Following a referendum vote on May 21, 2006, Montenegro’s 1

Parliament declared independence from Serbia on June 3, 2006.

Serbia recognized Montenegro’s independence and declared

(continued...)

In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3883

ZVONKO STEPANOVIC,

Petitioner,

v.

MARK R. FILIP, Acting Attorney General

of the United States,

Respondent.

On Petition for Review of an Order of the 

Board of Immigration Appeals.

No. A79-766-597

ARGUED OCTOBER 20, 2008—DECIDED JANUARY 28, 2009

Before BAUER, KANNE, and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge. Zvonko Stepanovic is a citizen

of Serbia and Montenegro who faces removal from the 1
2 No. 07-3883

(...continued) 1

an end to the union of the two states. On June 28, 2006,

Montenegro became a member state of the United Nations.

These events occurred after the immigration judge’s order in

the proceedings below, although they do not affect our

analysis in this appeal.

United States. He seeks review of an order of the Board

of Immigration Appeals declaring him ineligible for

cancellation of removal pursuant to the battered

spouse provision of the Immigration and Nationality Act

§ 240A(b)(2), 8 U.S.C. § 1229b(b)(2). The government

contends that this court lacks jurisdiction to review the

BIA’s determination that Stepanovic was not subjected to

“extreme cruelty” under § 1229b(b)(2). We agree and

conclude that 8 U.S.C. § 1252(a)(2) prevents us from

exercising jurisdiction over the BIA’s determination.

Accordingly, we dismiss the petition.

I. BACKGROUND

Stepanovic was born in a region of the former Republic

of Yugoslavia that is now in Serbia. In 1993, he married

Silvana Simic, and the two moved to South Africa. The

couple had one child, Kristina, before obtaining an amicable divorce in 1996. Silvana and Kristina remained in

South Africa until 1997, and they now live in Florida.

On September 30, 1997, the United States admitted

Stepanovic as a non-immigrant visitor with authorization

to remain for a period not to exceed six months. He be-
No. 07-3883 3

On March 1, 2003, the INS ceased to exist as an independent

2

agency, and the Department of Homeland Security assumed

its functions.

came a self-employed cross-country truck driver and

lived in Chicago. In 1998, Stepanovic met Sonja Jovanovic,

a U.S. citizen working in a Serbian restaurant, and the

two began dating.

Stepanovic remained in the United States past the

authorized six-month time period, and in 2002, immigration authorities detained him in Spokane, Washington.

On May 8, 2002, the Immigration and Naturalization

Service sought to remove him for being in the United 2

States illegally, pursuant to 8 U.S.C. § 1227(a)(1)(B)-(C)(I).

Stepanovic returned to Chicago after being released on a

bond.

Approximately one month later, Stepanovic married

Jovanovic and moved into her Chicago apartment. At a

hearing before an immigration judge in January 2003,

Stepanovic conceded removability, but at a later hearing

in July, he stated that he would seek relief from removal

because of his marriage to a United States citizen.

In November 2003, Stepanovic returned from a longdistance trucking trip, expecting Jovanovic to pick him up

where he typically parked. She failed to appear, and he

spent the night in his truck. Stepanovic received a ride

home from a friend the next day, only to find that

Jovanovic had locked him out of the apartment. When

she finally answered the door, she appeared angry and

would not let him enter. She handed him two bags of
4 No. 07-3883

The IJ also found that Stepanovic failed to demonstrate a 3

viable marriage and that Stepanovic’s daughter was not a

qualifying relative under the statute, 8 U.S.C. § 1229b(b)(2),

because she was not a lawful permanent resident.

clothes and told him to leave, threatening to call the police

if he did not. Jovanovic never allowed Stepanovic back

into the apartment, and the two eventually divorced.

At a hearing in October 2004, Stepanovic informed the

IJ that he and Jovanovic had separated and that he now

intended to petition for cancellation of removal. On

December 5, 2005, the IJ held a hearing on the merits of

Stepanovic’s application for cancellation of removal for

battered spouses who have been subjected to “extreme

cruelty,” pursuant to 8 U.S.C. § 1229b(b)(2). In addition

to the aforementioned facts, Stepanovic presented evidence

that Jovanovic became involved with another man

during their marriage and may have been unfaithful.

Stepanovic stated that he heard from friends that

Jovanovic later married this same man.

