Jaysen McCleary v. Reliastar Life Insurance Co.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2771
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Mary Mwihaki Hamilton, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the Board
* of Immigration Appeals.
Eric H. Holder, Jr., Attorney General *
of the United States, *
*
Respondent. *
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Submitted: May 15, 2012
Filed: June 5, 2012
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Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.
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MURPHY, Circuit Judge.
Mary Mwihaki Hamilton, a native and citizen of Kenya, applied for
cancellation of removal as a battered spouse of a United States citizen under 8 U.S.C.
§ 1229b(b)(2)(A). An Immigration Judge (IJ) denied her request for immigration
relief, and the Board of Immigration Appeals (BIA) affirmed. Hamilton petitions for
review of the BIA order. We dismiss the petition for lack of jurisdiction.
Hamilton came to the United States in the early 1990s and through mutual
friends met Boylee Hamilton, a United States citizen, in the spring of 1995. The two

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married in December 1995, but the marriage deteriorated quickly because Boylee used
alcohol and drugs and subjected Hamilton to verbal abuse. He moved out in 1998,
and the couple divorced in 2004. Prior to their divorce Hamilton twice applied for
lawful permanent resident status through her marriage to a United States citizen, but
the United States Citizenship and Immigration Services (USCIS) denied both
applications. The second application was denied after Hamilton indicated that she
would abandon it because the marriage was "not going forward."
The Department of Homeland Security initiated removal proceedings against
Hamilton in 2006. Its charging document alleged that Hamilton was subject to
removal under the Immigration and Nationality Act (the Act) as an immigrant who at
the time of application for admission was "not in possession of a valid unexpired
immigrant visa, reentry permit, border crossing card, or other valid entry document
required by the Act." 8 U.S.C. § 1182(a)(7)(A)(i)(I). Hamilton conceded that she was
removable but sought relief in the form of special rule cancellation under the battered
spouse provisions added to the Act by the Violence Against Women Act (VAWA).
See 8 U.S.C. § 1229b(b)(2)(A). She also filed a petition with USCIS, seeking a
determination that she was an alien battered or subjected to extreme cruelty by a
United States citizen spouse and thus eligible to adjust her status to that of a lawful
permanent resident. See 8 U.S.C. § 1154(a)(1)(A)(iii). USCIS denied her petition
after concluding that she had failed to show battery or extreme cruelty. The
Administrative Appeals Office affirmed the denial.
The IJ then held a merits hearing on Hamilton's application for VAWA
cancellation in May 2009. Hamilton testified about her marriage, explaining that she
had fallen in love with Boylee soon after meeting him in 1995 and that the two had
married at a Minneapolis courthouse later that year. She testified that she wanted to
have a family and planned that she and Boylee would visit Kenya together. She also
explained that Boylee had problems with alcohol and drug use and was often
unemployed. Their relationship deteriorated she stated, and they began to have
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"intense differences." By 1997 they would go for weeks without seeing each other.
Hamilton stated that Boylee would curse at her, call her derogatory names, tell her to
get out, take advantage of her sexually, and threaten not to support her immigration
petition. She stated that his abusive behavior caused her emotional distress. She also
submitted a letter describing physical health problems she developed as a result of his
emotional abuse.
Hamilton was questioned about discrepancies in tax and insurance documents
which had been submitted to the IJ which cast doubt on the good faith of her marriage.
For example, employment and tax documents from her husband listed his marital
status as "single" and an address different from those she had reported as their marital
home. She explained that he had probably listed another address because he owed
back taxes and child support and "thought the system . . . would catch up with him"
if he reported his true address. When questioned about why she had reported her own
status as single on tax forms, she said it was because she wanted more money withheld
from her paycheck. She explained that the reason she listed herself as single on
insurance paperwork was to "pay less." She also explained that she listed her husband
as a "friend" on a disability insurance form because he "was [her] husband and [her]
friend."
Hamilton also testified about the hardship that she would suffer if removed to
Kenya. She stated that she belonged to the Kikuyu tribe, one of that country's most
predominant tribes which was targeted by other tribes after recent elections. She
testified about her involvement in her Minnesota community and her job working at
Wells Fargo Bank. Her attorney also argued that because of the length of time she had
lived in the United States it would be an "extreme hardship for her to return to
Kenya." Despite this argument, Hamilton acknowledged that she had a number of
relatives in Kenya who had financial resources, including her mother and several
siblings.
