[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-10552 FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 17, 2012
Agency No. A095-654-362
JOHN LEY
CLERK
HAMELT RODOLFO BEDOYA-MELENDEZ,
a.k.a. Hamelt Rodolfo Bedoya,
a.k.a. Hamelt Bedoya,
Petitioner,
versus
U. S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 17, 2012)
Before MARCUS, COX, and SILER,* Circuit Judges.
COX, Circuit Judge:
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
Hamelt Rodolfo Bedoya-Melendez seeks review of the decision of the Board
of Immigration Appeals that he is not eligible for special rule cancellation of removal
under § 240A of the Immigration and Nationality Act (codified at 8 U.S.C.
§ 1229b(b)(2)). The Board denied Bedoya-Melendez’s petition because he failed to
show that he was “battered or subjected to extreme cruelty” by his American citizen
spouse. We conclude that the Board has discretion to make this determination, and
therefore we lack jurisdiction to review the Board’s decision that Bedoya-Melendez
is not a battered spouse.
I. FACTS AND PROCEDURAL HISTORY
The underlying facts are largely irrelevant to this appeal. We state them briefly
to provide context for this opinion. Bedoya-Melendez, a Peruvian citizen, entered the
United States in 2003 as a nonimmigrant visitor. In 2004, he married an American
citizen, Nancy Pinedo. A week later, she asked the United States Citizenship and
Immigration Service to adjust Bedoya-Melendez’s immigration status. But, when the
honeymoon ended, the marriage quickly soured. Bedoya-Melendez alleges that
Nancy began slapping him when she became upset. And, he alleges she also falsely
led him to believe he had HIV. Less than six months after they married, Bedoya-
Melendez and Nancy separated, and eventually divorced. Bedoya-Melendez alleges
that Nancy and her father then brought several frivolous lawsuits against him.
2
Meanwhile, the Citizenship and Immigration Service declined to adjust
Bedoya-Melendez’s immigration status, and the Department of Homeland Security
sought to remove him. At a hearing in late 2004, Bedoya-Melendez admitted that he
was removable, but petitioned for asylum. He later withdrew that petition.
In 2007, Bedoya-Melendez filed a petition for special rule cancellation of
removal, claiming that he was a battered spouse under 8 U.S.C. § 1229b(b)(2). To
establish his eligibility for this relief, Bedoya-Melendez had to show five things:
(i)(I) [he had] been battered or subjected to extreme cruelty by a
spouse . . . who is or was a United States citizen . . .;
...
(ii) [he had] been physically present in the United States for a
continuous period of not less than 3 years immediately preceding the
date of [his] application, . . .;
(iii) [he had] been a person of good moral character during such
period . . .;
(iv) [he] is not inadmissible [for certain reasons not applicable to this
case]; and
(v) the removal would result in extreme hardship to [him] . . . .
8 U.S.C. § 1229b(b)(2)(A). This appeal concerns only the first element (hereafter the
“battered-spouse determination ”). Before the immigration judge, Bedoya-Melendez
testified about Nancy’s behavior. The immigration judge concluded that Nancy’s
3
actions did not make Bedoya-Melendez a battered spouse under § 1229b(b)(2). His
petition was denied for that reason. Bedoya-Melendez appealed to the Board, but it
also denied his petition, issuing its own decision. Bedoya-Melendez then petitioned
this court to review the Board’s decision.1
II. ISSUES ON APPEAL
This appeal presents two issues: (1) does the Board have discretion to decide
if an alien is a battered spouse under § 1229b(b)(2); and (2) if the answer to the first
issue is no, is Bedoya-Melendez a battered spouse under § 1229b(b)(2)?
III. CONTENTIONS OF THE PARTIES
It is undisputed that we lack jurisdiction to review the Board’s discretionary
decisions under § 1229b. See 8 U.S.C. § 1252(a)(2)(B); Martinez v. U.S. Att’y Gen.,
446 F.3d 1219, 1222 (11th Cir. 2006). But, it is also undisputed that we have
jurisdiction to review constitutional claims and questions of law arising under that
provision. See 8 U.S.C. § 1252(a)(2)(D); Jean-Pierre v. U.S. Att’y Gen., 500 F.3d
1315, 1322 (11th Cir. 2007). Because § 1252(a)(2)(B) & (D) impose statutory
1
The immigration judge also concluded that Bedoya-Melendez had failed to show that he
would suffer extreme hardship if removed. But the Board did not consider this portion of the
immigration judge’s decision. It based its denial solely on Bedoya-Melendez’s failure to meet the
battered-spouse requirement. “When the [Board] issues a decision, we review only that decision.”
Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1344 (11th Cir. 2007). Because the Board did not consider
Bedoya-Melendez’s failure to satisfy the extreme hardship requirement, that issue is not before us.
4
conditions on our jurisdiction, we must first determine if those conditions are met.
See Bahar v. Ashcroft, 264 F.3d 1309, 1311 (11th Cir. 2001).
This court has not yet considered whether the battered-spouse determination
under § 1229b(b)(2) is a question of law or a discretionary decision. Bedoya-
Melendez contends that it is a question of law. He relies primarily on a Ninth Circuit
case, Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003), which held that the phrase
“has been battered or subjected to extreme cruelty” establishes an objective legal
standard to guide the battered-spouse determination under § 1229b(b)(2).
The Attorney General counters that five other circuits have reached the
opposite conclusion. These circuits reasoned that the phrase “has been battered or
subjected to extreme cruelty” is not self-explanatory and that reasonable minds could
differ as to its meaning. And, because Congress did not define this phrase, it intended
to grant the Attorney General discretion to make this decision. These circuits also
concluded that 8 C.F.R. § 204.2(c)(1)(vi), which interprets almost identical language
in a different provision of the Immigration and Nationality Act, does not establish an
objective legal standard for the battered-spouse determination . For the reasons stated
below, we agree with the Attorney General and the majority of our sister circuits.
5
IV. DISCUSSION
Our jurisdiction over Bedoya-Melendez’s petition turns on whether the
battered-spouse determination is a question of law or a discretionary decision. A
question of law involves “the application of an undisputed fact pattern to a legal
standard.” Jean-Pierre, 500 F.3d at 1322. For example, under § 1229b(b)(2), an
alien must be continuously present in the United States for three years before he can
file a petition for cancellation of removal. 8 U.S.C. § 1229b(b)(2)(A)(ii). Congress
defined “continuous physical presence” in § 1229b(b)(2)(B). A court need only apply
this definition to the undisputed facts to determine if this statutory requirement is met.
See Najjar v. Ashcroft, 257 F.3d 1262, 1298 (11th Cir. 2001) (“Either the petitioner
has been continuously present in the United States for [three] years or the petitioner
has not.”) (quoting Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir. 1997)).
A discretionary decision, on the other hand, requires an adjudicator to make a
judgment call. For example, under § 1229b(b)(2), an alien must show that removal
will “result in extreme hardship to [himself].” § 1229b(b)(2)(A)(v). In Najjar v.
Ashcroft, we examined a previous version of § 1229b, which also contained the
phrase “extreme hardship.” 257 F.3d at 1298. We held that the Attorney General has
discretion to determine when an alien will face an “extreme hardship” upon removal.
See id. at 1297; see also Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332-
6
33 (11th Cir. 2003) (holding that the phrase “exceptional and extremely unusual
hardship” in § 1229b(b)(1) grants the Attorney General discretion). We based our
holding, in part, on the Supreme Court’s decision in INS v. Jong Ha Wang, 450 U.S.
139, 101 S. Ct. 1027 (1981). In Wang, the Supreme Court explained that the phrase
“extreme hardship” is “not self-explanatory, and reasonable men could easily differ
as to [its] construction.” Id. at 144, 101 S. Ct. at 1031. The Court concluded that
Congress had vested the Attorney General with discretion to interpret the phrase
“extreme hardship.” See id. And, the Court refused to substitute its judgment for that
of the Attorney General. See id.; see also Wilmore v. Gonzales, 455 F.3d 524, 527
(5th Cir. 2006) (citing Wang for the proposition that a statutory term confers
discretion on the Attorney General when it is “not self-explanatory, and reasonable
men could easily differ as to [its] construction”).