Stepanovic conceded that he was never battered or

subjected to physical harm, but he claimed that he suffered

mental and emotional distress as a result of these events,

the deterioration of his marriage, Jovanovic’s continued

refusal to return his phone calls, and occasionally seeing

her in public with another man. At the conclusion of the

hearing, the IJ denied Stepanovic’s application because he

failed to meet his burden of proof for cancellation of

removal, including that he did not establish that his exwife subjected him to “extreme cruelty.” The IJ granted 3

Stepanovic’s alternative request for voluntary departure
No. 07-3883 5

and designated South Africa as the country of removal.

Stepanovic appealed the IJ’s decision to the BIA.

On October 31, 2007, the BIA dismissed his appeal. The

BIA agreed with the IJ that Stepanovic failed to demonstrate that he was subjected to extreme cruelty by his

spouse under § 1229b(b)(2). The BIA held that “[i]n light

of this determination, we need not reach the other arguments raised on appeal regarding the other eligibility

criteria for cancellation of removal.”

II. ANALYSIS

Stepanovic appeals the BIA’s decision that he failed to

prove that he was subjected to extreme cruelty. Because

the BIA undertook an independent review of the record

and did not rely exclusively on the IJ’s findings, we

review the BIA’s decision directly and not that of the IJ.

Peralta-Cabrera v. Gonzales, 501 F.3d 837, 843 (7th Cir. 2007).

Stepanovic also claims that the BIA incorrectly altered

the legal standard for establishing extreme cruelty by

requiring psychiatric or medical evidence that his emotional suffering rose to the level of extreme cruelty.

A. Battered Spouse Provision of the INA

Under the INA’s battered spouse provision, the “Attorney General may cancel removal” of an alien who is

otherwise removable if the petitioner establishes the

elements of 8 U.S.C. § 1229b(b)(2), including that he “has

been battered or subjected to extreme cruelty by a spouse
6 No. 07-3883

An applicant for cancellation of removal under § 1229b(b)(2) 4

also must demonstrate (1) physical presence for a continuous

period of not less than three years immediately preceding the

application; (2) good moral character during such period;

(3) that he or she is not inadmissible or deportable under

other provisions and has not been convicted of an aggravated

felony; and (4) that removal would result in extreme hardship to

the alien, his child, or his parent. 8 U.S.C. § 1229b(b)(2)(A)(ii)-(v).

or parent who is or was a United States citizen.” Id.

§ 1229b(b)(2)(A)(i)(I).4

Congress has not defined “extreme cruelty” or provided

a legal standard for determining its existence for the

purposes of § 1229b(b)(2). However, the DHS promulgated

a regulation that permits a battered spouse of a citizen or

lawful permanent resident to self-petition for adjustment of status, and it defines “battery or extreme cruelty”

as including, 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).
No. 07-3883 7

Based on the statute and the DHS regulation, Stepanovic

asserts that his ex-wife’s conduct and the deterioration

of their marriage resulted in emotional and mental

injury and constituted extreme cruelty under § 1229b(b)(2).

B. Jurisdiction Under 8 U.S.C. § 1252(a)(2)

Before reaching the merits of Stepanovic’s claims, we

must have jurisdiction to review the BIA’s determination

that Stepanovic failed to demonstrate extreme cruelty.

Congress has delegated many immigration decisions to

the Attorney General, and in so doing has expressly

circumscribed our jurisdiction to review certain judgments. See 8 U.S.C. § 1252(a)(2); Khan v. Mukasey, 517

F.3d 513, 517 (7th Cir. 2008). The applicable jurisdictional provision, entitled “Denials of discretionary relief,” provides:

Notwithstanding any other provision of law . . .

and except as provided in subparagraph (D), and

regardless of whether the judgment, decision, or

action is made in removal proceedings, no court

shall have jurisdiction to review—(i) any judgment

regarding the granting of relief under section . . .

1229b . . . of this title . . . .

8 U.S.C. § 1252(a)(2)(B).

Stepanovic seeks relief under § 1229b, so we must turn

to the exception to the jurisdiction-removal provision,

found in subparagraph (D), which states: 

Nothing in subparagraph (B) or (C), or in any other

provision of this chapter (other than this section)

which limits or eliminates judicial review, shall be
8 No. 07-3883

construed as precluding review of constitutional

claims or questions of law raised upon a petition

for review filed with an appropriate court of

appeals in accordance with this section.

8 U.S.C. § 1252(a)(2)(D). Thus, reading the two provisions

together, we may not review the BIA’s decision to deny

an alien’s application for cancellation of removal under

§ 1229b unless the alien presents a constitutional claim

or question of law.

