Bedoya v. U.S. Attorney Gen.

• Decision Date: 17 May 2012
• Docket Number: No. 11–10552.,11–10552.
• Citation: 680 F.3d 1321,23 Fla. L. Weekly Fed. C 1049
• Parties: Hamelt Rodolfo BEDOYA–MELENDEZ, a.k.a. Hamelt Rodolfo Bedoya, a.k.a. Hamelt Bedoya, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

680 F.3d 1321

23 Fla. L. Weekly Fed. C 1049

Hamelt Rodolfo BEDOYA–MELENDEZ, a.k.a. Hamelt Rodolfo Bedoya, a.k.a. Hamelt Bedoya, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 11–10552.

United States Court of Appeals, Eleventh Circuit.

May 17, 2012.

Arturo Aponte–Pares, Aponte & Associates, Orlando, FL, for Petitioner.

John J.W. Inkeles, U.S. Dept. of Justice, Civ. Div.—OIL, Derek C. Julius, David V. Bernal, Krystal Samuels, U.S. Dept. of Justice, OIL, Eric Holder, Jr., Washington, DC, Nicole Guzman, DHS, Office of Chief Counsel, Orlando, FL, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before MARCUS, COX and SILER,^* Circuit Judges.

COX, Circuit Judge:

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.

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 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. See8 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 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.

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, 1332–33 (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, 67 L.Ed.2d 123 (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. Gonzales, 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.”)

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...