Appear for stop‑time purposes.
Niz‑Chavez v. Garland, 593 U.S. 155 (2021): Reinterprets the stop‑time rule to require a single, statutorily compliant Notice to Appear that includes the hearing’s time and place; until that singular document is served, the stop‑time clock does not stop.
Statutes:
- 8 U.S.C. § 1229b(b)(2): VAWA special rule cancellation.
- 8 U.S.C. § 1229b(b)(1): Regular cancellation (10‑year presence; “exceptional and extremely unusual hardship” to a qualifying relative).
- 8 U.S.C. § 1229a(c)(4)(B): Corroboration requirement—if the IJ determines corroboration is needed, it must be provided unless the applicant demonstrates it is not in the applicant’s possession and cannot be reasonably obtained.
- 8 U.S.C. § 1229a(c)(1)(A): IJ’s determination is based on the evidence produced at the hearing.
- 8 U.S.C. § 1252(a)(2)(B)(i): No jurisdiction over discretionary judgments concerning cancellation of removal.
- 8 U.S.C. § 1252(a)(2)(D): Savings clause for constitutional claims or questions of law (including mixed questions) despite other jurisdictional bars.
- 8 U.S.C. § 1252(d)(1): Administrative exhaustion requirement.
- 8 U.S.C. § 1229b(d)(1): Stop‑time rule.

Legal Reasoning

The panel divided its analysis into two issues: VAWA special rule cancellation (eligibility and corroboration), and regular rule cancellation (exhaustion and stop‑time).

1) VAWA special rule cancellation and corroboration

The statutory scheme is explicit: once an IJ determines that an applicant “should provide evidence which corroborates otherwise credible testimony, such evidence must be provided unless the applicant demonstrates that [she] does not have the evidence and cannot reasonably obtain [it].” 8 U.S.C. § 1229a(c)(4)(B). The IJ here made that determination. The IJ credited Calderon‑Uresti’s testimony but emphasized the absence of:

The police report and photographs from the incident for which police responded and documented bruising;
Hospital records from the alleged vehicular incident requiring hospitalization;
Any third‑party statements or testimony (friends, neighbors, co‑workers, family, shelter workers, clergy, etc.) corroborating injuries or disclosures;
Other potential corroborants (text messages, 911 call logs, protection order records, social media messages, medical notes, etc.).

The IJ found the explanations (“forgot”; difficulty obtaining the police report because she did not drive and could not ask her husband to take her) did not establish that the evidence was not reasonably obtainable over the several months before the merits hearing. The IJ’s credibility determination remained positive; however, the IJ concluded that credibility alone did not carry the statutory burden in light of the unfulfilled corroboration request. The BIA agreed and affirmed on that eligibility ground without reaching hardship.

On review, the Fifth Circuit applied substantial evidence review, emphasizing that the mixed question presented (whether facts satisfy the “battery or extreme cruelty” standard given the evidentiary posture) is “primarily factual” and thus entitled to deference. Tracking its recent decision in Simantov, the court held that the failure to produce reasonably available corroboration—after the IJ had requested it under § 1229a(c)(4)(B)—was “fatal” to the application. Because “the evidence [did not] compel[]” a contrary conclusion, the court denied the petition on the VAWA issue.

2) Regular rule cancellation and the stop‑time rule: exhaustion

Calderon‑Uresti separately sought remand to pursue regular cancellation under § 1229b(b)(1), arguing that after Niz‑Chavez, the defective Notice to Appear (which omitted the hearing time and date) never triggered the stop‑time rule, and she has now accrued the needed ten years of continuous physical presence. The court declined to reach the merits because the argument was unexhausted: Niz‑Chavez issued in 2021, and Calderon‑Uresti’s BIA appeal brief (filed August 2022) failed to raise any regular‑cancellation argument or cite Niz‑Chavez. Because the BIA “never had a chance to consider” this basis for relief, the court concluded it lacked jurisdiction to consider it on petition for review and pointed to the proper channel—raising the issue via motion to reopen or reconsider at the BIA.