Stepanovic makes two separate arguments. First, he

asserts that the BIA’s determination of extreme cruelty is

non-discretionary, and is therefore a reviewable decision

outside the scope of § 1252(a)(2)(B). Second, he argues

that the BIA altered the legal standard for establishing

extreme cruelty, which he states should constitute a

reviewable question of law. We address each argument

and find both unpersuasive.

1. Discretionary Nature of the Extreme Cruelty Determination

Stepanovic first urges us to find that the extreme cruelty

determination is non-discretionary and therefore within

our jurisdiction to review. The government disagrees,

arguing that the determination is discretionary and not

reviewable.

Congress did not define the phrase “any judgment

regarding the granting of relief” for the purposes of

§ 1252(a)(2)(B)(i). The statute is clear that, at a minimum,

we may not review any discretionary determination

regarding relief under § 1229b. See, e.g., Martinez-Maldonado
No. 07-3883 9

v. Gonzales, 437 F.3d 679, 682 (7th Cir. 2006) (“[Section

1252(a)(2)(B)] bars judicial review of all discretionary

decisions of the Attorney General made in immigration

cases, with a few exceptions . . . .”); Cevilla v. Gonzales,

446 F.3d 658, 661 (7th Cir. 2006) (“[W]hile the purpose of

the door-closing statute appears to be to place

discretionary rulings beyond the power of judicial review

(hence the caption of subsection (B)), the statute itself, read

literally, goes further and places all rulings other than

those resolving questions of law or constitutional issues

beyond the power of judicial review.” (emphasis added)).

Subsection (D) of the jurisdictional statute restores our

jurisdiction to review only constitutional claims or questions of law. See 8 U.S.C. § 1252(a)(2)(D). We have interpreted the phrase “questions of law” to permit judicial

review of only “pure”questions of law. See Viracacha v.

Mukasey, 518 F.3d 511, 515 (7th Cir. 2008); Cevilla, 446

F.3d at 661 (explaining that Congress intended “to distinguish between ‘statutory-construction questions’ and

‘factual questions’ and to permit judicial review only of

answers to the former”). A “pure” question of law arises

in “situations in which a case comes out one way if the

Constitution or statute means one thing, and the other

way if it means something different.” Viracacha, 518 F.3d at

515. Therefore, factual or discretionary determinations

do not constitute reviewable questions of law under

§ 1252(a)(2)(D). See Leguizamo-Medina v. Gonzales, 493

F.3d 772, 774 (7th Cir. 2007); Cevilla, 446 F.3d at 661.

This court has not previously addressed our jurisdiction

to review an IJ’s extreme cruelty determination for the
10 No. 07-3883

Leyva and Kharkhan were both decided before § 1252(a)(2)(D) 5

became effective in May 2005, as part of the Real ID Act of

2005, Pub. L. No. 109-13, 119 Stat. 231, 310. The addition of

§ 1252(a)(2)(D), however, did not affect our holding that the

BIA’s determination of “exceptional and extremely unusual

hardship” is not subject to judicial review according to

§ 1252(a)(2)(B). See Mireles, 433 F.3d at 968-69.

purposes of § 1229b(b)(2). We have, however, held repeatedly that an analogous issue is not subject to judicial

review: whether an alien will suffer “exceptional and

extremely unusual hardship” in order to obtain cancellation of removal under § 1229b(b)(1). See MartinezMaldonado, 437 F.3d at 682 (“Our Court and others have

confirmed that the application of [§ 1252(a)(2)(B)] strips

us of jurisdiction in discretionary cancellation of removal

cases.”); Mireles v. Gonzales, 433 F.3d 965, 968 (7th Cir.

2006) (“We lack jurisdiction to review [petitioner’s] contention that the agency should have exercised discretion

in his favor [under § 1229b]. . . . This is true whether the

alien’s argument is that the agency abused its discretion

or that it failed to conduct a thorough review of the

record.” (citations omitted)); Leyva v. Ashcroft, 380 F.3d 303,

307 (7th Cir. 2004) (“The meaning of 8 U.S.C.

