holding that the defendant’s changes to the promotion process after the plaintiffs employment discrimination suit constituted subsequent remedial measures barred by Rule 407
How later courts described this case
- holding that the defendant’s changes to the promotion process after the plaintiffs employment discrimination suit constituted subsequent remedial measures barred by Rule 407
- stating that mixed questions of law and fact in BIA decisions are renewable where BIA’s underlying factual determination is flawed by error of law
- finding that district court did not have jurisdiction over petition to review the BIA's cancellation of petitioners' application to cancel removal
- holding that agency’s “factfinding, factor- balancing, and exercise of discretion normally do not involve legal or constitutional questions”
Written by the judges who cited it.
The opinion
09-3877-ag
Rosario v. Holder
1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 August Term, 2010
6
7
8 (Argued: September 1, 2010 Decided: December 6, 2010)
9
10 Docket No. 09-3877-ag
11
12 - - - - - - - - - - - - - - - - - - - - -x
13
14 JOSEFA ROSARIO,
15
16 Petitioner,
17
18 - v.- 09-3877-ag
19
20 ERIC H. HOLDER, JR., in his capacity as
21 United States Attorney General,
22
23 Respondent.*
24
25 - - - - - - - - - - - - - - - - - - - -x
26
27 Before: DENNIS JACOBS, Chief Judge,
28 REENA RAGGI, Circuit Judge,
29 JED S. RAKOFF,** District Judge.
30
31 Petitioner, a citizen of the Dominican Republic, seeks
32 cancellation of removal as an abused spouse under the
*
The Clerk of Court is respectfully instructed to
amend the official case caption as shown above.
**
The Honorable Jed S. Rakoff, of the United States
District Court for the Southern District of New York,
sitting by designation.
1 amended Immigration and Naturalization Act. 8 U.S.C. §
2 1229b(b)(2). An Immigration Judge concluded that Rosario
3 was not “battered or subjected to extreme cruelty” as
4 defined by the statute and therefore did not warrant
5 discretionary cancellation of removal, and the Board of
6 Immigration Appeals affirmed. We dismiss the petition for
7 lack of subject matter jurisdiction because the BIA’s
8 decision raises no constitutional claims or questions of
9 law.
10
11 FOR PETITIONER: ELYSSA N. WILLIAMS (Andrew B. Insenga, Glenn
12 L. Formica on the briefs)
13 Formica, P.C.
14 900 Chapel St. Suite 1200
15 New Haven, CT 06510
16
17 FOR RESPONDENT: MATTHEW A. SPURLOCK (Tony West, Ada E.
18 Bosque on the briefs)
19 U.S. Department of Justice
20 Office of Immigration
21 Ben Franklin Station
22 P.O. Box 878
23 Washington, DC 20044
24
25
26
27 DENNIS JACOBS, Chief Judge:
28
29 The Petitioner, Josefa Rosario, is a citizen of the
30 Dominican Republic who seeks cancellation of removal as an
31 abused spouse under the amended Immigration and
32 Naturalization Act. 8 U.S.C. § 1229b(b)(2). An Immigration
33 Judge (“IJ”) found that Rosario was not “battered or
2
1 subjected to extreme cruelty” within the meaning of the
2 statute and therefore did not warrant discretionary
3 cancellation of removal. The Board of Immigration Appeals
4 (“BIA”) affirmed. We dismiss Rosario’s petition for lack of
5 subject matter jurisdiction because the BIA’s decision
6 raises no constitutional claims or questions of law.
7
8 BACKGROUND
9 Rosario was found credible by the IJ; we therefore
10 adduce the facts to which she testified.
11 Rosario entered the United States on a one-month non-
12 immigrant tourist visa in 1994. After overstaying by
13 approximately two years, she married Pedro Martinez, a U.S.
14 citizen, and petitioned to adjust her status to Legal
15 Permanent Resident in 1996.
16 The marriage soured soon after the petition was filed,
17 and Martinez became aggressive and insulting. There were
18 approximately five incidents of physical abuse or
19 intimidation in the three-month period between June 1997 and
20 September 1997, when Martinez was jailed (for offenses
21 unrelated to Rosario). There are no allegations of abuse
22 after his release from prison in 2000.
23 During the incidents of abuse, Martinez (variously)
24 grabbed Rosario by the arms and shoulders, shook her,
3
1 verbally insulted her, and threw her on the bed. Martinez
2 also demanded money from her and threatened to withdraw her
3 application for a Green Card. Rosario did not report these
4 incidents to the police or seek medical attention.
5 During this time, Rosario’s Green Card application
6 languished, and, in 2000, it was denied as abandoned. In
7 2002, the Department of Homeland Security served Rosario
8 with a Notice to Appear and charged her with removal.
