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Bedoya v. Att'y Gen'l (en banc rehearing denied) No. 11 10552 (11th Cir. 10-25-2012)


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Bedoya v. Att'y Gen'l (en banc rehearing denied) No. 11 10552 (11th Cir. 10-25-2012)

  1. 1. The Judge in favor ofreview appears to be Case: 11-10552 Date Filed: 10/25/2012 Page: 1 of 8seeking a way to performfull de novo review of [PUBLISH]fact-finding. I supposethat the underlyingdetermination as towhether the petitioner IN THE UNITED STATES COURT OF APPEALSmet statutory eligibilitycould be reviewed forsubstantial evidence butit seems that the dissentwants more. Judgementis a mix of fact and law No. 11-10552and as such is open to alimited review only onhow they "mix" but noton the findings-of-fact. Agency No. A095-654-362 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 (October 25, 2012) ON PETITION FOR REHEARING EN BANC Before DUBINA, Chief Judge, TJOFLAT, CARNES, BARKETT, HULL, MARCUS, WILSON, PRYOR, MARTIN and JORDAN, Circuit Judges.
  2. 2. Case: 11-10552 Date Filed: 10/25/2012 Page: 2 of 8.BY THE COURT: The Court having been polled at the request of one of the members of theCourt and a majority of the Circuit Judges who are in regular active service nothaving voted in favor of it (Rule 35, Federal Rules of Appellate Procedure), theSuggestion of Rehearing En Bane is DENIED. Is/Joel F. Dubina CHIEF JUDGE The initial decision from May 2012 is appended to this decision. 2
  3. 3. Case: 11-10552 Date Filed: 10/25/2012 Page: 3 of 8BARKETT, Circuit Judge, dissenting from the denial of rehearing en bane: I dissent from the denial of rehearing en bane for the same reasons Idissented in Jimenez-Galicia v. U.S. Atty Gen., 690 F.3d 1207 (11th Cir. 2012)(Barkett, J., dissenting). I believe that this Courts conclusion that there is nojudicial review of the statutory eligibility criterion of"battered or subjected toextreme cruelty" for cancellation of removal is based on a misreading of 8 U.S.C.§ 1252(a)(2)(B). 1 This Court and others, when considering whether there is judicialreview of the Attorney Generals decisions regarding the statutory eligibilitycriteria for cancellation of removal or for the other four forms of relief enumeratedin§ 1252(a)(2)(B)(i), have read the statutory language-"any judgment regardingthe granting of relief-to mean that any decision the courts deem discretionary is 1 This statutory provision provides in relevant part: (B) Denials of discretionary relief ... no court shall have jurisdiction to review- (i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or (ii) 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 or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title. 8 U.S.C. § 1252(a)(2). 3
  4. 4. Case: 11-10552 Date Filed: 10/25/2012 Page: 4 of 8unreviewable. Not only does this misconstrue the meaning of the term "judgment"as used in this statute, but it also ignores the statutes overall structure, whichdemonstrates that Congress, in enacting§ 1252(a)(2)(B), intended to precludejudicial review of only the Attorney Generals discretionary judgments anddecisions that Congress, and not a court, has explicitly identified as such. This limitation is apparent when considering the language of§1252(a)(2)(B) in context, reflecting the distinction between the Attorney Generalsultimate discretionary judgment to grant a specific form of immigration relief--addressed by clause (i)-and the other statutorily specified discretionary decisionsof the Attorney General, including those regarding the underlying statutoryprerequisites for eligibility for consideration for ultimate relief,-addressed byclause (ii). As the court noted in Rodriguez v. Gonzalez, 451 F.3d 60,62 (2d Cir.2006), "[o]btaining ... cancellation of removal is a two-step process. First, analien must prove eligibility by showing that he meets the statutory eligibilityrequirements. Second, assuming an alien satisfies the statutory requirements, theAttorney General in his discretion decides whether to grant or deny relief." That the two-part structure of this statute is significant, is apparent in theSupreme Courts instruction that "[r]ead harmoniously, both clauses [of8 U.S.C. §1252(a)(2)(B)] convey that Congress barred court review of discretionary decisions 4