§ 1252(a)(2)(B)(i) is clear: we may not review the Attorney

General’s judgment regarding whether or not to grant

cancellation of removal under 8 U.S.C. § 1229b(b)(1).”);

Kharkhan v. Ashcroft, 336 F.3d 601, 604 (7th Cir. 2003).5

Stepanovic has not presented a convincing reason why

the extreme cruelty determination under § 1229b(b)(2)

should be treated differently than “exceptional and

extremely unusual” hardship under § 1229b(b)(1). Both
No. 07-3883 11

are subject to the jurisdiction-removal provision in

§ 1252(a)(2)(B), and Stepanovic is challenging the BIA’s

factual findings, its application of those facts to the law,

and its exercise of discretion in denying relief under

§ 1229b(b)(2). We lack jurisdiction to review these determinations, just as we may not review similar issues

under § 1229b(b)(1). See, e.g., Mireles, 433 F.3d at 968.

Furthermore, three of the four circuits that have addressed this precise question have held that the

extreme cruelty determination is discretionary and not

subject to judicial review. See Ramdane v. Mukasey, No. 07-

4064, 2008 U.S. App. LEXIS 20356, at *4 (6th Cir. Sept. 25,

2008); Wilmore v. Gonzales, 455 F.3d 524, 528 (5th Cir. 2006);

Perales-Cumpean v. Gonzales, 429 F.3d 977, 982 (10th Cir.

2005). But see Hernandez v. Ashcroft, 345 F.3d 824, 833-35

(9th Cir. 2003).

In Perales-Cumpean, the Tenth Circuit explained that a

non-discretionary decision is one “for which there is a

clear standard, and for which no evaluation of non-discretionary criteria is required.” 429 F.3d at 982. Conversely,

a discretionary determination is one involving “a ‘judgment call’ by the agency, or for which there is ‘no algorithm’ on which review may be based.” Id. To determine

whether one has suffered extreme cruelty, a court must do

more than “simply plug[] facts into a formula.” Id. The

Fifth Circuit agreed, comparing the extreme cruelty

determination to the extreme hardship determination

under § 1229b(b)(1), which it had already held was discretionary because the term was “not self-explanatory, and

reasonable men could easily differ as to [its] construction.”
12 No. 07-3883

Wilmore, 455 F.3d at 527 (alteration in original) (quotations

omitted). The Sixth Circuit recently followed suit, noting

that it previously held that extreme hardship is a discretionary decision not subject to review, and that it “[had]

been given no reason to believe that extreme cruelty

is treated differently.” Ramdane, 2008 U.S. App. LEXIS

20356, at *4.

The Ninth Circuit is the only circuit to hold that the

extreme cruelty determination is non-discretionary and

reviewable. Hernandez, 345 F.3d at 833-35. In Hernandez,

the court explained that “extreme cruelty involves a

question of fact, determined through the application of

legal standards.” Id. at 834. The court compared extreme

cruelty to deciding whether an applicant was battered or

was a “habitual drunkard” (both of which the Ninth

Circuit considers non-discretionary), and it held that

extreme cruelty is a similar type of “clinical” finding. Id.

The court also distinguished the extreme cruelty and

extreme hardship determinations by noting that extreme

hardship is a more nebulous standard that seeks to separate those applicants deemed particularly worthy of

cancellation of removal, whereas extreme cruelty

simply establishes an applicant’s status as a survivor of

domestic violence. Id. at 835.

Stepanovic acknowledges the “arduous task” of persuading this court to follow the Ninth Circuit’s view that the

agency’s extreme cruelty determination is non-discretionary. (Petr.’s Br. 24.) His assessment is accurate. We

agree with the Fifth, Sixth, and Tenth Circuits that the

extreme cruelty determination is discretionary, and we
No. 07-3883 13

may not review the manner in which the BIA exercises

its discretion. See Mireles, 433 F.3d at 969. As the Tenth

Circuit noted, an IJ does not determine extreme cruelty

by simply plugging facts into a formula or applying an

algorithm. See Perales-Cumpean, 429 F.3d at 982. Rather, 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 such a

level that it can rightly be described as extreme. Stepanovic

himself acknowledges that the agency possesses “unfettered discretion” in deciding whether a petitioner

suffered extreme cruelty. (Petr.’s Br. 25.) Consequently,

we find that the extreme cruelty determination under

§ 1229b(b)(2) falls within the jurisdiction-removal

statute, and thus beyond our jurisdiction to review.

2. The BIA’s Request of Medical or Psychiatric Evidence of

Harm

Stepanovic also claims that the BIA altered the legal

standard for demonstrating extreme cruelty, which he

argues is a reviewable question of law under

§ 1252(a)(2)(D). Specifically, he states that the BIA

“ratchet[ed] up” the extreme cruelty standard, which

he argues is found in 8 C.F.R. § 240.2(c), by requiring

psychological or medical documentation of his injury.

