Stepanovic, Zvonko v. Holder, Eric H. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3883
Z VONKO STEPANOVIC,
Petitioner,
v.
M ARK R. F ILIP, Acting Attorney General
of the United States,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals.
No. A79-766-597
A RGUED O CTOBER 20, 2008—D ECIDED JANUARY 28, 2009
Before B AUER, K ANNE, and W ILLIAMS, Circuit Judges.
K ANNE, Circuit Judge. Zvonko Stepanovic is a citizen
of Serbia and Montenegro 1 who faces removal from the
1
Following a referendum vote on May 21, 2006, Montenegro’s
Parliament declared independence from Serbia on June 3, 2006.
Serbia recognized Montenegro’s independence and declared
(continued...)
2 No. 07-3883
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. B ACKGROUND
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 amica-
ble 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 be-
1
(...continued)
an end to the union of the two states. On June 28, 2006,
Montenegro became a member state of the United Nations.
These events occurred after the immigration judge’s order in
the proceedings below, although they do not affect our
analysis in this appeal.
No. 07-3883 3
came 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, immigra-
tion authorities detained him in Spokane, Washington.
On May 8, 2002, the Immigration and Naturalization
Service 2 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
2
On March 1, 2003, the INS ceased to exist as an independent
agency, and the Department of Homeland Security assumed
its functions.
4 No. 07-3883
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
3
The IJ also found that Stepanovic failed to demonstrate a
viable marriage and that Stepanovic’s daughter was not a
qualifying relative under the statute, 8 U.S.C. § 1229b(b)(2),
because she was not a lawful permanent resident.
No. 07-3883 5
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 demon-
strate 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 argu-
ments raised on appeal regarding the other eligibility
criteria for cancellation of removal.”
II. A NALYSIS
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 emo-
tional suffering rose to the level of extreme cruelty.
A. Battered Spouse Provision of the INA
Under the INA’s battered spouse provision, the “Attor-
ney 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
6 No. 07-3883
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 adjust-
ment 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 exploita-
tion, 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 circum-
stances, 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).
4
An applicant for cancellation of removal under § 1229b(b)(2)
also must demonstrate (1) physical presence for a continuous
period of not less than three years immediately preceding the
application; (2) good moral character during such period;
(3) that he or she is not inadmissible or deportable under
other provisions and has not been convicted of an aggravated
felony; and (4) that removal would result in extreme hardship to
the alien, his child, or his parent. 8 U.S.C. § 1229b(b)(2)(A)(ii)-(v).
No. 07-3883 7
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 judg-
ments. See 8 U.S.C. § 1252(a)(2); Khan v. Mukasey, 517
F.3d 513, 517 (7th Cir. 2008). The applicable jurisdic-
tional provision, entitled “Denials of discretionary re-
lief,” 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
8 No. 07-3883
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 Deter-
mination
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
No. 07-3883 9
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 to be to place
discretionary rulings beyond the power of judicial review
(hence the caption of subsection (B)), the statute itself, read
literally, goes further and places all rulings other than
those resolving questions of law or constitutional issues
beyond the power of judicial review.” (emphasis added)).
Subsection (D) of the jurisdictional statute restores our
jurisdiction to review only constitutional claims or ques-
tions of law. See 8 U.S.C. § 1252(a)(2)(D). We have inter-
preted the phrase “questions of law” to permit judicial
review of only “pure”questions of law. See Viracacha v.
Mukasey, 518 F.3d 511, 515 (7th Cir. 2008); Cevilla, 446
F.3d at 661 (explaining that Congress intended “to distin-
guish between ‘statutory-construction questions’ and
‘factual questions’ and to permit judicial review only of
answers to the former”). A “pure” question of law arises
in “situations in which a case comes out one way if the
Constitution or statute means one thing, and the other
way if it means something different.” Viracacha, 518 F.3d at
515. Therefore, factual or discretionary determinations
do not constitute reviewable questions of law under
§ 1252(a)(2)(D). See Leguizamo-Medina v. Gonzales, 493
F.3d 772, 774 (7th Cir. 2007); Cevilla, 446 F.3d at 661.
This court has not previously addressed our jurisdiction
to review an IJ’s extreme cruelty determination for the
10 No. 07-3883
purposes of § 1229b(b)(2). We have, however, held repeat-
edly that an analogous issue is not subject to judicial
review: whether an alien will suffer “exceptional and
extremely unusual hardship” in order to obtain cancella-
tion of removal under § 1229b(b)(1). See Martinez-
Maldonado, 437 F.3d at 682 (“Our Court and others have
confirmed that the application of [§ 1252(a)(2)(B)] strips
us of jurisdiction in discretionary cancellation of removal
cases.”); Mireles v. Gonzales, 433 F.3d 965, 968 (7th Cir.
2006) (“We lack jurisdiction to review [petitioner’s] con-
tention that the agency should have exercised discretion
in his favor [under § 1229b]. . . . This is true whether the
alien’s argument is that the agency abused its discretion
or that it failed to conduct a thorough review of the
record.” (citations omitted)); Leyva v. Ashcroft, 380 F.3d 303,
307 (7th Cir. 2004) (“The meaning of 8 U.S.C.
