# Rosario v. Holder > Court of Appeals for the Second Circuit · December 6, 2010 · 627 F.3d 58 URL: https://www.frixlaw.com/law-library/cases/180414 ## Case - **Full name:** Josefa ROSARIO, Petitioner, v. Eric H. HOLDER, Jr., in His Capacity as United States Attorney General, Respondent - **Court:** Court of Appeals for the Second Circuit - **Decided:** December 6, 2010 - **Citations:** 627 F.3d 58; 2010 U.S. App. LEXIS 24882; 2010 WL 4923557 - **Precedential status:** Published - **Opinion:** Opinion by Jacobs - **Judges:** Jacobs, Raggi, Rakoff - **Cited by:** 38 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/180414 ## How later opinions describe it (automated extraction) - 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” - holding that we have jurisdiction to review the BIA’s factual determinations when they are “flawed by an error of law” ## Opinion text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/180414. Public record. Not legal advice.