*

 Hon. Jane A. Restani, Chief Judge, United States Court of

International Trade, sitting by designation.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-2820

 

WILFRED BRENTNOL JOHNSON,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

 

Petition for Review of the Order

of the Board of Immigration Appeals

(A73-197-795)

Immigration Judge: Hon. Mirlande Tadal

 

Submitted Under Third Circuit LAR 34.1(a)

April 12, 2010

Before: SLOVITER, NYGAARD, Circuit Judges, and

RESTANI*

, Judge

(Filed April 16, 2010 )

 

Ransford B. McKenzie

Suite 511, 105 Court Street

Brooklyn, N.Y. 11201

Attorney for Petitioner
2

John S. Hogan

Kathleen J. Kelly

Briena L. Strippoli

United States Department of Justice

Office of Immigration Litigation, Civil Division

P.O. Box 878

Ben Franklin Station

Washington, D.C. 20044

Attorneys for Repondent

_______

OPINION OF THE COURT

_______

SLOVITER, Circuit Judge.

Petitioner Wilfred Johnson, a citizen of Guyana, petitions 

for review of an order of the Board of Immigration Appeals

(“BIA”) affirming the decision by the Immigration Judge (“IJ”)

to deny his application for cancellation of removal under §

240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. §

1229b(b)(2). We will dismiss for lack of jurisdiction.

I.

BACKGROUND

Johnson is a native and citizen of Guyana who entered the

United States in or about March 1995, without inspection. In

February 2003, Johnson married a United States citizen, with

whom he has two young children. Johnson’s wife filed and

obtained approval of an Alien Relative Petition, which permitted

his presence in the United States.

After briefly returning to Guyana, Johnson returned and

was paroled into the United States in July 2005 as an applicant

for legal permanent residence. However, by March 2006,

Johnson’s marriage began to deteriorate and he left the marital

home. Meanwhile, Johnson’s wife withdrew the Alien Relative

Petition, commenced divorce proceedings, and obtained a
1

 Section 1229b(b)(2), titled the “Special rule for battered

spouse or child,” allows the Attorney General to cancel removal of

a deportable alien if the alien meets five threshold requirements:

(i) the alien has been battered or subjected to extreme

cruelty by a spouse or parent who is or was a United States

citizen . . . ;

(ii) the alien has been physically present in the United States

for a continuous period of not less than 3 years immediately

preceding the date of such application . . . ;

(iii) the alien has been a person of good moral character

during such period . . . ;

(iv) the alien is not inadmissible under paragraph (2) or (3)

of section 1182(a) of this title, is not deportable under

paragraphs (1)(G) or (2) through (4) of section 1227(a) of

this title, subject to paragraph (5), and has not been

convicted of an aggravated felony; and

(v) the removal would result in extreme hardship to the

3

restraining order preventing Johnson from visiting his young

children.

Based on the allegations made by Johnson’s wife in

obtaining the restraining order, he was taken into custody by the

Bureau of Immigration and Customs Enforcement (“ICE”). 

While in custody, Johnson was served with a Notice to Appear

and charged with removability “in that [he] was not in possession

of a valid unexpired immigrant Visa, reentry permit, border

crossing card, or valid entry document required by the

Immigration and Nationality Act.” App. at 44. The IJ deemed

Johnson “removable pursuant to the charge set forth in the

Notice to Appear.” App. at 47.

About one month later, Johnson filed an application in the

Immigration Court for cancellation of removal under the Special

Rule for Battered Spouses. See 8 U.S.C. § 1229b(b)(2).1
alien, the alien’s child, or the alien’s parent.

8 U.S.C. § 1229b(b)(2)(A)(i)-(v) (2006).

2

 Some decisions regarding relief are simply objective,

factual determinations, e.g., whether “the alien has been physically

present in the United States for a continuous period of not less than

3 years,” 8 U.S.C. § 1229b(b)(2)(A)(ii), or whether the alien has

4

Thereafter, the Immigration Court had a hearing at which

Johnson testified in support of his application. He testified that

his wife mistreated him by making baseless allegations against

him and depriving him of access to their two children. Johnson

claimed that his wife’s actions amounted to extreme cruelty and

that if he is subject to removal, his children will suffer.

