United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS July 5, 2006
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
05-60467
KATHLEEN WILMORE,
Petitioner,
v.
ALBERTO R. GONZALES,
U.S. Attorney General,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
Before DeMOSS, BENAVIDES, and PRADO, Circuit Judges.
Benavides, Circuit Judge:
This case involves a petition for review of an order of the
Board of Immigration Appeals (“BIA”) that finds the petitioner is
ineligible for cancellation of removal pursuant to the battered
spouse provision in 8 U.S.C. § 1229b(b)(2) (Supp. V 2005). The
Respondent contends that this Court does not have jurisdiction to
review the determination of whether the Petitioner was subjected
to “extreme cruelty” under section 1229b(b)(2). We conclude that
the determination of whether a petitioner has shown that she has
been subjected to extreme cruelty is a discretionary one. Because
Congress has stripped courts of jurisdiction to review the Attorney
General’s discretionary decisions under section 1229b(b)(2), we
must dismiss this petition.
I. FACTUAL AND PROCEDURAL HISTORY
The petitioner, Kathleen Wilmore, a native of Jamaica and
citizen of the United Kingdom, entered the United States as a
non-immigrant temporary visitor in 1981. Although the last
extension of her temporary visitor status expired in December 1983,
she has lived continuously in the United States since 1981.
In 1996, Wilmore married David Wilmore, a U.S. citizen. In
1997, David filed an immigrant visa petition to allow Wilmore, as
the spouse of a U.S. citizen, to apply for an adjustment in status
to that of a lawful permanent resident. David subsequently
withdrew the petition and filed for divorce.
In February 2003, the INS served Wilmore with a notice to
appear, placing her in proceedings to remove her. She was charged
as being an arriving alien subject to removal pursuant to INA §
212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I) (Supp. V 2005),
for not being in possession of a valid unexpired immigrant visa,
reentry permit, border crossing card, or other valid entry document
required by the INA.
Shortly before the removal hearing, David filed a second
immigrant visa petition on Wilmore’s behalf but later withdrew it.
At the removal hearing, Wilmore appeared pro se. Wilmore testified
2
that she and David were still married but conceded that the INS had
denied her application for adjustment of status and that she did
not have any other document rendering her presence in the U.S.
lawful. Based on those statements, the immigration judge (“IJ”)
found her subject to removal. The IJ advised Wilmore that she
might be able to obtain a grant of cancellation of removal, and she
replied that she wished to apply for such relief. Pursuant to 8
U.S.C. § 1229b(b)(1)(D), the Attorney General may cancel the
removal of and adjust to the status of permanent resident, an alien
who “establishes that removal would result in exceptional and
extremely unusual hardship to the alien’s spouse, parent, or child,
who is a citizen of the United States or an alien lawfully admitted
for permanent residence.”
After obtaining counsel, Wilmore submitted an application for
cancellation of removal based on section 1229b(b)(1)(D)’s
exceptional and extremely unusual hardship requirement. During
the hearing held on her application, Wilmore stated through counsel
that she was changing her application instead to allow her to seek
cancellation pursuant to 8 U.S.C. § 1229b(b)(2)(A)(i)(I). Pursuant
to section 1229b(b)(2)(A)(i)(I), the “Attorney General may cancel
removal” if an alien proves, among other things, that she “has been
battered or subjected to extreme cruelty by a spouse or parent who
is or was a United States citizen . . . .” Id. (emphasis added).
At the conclusion of the hearing, the IJ found her subject to
3
removal and further found that she had met all the eligibility
requirements for “special rule” cancellation except the “extreme
cruelty” requirement. Wilmore appealed to the BIA. On April 29,
2005, the BIA dismissed the appeal, stating that it concurred in
the IJ’s finding that extreme cruelty was not demonstrated. The
BIA also gave Wilmore an additional thirty days from the date of
its order to depart voluntarily. Wilmore now petitions this Court
for review of the BIA’s decision.
II. JURISDICTION
A. 8 U.S.C. § 1252(a)(2)(B)
As a threshold matter, the Respondent argues that the
following statutory language relieves this Court of subject matter
jurisdiction to review the IJ’s discretionary decision: “no court
shall have jurisdiction to review-(i) any judgment regarding the
granting of relief under § 1182(h), 1182(i), 1229b, 1229c, or 1255
of this title.” 8 U.S.C. § 1252(a)(2)(B)(i) (Supp. V 2005)
(emphasis added). As noted above, the instant case involves a
request for cancellation of removal pursuant to section 1229b.