Impact and Practice Implications

A. Corroboration in VAWA cancellation cases

This decision, aligning with Simantov, makes explicit that within the Fifth Circuit:

Credible testimony alone may not suffice to establish the “battery or extreme cruelty” eligibility element of VAWA cancellation when the IJ reasonably requires corroboration under § 1229a(c)(4)(B).
The burden rests squarely with the applicant to either produce corroboration or demonstrate concretely, with specifics, that it is not reasonably obtainable (e.g., documented requests and denials, safety impediments, control by the abuser, logistical barriers despite reasonable efforts, affidavits explaining risk factors, time‑stamped attempts to obtain records).
The IJ may deny eligibility even without an adverse credibility finding; “credible” does not equal “sufficient” under the statute where corroboration is reasonably available but not provided.

Practitioners should anticipate corroboration requests and build records accordingly. Examples of commonly available corroboration in domestic‑violence contexts include:

Police reports; 911 call logs; CAD reports; photographs taken by officers;
Medical and hospital records (ER visits, triage notes, injury charts);
Protective order filings; family court records; CPS notes if children were present;
Affidavits from neighbors, relatives, co‑workers, teachers, clergy, or shelter advocates;
Digital evidence: text messages, emails, voicemail, social media messages showing threats or admissions;
Mental health evaluations noting trauma histories; safety plans from shelters; case manager letters.

Where obtaining such evidence poses real‑world obstacles (control by the abuser, safety concerns, lack of transportation, language barriers, fear of retaliation), applicants should create a paper trail demonstrating diligent efforts and the concrete reasons evidence could not reasonably be obtained. Absent that showing, this decision signals that failure to corroborate will likely be fatal on eligibility in the Fifth Circuit.

Note the distinction between VAWA self‑petitions filed with USCIS—where regulations reference an “any credible evidence” standard—and VAWA cancellation proceedings before EOIR, which are governed by 8 U.S.C. § 1229a(c)(4)(B). This case underscores that, in EOIR, the corroboration statute governs and can require more than “credible” testimony when the IJ reasonably demands supporting evidence.

B. Exhaustion of stop‑time and other evolving‑law arguments

The panel’s exhaustion holding has immediate consequences:

Even when Supreme Court precedent changes the law (e.g., Niz‑Chavez), a noncitizen must raise the new legal claim to the BIA at the earliest opportunity (appeal brief or motion to reopen/reconsider). Failure to do so forfeits judicial review in the Fifth Circuit.
The court characterized non‑exhaustion as “jurisdictional” and dismissed the stop‑time argument. Practically, whether framed as jurisdictional or as a mandatory claims‑processing rule, the message is the same: do not bypass the BIA on new legal theories; develop the issue in the agency first.
Litigants with pending petitions who uncover unexhausted issues should promptly file a motion to reopen or reconsider with the BIA and seek either a stay or a limited remand; the court of appeals will not consider new evidence and will confine review to the administrative record from the hearing. See 8 U.S.C. § 1229a(c)(1)(A).

