The Clerk of Court is respectfully instructed to amend the official case caption as… v. Holder UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND CIRCUIT 3 4 August Term,…

* The Clerk of Court is respectfully instructed to
amend the official case caption as shown above.
** The Honorable Jed S. Rakoff, of the United States
District Court for the Southern District of New York,
sitting by designation.
09-3877-ag
Rosario v. Holder
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term, 2010 5
6
7
(Argued: September 1, 2010 Decided: December 6, 2010) 8
9
Docket No. 09-3877-ag 10
11
- - - - - - - - - - - - - - - - - - - - -x 12
13
JOSEFA ROSARIO, 14
15
Petitioner, 16
17
- v.- 09-3877-ag 18
19
ERIC H. HOLDER, JR., in his capacity as 20
United States Attorney General, 21
22
Respondent.*
23
24
- - - - - - - - - - - - - - - - - - - -x 25
26
Before: DENNIS JACOBS, Chief Judge, 27
REENA RAGGI, Circuit Judge, 28
JED S. RAKOFF, ** District Judge. 29
30
Petitioner, a citizen of the Dominican Republic, seeks 31
cancellation of removal as an abused spouse under the 32

-- 1 of 15 --

2
amended Immigration and Naturalization Act. 8 U.S.C. § 1
1229b(b)(2). An Immigration Judge concluded that Rosario 2
was not “battered or subjected to extreme cruelty” as 3
defined by the statute and therefore did not warrant 4
discretionary cancellation of removal, and the Board of 5
Immigration Appeals affirmed. We dismiss the petition for 6
lack of subject matter jurisdiction because the BIA’s 7
decision raises no constitutional claims or questions of 8
law. 9
10
FOR PETITIONER: E LYSSA N. W ILLIAMS (Andrew B. Insenga, Glenn 11 L. Formica on the briefs) 12 Formica, P.C. 13 900 Chapel St. Suite 1200 14 New Haven, CT 06510 15
16 FOR RESPONDENT: M ATTHEW A. S PURLOCK (Tony West, Ada E. 17 Bosque on the briefs) 18 U.S. Department of Justice 19 Office of Immigration 20 Ben Franklin Station 21 P.O. Box 878 22 Washington, DC 20044 23
24
25
26 DENNIS JACOBS, Chief Judge: 27
28 The Petitioner, Josefa Rosario, is a citizen of the 29
Dominican Republic who seeks cancellation of removal as an 30
abused spouse under the amended Immigration and 31
Naturalization Act. 8 U.S.C. § 1229b(b)(2). An Immigration 32
Judge (“IJ”) found that Rosario was not “battered or 33

-- 2 of 15 --

3
subjected to extreme cruelty” within the meaning of the 1
statute and therefore did not warrant discretionary 2
cancellation of removal. The Board of Immigration Appeals 3
(“BIA”) affirmed. We dismiss Rosario’s petition for lack of 4
subject matter jurisdiction because the BIA’s decision 5
raises no constitutional claims or questions of law. 6
7
BACKGROUND 8
Rosario was found credible by the IJ; we therefore 9
adduce the facts to which she testified. 10
Rosario entered the United States on a one-month non- 11
immigrant tourist visa in 1994. After overstaying by 12
approximately two years, she married Pedro Martinez, a U.S. 13
citizen, and petitioned to adjust her status to Legal 14
Permanent Resident in 1996. 15
The marriage soured soon after the petition was filed, 16
and Martinez became aggressive and insulting. There were 17
approximately five incidents of physical abuse or 18
intimidation in the three-month period between June 1997 and 19
September 1997, when Martinez was jailed (for offenses 20
unrelated to Rosario). There are no allegations of abuse 21
after his release from prison in 2000. 22
During the incidents of abuse, Martinez (variously) 23
grabbed Rosario by the arms and shoulders, shook her, 24

-- 3 of 15 --

4
verbally insulted her, and threw her on the bed. Martinez 1
also demanded money from her and threatened to withdraw her 2
application for a Green Card. Rosario did not report these 3
incidents to the police or seek medical attention. 4
During this time, Rosario’s Green Card application 5
languished, and, in 2000, it was denied as abandoned. In 6
2002, the Department of Homeland Security served Rosario 7
with a Notice to Appear and charged her with removal. 8
At her Notice to Appear hearing, Rosario admitted she 9
was in the U.S. illegally and conceded removability. Soon 10
afterward, she filed a petition for Special Rule 11
Cancellation of Removal under 8 U.S.C. § 1229b(b)(2)(A), 12
which gives the Attorney General discretion to cancel the 13
removal of an otherwise deportable alien who has been 14
“battered or subjected to extreme cruelty” by her U.S. 15
citizen spouse. 16
In 2008, an IJ denied Rosario’s petition, concluding 17
that she had not been "battered or subjected to extreme 18
cruelty." Rosario appealed this decision to the BIA, which 19
affirmed. Rosario now seeks review in this Court. 20
21
DISCUSSION 22
I. 23