§ 1252(a)(2)(B)(i) is clear: we may not review the Attorney
General’s judgment regarding whether or not to grant
cancellation of removal under 8 U.S.C. § 1229b(b)(1).”);
Kharkhan v. Ashcroft, 336 F.3d 601, 604 (7th Cir. 2003).5
Stepanovic has not presented a convincing reason why
the extreme cruelty determination under § 1229b(b)(2)
should be treated differently than “exceptional and
extremely unusual” hardship under § 1229b(b)(1). Both
5
Leyva and Kharkhan were both decided before § 1252(a)(2)(D)
became effective in May 2005, as part of the Real ID Act of
2005, Pub. L. No. 109-13, 119 Stat. 231, 310. The addition of
§ 1252(a)(2)(D), however, did not affect our holding that the
BIA’s determination of “exceptional and extremely unusual
hardship” is not subject to judicial review according to
§ 1252(a)(2)(B). See Mireles, 433 F.3d at 968-69.
No. 07-3883 11
are subject to the jurisdiction-removal provision in
§ 1252(a)(2)(B), and Stepanovic is challenging the BIA’s
factual findings, its application of those facts to the law,
and its exercise of discretion in denying relief under
§ 1229b(b)(2). We lack jurisdiction to review these deter-
minations, just as we may not review similar issues
under § 1229b(b)(1). See, e.g., Mireles, 433 F.3d at 968.
Furthermore, three of the four circuits that have ad-
dressed this precise question have held that the
extreme cruelty determination is discretionary and not
subject to judicial review. See Ramdane v. Mukasey, No. 07-
4064, 2008 U.S. App. LEXIS 20356, at *4 (6th Cir. Sept. 25,
2008); Wilmore v. Gonzales, 455 F.3d 524, 528 (5th Cir. 2006);
Perales-Cumpean v. Gonzales, 429 F.3d 977, 982 (10th Cir.
2005). But see Hernandez v. Ashcroft, 345 F.3d 824, 833-35
(9th Cir. 2003).
In Perales-Cumpean, the Tenth Circuit explained that a
non-discretionary decision is one “for which there is a
clear standard, and for which no evaluation of non-discre-
tionary criteria is required.” 429 F.3d at 982. Conversely,
a discretionary determination is one involving “a ‘judg-
ment call’ by the agency, or for which there is ‘no algo-
rithm’ on which review may be based.” Id. To determine
whether one has suffered extreme cruelty, a court must do
more than “simply plug[] facts into a formula.” Id. The
Fifth Circuit agreed, comparing the extreme cruelty
determination to the extreme hardship determination
under § 1229b(b)(1), which it had already held was discre-
tionary because the term was “not self-explanatory, and
reasonable men could easily differ as to [its] construction.”
12 No. 07-3883
Wilmore, 455 F.3d at 527 (alteration in original) (quotations
omitted). The Sixth Circuit recently followed suit, noting
that it previously held that extreme hardship is a discre-
tionary decision not subject to review, and that it “[had]
been given no reason to believe that extreme cruelty
is treated differently.” Ramdane, 2008 U.S. App. LEXIS
20356, at *4.
The Ninth Circuit is the only circuit to hold that the
extreme cruelty determination is non-discretionary and
reviewable. Hernandez, 345 F.3d at 833-35. In Hernandez,
the court explained that “extreme cruelty involves a
question of fact, determined through the application of
legal standards.” Id. at 834. The court compared extreme
cruelty to deciding whether an applicant was battered or
was a “habitual drunkard” (both of which the Ninth
Circuit considers non-discretionary), and it held that
extreme cruelty is a similar type of “clinical” finding. Id.The court also distinguished the extreme cruelty and
extreme hardship determinations by noting that extreme
hardship is a more nebulous standard that seeks to sepa-
rate those applicants deemed particularly worthy of
cancellation of removal, whereas extreme cruelty
simply establishes an applicant’s status as a survivor of
domestic violence. Id. at 835.
Stepanovic acknowledges the “arduous task” of persuad-
ing this court to follow the Ninth Circuit’s view that the
agency’s extreme cruelty determination is non-discretion-
ary. (Petr.’s Br. 24.) His assessment is accurate. We
agree with the Fifth, Sixth, and Tenth Circuits that the
extreme cruelty determination is discretionary, and we
No. 07-3883 13
may not review the manner in which the BIA exercises
its discretion. See Mireles, 433 F.3d at 969. As the Tenth
Circuit noted, an IJ does not determine extreme cruelty
by simply plugging facts into a formula or applying an
algorithm. See Perales-Cumpean, 429 F.3d at 982. Rather, the
IJ must determine the facts of a particular case, make a
judgment call as to whether those facts constitute
cruelty, and, if so, whether the cruelty rises to such a
level that it can rightly be described as extreme. Stepanovic
himself acknowledges that the agency possesses “unfet-
tered discretion” in deciding whether a petitioner
suffered extreme cruelty. (Petr.’s Br. 25.) Consequently,
we find that the extreme cruelty determination under
§ 1229b(b)(2) falls within the jurisdiction-removal
statute, and thus beyond our jurisdiction to review.