  5. 5. Case: 11-10552 Date Filed: 10/25/2012 Page: 5 of 8only when Congress itself set out the Attorney Generals discretionary authority inthe statute." See Kucana v. Holder, 130 S. Ct. 827, 836-37 (2010). Nonetheless,most courts have presumed that the term "judgment," as used in§ 1252(a)(2)(B)(i},includes generally "decisions" that the Attorney General makes regarding statutoryeligibility rather than just the ultimate discretionary judgment of the AttorneyGeneral to grant relief. This reading of the statute, however, cannot be reconciledwith Congresss separate and distinct use of the term "decision" in clause (ii) of§1252(a)(2)(B). "It is a cardinal principle of statutory construction that a statuteought, upon the whole, to be so construed that, if it can be prevented, no clause,sentence, or word shall be superfluous, void, or insignificant." TRW Inc. v.Andrews, 534 U.S. 19, 31 (200 1) (internal quotation marks omitted). Here, notonly did Congress use the three separate terms "judgment," "decision," and"action" in the introductory language of§ 1252(a)(2)(B}, but it distinguishedbetween judgments" in clause (i) and "decision" or "action" in clause (ii). If wewere to construe "judgment" also to include any of the other preliminary"decisions" of the Attorney General, then the distinct use of the term "judgment"becomes meaningless given Congresss separate use of the term "decision."Because "[i]t is our duty, to give effect, if possible, to every clause and word of astatute," see In reRead, 692 F.3d 1185, 1191 (11th Cir. 2012) (internal quotation 5
  6. 6. Case: 11-10552 Date Filed: 10/25/2012 Page: 6 of 8marks omitted), the term "judgment" as used in clause (i) cannot mean more thanthe ultimate discretionary judgment of the Attorney General whether to grant oneof the five forms of enumerated relief. Moreover, we cannot "ignore[] the precept that, in construing a statute, wedo not look at one word or term in isolation, but instead we look to the entirestatutory context[.]" Poveda v. U.S. Atty Gen., 692 F.3d II68, II79 (II th Cir.20I2). This means that when enacting§ 1252(a)(2)(B)(i), barring court review of"any judgment" regarding one of five forms of enumerated relief, Congress waswell aware that it had already specified in the five individual statutory provisionsthat the ultimate judgment whether to grant relief was within the AttorneyGenerals discretion. Congress, therefore, was simply intending to eliminatejudicial review of those ultimate discretionary judgments. I am persuaded that thisis the most legitimate reading of clause (i) because Congress added clause (ii). Byadding the further limitations in clause (ii), Congress sought to ensure that courtsalso could not review those decisions or actions of the Attorney General, underSubchapter II of Chapter I2 of Title 8 of the United States Code, which Congressspecified to be in the discretion of the Attorney General. Thus, under clause (ii),courts must also ascertain whether Congress has designated any of the underlyingeligibility criteria as discretionary. For example, under the hardship waivers of 8 6
  7. 7. Case: 11-10552 Date Filed: 10/25/2012 Page: 7 of 8U.S.C. § 1182(h) and 8 U.S.C. § 1182(i), Congress has explicitly and separatelyspecified that each of the underlying statutory eligibility criteria must be"established to the satisfaction of the Attorney General." Congress, however, didnot include the same or similar discretionary language regarding any of theeligibility criteria for cancellation of removal, including either the "exceptional andextremely unusual hardship" or "battered or subjected to extreme cruelty"requirements. Thus, these determinations by the Attorney General are notinsulated from judicial review by Congresss enactment of§ 1252(a)(2)(B). Andthere is nothing in§ 1252(a)(2)(B) to suggest that courts, rather than Congress,should determine whether a particular decision, action or judgment is within thediscretion of the Attorney General. We must keep in mind that restrictions on jurisdiction must be readnarrowly, see McNary v. Haitian Refugee Ctr., 498 U.S. 479 (1991) (noting the"well-settled presumption favoring interpretations of statutes that allow judicialreview of administrative action"), that courts should not assume that theirjurisdiction has been repealed unless the statute says so explicitly, see Bowen v.Michigan Acad. ofFamily Physicians, 476 U.S. 667, 670-72 (1986), and finallythat "any lingering ambiguities" in deportation statutes are to be construed in favorofthe alien, see INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987). Reading§ 7
  8. 8. Case: 11-10552 Date Filed: 10/25/2012 Page: 8 of 81252(a)(2)(B) to preclude judicial review of the eligibility requirement of"batteredof subjected to extreme cruelty" ignores these bedrock principles. 8
  9. 9. [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 CLERKHAMELT RODOLFO BEDOYA-MELENDEZ,a.k.a. Hamelt Rodolfo Bedoya,a.k.a. Hamelt Bedoya, Petitioner, versusU. 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 bydesignation.