-- 4 of 15 --

5
As part of the 1994 Violence Against Women Act, 1
Congress granted the Attorney General discretion to cancel 2
the removal of otherwise deportable aliens who were found to 3
have been “battered or subjected to extreme cruelty” by 4
their U.S. citizen spouses. Pub. L. No. 103-322, § 40703, 5
108 Stat. 1796, 1955 (1994) (codified at 8 U.S.C. § 6
1229b(b)(2)(A)). The five requisites for this relief are: 7
(1) “the alien has been battered or subjected to 8 extreme cruelty by a spouse” who is a U.S. citizen 9 or permanent resident; 10
11 (2) “the alien has been physically present in the 12 United States for a continuous period of not less 13 than 3 years”; 14
15 (3) “the alien has been a person of good moral 16 character during such period”; 17
18 (4) “the alien...has not been convicted of an 19 aggravated felony”; and 20
21 (5) “the removal would result in extreme hardship to 22 the alien, the alien’s child, or the alien’s 23 parent.” 24
25 8 U.S.C. § 1229b(b)(2)(A)(i)-(v). 26
The determination as to whether an alien should be 27
given this discretionary cancellation of removal is made by 28
an IJ subject to appeal to the BIA. In 1996, Congress 29
stripped the federal courts of jurisdiction to review these 30
discretionary rulings. Illegal Immigration Reform and 31
Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 32

-- 5 of 15 --

6
306, 110 Stat. 3009, 3009-607 (codified at 8 U.S.C. § 1
1252(a)(2)(B)(i)). 2
Concerned that a complete ban on judicial review of BIA 3
determinations might violate the Suspension Clause, the 4
Supreme Court in 2001 construed the jurisdictional ban to 5
allow for limited federal court review of BIA decisions. 6
INS v. St. Cyr, 533 U.S. 289, 307 (2001). Specifically, the 7
Court held that even where the Attorney General had 8
discretion over whether to grant cancellation of removal, 9
the alien was nevertheless entitled to a determination of 10
whether she was eligible for discretionary cancellation, and 11
that this determination of eligibility was reviewable in the 12
U.S. Circuit Courts when it was “governed by specific 13
statutory standards.” Id. Thus, while the federal courts 14
retained jurisdiction to review the legal question of 15
statutory eligibility, the Attorney General’s exercise of 16
discretion could not be second-guessed. 17
The REAL ID Act of 2005 amended the Illegal Immigration 18
Reform and Immigrant Responsibility Act (“IIRIRA”) to 19
obviate the Supreme Court’s Suspension Clause concerns. 20
Pub. L. No. 109-13, § 106, 119 Stat. 231, 310 (codified in 21
at 8 U.S.C. § 1252(a)(2)(D)); see also Xiao Ji Chen v. 22
Gonzales, 471 F.3d 315, 326 (2d Cir. 2006) (describing 23

-- 6 of 15 --

7
legislative history of REAL ID Act). The REAL ID Act 1
prescribed an exception to the general ban on judicial 2
review of BIA decisions for Circuit Court review of 3
“constitutional claims or questions of law.” 8 U.S.C. § 4
1252(a)(2)(D). 5
In the wake of St. Cyr and the REAL ID Act, this Court 6
described the scope of its jurisdiction to review BIA 7
determinations in two ways. First, based on St. Cyr, we 8
stated that we could review those “nondiscretionary 9
decisions” by the BIA that underlie its exercise of 10
discretion in granting or denying cancellation of removal. 11
See, e.g., Rodriguez v. Gonzales, 451 F.3d 60, 62 (2d Cir. 12
2006) (describing scope of review as over nondiscretionary 13
determinations underlying discretionary relief); Sepulveda 14
v. Gonzales, 407 F.3d 59, 62-63 (2d Cir. 2005). Later, 15
based on the REAL ID Act, we stated that we could review 16
“all constitutional claims or questions of law” raised by 17
the BIA’s exercise of its discretion. See, e.g., Argueta v. 18
Holder, 617 F.3d 109, 112 (2d Cir. 2010) (describing scope 19
of review as over constitutional and legal questions). 20
These two characterizations, which may appear to be two 21
separate avenues of jurisdiction, are congruent: BIA 22
statutory interpretation pursuant to an eligibility 23