9 At her Notice to Appear hearing, Rosario admitted she
10 was in the U.S. illegally and conceded removability. Soon
11 afterward, she filed a petition for Special Rule
12 Cancellation of Removal under 8 U.S.C. § 1229b(b)(2)(A),
13 which gives the Attorney General discretion to cancel the
14 removal of an otherwise deportable alien who has been
15 “battered or subjected to extreme cruelty” by her U.S.
16 citizen spouse.
17 In 2008, an IJ denied Rosario’s petition, concluding
18 that she had not been "battered or subjected to extreme
19 cruelty." Rosario appealed this decision to the BIA, which
20 affirmed. Rosario now seeks review in this Court.
21
22 DISCUSSION
23 I.
4
1 As part of the 1994 Violence Against Women Act,
2 Congress granted the Attorney General discretion to cancel
3 the removal of otherwise deportable aliens who were found to
4 have been “battered or subjected to extreme cruelty” by
5 their U.S. citizen spouses. Pub. L. No. 103-322, § 40703,
6 108 Stat. 1796, 1955 (1994) (codified at 8 U.S.C. §
7 1229b(b)(2)(A)). The five requisites for this relief are:
8 (1) “the alien has been battered or subjected to
9 extreme cruelty by a spouse” who is a U.S. citizen
10 or permanent resident;
11
12 (2) “the alien has been physically present in the
13 United States for a continuous period of not less
14 than 3 years”;
15
16 (3) “the alien has been a person of good moral
17 character during such period”;
18
19 (4) “the alien...has not been convicted of an
20 aggravated felony”; and
21
22 (5) “the removal would result in extreme hardship to
23 the alien, the alien’s child, or the alien’s
24 parent.”
25
26 8 U.S.C. § 1229b(b)(2)(A)(i)-(v).
27 The determination as to whether an alien should be
28 given this discretionary cancellation of removal is made by
29 an IJ subject to appeal to the BIA. In 1996, Congress
30 stripped the federal courts of jurisdiction to review these
31 discretionary rulings. Illegal Immigration Reform and
32 Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, §
5
1 306, 110 Stat. 3009, 3009-607 (codified at 8 U.S.C. §
2 1252(a)(2)(B)(i)).
3 Concerned that a complete ban on judicial review of BIA
4 determinations might violate the Suspension Clause, the
5 Supreme Court in 2001 construed the jurisdictional ban to
6 allow for limited federal court review of BIA decisions.
7 INS v. St. Cyr, 533 U.S. 289, 307 (2001). Specifically, the
8 Court held that even where the Attorney General had
9 discretion over whether to grant cancellation of removal,
10 the alien was nevertheless entitled to a determination of
11 whether she was eligible for discretionary cancellation, and
12 that this determination of eligibility was reviewable in the
13 U.S. Circuit Courts when it was “governed by specific
14 statutory standards.” Id. Thus, while the federal courts
15 retained jurisdiction to review the legal question of
16 statutory eligibility, the Attorney General’s exercise of
17 discretion could not be second-guessed.
18 The REAL ID Act of 2005 amended the Illegal Immigration
19 Reform and Immigrant Responsibility Act (“IIRIRA”) to
20 obviate the Supreme Court’s Suspension Clause concerns.
21 Pub. L. No. 109-13, § 106, 119 Stat. 231, 310 (codified in
22 at 8 U.S.C. § 1252(a)(2)(D)); see also Xiao Ji Chen v.
23 Gonzales, 471 F.3d 315, 326 (2d Cir. 2006) (describing
6
1 legislative history of REAL ID Act). The REAL ID Act
2 prescribed an exception to the general ban on judicial
3 review of BIA decisions for Circuit Court review of
4 “constitutional claims or questions of law.” 8 U.S.C. §
5 1252(a)(2)(D).
6 In the wake of St. Cyr and the REAL ID Act, this Court
7 described the scope of its jurisdiction to review BIA
8 determinations in two ways. First, based on St. Cyr, we
9 stated that we could review those “nondiscretionary
10 decisions” by the BIA that underlie its exercise of
11 discretion in granting or denying cancellation of removal.
12 See, e.g., Rodriguez v. Gonzales, 451 F.3d 60, 62 (2d Cir.
13 2006) (describing scope of review as over nondiscretionary
14 determinations underlying discretionary relief); Sepulveda
15 v. Gonzales, 407 F.3d 59, 62-63 (2d Cir. 2005). Later,
16 based on the REAL ID Act, we stated that we could review
17 “all constitutional claims or questions of law” raised by
18 the BIA’s exercise of its discretion. See, e.g., Argueta v.
19 Holder, 617 F.3d 109, 112 (2d Cir. 2010) (describing scope
20 of review as over constitutional and legal questions).
