Stepanovic v. Filip

• Decision Date: 28 January 2009
• Docket Number: No. 07-3883.,07-3883.
• Citation: 554 F.3d 673
• Parties: Zvonko STEPANOVIC, Petitioner, v. Mark R. FILIP, Acting Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

554 F.3d 673

Zvonko STEPANOVIC, Petitioner, v. Mark R. FILIP, Acting Attorney General of the United States, Respondent.

No. 07-3883.

United States Court of Appeals, Seventh Circuit.

Argued October 20, 2008.

Decided January 28, 2009.

Larry J. Hagen (argued), Oak Park, IL, for Petitioner.

Sunah Lee (argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before BAUER, KANNE, and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge.

Zvonko Stepanovic is a citizen of Serbia and Montenegro¹ who faces removal from the United States. He seeks review of an order of the Board of Immigration Appeals declaring him ineligible for cancellation of removal pursuant to the battered spouse provision of the Immigration and Nationality Act § 240A(b)(2), 8 U.S.C. § 1229b(b)(2). The government contends that this court lacks jurisdiction to review the BIA's determination that Stepanovic was not subjected to "extreme cruelty" under § 1229b(b)(2). We agree and conclude that 8 U.S.C. § 1252(a)(2) prevents us from exercising jurisdiction over the BIA's determination. Accordingly, we dismiss the petition.

I. BACKGROUND

Stepanovic was born in a region of the former Republic of Yugoslavia that is now in Serbia. In 1993, he married Silvana Simic, and the two moved to South Africa. The couple had one child, Kristina, before obtaining an amicable divorce in 1996. Silvana and Kristina remained in South Africa until 1997, and they now live in Florida.

On September 30, 1997, the United States admitted Stepanovic as a non-immigrant visitor with authorization to remain for a period not to exceed six months. He became a self-employed cross-country truck driver and lived in Chicago. In 1998, Stepanovic met Sonja Jovanovic, a U.S. citizen working in a Serbian restaurant, and the two began dating.

Stepanovic remained in the United States past the authorized six-month time period, and in 2002, immigration authorities detained him in Spokane, Washington. On May 8, 2002, the Immigration and Naturalization Service² sought to remove him for being in the United States illegally, pursuant to 8 U.S.C. § 1227(a)(1)(B)(C)(I). Stepanovic returned to Chicago after being released on a bond.

Approximately one month later, Stepanovic married Jovanovic and moved into her Chicago apartment. At a hearing before an immigration judge in January 2003, Stepanovic conceded removability, but at a later hearing in July, he stated that he would seek relief from removal because of his marriage to a United States citizen.

In November 2003, Stepanovic returned from a long-distance trucking trip, expecting Jovanovic to pick him up where he typically parked. She failed to appear, and he spent the night in his truck. Stepanovic received a ride home from a friend the next day, only to find that Jovanovic had locked him out of the apartment. When she finally answered the door, she appeared angry and would not let him enter. She handed him two bags of clothes and told him to leave, threatening to call the police if he did not. Jovanovic never allowed Stepanovic back into the apartment, and the two eventually divorced.

At a hearing in October 2004, Stepanovic informed the IJ that he and Jovanovic had separated and that he now intended to petition for cancellation of removal. On December 5, 2005, the IJ held a hearing on the merits of Stepanovic's application for cancellation of removal for battered spouses who have been subjected to "extreme cruelty," pursuant to 8 U.S.C. § 1229b(b)(2). In addition to the aforementioned facts, Stepanovic presented evidence that Jovanovic became involved with another man during their marriage and may have been unfaithful. Stepanovic stated that he heard from friends that Jovanovic later married this same man.

Stepanovic conceded that he was never battered or subjected to physical harm, but he claimed that he suffered mental and emotional distress as a result of these events, the deterioration of his marriage, Jovanovic's continued refusal to return his phone calls, and occasionally seeing her in public with another man. At the conclusion of the hearing, the IJ denied Stepanovic's application because he failed to meet his burden of proof for cancellation of removal, including that he did not establish that his ex-wife subjected him to "extreme cruelty."³ The IJ granted Stepanovic's alternative request for voluntary departure and designated South Africa as the country of removal. Stepanovic appealed the IJ's decision to the BIA.

