Mirna Elia Carrillo Del Real v. ERIC H. HOLDER Jr., Attorney General

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIRNA ELIA CARRILLO DEL REAL,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 05-77213
Agency No. A097-124-026
MEMORANDUM *
MIRNA ELIA CARRILLO DEL REAL,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 06-71843
Agency No. A097-124-026
On Petition for Review of an Order of the
Board of Immigration Appeals
FILED
DEC 16 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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** The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Barbara M.G. Lynn, United States District Judge for
the Northern District of Texas, sitting by designation.
1 Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.
2
Submitted December 9, 2009**
San Francisco, California
Before: SCHROEDER and CALLAHAN, Circuit Judges, and LYNN, *** District
Judge.
Mirna Ella Carrillo del Real (“Carrillo”) petitions for review of the Board of
Immigration Appeals’ (“BIA”) order denying her application for cancellation of
removal under the “battered spouse provision” of the Immigration and Nationality
Act (“INA”). 8 U.S.C. § 1229b(b)(2), INA § 240A(b)(2). She also seeks review
of the BIA’s denial of her motion to reopen removal proceedings based on her
marriage to a United States citizen. We have jurisdiction pursuant to 8 U.S.C. §
1252, and we deny both petitions.1
To be eligible for relief under section 240A(b)(2)(A)(i)(II), Carrillo must
show that her children were battered or subjected to extreme cruelty by their lawful
permanent resident (“LPR”) father. 8 U.S.C. § 1229b(b)(2)(A)(i)(II). The BIA’s
determination that the record evidence failed to establish such battery or extreme
cruelty is supported by substantial evidence. See Hernandez v. Ashcroft, 345 F.3d

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2 Although Carrillo also sought, and was denied, relief under section
240A(b)(1), she does not petition for review of that purely discretionary
determination. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005)
(holding that the court lacks jurisdiction to review the BIA’s discretionary
determination that a petitioenr has not shown “exceptional and extremely unusual
hardship” under subsection (b)(1)).
3
824, 834 (9th Cir. 2003) (concluding that the “existence or nonexistence” of
battery and “extreme cruelty” are factual determinations); Zehatye v. Gonzales, 453
F.3d 1182, 1185 (9th Cir. 2006) (noting that “administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary”) (internal quotation marks and citations omitted). Carrillo points to
no evidence in the record showing that the LPR father of her children battered
them or otherwise subjected them to cruelty. Further, the record does not compel
the conclusion that the children’s exposure, if any, to violence between their
parents constitutes “extreme cruelty” under section 240A(b)(2)(A)(i)(II).2 See 8
C.F.R. § 204.2(c)(1)(vi).
We also conclude that the BIA did not abuse its discretion in denying
Carrillo’s motion to reopen. See Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.
2002). When Carrillo filed the motion to reopen based on her marriage to a United
States citizen, the marriage was only five days old, and the BIA reasonably
concluded that the declarations of Carrillo and her spouse failed to establish by

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3 Although in Ahmed v. Mukasey, 548 F.3d 768, 771-72 (9th Cir. 2008), we
concluded that a motion to reopen should not be denied solely under the fifth factor
of Velarde, that case is inapposite as Carrillo’s motion was denied under the fourth
Velarde factor.
4
clear and convincing evidence that their recent marriage was bona fide. See In re
Velarde-Pacheco, 23 I & N Dec. 253, 256 (BIA 2002).3
PETITIONS DENIED.

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