Complex Concepts Simplified

VAWA special rule cancellation vs. regular cancellation:
- VAWA cancellation (8 U.S.C. § 1229b(b)(2)): Tailored for noncitizens battered or subjected to extreme cruelty by a U.S. citizen or LPR spouse/parent; has more lenient presence and hardship requirements but still requires proof of abuse.
- Regular cancellation (8 U.S.C. § 1229b(b)(1)): Requires 10 years’ continuous physical presence; good moral character; no disqualifying offenses; and “exceptional and extremely unusual hardship” to a qualifying U.S.-citizen or LPR relative. More stringent than VAWA’s “extreme hardship” to the applicant or certain family members.
Battery or extreme cruelty: A statutory eligibility element for VAWA cancellation; encompasses physical violence and certain forms of non‑physical abuse (e.g., severe emotional abuse, sexual coercion, controlling behavior), but must be proven with evidence sufficient to satisfy the IJ—especially if corroboration is requested under § 1229a(c)(4)(B).
Corroboration (8 U.S.C. § 1229a(c)(4)(B)): The IJ may require corroborating evidence even if testimony is credible. The applicant must either produce it or show it is not in the applicant’s possession and cannot be reasonably obtained. Failure to do either can defeat eligibility.
Substantial evidence review: A highly deferential standard; the court asks whether a reasonable factfinder could have reached the agency’s conclusion. Reversal occurs only if the record compels the opposite result.
Stop‑time rule (8 U.S.C. § 1229b(d)(1)): Continuous residence/presence stops when DHS properly serves a single, compliant Notice to Appear (NTA) with time and place information (per Niz‑Chavez). If stop‑time is not triggered, presence continues to accrue. But such arguments must be presented to the BIA first (exhaustion).
Exhaustion (8 U.S.C. § 1252(d)(1)): A noncitizen must raise issues to the BIA before seeking judicial review. New legal theories arising from intervening precedent should be pursued via BIA appeal or motion to reopen or reconsider.
Record rule (8 U.S.C. § 1229a(c)(1)(A)): The IJ’s decision is based on evidence produced at the hearing. Courts of appeals review that administrative record; they do not consider new evidence submitted later.

Observations and Strategic Guidance

Responding to an IJ’s corroboration request: If the IJ signals that corroboration is expected, consider immediately requesting a continuance to obtain:
- Police records (including photo logs), 911/call records, and medical records;
- Affidavits from witnesses and domestic‑violence professionals;
- Evidence of attempts to obtain records (request letters, agency responses, proof of fees paid, sworn statements about safety risks).
If evidence cannot be obtained, build a specific, documented showing of why it is not “reasonably obtainable” (e.g., abuser control over transportation/communications; risks of retaliation; denials by records custodians; language barriers; protective orders restricting access).
Bridging testimony and eligibility: “Credible” testimony supports but does not automatically satisfy the statutory eligibility standard if the IJ has invoked § 1229a(c)(4)(B). The more severe the corroboration gap, the less likely testimony alone will suffice in the Fifth Circuit.
Preserving stop‑time arguments: After Niz‑Chavez, any defect in the initial NTA should be raised explicitly to the BIA. If the case is already at the court of appeals, file a motion to reopen with the BIA and notify the court; otherwise, the court is likely to refuse to consider the issue.
Motions to reopen during petitions for review: A pending motion to reopen at the BIA does not generally prevent the court from deciding the petition for review. If your petition hinges on new evidence, consider asking the court to stay or remand, and ensure the BIA has a chance to rule on the new material.

Conclusion

Calderon‑Uresti v. Bondi reinforces two central doctrines in Fifth Circuit immigration practice. First, in VAWA special rule cancellation cases, credible testimony alone will not invariably establish eligibility when the IJ reasonably demands corroboration under 8 U.S.C. § 1229a(c)(4)(B). Applicants must either produce corroborating evidence or make a persuasive, specific showing that it is not reasonably obtainable. Failure to do so will typically be fatal under deferential substantial‑evidence review. Second, arguments predicated on intervening legal developments—such as Niz‑Chavez’s single‑document rule for stop‑time—must be raised to the BIA in the first instance. Courts of appeals will not entertain unexhausted claims.

As a practical matter, the decision underscores the importance of robust evidentiary development in VAWA cancellation applications and diligent preservation of all legal theories at the agency level. It also illustrates the post‑Wilkinson jurisdictional landscape in cancellation cases: courts may review mixed questions of statutory eligibility but will uphold agency findings absent record evidence that compels a contrary result, and they will not reach issues fatally undermined by non‑exhaustion. In short, Calderon‑Uresti tightens the evidentiary and procedural expectations for noncitizens seeking relief under both VAWA and regular cancellation in the Fifth Circuit.