-- 7 of 15 --

8
determination is nondiscretionary and therefore reviewable 1
precisely because it presents a legal question. In 2
contrast, the BIA’s factfinding, factor-balancing, and 3
exercise of discretion normally do not involve legal or 4
constitutional questions, so we lack jurisdiction to review 5
them. 6
7
II. 8
When the BIA’s decision explicitly rests on a legal 9
prescription or statutory interpretation, we unambiguously 10
have jurisdiction to review it. See Sepulveda, 407 F.3d at 11
63 (holding that court has jurisdiction to review BIA 12
determination that alien is ineligible for discretionary 13
relief as a matter of law). Similarly, when the BIA 14
explicitly finds an alien to be eligible for discretionary 15
relief but then refuses to grant relief as an exercise of 16
its discretion, such a decision is not reviewable. 17
Determining whether we have jurisdiction to review is more 18
difficult when the BIA is engaged in the application of law 19
to facts. 20
We determine our jurisdiction by looking at the 21
underlying nature of the BIA’s determination rather than any 22
gloss offered by the parties. Argueta, 617 F.3d at 112 (“We 23

-- 8 of 15 --

9
do not rely solely on a petitioner’s description of his 1
claims, but scrutinize a petitioner’s arguments to determine 2
whether they raise reviewable questions.” (internal 3
quotation marks omitted)); Barco-Sandoval v. Gonzales, 516 4
F.3d 35, 39 (2d Cir. 2008) (“[A] petitioner cannot us[e] the 5
rhetoric of a constitutional claim or question of law to 6
disguise what is essentially a quarrel about fact-finding or 7
the exercise of discretion.” (internal quotation marks 8
omitted)). We ask whether the BIA is expressing legal 9
doctrine or whether it is engaged in the factfinding and 10
factor-balancing that are at the core of its discretion. 11
Although, in some sense, every BIA decision involves 12
the application of law to fact, not every such decision is 13
reviewable. See Xiao Ji Chen, 471 F.3d at 331 (“The mere 14
use of the term ‘erroneous application’ of a statute will 15
not, however, convert a quarrel over an exercise of 16
discretion into a question of law.”). The mixed questions 17
of law and fact in BIA decisions are reviewable in three 18
situations: 19
(1) Where the BIA applies the wrong statute, 20 misinterprets the correct statute, or uses an 21 erroneous legal standard; 22
23 (2) Where the BIA’s underlying factual determination is 24 “flawed by an error of law”; and 25
26 (3) Where the BIA’s conclusion is “without rational 27 justification,” meaning it is located so far 28

-- 9 of 15 --

10
outside the range of reasonable options that it is 1 erroneous as a matter of law. 2
3 See Mendez v. Holder, 566 F.3d 316, 322 (2d Cir. 2009) 4
(articulating three situations); Barco-Sandoval, 516 F.3d at 5
39 (same); Xiao Ji Chen, 471 F.3d at 329 (same). Except in 6
these scenarios, the BIA’s application of law to fact 7
amounts to the exercise of its discretion and does not raise 8
the legal or constitutional question required for our 9
jurisdiction. 10
11
III. 12
Every new petition to review a BIA decision requires us 13
to make a jurisdictional inquiry: first asking whether the 14
BIA’s decision involves a clear legal prescription; second, 15
where the decision only involves the application of clearly 16
established law to a set of facts, asking whether the BIA’s 17
determination comes within any of the three specific 18
scenarios that justify review. 19
This Circuit has already considered our jurisdiction to 20
review BIA rulings on certain other aspects of abuse-based 21
cancellation of removal. In Rodriguez v. Gonzales, 451 F.3d 22
60 (2d Cir. 2006), we held that whether an alien has been 23
convicted of an aggravated felony always presents a legal 24
question and is therefore nondiscretionary and reviewable. 25
Id. at 62-63. Similarly, in Sepulveda v. Gonzales, 407 F.3d 26

-- 10 of 15 --

11
59 (2d. Cir. 2005), we suggested, but did not hold, that 1
whether an alien satisfies the continuous physical presence 2
requirement also presents a legal question and its therefore 3
reviewable. Id. at 63. In Sepulveda, we also reviewed a 4
BIA ruling that criminal convictions legally preclude 5
finding that the alien is of “good moral character.” Id. at 6
63-64. Although the fact-specific nature of a moral 7
character assessment ordinarily suggests that it would 8
constitute an exercise of discretion not a legal 9
determination, we held in Sepulveda that the BIA’s ruling on 10
moral character presented a legal question in that 11
particular case because it was explicitly premised on the 12
criminal convictions as a matter of law. Id. 13
In contrast, in Barco-Sandoval v. Gonzales, 516 F.3d 35 14
(2d Cir. 2008), and Mendez v. Holder, 566 F.3d 316 (2d Cir. 15
2009), we held that whether an alien would suffer “extreme 16
hardship” if deported ordinarily does not require statutory 17
interpretation but instead involves the application of the 18
law to particular facts. Thus, we lack jurisdiction to 19
review such determinations unless they fall into one of the 20
three categories described in Part II. 21
22
IV. 23