  10. 10. Hamelt Rodolfo Bedoya-Melendez seeks review of the decision of the Boardof Immigration Appeals that he is not eligible for special rule cancellation of removalunder § 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 toshow that he was “battered or subjected to extreme cruelty” by his American citizenspouse. We conclude that the Board has discretion to make this determination, andtherefore we lack jurisdiction to review the Board’s decision that Bedoya-Melendezis not a battered spouse. I. FACTS AND PROCEDURAL HISTORY The underlying facts are largely irrelevant to this appeal. We state them brieflyto provide context for this opinion. Bedoya-Melendez, a Peruvian citizen, entered theUnited States in 2003 as a nonimmigrant visitor. In 2004, he married an Americancitizen, Nancy Pinedo. A week later, she asked the United States Citizenship andImmigration Service to adjust Bedoya-Melendez’s immigration status. But, when thehoneymoon ended, the marriage quickly soured. Bedoya-Melendez alleges thatNancy began slapping him when she became upset. And, he alleges she also falselyled him to believe he had HIV. Less than six months after they married, Bedoya-Melendez and Nancy separated, and eventually divorced. Bedoya-Melendez allegesthat Nancy and her father then brought several frivolous lawsuits against him. 2
  11. 11. Meanwhile, the Citizenship and Immigration Service declined to adjustBedoya-Melendez’s immigration status, and the Department of Homeland Securitysought to remove him. At a hearing in late 2004, Bedoya-Melendez admitted that hewas removable, but petitioned for asylum. He later withdrew that petition. In 2007, Bedoya-Melendez filed a petition for special rule cancellation ofremoval, claiming that he was a battered spouse under 8 U.S.C. § 1229b(b)(2). Toestablish 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-Melendeztestified about Nancy’s behavior. The immigration judge concluded that Nancy’s 3
  12. 12. actions did not make Bedoya-Melendez a battered spouse under § 1229b(b)(2). Hispetition was denied for that reason. Bedoya-Melendez appealed to the Board, but italso denied his petition, issuing its own decision. Bedoya-Melendez then petitionedthis court to review the Board’s decision.1 II. ISSUES ON APPEAL This appeal presents two issues: (1) does the Board have discretion to decideif an alien is a battered spouse under § 1229b(b)(2); and (2) if the answer to the firstissue 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 discretionarydecisions 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 havejurisdiction to review constitutional claims and questions of law arising under thatprovision. See 8 U.S.C. § 1252(a)(2)(D); Jean-Pierre v. U.S. Att’y Gen., 500 F.3d1315, 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 hewould suffer extreme hardship if removed. But the Board did not consider this portion of theimmigration judge’s decision. It based its denial solely on Bedoya-Melendez’s failure to meet thebattered-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 considerBedoya-Melendez’s failure to satisfy the extreme hardship requirement, that issue is not before us. 4
  13. 13. 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 determinationunder § 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 Circuitcase, 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 legalstandard to guide the battered-spouse determination under § 1229b(b)(2). The Attorney General counters that five other circuits have reached theopposite conclusion. These circuits reasoned that the phrase “has been battered orsubjected to extreme cruelty” is not self-explanatory and that reasonable minds coulddiffer as to its meaning. And, because Congress did not define this phrase, it intendedto grant the Attorney General discretion to make this decision. These circuits alsoconcluded that 8 C.F.R. § 204.2(c)(1)(vi), which interprets almost identical languagein a different provision of the Immigration and Nationality Act, does not establish anobjective legal standard for the battered-spouse determination . For the reasons statedbelow, we agree with the Attorney General and the majority of our sister circuits. 5
  14. 14. IV. DISCUSSION Our jurisdiction over Bedoya-Melendez’s petition turns on whether thebattered-spouse determination is a question of law or a discretionary decision. Aquestion of law involves “the application of an undisputed fact pattern to a legalstandard.” Jean-Pierre, 500 F.3d at 1322. For example, under § 1229b(b)(2), analien must be continuously present in the United States for three years before he canfile a petition for cancellation of removal. 8 U.S.C. § 1229b(b)(2)(A)(ii). Congressdefined “continuous physical presence” in § 1229b(b)(2)(B). A court need only applythis 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 petitionerhas been continuously present in the United States for [three] years or the petitionerhas 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 ajudgment call. For example, under § 1229b(b)(2), an alien must show that removalwill “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 thephrase “extreme hardship.” 257 F.3d at 1298. We held that the Attorney General hasdiscretion 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