21 These two characterizations, which may appear to be two
22 separate avenues of jurisdiction, are congruent: BIA
23 statutory interpretation pursuant to an eligibility
7
1 determination is nondiscretionary and therefore reviewable
2 precisely because it presents a legal question. In
3 contrast, the BIA’s factfinding, factor-balancing, and
4 exercise of discretion normally do not involve legal or
5 constitutional questions, so we lack jurisdiction to review
6 them.
7
8 II.
9 When the BIA’s decision explicitly rests on a legal
10 prescription or statutory interpretation, we unambiguously
11 have jurisdiction to review it. See Sepulveda, 407 F.3d at
12 63 (holding that court has jurisdiction to review BIA
13 determination that alien is ineligible for discretionary
14 relief as a matter of law). Similarly, when the BIA
15 explicitly finds an alien to be eligible for discretionary
16 relief but then refuses to grant relief as an exercise of
17 its discretion, such a decision is not reviewable.
18 Determining whether we have jurisdiction to review is more
19 difficult when the BIA is engaged in the application of law
20 to facts.
21 We determine our jurisdiction by looking at the
22 underlying nature of the BIA’s determination rather than any
23 gloss offered by the parties. Argueta, 617 F.3d at 112 (“We
8
1 do not rely solely on a petitioner’s description of his
2 claims, but scrutinize a petitioner’s arguments to determine
3 whether they raise reviewable questions.” (internal
4 quotation marks omitted)); Barco-Sandoval v. Gonzales, 516
5 F.3d 35, 39 (2d Cir. 2008) (“[A] petitioner cannot us[e] the
6 rhetoric of a constitutional claim or question of law to
7 disguise what is essentially a quarrel about fact-finding or
8 the exercise of discretion.” (internal quotation marks
9 omitted)). We ask whether the BIA is expressing legal
10 doctrine or whether it is engaged in the factfinding and
11 factor-balancing that are at the core of its discretion.
12 Although, in some sense, every BIA decision involves
13 the application of law to fact, not every such decision is
14 reviewable. See Xiao Ji Chen, 471 F.3d at 331 (“The mere
15 use of the term ‘erroneous application’ of a statute will
16 not, however, convert a quarrel over an exercise of
17 discretion into a question of law.”). The mixed questions
18 of law and fact in BIA decisions are reviewable in three
19 situations:
20 (1) Where the BIA applies the wrong statute,
21 misinterprets the correct statute, or uses an
22 erroneous legal standard;
23
24 (2) Where the BIA’s underlying factual determination is
25 “flawed by an error of law”; and
26
27 (3) Where the BIA’s conclusion is “without rational
28 justification,” meaning it is located so far
9
1 outside the range of reasonable options that it is
2 erroneous as a matter of law.
3
4 See Mendez v. Holder, 566 F.3d 316, 322 (2d Cir. 2009)
5 (articulating three situations); Barco-Sandoval, 516 F.3d at
6 39 (same); Xiao Ji Chen, 471 F.3d at 329 (same). Except in
7 these scenarios, the BIA’s application of law to fact
8 amounts to the exercise of its discretion and does not raise
9 the legal or constitutional question required for our
10 jurisdiction.
11
12 III.
13 Every new petition to review a BIA decision requires us
14 to make a jurisdictional inquiry: first asking whether the
15 BIA’s decision involves a clear legal prescription; second,
16 where the decision only involves the application of clearly
17 established law to a set of facts, asking whether the BIA’s
18 determination comes within any of the three specific
19 scenarios that justify review.
20 This Circuit has already considered our jurisdiction to
21 review BIA rulings on certain other aspects of abuse-based
22 cancellation of removal. In Rodriguez v. Gonzales, 451 F.3d
23 60 (2d Cir. 2006), we held that whether an alien has been
24 convicted of an aggravated felony always presents a legal
25 question and is therefore nondiscretionary and reviewable.
26 Id. at 62-63. Similarly, in Sepulveda v. Gonzales, 407 F.3d
10
1 59 (2d. Cir. 2005), we suggested, but did not hold, that
2 whether an alien satisfies the continuous physical presence
3 requirement also presents a legal question and its therefore
4 reviewable. Id. at 63. In Sepulveda, we also reviewed a
5 BIA ruling that criminal convictions legally preclude
6 finding that the alien is of “good moral character.” Id. at
7 63-64. Although the fact-specific nature of a moral
8 character assessment ordinarily suggests that it would
9 constitute an exercise of discretion not a legal
10 determination, we held in Sepulveda that the BIA’s ruling on
11 moral character presented a legal question in that
12 particular case because it was explicitly premised on the
13 criminal convictions as a matter of law. Id.