This Court has explained that, pursuant to section 1252(a)(2)(B),
this Court lacks jurisdiction to review discretionary decisions
under section 1229b but retains jurisdiction over purely legal and
nondiscretionary questions. Mireles-Valdez v. Ashcroft, 349 F.3d
213, 215-16 (5th Cir. 2003).
The IJ found, and the BIA agreed, that Wilmore had met all the
4
requirements for cancellation of removal except establishing that
she had been subjected to extreme cruelty by her husband.
Wilmore’s sole claim of error on appeal is that the IJ erred in
finding that she had not established extreme cruelty. Accordingly,
to determine whether we have jurisdiction, we must decide whether
a determination of extreme cruelty is discretionary.
The Code of Federal Regulations defines battery or extreme
cruelty as including, but not limited to:
being the victim of any act or threatened act of
violence, including any forceful detention, which results
or threatens to result in physical or mental injury.
Psychological or sexual abuse or exploitation, including
rape, molestation, incest (if the victim is a minor), or
forced prostitution shall be considered acts of violence.
Other abusive actions may also be acts of violence under
certain circumstances, including acts that, in and of
themselves, may not initially appear violent but that are
a part of an overall pattern of violence.
8 C.F.R. § 204.2(c)(1)(vi) (2005).
Although this Circuit has yet to decide whether the
determination of extreme cruelty is a discretionary one,1 we have
held that a determination of “extreme hardship” under section 1229b
was discretionary because the term “was not self-explanatory, and
reasonable men could easily differ as to [its] construction.”
Moosa v. INS, 171 F.3d 994, 1013 (5th Cir. 1999) (quoting INS v.
1
We are aware of two unpublished opinions in which we
discussed the issue of whether “extreme cruelty” decisions pursuant
to section 1229b are discretionary. Luna-Ramirez v. Ashcroft, 111
F. App’x. 737 (5th Cir. Oct. 13, 2004); Garnica-Villarreal v.
Ashcroft, 123 F. App’x. 625 (5th Cir. Feb. 24, 2005). In these
opinions, however, we did not resolve the issue.
5
Jong Ha Wang, 450 U.S. 139, 144 (1981)). Here, we find that the
term “extreme cruelty” is not self-explanatory and that reasonable
men could differ as to its meaning.
The Ninth and Tenth Circuits have addressed the question of
whether the determination of “extreme cruelty” is discretionary
and are split. The Ninth Circuit concluded that it had
jurisdiction because the determination of “extreme cruelty” was a
reviewable legal and factual one. Hernandez v. Ashcroft, 345 F.3d
824, 833-35 (9th Cir. 2003).2 The Hernandez Court opined as
follows:
Extreme cruelty provides an inquiry into an individual’s
experience of mental or psychological cruelty, an
alternative measure of domestic violence that can also be
assessed on the basis of objective standards. Ultimately,
the question of whether an individual has experienced
domestic violence in either its physical or psychological
manifestation is a clinical one, akin to the issue of
whether an alien is a “habitual drunkard,” which Kalaw3
established was clearly nondiscretionary.
Id. at 834 (footnote added).
On the other hand, the Tenth Circuit held that the
determination of “extreme cruelty” was discretionary, and, thus, it
did not have jurisdiction to consider a cancellation of removal
claim under section 1229b(b)(2). Perales-Cumpean v. Gonzales, 429
F.3d 977 (10th Cir. 2005). We find the Tenth Circuit analysis more
2
Hernandez interpreted 8 U.S.C. § 1254(a)(3) (1996), which
has been amended and recodified as the instant battered spouse
provision of section 1229b. 345 F.3d at 832, 835 n.9.
3
Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir. 1997).
6
persuasive. In that case, the petitioner argued that the
definition of battery and extreme cruelty set forth in the federal
regulations “channeled the exercise of discretion to such an extent
that its decision on the ‘extreme cruelty’ decision can no longer
be considered discretionary.” Id. at 983-84 (citing 8 C.F.R.
§ 204.2(c)). The Tenth Circuit rejected that argument, explaining
that the definition “requires consideration of many factors.” Id.
at 984.
In the instant case, the IJ would have to determine whether
the “pattern of mental and psychological abuse” alleged by Wilmore
amounted to extreme cruelty. Although the extreme cruelty
definition provides some guidance in making this determination, it
certainly does not remove the discretion afforded by Congress.