On October 31, 2007, the BIA dismissed his appeal. The BIA agreed with the IJ that Stepanovic failed to demonstrate that he was subjected to extreme cruelty by his spouse under § 1229b(b)(2). The BIA held that "[i]n light of this determination, we need not reach the other arguments raised on appeal regarding the other eligibility criteria for cancellation of removal."

II. ANALYSIS

Stepanovic appeals the BIA's decision that he failed to prove that he was subjected to extreme cruelty. Because the BIA undertook an independent review of the record and did not rely exclusively on the IJ's findings, we review the BIA's decision directly and not that of the IJ. Peralta-Cabrera v. Gonzales, 501 F.3d 837, 843 (7th Cir.2007). Stepanovic also claims that the BIA incorrectly altered the legal standard for establishing extreme cruelty by requiring psychiatric or medical evidence that his emotional suffering rose to the level of extreme cruelty.

A. Battered Spouse Provision of the INA

Under the INA's battered spouse provision, the "Attorney General may cancel removal" of an alien who is otherwise removable if the petitioner establishes the elements of 8 U.S.C. § 1229b(b)(2), including that he "has been battered or subjected to extreme cruelty by a spouse or parent who is or was a United States citizen." Id. § 1229b(b)(2)(A)(i)(I).⁴

Congress has not defined "extreme cruelty" or provided a legal standard for determining its existence for the purposes of § 1229b(b)(2). However, the DHS promulgated a regulation that permits a battered spouse of a citizen or lawful permanent resident to self-petition for adjustment of status, and it defines "battery or extreme cruelty" as including, but not limited to:

being the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence. Other abusive actions may also be acts of violence under certain circumstances, including acts that, in and of themselves, may not initially appear violent but that are a part of an overall pattern of violence.

8 C.F.R. § 204.2(c)(1)(vi).

Based on the statute and the DHS regulation, Stepanovic asserts that his ex-wife's conduct and the deterioration of their marriage resulted in emotional and mental injury and constituted extreme cruelty under § 1229b(b)(2).

B. Jurisdiction Under 8 U.S.C. § 1252(a)(2)

Before reaching the merits of Stepanovic's claims, we must have jurisdiction to review the BIA's determination that Stepanovic failed to demonstrate extreme cruelty. Congress has delegated many immigration decisions to the Attorney General, and in so doing has expressly circumscribed our jurisdiction to review certain judgments. See 8 U.S.C. § 1252(a)(2); Khan v. Mukasey, 517 F.3d 513, 517 (7th Cir.2008). The applicable jurisdictional provision, entitled "Denials of discretionary relief," provides:

Notwithstanding any other provision of law ... and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review—(i) any judgment regarding the granting of relief under section ... 1229b ... of this title....

8 U.S.C. § 1252(a)(2)(B).

Stepanovic seeks relief under § 1229b, so we must turn to the exception to the jurisdiction-removal provision, found in subparagraph (D), which states:

Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.

8 U.S.C. § 1252(a)(2)(D). Thus, reading the two provisions together, we may not review the BIA's decision to deny an alien's application for cancellation of removal under § 1229b unless the alien presents a constitutional claim or question of law.

Stepanovic makes two separate arguments. First, he asserts that the BIA's determination of extreme cruelty is non-discretionary, and is therefore a reviewable decision outside the scope of § 1252(a)(2)(B). Second, he argues that the BIA altered the legal standard for establishing extreme cruelty, which he states should constitute a reviewable question of law. We address each argument and find both unpersuasive.

1. Discretionary Nature of the Extreme Cruelty Determination

Stepanovic first urges us to find that the extreme cruelty determination is non-discretionary and therefore within our jurisdiction to review. The government disagrees, arguing that the determination is discretionary and not reviewable.

Congress did not define the phrase "any judgment regarding the granting of relief" for the purposes of § 1252(a)(2)(B)(i). The statute is clear that, at a minimum, we may not review any discretionary determination regarding relief under § 1229b. See, e.g., Martinez-Maldonado v. Gonzales, 437 F.3d 679, 682 (7th Cir.2006) ("[Section 1252(a)(2)(B)] bars judicial review of all discretionary decisions of the Attorney General made in immigration cases, with a few exceptions...."); Cevilla v. Gonzales, 446 F.3d 658, 661 (7th Cir. 2006) ("[W]hile the purpose of the door-closing statute appears...