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In August 2009, the IJ denied her application for VAWA cancellation and
ordered her removed to Kenya. The IJ did not find her marriage to be fraudulent, but
"note[d] many inconsistencies in information provided by [the Hamiltons] concerning
their marriage" which caused the judge to question her "overall credibility" in
evaluating her application. The IJ concluded that she had failed to meet two of the
requirements for VAWA cancellation, because she had not shown that she had been
battered or subjected to extreme cruelty by her husband or that her removal would
result in extreme hardship. In determining that she had not shown hardship, the IJ
noted that she had a "very supportive family" in Kenya, that her education and work
experience indicated she would find work in Kenya, and that there was "no reason to
think that [she] cannot find the necessary support for any residual problems stemming
from her marriage." Based on these considerations the IJ concluded that although her
removal "may cause hardship through job loss and the breaking of social [ties]," these
were hardships "normally associated with removal" and insufficient to establish
"extreme hardship" under the Act. See 8 C.F.R. § 1240.58.
Hamilton appealed the IJ's decision to the BIA, which dismissed the appeal. It
noted that she had submitted "contradictory evidence concerning the bona fides of her
marriage" and concluded that she "did not satisfy her burden of proving that her
marriage was entered into in good faith." It also upheld the IJ's finding that she had
not shown that she would suffer "extreme hardship" if removed to Kenya. The BIA
then upheld the IJ's denial of her application, and Hamilton subsequently departed the
United States as required by the removal order. Hamilton now petitions for review
of the BIA's denial of her cancellation application.
Special rule cancellation under VAWA provides that the Attorney General may
grant cancellation of removal to an applicant upon a demonstration that (1) she has
been "battered or subjected to extreme cruelty" by a United States citizen spouse; (2)
she has been physically present in the United States for a "continuous period of not
less than 3 years" immediately preceding the date of the application; (3) she "has been
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a person of good moral character during such period"; (4) she is not inadmissible or
deportable under certain specified parts of the Act and has no aggravated felony
conviction; and (5) her removal would result in "extreme hardship" to her. 8 U.S.C.
§ 1229b(b)(2)(A).
We lack jurisdiction to review the Attorney General's discretionary decision not
to grant cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(i); see Sanchez-Velasco
v. Holder, 593 F.3d 733, 735 (8th Cir. 2010). Nor may we review "any other decision
or action of the Attorney General . . . the authority for which is specified . . . to be in
the discretion of the Attorney General." 8 U.S.C. § 1252(a)(2)(B)(ii). We do however
retain jurisdiction over any "constitutional claims or questions of law" raised in
Hamilton's petition, 8 U.S.C. § 1252(a)(2)(D), which are reviewed "de novo,
according substantial deference to the agency's interpretation of immigration statutes
and regulations." 593 F.3d at 735. Our review is thus of the BIA order, which is the
final agency decision, "including the IJ's findings and reasoning to the extent they
were expressly adopted by the BIA." Fofanah v. Gonzales, 447 F.3d 1037, 1040 (8th
Cir. 2006).
Hamilton argues that the IJ and the BIA applied the wrong legal standard in
concluding that she had failed to show "extreme hardship" by employing a "partial
circumstances test" instead of evaluating the totality of the circumstances. The
regulations provide that to establish extreme hardship an applicant "must demonstrate
that deportation would result in a degree of hardship beyond that typically associated
with deportation" and list a number of factors that may be considered in making this
determination. See 8 C.F.R. § 1240.58(b) & (c).
The agency's determination that Hamilton would not be subjected to extreme
hardship upon removal is discretionary and thus not reviewable by our court.
See Zacarias-Velasquez v. Mukasey, 509 F.3d 429, 434 (8th Cir. 2007). Hamilton
attempts to overcome this jurisdictional bar by framing her argument as a legal one,
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arguing that the agency applied the wrong legal standard. The BIA had cited the
relevant regulation on hardship, however, and concluded that given the evidence
presented, Hamilton had not shown that she would experience hardship "beyond that
typically associated with deportation." See 8 C.F.R. § 1240.58(b).
Hamilton's argument is really a challenge to the way in which the BIA weighed
the relevant factors. For example, she contends that more weight should have been
given to the unrest in Kenya, the scarcity of employment opportunities there and lack
of availability of professional help, her ties to the United States, and her good moral
character. Since Hamilton's hardship argument is essentially a challenge to the BIA's
weighing of evidence, we lack jurisdiction to review it. See Gomez-Perez v. Holder,
569 F.3d 370, 373 (8th Cir. 2009); see 8 U.S.C. § 1229b(b)(2)(D) ("The determination
of what evidence is credible and the weight to be given that evidence shall be within
the sole discretion of the Attorney General.").
Hamilton also argues that the IJ and the BIA applied an unconstitutional
"heightened evidentiary standard" to assess her marriage, that the IJ erred in making
an adverse credibility finding, and that the IJ erred by concluding that she had not
been subjected to extreme cruelty. Since we conclude that we do not have jurisdiction
to review the agency's determination that Hamilton has not met the extreme hardship
element required for VAWA cancellation, we do not reach her other arguments.
Accordingly, we dismiss the petition for review for lack of jurisdiction.
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