Indeed, as the Tenth Circuit stated, “[c]onsiderable discretion
also is provided by the definition’s phrases ‘includes, but is not
limited to’ and ‘may . . . be acts of violence under certain
circumstances.’” Id.
Additionally, the Tenth Circuit opined that “[d]etermining
whether a given course of conduct is ‘extremely cruel’ involves
more than simply plugging facts into a formula. The agency is
required to make a judgment whether the cruel conduct alleged is
sufficiently extreme to implicate the purposes of the statute.”
Id. at 982. Thus, it concluded that a determination of extreme
cruelty involved the exercise of discretion. Id. We agree.
7
Moreover, the language of the battered spouse provision,
section 1229b(b)(2), and the instant jurisdiction-stripping
provision, section 1252(a)(2), indicate that the extreme cruelty
decision is discretionary. Section 1229b(b)(2)(A)(i)(I) provides
that the “Attorney General may cancel removal” if extreme cruelty
is shown. (emphasis added). The jurisdiction-stripping provision,
section 1252(a)(2)(B), is entitled “Matters not subject to judicial
review” and the subsection that lists the instant “extreme cruelty”
provision is entitled “Denials of discretionary relief.” §
1252(a)(2)(B)(i) (italics added). Additionally, the subsection
immediately following the subsection at issue provides that “any
other decision or action of the Attorney General or the Secretary
of Homeland Security the authority for which is specified under
this subchapter to be in the discretion of the Attorney General .
. . .” § 1252(a)(2)(B)(ii) (emphasis added). We understand that
language to indicate that the preceding subsection also involved
decisions left to the discretion of the Attorney General.
Accordingly, based on the definition of “extreme cruelty” in
the federal regulations, the statutory language of section
1252(a)(2)(B), our precedent, and the persuasive reasoning of the
Tenth Circuit, we conclude that a determination of “extreme
cruelty” under section 1229b(b)(2)(A)(i)(I) is discretionary. As
such, section 1252(a)(2)(B) precludes our review.
8
B. Real ID Act
In response to the Respondent’s jurisdictional argument,
Wilmore asserts that the language of the Real ID Act, which became
effective in May 2005, has expanded our jurisdiction. 8 U.S.C.
§ 1252(a)(2)(D) (Supp. V 2005). Section 1252(a)(2)(D), as amended
by the Real ID Act, is entitled “Judicial Review of Certain Legal
Claims” and provides that:
Nothing in subparagraph (B) or (C), or in any other
provision of this chapter (other than this section) which
limits or eliminates judicial review, shall be construed
as precluding review of constitutional claims or
questions of law raised upon a petition for review filed
with an appropriate court of appeals in accordance with
this section.
This Court has explained that the Real ID Act “removes
jurisdictional bars to direct review of questions of law in final
removal, deportation, and exclusion orders.” Rodriguez v.
Gonzales, 427 F.3d 316, 319 (5th Cir. 2005) (citations omitted).
Subsequent to the above amendment, this Court recently joined
a “number of our sister circuits in holding that we lack
jurisdiction over petitions for review concerning the discretionary
denial of relief under 8 U.S.C. § 1255.” Hadwani v. Gonzales, 445
F.3d 798, 800 (5th Cir. 2006).4 Hadwani expressly recognized that
the Real ID Act “amended 8 U.S.C. § 1252(a)(2) to ensure that this
court retains jurisdiction over ‘constitutional claims or questions
4
Section 1255 involves adjustment of status for a
nonimmigrant.
9
of law’ raised in an alien’s petition for review.” Id. (quoting 8
U.S.C. § 1252(a)(2)(D)). The present case does not raise a
constitutional or legal question. As previously set forth, section
1252(a)(2)(B)(i), the jurisdiction-stripping provision, lists,
among others, the instant section 1229b along with section 1255,
which was at issue in Hadwani. Thus, despite recognizing the Real
ID language, this Court found it did not have jurisdiction to
review the discretionary decision made pursuant to section 1255.
Likewise, in the instant case, “the Real ID Act does not provide
this court with jurisdiction to review” the BIA’s determination
with respect to “‘extreme cruelty.’” Perales-Cumpean, 429 F.3d at
982 n.4. Therefore, we must dismiss this petition for lack of
jurisdiction.5
III. CONCLUSION
For the above reasons, Wilmore’s petition for review is
DISMISSED.
5
Because we lack jurisdiction, we do not reach the merits of
Wilmore’s claim or the Respondent’s argument that Wilmore is
ineligible for cancellation of removal based on her failure to
comply with the order of voluntary departure.
10