2. The BIA’s Request of Medical or Psychiatric Evidence of
Harm
Stepanovic also claims that the BIA altered the legal
standard for demonstrating extreme cruelty, which he
argues is a reviewable question of law under
§ 1252(a)(2)(D). Specifically, he states that the BIA
“ratchet[ed] up” the extreme cruelty standard, which
he argues is found in 8 C.F.R. § 240.2(c), by requiring
psychological or medical documentation of his injury.
Stepanovic argues that by so doing, the BIA imposed an
unannounced, post hoc standard that “the BIA knows, and
probably expects, petitioner cannot meet.”
As previously stated, our jurisdiction is limited to
review of only “pure”questions of law. See Viracacha, 518
14 No. 07-3883
F.3d at 515. A claim on appeal does not become a ques-
tion of law simply because the litigant characterizes it as
such. See Zamora-Mallari v. Mukasey, 514 F.3d 679, 694 (7th
Cir. 2008) (“A petitioner may not create the jurisdiction
that Congress chose to remove simply by cloaking an . . .
argument in constitutional garb.”) (alteration in original)
(quotations omitted); Leguizamo-Medina, 493 F.3d at 774(“[O]nly ‘pure’ legal questions (as opposed to character-
izations or ‘mixed’ questions) are covered by subsection
(D).”); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
315, 330 (2d Cir. 2006) (rejecting petitioner’s attempt to
transform a factual claim into a legal question by asserting
that the IJ failed to apply the law and noting that “[a]
petitioner cannot overcome the lack of jurisdiction to
review by invocation of such rhetoric”).
Stepanovic’s argument that he presents a reviewable
question of law is mistaken. The BIA applied the correct
legal standard—extreme cruelty—and we are not autho-
rized to review how the BIA exercised its discretion under
that standard. See Mireles, 433 F.3d at 969. At its core,
Stepanovic’s argument is “merely [a] quarrel[] over the
correctness of the factual findings or justification for the
discretionary choices.” Chen, 471 F.3d at 329. Further, he
has not convinced us that the DHS’s regulation defining
extreme cruelty, 8 C.F.R. § 204.2(c)(1)(vi), limits the
BIA’s discretion to such an extent that it may not re-
quest psychiatric or medical evidence supporting
Stepanovic’s claims. This is particularly so because he
does not claim that he suffered physical harm, and his ex-
wife’s conduct is not objectively extreme or cruel. As we
No. 07-3883 15
have already stated, the extreme cruelty determination
is discretionary. While the DHS’s definition may be
helpful in deciding whether an applicant suffered extreme
cruelty, the regulation itself provides considerable discre-
tion by using the “phrases ‘includes, but is not limited to’
and ‘may . . . be acts of violence under certain circum-
stances.’ ” Perales-Cumpean, 429 F.3d at 984 (alteration in
original) (quoting 8 C.F.R. § 204.2(c)(1)(vi)); see also
Wilmore, 455 F.3d at 527 (agreeing with Perales-Cumpean
that the DHS regulation does not render the extreme
cruelty determination non-discretionary). Therefore, the
regulation does not constrain the BIA’s discretion to
such an extent that the BIA’s order in this case exceeded
its bounds.
Furthermore, even if the regulation defining extreme
cruelty did limit the BIA’s discretion to some extent, the
BIA did nothing in this case to alter that definition, nor
did the BIA create a new prerequisite for relief under
§ 1229b(b)(2). Here, the BIA did not require psychological
or medical evidence of Stepanovic’s injury when it con-
cluded that Stepanovic “failed to establish that he was
the victim of extreme cruelty by his ex-wife, and he
failed to adequately support his claim with psychiatric
or medical documents, or other evidence which would
establish that his psychological or emotional suffering
rose to the level of ‘extreme cruelty.’ ” Rather, the BIA
simply explained that Stepanovic failed to produce evi-
dence to meet his burden of proof, in part because he
presented no medical evidence of harm. Requiring an
applicant to prove an element of his petition for cancella-
16 No. 07-3883
tion of removal is certainly distinct from altering the
legal framework under which the applicant may receive
such relief. In reality, Stepanovic challenges the BIA’s
factual determination that he was not subject to extreme
cruelty, and he attempts to re-characterize this issue as
a “question of law.” But it is not such a question.
III. C ONCLUSION
Stepanovic appeals the BIA’s determination that he
did not suffer cruelty that was sufficiently extreme to
receive cancellation of removal pursuant to § 1229b(b)(2).
Because this determination falls squarely within the
jurisdiction-removal statute, and Stepanovic presents no
“reviewable” question of law or constitutional claim, we
lack jurisdiction to review it according to § 1252(a)(2)(B).
For the above reasons, Stepanovic’s petition for review is
D ISMISSED for lack of jurisdiction.
1-28-09