14 In contrast, in Barco-Sandoval v. Gonzales, 516 F.3d 35
15 (2d Cir. 2008), and Mendez v. Holder, 566 F.3d 316 (2d Cir.
16 2009), we held that whether an alien would suffer “extreme
17 hardship” if deported ordinarily does not require statutory
18 interpretation but instead involves the application of the
19 law to particular facts. Thus, we lack jurisdiction to
20 review such determinations unless they fall into one of the
21 three categories described in Part II.
22
23 IV.
11
1 Now, we must decide whether we have jurisdiction to
2 review BIA determinations as to whether a spouse has been
3 “battered or subjected to extreme cruelty.” Like “extreme
4 hardship”--and unlike criminal conviction or continuous
5 physical presence--whether an alien has been “battered or
6 subjected to extreme cruelty” under the statute generally
7 entails a factual judgment, not a legal prescription.
8 This conclusion finds support in the fact that Congress
9 did not provide a specific statutory definition for the
10 terms, and in the fact that the regulatory gloss on the
11 terms, while requiring more than the unwanted touching of
12 common law battery, contemplates the exercise of
13 considerable discretion in assessing the totality of the
14 circumstances. See 8 C.F.R. § 204.2(c)(1)(vi). 1
1
8 C.F.R. § 204.2(c)(1)(vi) permits an abused spouse
of a United States citizen or lawful permanent resident to
self-petition for an adjustment of status. The regulation
states that 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.
12
1 Thus, BIA determinations as to whether an alien has
2 been “battered or subjected to extreme cruelty” require the
3 application of law to fact, rather than statutory
4 interpretation. As such, we have jurisdiction to review
5 these determinations only when the BIA applies an incorrect
6 law or legal standard, bases its decision on a factfinding
7 premised on an error of law, or reaches a conclusion that
8 lacks any rational justification.
9 Finally, we observe that all but one of our sister
10 circuits who have considered this question have reached the
11 same conclusion. Johnson v. Attorney Gen., 602 F.3d 508,
12 511 (3d Cir. 2010) (holding that BIA “extreme cruelty”
13 determination is discretionary and not reviewable);
14 Stepanovic v. Filip, 554 F.3d 673, 679-80 (7th Cir. 2009)
15 (same); Ramdane v. Mukasey, 296 F. App’x 440, 442 (6th Cir.
16 2008); Wilmore v. Gonzales, 455 F.3d 524, 527 (5th Cir.
17 2006); Perales-Cumpean v. Gonzales, 429 F.3d 977, 982 (10th
18 Cir. 2005). But see Hernandez v. Ashcroft, 345 F.3d 824,
19 835 (9th Cir. 2003) (holding that BIA “extreme cruelty”
20 determination is nondiscretionary and reviewable).
21
22 V.
23 Rosario’s petition turns on the question whether she
24 qualifies as “battered or subjected to extreme cruelty.”
13
1 Therefore, the BIA’s decision in this case involves the
2 application of law to fact: a determination of whether
3 Rosario’s situation rendered her “battered or subjected to
4 extreme cruelty” under the statute. Rosario’s petition
5 therefore does not automatically raise a legal or
6 constitutional issue; it only does so where the BIA applied
7 the wrong law or misapplied the appropriate law or legal
8 standard, based its decision on a factual finding premised
9 on a legal error, or reached a conclusion so far outside the
10 range of reasonable options as to be without rational
11 justification.
12 Here, the BIA applied the correct law, 8 U.S.C. §
13 1229b(b)(2)(A)(i), and the correct legal standard, 8 C.F.R.
14 § 204.2(e)(1)(vi), to Rosario’s case. There were no legal
15 errors underlying any of the factual findings the BIA used
16 to reach its decision. And given the level of abuse Rosario
17 claims to have suffered, it cannot be said that the BIA’s
18 conclusion was without rational justification. Thus, the
19 BIA’s decision does not fall within any of the three
20 scenarios where we retain jurisdiction to review.
21 Ultimately, the question whether the abuse Rosario
22 suffered qualifies her for cancellation of removal is not
23 answered by legal analysis but entails a weighing of facts
24 and circumstances, the sort of value judgment that lies at
14
1 the core of the BIA’s exercise of discretion. The BIA’s
2 reasoning can be described as an application of law to fact,
3 but that characterization cannot convert a factual
4 determination into a legal question. Because the BIA’s
5 decision raised no question of law, we may not second-guess
6 its discretionary factual judgment that Rosario is not
7 eligible for cancellation of removal. Therefore, we lack
8 jurisdiction to hear Rosario’s petition.
9
10 CONCLUSION
11 For the foregoing reasons, we dismiss Rosario’s
12 petition for review from an order of the Board of
13 Immigration Appeals for lack of jurisdiction.
15