The IJ denied Johnson’s application for cancellation of

removal. The BIA affirmed and dismissed Johnson’s appeal. 

Johnson then petitioned this court to review the BIA’s order.

II.

ANALYSIS

Johnson contends that “[t]he BIA has failed to meet its

statutory duty in reviewing the IJ’s decision.” Pet’r’s Br. at 6. 

The IJ found that Johnson had not established that he was

battered by his wife, subjected to extreme cruelty by her, or that

his removal would result in extreme hardship to himself, his

children, or his wife. The BIA affirmed the IJ on the ground that

Johnson “did not establish that he has been battered” by his wife. 

App. at 2.

Before reaching the merits of Johnson’s claims, we must

have jurisdiction to review the determinations of the IJ and BIA. 

Our jurisdiction is limited by section 242 of the INA, 8 U.S.C. §

1252(a)(2)(B)(i), which provides that “any judgment regarding

the granting of relief under . . . [8 U.S.C. § 1229b]” is not subject

to judicial review. Courts have interpreted a “judgment” as a

discretionary decision.2

 It is settled in this circuit that we lack
been “convicted of an aggravated felony,” id. § 1229b(b)(2)(A)(iv).

Courts have determined that these matters are reviewable as they

are not judgments regarding the granting of relief, i.e., they are

nondiscretionary. See, e.g., Iddir v. INS, 301 F.3d 492, 497 (7th

Cir. 2002) (holding that 8 U.S.C. § 1252(a)(2)(B) “only bars

review of actual discretionary decisions to grant or deny relief

under [§ 1229b]”); see also Pinho v. Gonzales, 432 F.3d 193, 204

(3d Cir. 2005) (“Non-discretionary actions . . . and purely legal

determinations . . . remain subject to judicial review.”).

3

 The Sixth Circuit addressed the issue in a non-precedential

opinion. Ramdane v. Mukasey, 296 F. App’x 440, 442 (6th Cir.

2008) (deciding that there is “no reason to believe that extreme

cruelty” determinations are reviewable but reaching the merits

nonetheless).

5

jurisdiction over discretionary decisions regarding the granting of

relief under 8 U.S.C. § 1229b. See Mendez-Moranchel v.

Ashcroft, 338 F.3d 176, 178–79 (3d Cir. 2003) (finding that

“[t]he determination of whether the alien has established the

requisite hardship is a quintessential discretionary judgment” and

not reviewable). However, we may review “constitutional

claims or questions of law raised upon a petition for review . . . .” 

8 U.S.C. § 1252(a)(2)(D).

In his brief, the Attorney General focuses on our lack of

jurisdiction to review the “inherently subjective and therefore

discretionary” decisions as to “extreme cruelty.” Resp’t’s Br. at

5. We have not yet decided whether an IJ’s determination that a

petitioner was subjected to “extreme cruelty” is a discretionary

decision. Four of the five circuits that have addressed this

precise question have held that the extreme cruelty determination

is discretionary and not subject to judicial review.3

 See

Stepanovic v. Filip, 554 F.3d 673, 680 (7th Cir. 2009); Wilmore

v. Gonzales, 455 F.3d 524, 528 (5th Cir. 2006); PeralesCumpean v. Gonzales, 429 F.3d 977, 982 (10th Cir. 2005); but

see Hernandez v. Ashcroft, 345 F.3d 824, 833–35 (9th Cir. 2003)

(holding that the extreme cruelty determination is

nondiscretionary and therefore reviewable).
4

Although the BIA characterized the IJ’s decision as finding

that Johnson “did not establish that he has been battered,” App. at

2, and did not mention the phrase “extreme cruelty,” we focus on

“extreme cruelty” because that and “extreme hardship” were the

essence of Johnson’s contentions in seeking cancellation of

removal. He did not allege that his wife “battered” him, as that

term is defined under the common law.

6

We agree with the majority. Congress has not defined

“extreme cruelty”4

 or provided a legal standard for determining

its existence for the purposes of § 1229b(b)(2). However, the

Department of Homeland Security (“DHS”) promulgated a

regulation that defines “battery or extreme cruelty” as:

includ[ing], 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

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.