Other circuits have characterized a discretionary decision as lacking an
“algorithm” or “formula” on which a court can base its review. See Perales-Cumpean
v. Gonzalez, 429 F.3d 977, 982 (10th Cir. 2005) (“Decisions that involve a ‘judgment
call’ by the agency, or for which there is ‘no algorithm’ on which review may be
based, are considered discretionary . . . .”); Rosario v. Holder, 627 F.3d 58, 62 (2d
Cir. 2010) (“We ask whether the BIA is expressing legal doctrine or whether it is
engaged in the factfinding and factor-balancing that are at the core of its discretion.”)
7
Section 1229b(b)(2)’s requirement that an alien be “battered or subjected to
extreme cruelty” does not establish an objective legal standard on which a court can
base its review. The word “battered” and the clause “subjected to extreme cruelty”
are not self-explanatory and reasonable minds could differ as to their meaning in this
provision. Thus, we hold that the battered-spouse determination under § 1229b(b)(2)
is a discretionary decision reserved to the Attorney General. See Wang, 450 U.S. at
144, 101 S. Ct. at 1031. We consider the meaning of the word “battered” and the
clause “subjected to extreme cruelty” in turn.
We first turn to the dictionary definition of the verb “batter.” The Oxford
English Dictionary defines “batter” as “to beat continuously and violently so as to
bruise or shatter.” Oxford English Dictionary 1005 (2d ed., 1989). Webster’s Third
New International Dictionary provides a similar definition: “to beat with successive
blows: beat repeatedly and violently so as to bruise, shatter, or demolish.” Webster’s
Third New International Dictionary 187 (2002). Finally, the American Heritage
Dictionary defines “batter” as “to hit heavily and repeatedly with violent blows.”
American Heritage Dictionary 152 (5th ed., 2011). While these definitions suggest
some boundaries for the word “battered” in § 1229b(b)(2), they do not establish an
objective legal standard. The words “continuously,” “successive,” and “repeatedly”
are ambiguous in this context. These words do not tell us how many blows an alien
8
must endure before one becomes a battered spouse. Nor do these dictionary
definitions clearly define the force these blows must exert. Thus, reasonable minds
could differ as to what an alien must endure before he has been “battered.”
Similarly, the clause “subjected to extreme cruelty” does not present an
objective legal standard. Webster’s Third New International Dictionary defines
“cruelty” as “the quality or state of being cruel,” which means “disposed to inflict
pain . . . .” Webster’s Third New International Dictionary 546 (2002). Webster’s
dictionary also includes a definition of cruelty specifically applicable to domestic
relationships: “conduct of either party in a divorce action that endangers the life or
health of the other.” Id. These definitions draw no bright lines. Reasonable minds
could easily differ as to what conduct shows a disposition “to inflict pain” and what
conduct “endangers [a spouse’s] life or health.” Moreover, as other circuits have
said, the adjective “extreme” requires the Attorney General to make a judgment call
about “whether the cruel conduct alleged is sufficiently extreme to implicate the
purposes of the statute.” Perales-Cumpean, 429 F.3d at 982; see Wilmore, 455 F.3d
at 528 (citing Perales-Cumpean).
The context in which Congress adopted the original version of § 1229b(b)(2)
reinforces our conclusion that this provision does not establish an objective legal
standard. Congress enacted the original version of § 1229b(b)(2) as part of the
9
Violence Against Women Act of 1994. See Pub. L. No. 104-322 § 40703, 108 Stat.
1796, 1955 (1994). This Act sought to address gender-motivated violence, including
domestic violence. Because Congress adopted § 1229b(b)(2) in this context, the
word “battered” and the clause “subjected to extreme cruelty” arguably refer to
domestic violence. But, that conclusion does not get us very far because domestic
violence does not have a rigid definition.2 Nor can we discern from the text of
§ 1229b(b)(2) in what manner and to what degree the word “battered” and the clause
“subjected to extreme cruelty” relate to domestic violence.3
2
In 2006, Congress added § 40002 (codified at 42 U.S.C. § 13925) to the Violence Against
Women Act. Violence Against Women and Department of Justice Reauthorization Act of 2005,
Pub. L. No. 109-162, § 3, 119 Stat. 2960, 2965 (2006). This provision purported to define several
terms used throughout the Violence Against Women Act. Id. at 2964. Section 13925(a)(6) provides
that:
The term “domestic violence” includes felony or misdemeanor crimes of violence
committed by a current or former spouse of the victim, by a person with whom the
victim shares a child in common, by a person who is cohabitating with or has
cohabitated with the victim as a spouse, by a person similarly situated to a spouse of
the victim under the domestic or family violence laws of the jurisdiction receiving
grant monies, or by any other person against an adult or youth victim who is
protected from that person’s acts under the domestic or family violence laws of the
jurisdiction.