  15. 15. 33 (11th Cir. 2003) (holding that the phrase “exceptional and extremely unusualhardship” in § 1229b(b)(1) grants the Attorney General discretion). We based ourholding, 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 differas to [its] construction.” Id. at 144, 101 S. Ct. at 1031. The Court concluded thatCongress had vested the Attorney General with discretion to interpret the phrase“extreme hardship.” See id. And, the Court refused to substitute its judgment for thatof 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 confersdiscretion on the Attorney General when it is “not self-explanatory, and reasonablemen 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-Cumpeanv. Gonzalez, 429 F.3d 977, 982 (10th Cir. 2005) (“Decisions that involve a ‘judgmentcall’ by the agency, or for which there is ‘no algorithm’ on which review may bebased, are considered discretionary . . . .”); Rosario v. Holder, 627 F.3d 58, 62 (2dCir. 2010) (“We ask whether the BIA is expressing legal doctrine or whether it isengaged in the factfinding and factor-balancing that are at the core of its discretion.”) 7
  16. 16. Section 1229b(b)(2)’s requirement that an alien be “battered or subjected toextreme cruelty” does not establish an objective legal standard on which a court canbase 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 thisprovision. 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. at144, 101 S. Ct. at 1031. We consider the meaning of the word “battered” and theclause “subjected to extreme cruelty” in turn. We first turn to the dictionary definition of the verb “batter.” The OxfordEnglish Dictionary defines “batter” as “to beat continuously and violently so as tobruise or shatter.” Oxford English Dictionary 1005 (2d ed., 1989). Webster’s ThirdNew International Dictionary provides a similar definition: “to beat with successiveblows: beat repeatedly and violently so as to bruise, shatter, or demolish.” Webster’sThird New International Dictionary 187 (2002). Finally, the American HeritageDictionary defines “batter” as “to hit heavily and repeatedly with violent blows.”American Heritage Dictionary 152 (5th ed., 2011). While these definitions suggestsome boundaries for the word “battered” in § 1229b(b)(2), they do not establish anobjective 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
  17. 17. must endure before one becomes a battered spouse. Nor do these dictionarydefinitions clearly define the force these blows must exert. Thus, reasonable mindscould differ as to what an alien must endure before he has been “battered.” Similarly, the clause “subjected to extreme cruelty” does not present anobjective legal standard. Webster’s Third New International Dictionary defines“cruelty” as “the quality or state of being cruel,” which means “disposed to inflictpain . . . .” Webster’s Third New International Dictionary 546 (2002). Webster’sdictionary also includes a definition of cruelty specifically applicable to domesticrelationships: “conduct of either party in a divorce action that endangers the life orhealth of the other.” Id. These definitions draw no bright lines. Reasonable mindscould easily differ as to what conduct shows a disposition “to inflict pain” and whatconduct “endangers [a spouse’s] life or health.” Moreover, as other circuits havesaid, the adjective “extreme” requires the Attorney General to make a judgment callabout “whether the cruel conduct alleged is sufficiently extreme to implicate thepurposes of the statute.” Perales-Cumpean, 429 F.3d at 982; see Wilmore, 455 F.3dat 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 legalstandard. Congress enacted the original version of § 1229b(b)(2) as part of the 9
  18. 18. 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, includingdomestic violence. Because Congress adopted § 1229b(b)(2) in this context, theword “battered” and the clause “subjected to extreme cruelty” arguably refer todomestic violence. But, that conclusion does not get us very far because domesticviolence 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 AgainstWomen 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 severalterms used throughout the Violence Against Women Act. Id. at 2964. Section 13925(a)(6) providesthat: 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 thatthis 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 alsoincludes 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, wecan say what that word does not mean. “Battered” does not refer to common-law battery. But seeHernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003). At common law, an “unwelcome kiss orcaress” was a battery. Bryan A. Garner, A Dictionary of Modern Legal Usage 100 (2d ed., 1995). 10