8 C.F.R. § 204.2(c)(1)(vi) (2006).

In its holding that the determination of extreme cruelty

was discretionary, which deprived it of jurisdiction to review a

cancellation of removal under § 1229b(b)(2), the Tenth Circuit

stated that the definition of “battery or extreme cruelty” requires

“consideration of many discretionary factors.” PeralesCumpean, 429 F.3d at 984. Of special importance to the Tenth

Circuit’s analysis was the language in the DHS regulation that

“battery or extreme cruelty includes, but is not limited to” and

“may . . . be acts of violence under certain circumstances,”

phrases which that court concluded provided “[c]onsiderable

discretion.” Id.

Similarly, the Fifth Circuit found that “[a]lthough the
7

extreme cruelty definition provides some guidance . . . , it . . .

does not remove the discretion afforded by Congress.” Wilmore,

455 F.3d at 528. Following that line of authority, the Seventh

Circuit found the matter discretionary, reasoning that 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 . . . a level that it can . . . be described

as extreme.” Stepanovic, 554 F.3d at 680.

These analyses are persuasive. In this case, the IJ had to

determine whether the allegations Johnson’s wife made against

him in the divorce proceedings and in seeking a restraining order,

as well as her deprivation of Johnson’s access to his children,

amounted to extreme cruelty. There is no objective standard by

which this can be determined. “[A]n IJ does not determine

extreme cruelty by simply plugging facts into a formula or

applying an algorithm.” Stepanovic, 554 F.3d at 680 (citation

omitted). We also agree with the Fifth Circuit’s conclusion that

the term “extreme cruelty” is discretionary because it is “not selfexplanatory and . . . reasonable men could differ as to its

meaning.” Wilmore, 455 F.3d at 527.

Johnson relies on Hernandez, where the Ninth Circuit

held that extreme cruelty is nondiscretionary because it is a

“measure of domestic violence that can . . . be assessed on the

basis of objective standards.” 345 F.3d at 834. However, that

case analyzed an antecedent, albeit similar, statute that Congress

has since repealed. One of the factors considered relevant by the

Ninth Circuit was that the “extreme hardship” determination (as

opposed to the extreme cruelty determination) was “specifically

committed to ‘the opinion of the Attorney General.’” Id. That

provision does not appear in the current statute. Ultimately,

though, we find the Ninth Circuit’s reasoning less persuasive

than that of the Tenth, Fifth, and Seventh Circuits.

Rather than focusing on whether or not “extreme cruelty”

is a discretionary determination, Johnson seeks to cast his claims

in legal and constitutional terms. As the Seventh Circuit stated,

“[a] petitioner may not create the jurisdiction that Congress

chose to remove simply by cloaking an . . . argument in

constitutional garb . . . .” Zamora-Mallari v. Mukasey, 514 F.3d
8

679, 694 (7th Cir. 2008) (internal quotation marks and citation

omitted). That is exactly what Johnson seeks to do. He cites no

law that would support his position that the BIA’s denial of his

motion implicates legal or constitutional principles.

Even were we to assume jurisdiction, we would not be

persuaded by Johnson’s claim that merely amounts to a

disagreement with the IJ’s conclusion that his wife’s treatment

did not amount to extreme cruelty. We find nothing inadequate

about the BIA’s review of the IJ’s decision.

Lastly, Johnson contends that the BIA’s failure to address

the potential hardship to his children raises a “colorable question

of law.” Pet’r’s Br. at 13. This argument lacks merit. As the

Attorney General notes, “the elements necessary to demonstrate

eligibility for cancellation [of removal] are conjunctive [such

that] . . . Johnson’s inability to demonstrate extreme cruelty

precludes him from” relief under the extreme hardship provision. 

Resp’t’s Br. at 20 n.7. Once it found the IJ’s extreme cruelty

determination to be sound, no further review was warranted by

the BIA.

III.

CONCLUSION

For the above-stated reasons, we will dismiss the petition

for review for lack of jurisdiction.