42 U.S.C. § 13925(a)(6). This subsection does not define “domestic violence.” It merely says that
this term “includes” certain “crimes of violence.” Id. This subsection does not limit the term
“domestic violence” to such crimes. Instead, it leaves open the possibility that this term also
includes other abusive acts which are not “felony or misdemeanor crimes of violence.”
3
While we do not think the word “battered” in § 1229b(b)(2) has an objective definition, we
can say what that word does not mean. “Battered” does not refer to common-law battery. But see
Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003). At common law, an “unwelcome kiss or
caress” was a battery. Bryan A. Garner, A Dictionary of Modern Legal Usage 100 (2d ed., 1995).
10
But we do not end our analysis with the text of § 1229b. Both the Secretary of
Homeland Security and the Attorney General have authority to craft regulations
interpreting the Immigration and Nationality Act. See 8 U.S.C. § 1103. These
regulations could limit the Attorney General’s discretion in ways that make the
battered-spouse determination effectively nondiscretionary. Cf. Cadet v. Bulger, 377
F.3d 1173, 1180–81 (11th Cir. 2004) (federal regulations defining torture created a
legal standard which made the Board’s decision subject to review). Bedoya-
Melendez directs our attention to 8 C.F.R. § 204.2(c)(1)(vi), which provides:
For the purpose of this chapter, the phrase “was battered by or was the
subject of extreme cruelty” includes, but is 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). Bedoya-Melendez contends that this regulation
establishes an objective legal standard for the battered-spouse determination under
§ 1229b.
If “battered” means an unwelcome kiss or caress, married aliens could easily allege their eligibility
for relief under § 1229b(b)(2). But the text and the history of §1229b(b)(2) suggest a different
result. Section 1229b(b)(2) is, after all, a “special rule” applicable only to battered spouses. Aliens
who are not battered spouses must seek cancellation of removal under § 1229b(b)(1), which has
more stringent eligibility requirements.
11
We reject this contention. Section 204.2(c)(1)(vi) was not promulgated under
§ 1229b and does not apply to that statutory provision. Instead, it was promulgated
under 8 U.S.C. §§ 1154 & 1255. These sections authorize an alien to petition the
Attorney General for an adjustment in his immigration status to that of a lawful
permanent resident. An alien can file a petition under these sections whether or not
he is facing removal. See § 1255 (“[T]he status of [an] alien having an approved
petition for classification as [battered spouse] may be adjusted by the Attorney
General [if he files a petition and meets certain other requirements].”). Conversely,
§ 1229b applies specifically to aliens whom the Attorney General has ordered
removed. § 1229b(b)(2)(A) (“The Attorney General may cancel removal . . . .”).
Additionally, § 204.2(c)(1)(vi) is located in Title 8, Chapter I of the Code of
Federal Regulations, and it specifically limits its applicability to that chapter. See
§ 204.2(c)(1)(vi) (stating “[f]or the purpose of this chapter . . . .”). Bedoya-Melendez
has not identified (and our research has not found) any regulation in Title 8, Chapter I
which applies to the battered-spouse determination under § 1229b(b)(2). The Board
did not believe that § 204.2(c)(1)(vi) applied to the battered-spouse determination
under § 1229b(b)(2). (R. at 4–5.) Instead, the Board said that § 204.2(c)(1)(vi) is
“useful in ascertaining the parameters of the [phrase ‘battered or subjected to extreme
12
cruelty’] as applied in the context of cancellation of removal.”4 Id. We agree that
§ 204.2(c)(1)(vi), which interprets almost identical language, could be useful in
making the battered-spouse determination . But, this regulation does not establish a
binding legal standard for that determination.5
And, even if we were to assume that 8 C.F.R. § 204.2(c)(1)(vi) applies to the
battered-spouse determination under § 1229b(b)(2), that regulation does not create
an objective legal standard. Instead, § 204.2(c)(1)(vi) merely suggests how the
Attorney General should exercise his discretion. First, the regulation does not draw
a bright line between facts which make one person a battered spouse and another
person not a battered spouse. The regulation expressly states that “was battered by
or was the subject of extreme cruelty” “includes, but is not limited to” certain
conduct. 8 C.F.R. § 204.2(c)(1)(vi) (emphasis added). The “not limited to” language
strongly suggests the Attorney General can exercise discretion in each case.