  19. 19. But we do not end our analysis with the text of § 1229b. Both the Secretary ofHomeland Security and the Attorney General have authority to craft regulationsinterpreting the Immigration and Nationality Act. See 8 U.S.C. § 1103. Theseregulations could limit the Attorney General’s discretion in ways that make thebattered-spouse determination effectively nondiscretionary. Cf. Cadet v. Bulger, 377F.3d 1173, 1180–81 (11th Cir. 2004) (federal regulations defining torture created alegal 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 regulationestablishes 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 eligibilityfor relief under § 1229b(b)(2). But the text and the history of §1229b(b)(2) suggest a differentresult. Section 1229b(b)(2) is, after all, a “special rule” applicable only to battered spouses. Alienswho are not battered spouses must seek cancellation of removal under § 1229b(b)(1), which hasmore stringent eligibility requirements. 11
  20. 20. 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 promulgatedunder 8 U.S.C. §§ 1154 & 1255. These sections authorize an alien to petition theAttorney General for an adjustment in his immigration status to that of a lawfulpermanent resident. An alien can file a petition under these sections whether or nothe is facing removal. See § 1255 (“[T]he status of [an] alien having an approvedpetition for classification as [battered spouse] may be adjusted by the AttorneyGeneral [if he files a petition and meets certain other requirements].”). Conversely,§ 1229b applies specifically to aliens whom the Attorney General has orderedremoved. § 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 ofFederal 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-Melendezhas not identified (and our research has not found) any regulation in Title 8, Chapter Iwhich applies to the battered-spouse determination under § 1229b(b)(2). The Boarddid not believe that § 204.2(c)(1)(vi) applied to the battered-spouse determinationunder § 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
  21. 21. 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 inmaking the battered-spouse determination . But, this regulation does not establish abinding 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 thebattered-spouse determination under § 1229b(b)(2), that regulation does not createan objective legal standard. Instead, § 204.2(c)(1)(vi) merely suggests how theAttorney General should exercise his discretion. First, the regulation does not drawa bright line between facts which make one person a battered spouse and anotherperson not a battered spouse. The regulation expressly states that “was battered byor was the subject of extreme cruelty” “includes, but is not limited to” certainconduct. 8 C.F.R. § 204.2(c)(1)(vi) (emphasis added). The “not limited to” languagestrongly 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) ratherthan § 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.3d58 (2d Cir. 2010); Johnson v. U.S. Att’y Gen., 602 F.3d 508 (3d Cir. 2010); Stepanovic v. Filip, 554F.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 establishan objective legal standard for the battered-spouse determination. 13
  22. 22. And though the regulation casts a wide net (capturing “any” act or threatenedact of violence), we do not know what conduct that net will catch. The “act orthreatened act of violence” must “result[] or threaten[] to result in physical or mentalinjury.” Id. But the “physical or mental injury” requirement is not self-explanatoryand reasonable minds could differ about what this clause means. Because this clauseis imprecise, we do not know from the text of the regulation what conduct is includedand what conduct is not. Finally, § 204.2(c)(1)(vi) encompasses “[o]ther abusive actions . . . [that] maynot initially appear violent but that are a part of an overall pattern of violence. ” Theregulation does not offer any guidance as to which acts fall in this category. Thisimprecision strongly suggests that the Attorney General also retains discretion tomake this decision on a case-by-case basis. Because neither the statutory text nor anapplicable regulation establish an objective legal standard on which to base ourreview, we hold that the battered-spouse determination under § 1229b(b)(2) is adiscretionary decision reserved to the Attorney General. Of the six other circuits that have considered this issue, five have concludedthat 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
  23. 23. (5th Cir. 2006); Perales-Cumpean v. Gonzales, 429 F.3d 977 (10th Cir. 2005). Onlythe Ninth Circuit has reached a contrary conclusion. In Hernandez v. Ashcroft, thecourt held that the phrase “battered or subjected to extreme cruelty” establishes anobjective legal standard to determine if an alien is a victim of domestic violence. 345F.3d 824, 834 (9th Cir. 2003). Despite the court’s pronouncement that domesticviolence (and thus the phrase “battered or subjected to extreme cruelty”) has a clinicaldefinition, 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, asexplained above, this regulation does not establish an objective legal standard for thebattered-spouse determination . We find Hernandez unpersuasive. V. CONCLUSION Because the battered-spouse determination under § 1229b(b)(2) is adiscretionary decision, we lack jurisdiction to review the Board’s decision thatBedoya-Melendez is not a battered spouse. See 8 U.S.C. § 1252(a)(2)(B). For thatreason, his petition is dismissed. PETITION DISMISSED. 15