-- 11 of 15 --

1 8 C.F.R. § 204.2(c)(1)(vi) permits an abused spouse
of a United States citizen or lawful permanent resident to
self-petition for an adjustment of status. The regulation
states that the phrase “was battered by or was the subject
of extreme cruelty” includes, but is 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 exploitation,
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 circumstances, including acts
that, in and of themselves, may not initially appear
violent but that are a part of an overall pattern of
violence.
12
Now, we must decide whether we have jurisdiction to 1
review BIA determinations as to whether a spouse has been 2
“battered or subjected to extreme cruelty.” Like “extreme 3
hardship”--and unlike criminal conviction or continuous 4
physical presence--whether an alien has been “battered or 5
subjected to extreme cruelty” under the statute generally 6
entails a factual judgment, not a legal prescription. 7
This conclusion finds support in the fact that Congress 8
did not provide a specific statutory definition for the 9
terms, and in the fact that the regulatory gloss on the 10
terms, while requiring more than the unwanted touching of 11
common law battery, contemplates the exercise of 12
considerable discretion in assessing the totality of the 13
circumstances. See 8 C.F.R. § 204.2(c)(1)(vi). 1
14

-- 12 of 15 --

13
Thus, BIA determinations as to whether an alien has 1
been “battered or subjected to extreme cruelty” require the 2
application of law to fact, rather than statutory 3
interpretation. As such, we have jurisdiction to review 4
these determinations only when the BIA applies an incorrect 5
law or legal standard, bases its decision on a factfinding 6
premised on an error of law, or reaches a conclusion that 7
lacks any rational justification. 8
Finally, we observe that all but one of our sister 9
circuits who have considered this question have reached the 10
same conclusion. Johnson v. Attorney Gen., 602 F.3d 508, 11
511 (3d Cir. 2010) (holding that BIA “extreme cruelty” 12
determination is discretionary and not reviewable); 13
Stepanovic v. Filip, 554 F.3d 673, 679-80 (7th Cir. 2009) 14
(same); Ramdane v. Mukasey, 296 F. App’x 440, 442 (6th Cir. 15
2008); Wilmore v. Gonzales, 455 F.3d 524, 527 (5th Cir. 16
2006); Perales-Cumpean v. Gonzales, 429 F.3d 977, 982 (10th 17
Cir. 2005). But see Hernandez v. Ashcroft, 345 F.3d 824, 18
835 (9th Cir. 2003) (holding that BIA “extreme cruelty” 19
determination is nondiscretionary and reviewable). 20
21
V. 22
Rosario’s petition turns on the question whether she 23
qualifies as “battered or subjected to extreme cruelty.” 24

-- 13 of 15 --

14
Therefore, the BIA’s decision in this case involves the 1
application of law to fact: a determination of whether 2
Rosario’s situation rendered her “battered or subjected to 3
extreme cruelty” under the statute. Rosario’s petition 4
therefore does not automatically raise a legal or 5
constitutional issue; it only does so where the BIA applied 6
the wrong law or misapplied the appropriate law or legal 7
standard, based its decision on a factual finding premised 8
on a legal error, or reached a conclusion so far outside the 9
range of reasonable options as to be without rational 10
justification. 11
Here, the BIA applied the correct law, 8 U.S.C. § 12
1229b(b)(2)(A)(i), and the correct legal standard, 8 C.F.R. 13
§ 204.2(e)(1)(vi), to Rosario’s case. There were no legal 14
errors underlying any of the factual findings the BIA used 15
to reach its decision. And given the level of abuse Rosario 16
claims to have suffered, it cannot be said that the BIA’s 17
conclusion was without rational justification. Thus, the 18
BIA’s decision does not fall within any of the three 19
scenarios where we retain jurisdiction to review. 20
Ultimately, the question whether the abuse Rosario 21
suffered qualifies her for cancellation of removal is not 22
answered by legal analysis but entails a weighing of facts 23
and circumstances, the sort of value judgment that lies at 24

-- 14 of 15 --

15
the core of the BIA’s exercise of discretion. The BIA’s 1
reasoning can be described as an application of law to fact, 2
but that characterization cannot convert a factual 3
determination into a legal question. Because the BIA’s 4
decision raised no question of law, we may not second-guess 5
its discretionary factual judgment that Rosario is not 6
eligible for cancellation of removal. Therefore, we lack 7
jurisdiction to hear Rosario’s petition. 8
9
CONCLUSION 10
For the foregoing reasons, we dismiss Rosario’s 11
petition for review from an order of the Board of 12
Immigration Appeals for lack of jurisdiction. 13

-- 15 of 15 --