4
The Board’s opinion actually cites § 204.2(e)(1)(vi) (applicable to battered children) rather
than § 204.2(c)(1)(vi) (applicable to battered spouses). However, these provisions are identical.
5
The six other circuits which have considered this issue have assumed, without discussion,
that § 204.2(c)(1)(vi) applies to the battered-spouse determination . See Rosario v. Holder, 627 F.3d
58 (2d Cir. 2010); Johnson v. U.S. Att’y Gen., 602 F.3d 508 (3d Cir. 2010); Stepanovic v. Filip, 554
F.3d 673 (7th Cir. 2009); Wilmore v. Gonzalez, 455 F.3d 524 (5th Cir. 2006); Perales-Cumpean v.
Gonzales, 429 F.3d 977 (10th Cir. 2005); Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003). But,
five of these six circuits (all but the Ninth Circuit) concluded that this regulation does not establish
an objective legal standard for the battered-spouse determination.
13
And though the regulation casts a wide net (capturing “any” act or threatened
act of violence), we do not know what conduct that net will catch. The “act or
threatened act of violence” must “result[] or threaten[] to result in physical or mental
injury.” Id. But the “physical or mental injury” requirement is not self-explanatory
and reasonable minds could differ about what this clause means. Because this clause
is imprecise, we do not know from the text of the regulation what conduct is included
and what conduct is not.
Finally, § 204.2(c)(1)(vi) encompasses “[o]ther abusive actions . . . [that] may
not initially appear violent but that are a part of an overall pattern of violence. ” The
regulation does not offer any guidance as to which acts fall in this category. This
imprecision strongly suggests that the Attorney General also retains discretion to
make this decision on a case-by-case basis. Because neither the statutory text nor an
applicable regulation establish an objective legal standard on which to base our
review, we hold that the battered-spouse determination under § 1229b(b)(2) is a
discretionary decision reserved to the Attorney General.
Of the six other circuits that have considered this issue, five have concluded
that the battered-spouse determination is a discretionary decision. Rosario v. Holder,
627 F.3d 58 (2d Cir. 2010); Johnson v. U.S. Att’y Gen., 602 F.3d 508 (3d Cir. 2010);
Stepanovic v. Filip, 554 F.3d 673 (7th Cir. 2009); Wilmore v. Gonzalez, 455 F.3d 524
14
(5th Cir. 2006); Perales-Cumpean v. Gonzales, 429 F.3d 977 (10th Cir. 2005). Only
the Ninth Circuit has reached a contrary conclusion. In Hernandez v. Ashcroft, the
court held that the phrase “battered or subjected to extreme cruelty” establishes an
objective legal standard to determine if an alien is a victim of domestic violence. 345
F.3d 824, 834 (9th Cir. 2003). Despite the court’s pronouncement that domestic
violence (and thus the phrase “battered or subjected to extreme cruelty”) has a clinical
definition, the court struggled to articulate that definition. Id. at 834, 836–39.
Instead, the court relied on 8 C.F.R. § 204.2(c)(1)(vi). Id. at 839–840. But, as
explained above, this regulation does not establish an objective legal standard for the
battered-spouse determination . We find Hernandez unpersuasive.
V. CONCLUSION
Because the battered-spouse determination under § 1229b(b)(2) is a
discretionary decision, we lack jurisdiction to review the Board’s decision that
Bedoya-Melendez is not a battered spouse. See 8 U.S.C. § 1252(a)(2)(B). For that
reason, his petition is dismissed.
PETITION DISMISSED.
15