Perales-Cumpean v. Gonzales

• Decision Date: 25 November 2005
• Docket Number: No. 03-9553.,03-9553.
• Parties: Graciela PERALES-CUMPEAN, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent. National Immigration Project of the National Lawyers Guild; Family Violence Prevention Fund; Now Legal Defense and Education Fund, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

429 F.3d 977

Graciela PERALES-CUMPEAN, Petitioner, v. Alberto R. GONZALES,^* Attorney General, Respondent.

National Immigration Project of the National Lawyers Guild; Family Violence Prevention Fund; Now Legal Defense and Education Fund, Amici Curiae.

No. 03-9553.

United States Court of Appeals, Tenth Circuit.

November 25, 2005.

David Neslin, Arnold & Porter, LLP, Denver, Colorado (Leonor Perretta, Utzinger & Perretta, PLLC, Salt Lake City, UT, on the briefs) for Petitioner.

John C. Cunningham, Senior Litigation Counsel (Linda S. Wendtland, Assistant Director, with him on the briefs), United States Department of Justice, Washington, DC, for Respondent.

David Neslin, Arnold & Porter, Denver, CO, Leslie M. Hill and Mona Luddy Benach, Arnold & Porter, Washington, DC, Dan Kesselbrenner and Gail Pendleton, National Immigration Project of the National Lawyers Guild, Boston, MA, Leslye Orloff and Joyce Noche, Now Legal Defense and Education Fund, Washington, DC, filed a brief on behalf of Amici Curiae.

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

ANDERSON, Circuit Judge.

Petitioner Graciela Perales-Cumpean is a citizen of Mexico who faces removal from this country. She seeks review of the decision of the Board of Immigration Appeals (BIA) that she is not eligible for cancellation of removal under the battered spouse provisions of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2). Respondent has filed a motion to dismiss the petition for review, contending that this court lacks jurisdiction to review the discretionary decisions that are the subject of petitioner's petition for review. We dismiss the petition for review in part for lack of jurisdiction. As to the remainder of the petition, we affirm.

1. Background

Petitioner concedes that she entered the United States without inspection in June 1990, making her subject to removal. On or about April 29, 1997, she married an American citizen whom she had known for about two years. She contends that after the marriage, her husband "totally changed his attitude toward her abusing her verbally and forcing her to engage in sexual relations with him against her will." Pet. Opening Br. at 6. Petitioner lived with her husband for less than three months before she left him. At the time of the IJ hearing, she was still married to her husband, but had been separated from him for over two years.

Respondent began removal proceedings against petitioner on December 8, 1997. Petitioner sought cancellation of removal under the battered spouse provisions of § 1229b(b)(2).¹ An alien seeking to qualify for cancellation of removal under this section must demonstrate that:

(i)(I) the alien has been battered or subjected to extreme cruelty by a spouse or parent who is or was a United States citizen [...];

[...]

(ii) the alien has been physically present in the United States for a continuous period of not less than 3 years immediately preceding the date of such application, and the issuance of a charging document for removal proceedings shall not toll the 3-year period of continuous physical presence in the United States;

(iii) the alien has been a person of good moral character during such period, subject to the provisions of subparagraph (C);

(iv) the alien is not inadmissible under paragraph (2) or (3) of section 1182(a) of this title, is not deportable under paragraphs (1)(G) or (2) through (4) of section 1227(a) of this title (except in a case described in section 1227(a)(7) of this title where the Attorney General exercises discretion to grant a waiver), and has not been convicted of an aggravated felony; and

(v) the removal would result in extreme hardship to the alien, the alien's child, or the alien's parent.

8 U.S.C. § 1229b(b)(2).

The IJ denied relief, finding that petitioner had not satisfied the statutory requirement of showing that she had been subject to extreme cruelty or battery by her spouse. See id. § 1229b(2)(i). Specifically, the IJ determined (1) that the verbal abuse alleged by petitioner was insufficient to constitute "extreme cruelty" within the meaning of § 1229b, and (2) that petitioner had changed her story during the hearing and from previous affidavits she had filed concerning the alleged abuse and marital rape, making her testimony on these subjects not credible.

