Garnica-Villarreal v. Gonzales

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
February 24, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-60359
Summary Calendar
CARMEN GARNICA-VILLARREAL,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A75 298 955
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Petitioner Carmen Garnica-Villarreal (“Garnica”) petitions
this court for review of a decision by the Board of Immigration
Appeals (“BIA”) summarily affirming an order of the Immigration
Judge (“IJ”) denying Garnica’s application for cancellation of
removal pursuant to 8 U.S.C. § 1229b(b)(2). Garnica asserts that
the IJ erred by ruling that she had not demonstrated that the
father of her son, Eduardo, had subjected him to “extreme cruelty”
by failing to support him, financially or otherwise. The
respondent contends that we lack subject-matter jurisdiction to

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review “extreme cruelty” determinations and, alternatively, that
the IJ’s ruling was not erroneous.
Pursuant to 8 U.S.C. § 1252(a)(2)(B), we lack jurisdiction to
review discretionary decisions under 8 U.S.C. § 1229b, but retain
jurisdiction over purely legal and non-discretionary questions.
Mireles-Valdez v. Ashcroft, 349 F.3d 213, 216 (5th Cir. 2003). We
have never had occasion to determine whether “extreme cruelty”
decisions are discretionary, but we have held that “extreme
hardship” decisions under 8 U.S.C. § 1229b are discretionary
because the term extreme hardship is “‘not self-explanatory, and
reasonable men could easily differ as to their construction.’”
Moosa v. INS, 171 F.3d 994, 1013 (5th Cir. 1999) (citation
omitted). The only circuit to address this issue directly held
that “extreme cruelty” involves an objective, “clinical” standard
for evaluating domestic violence and that “extreme cruelty”
decisions are non-discretionary, factual determinations subject to
judicial review. See Hernandez v. Ashcroft, 345 F.3d 824, 833-35
(9th Cir. 2003).
We need not resolve the jurisdictional question in this case
because Garnica is not entitled to relief. See Hernandez-Rodriguez
v. Pasquarell, 118 F.3d 1034, 1045-46 & n.16 (5th Cir. 1997). If,
on the one hand, the term “extreme cruelty” is expansive enough to
encompass parental neglect, then the term is “‘not self-
explanatory, and reasonable men could easily differ as to their
construction’” Moosa, 171 F.3d at 1013 (citation omitted), making

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“extreme cruelty” decisions discretionary determinations. As such,
we would lack jurisdiction to consider Garnica’s petition. See id.
On the other hand, if, as determined in Hernandez, 345 F.3d at 833-
35, “extreme cruelty” is an objective measure of domestic violence,
then the IJ did not err in denying Garnica’s application because
she failed to show that Eduardo was a victim of domestic violence
constituting extreme cruelty. Accordingly, Garnica’s petition for
review is
DENIED.

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