Stepanovic argues that by so doing, the BIA imposed an

unannounced, post hoc standard that “the BIA knows, and

probably expects, petitioner cannot meet.”

As previously stated, our jurisdiction is limited to

review of only “pure”questions of law. See Viracacha, 518
14 No. 07-3883

F.3d at 515. A claim on appeal does not become a question of law simply because the litigant characterizes it as

such. See Zamora-Mallari v. Mukasey, 514 F.3d 679, 694 (7th

Cir. 2008) (“A petitioner may not create the jurisdiction

that Congress chose to remove simply by cloaking an . . .

argument in constitutional garb.”) (alteration in original)

(quotations omitted); Leguizamo-Medina, 493 F.3d at 774

(“[O]nly ‘pure’ legal questions (as opposed to characterizations or ‘mixed’ questions) are covered by subsection

(D).”); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

315, 330 (2d Cir. 2006) (rejecting petitioner’s attempt to

transform a factual claim into a legal question by asserting

that the IJ failed to apply the law and noting that “[a]

petitioner cannot overcome the lack of jurisdiction to

review by invocation of such rhetoric”).

Stepanovic’s argument that he presents a reviewable

question of law is mistaken. The BIA applied the correct

legal standard—extreme cruelty—and we are not authorized to review how the BIA exercised its discretion under

that standard. See Mireles, 433 F.3d at 969. At its core,

Stepanovic’s argument is “merely [a] quarrel[] over the

correctness of the factual findings or justification for the

discretionary choices.” Chen, 471 F.3d at 329. Further, he

has not convinced us that the DHS’s regulation defining

extreme cruelty, 8 C.F.R. § 204.2(c)(1)(vi), limits the

BIA’s discretion to such an extent that it may not request psychiatric or medical evidence supporting

Stepanovic’s claims. This is particularly so because he

does not claim that he suffered physical harm, and his exwife’s conduct is not objectively extreme or cruel. As we
No. 07-3883 15

have already stated, the extreme cruelty determination

is discretionary. While the DHS’s definition may be

helpful in deciding whether an applicant suffered extreme

cruelty, the regulation itself provides considerable discretion by using the “phrases ‘includes, but is not limited to’

and ‘may . . . be acts of violence under certain circumstances.’ ” Perales-Cumpean, 429 F.3d at 984 (alteration in

original) (quoting 8 C.F.R. § 204.2(c)(1)(vi)); see also

Wilmore, 455 F.3d at 527 (agreeing with Perales-Cumpean

that the DHS regulation does not render the extreme

cruelty determination non-discretionary). Therefore, the

regulation does not constrain the BIA’s discretion to

such an extent that the BIA’s order in this case exceeded

its bounds.

Furthermore, even if the regulation defining extreme

cruelty did limit the BIA’s discretion to some extent, the

BIA did nothing in this case to alter that definition, nor

did the BIA create a new prerequisite for relief under

§ 1229b(b)(2). Here, the BIA did not require psychological

or medical evidence of Stepanovic’s injury when it concluded that Stepanovic “failed to establish that he was

the victim of extreme cruelty by his ex-wife, and he

failed to adequately support his claim with psychiatric

or medical documents, or other evidence which would

establish that his psychological or emotional suffering

rose to the level of ‘extreme cruelty.’ ” Rather, the BIA

simply explained that Stepanovic failed to produce evidence to meet his burden of proof, in part because he

presented no medical evidence of harm. Requiring an

applicant to prove an element of his petition for cancella-
16 No. 07-3883

tion of removal is certainly distinct from altering the

legal framework under which the applicant may receive

such relief. In reality, Stepanovic challenges the BIA’s

factual determination that he was not subject to extreme

cruelty, and he attempts to re-characterize this issue as

a “question of law.” But it is not such a question.

III. CONCLUSION

Stepanovic appeals the BIA’s determination that he

did not suffer cruelty that was sufficiently extreme to

receive cancellation of removal pursuant to § 1229b(b)(2).

Because this determination falls squarely within the

jurisdiction-removal statute, and Stepanovic presents no

“reviewable” question of law or constitutional claim, we

lack jurisdiction to review it according to § 1252(a)(2)(B).

For the above reasons, Stepanovic’s petition for review is

DISMISSED for lack of jurisdiction.

1-28-09