The BIA summarily affirmed the IJ's decision. Petitioner and respondent then filed a joint motion to reopen the proceedings with the BIA, noting the lack of precedent concerning the meaning of "extreme cruelty" under the battered spouse provisions and requesting the BIA to reconsider whether the case had been proper for a summary adjudication. The BIA granted the motion to reopen and again dismissed the appeal, this time with a reasoned decision.² The BIA stated that although the battered spouse provisions did not require petitioner to demonstrate that she suffered physical violence in order to establish "extreme cruelty," petitioner had failed to meet her burden to show that the abuse she alleged, consisting of insults, name calling, and use of derogatory language in reference to her during the short time she lived with her husband, rose to the level of extreme cruelty. The BIA further agreed with the IJ that petitioner's testimony concerning marital rape had not been credible.

Petitioner now raises three issues concerning the BIA's decision. She contends that the BIA erred in finding that the ongoing verbal abuse did not constitute "extreme cruelty" within the meaning of the VAWA. She also contends that the BIA failed to apply properly the relaxed evidentiary standards of the VAWA in determining that her testimony concerning marital rape was not credible. Finally, she contends that the BIA improperly required her to provide additional evidence about the incidents of marital rape on appeal despite its procedures that prevented her from doing so.

2. Jurisdictional Issue

As respondent points out, the threshold issue is whether we have jurisdiction to review the BIA's denial of petitioner's request for cancellation of removal.³ The issues petitioner raises for review present two separate jurisdictional inquiries. First, do we have jurisdiction to review the BIA's determination that the non-physical abuse petitioner suffered did not rise to the level of "extreme cruelty"? Second, do we have jurisdiction to review the BIA's determination that petitioner's allegations of marital rape were not credible? We conclude that we lack jurisdiction over each of these issues. We retain jurisdiction over petitioner's third issue, a procedural claim involving her alleged failure to present an affidavit in support of her allegations of abuse, and on that claim, we affirm on the merits.

a. Extreme cruelty determination

Petitioner's first issue asks "whether [her husband's] anger, jealousy, violent looks, verbal abuse, name calling, and making very derogatory remarks in front of [petitioner's] friends and neighbors [rose] to the level of extreme cruelty[.]" Pet. Opening Br. at 14. The applicable jurisdictional principle is contained in 8 U.S.C. § 1252(a)(2)(B), which states:

(2) Matters not subject to judicial review

....

(B) Denials of discretionary relief

Notwithstanding any other provision of law, no court shall have jurisdiction to review — (i) any judgment regarding the granting of relief under section... 1229b ... of this title[.]

The statute does not define the meaning of "any judgment regarding the granting of relief." Our previous cases shed light on the meaning of this phrase, however. We have determined that § 1252 precludes us from reviewing decisions under § 1229b that involve the exercise of the agency's discretion. Morales Ventura v. Ashcroft, 348 F.3d 1259, 1261-62 (10th Cir.2003).⁴ We retain jurisdiction, however, to review the agency's non-discretionary decisions. Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1148-49 (10th Cir.2005). The determination of whether a particular decision is discretionary or non-discretionary is made on a case-by-case basis. 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 and hence immune from review. Id. at 1149 (quotation omitted). Decisions for which there is a clear standard, and for which no evaluation of non-discretionary criteria is required, by contrast, may be considered non-discretionary and thus reviewable.

This court has not previously decided whether a determination that particular conduct rises to the level of "extreme cruelty" under § 1229b represents an exercise of the agency's discretionary judgment. Our decision in Morales Ventura, however, is persuasive here. In that case, we determined that the issue of whether an alien showed "exceptional and extremely unusual hardship" was discretionary because "[t]here is no algorithm for determining when a hardship is `exceptional and extremely unusual.'" 348 F.3d at 1262. "The decision regarding when hardship has reached that level is a judgment call." Id. Notwithstanding petitioner's attempt to recast the BIA's decision on extreme cruelty as a pure question of law involving our de novo review, the same is true here. Determining whether a given course of conduct is "extremely cruel" involves more than simply plugging facts into a formula. The agency is required to make a judgment whether the cruel conduct alleged is sufficiently extreme to implicate the purposes of the statute. This decision involves the exercise of agency discretion.

This case, in fact, presents a prime example of why the determination of whether "extreme cruelty" has occurred is discretionary rather than non-discretionary. Congress could have chosen to define "extreme cruelty" with sufficient specificity to clarify under what circumstances verbal abuse would qualify. It could also have taken a more categorical approach to the definition of "extreme cruelty." It did not do so. Instead, it left...