* On February 4, 2005, Alberto R. Gonzales became the United States

Attorney general. In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure, Mr. Gonzales is substituted fo r John Ashcroft as the Respondent in this action. 

## F I L E D United States Court of Appeals Tenth Circuit 

### November 25, 2005

Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GRACIELA PERALES-CUMPEAN,

Petitioner,

v. No. 03-9553 ALBERTO R. GONZALES, * Attorney General, Respondent.

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD; FAMILY VIOLENCE PREVENTION FUND; NOW LEGAL DEFENSE AND EDUCATION FUND,

Amici Curiae.

PETITION FOR REVIEW FROM THE BOARD OF IMMIGRATION APPEALS

(BIA No. A76-386-969)

David Neslin, Arnold & Porter, LLP, Denver, Colorad o (Leonor Perretta, Utzinger & Perretta, PLLC, Salt Lake City, Utah, on the briefs) for Petitioner.-2-

John C. Cunningham, Senior Litigation Counsel (Lind a S. Wendtland, Assistant Director, with him on the briefs), United States De partment of Justice, Washington, D.C., for Respondent. David Neslin, Arnold & Porter, Denver, Colorado, Le slie M. Hill and Mona Luddy Benach, Arnold & Porter, Washington, D.C., Dan Kesselbrenner and Gail Pendleton, National Immigration Project of the Nati onal Lawyers Guild, Boston, Massachusetts, Leslye Orloff and Joyce Noche, NOW L egal Defense and Education Fund, Washington, D.C., filed a brief on behalf of Amici Curiae.

Before HARTZ , ANDERSON , and TYMKOVICH , Circuit Judges.

ANDERSON , Circuit Judge.

Petitioner Graciela Perales-Cumpean is a citizen of Mexico who faces removal from this country. She seeks review of the decision of the Board of Immigration Appeals (BIA) that she is not eligible for cancellation of removal under the battered spouse provisions of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2). Respondent has filed a mot ion to dismiss the petition for review, contending that this court lacks jurisdicti on to review the discretionary decisions that are the subject of petitioner’s peti tion for review. We dismiss the petition for review in part for lack of jurisdictio n. As to the remainder of the petition, we affirm.1 The battered spouse provisions were added to the Ac t as part of the

Violence Against Women Act of 1994 (VAWA). An alie n may seek relief under the VAWA either by requesting cancellation of remov al proceedings, or by filing a visa petition. See 8 C.F.R. §§ 204.1(a)(3), 204.2(c) (describing proc edures for self-petitioning for visa). Each of these actions is independent of the other. The agency denied petitioner’s VAWA visa petition admin istratively. See Admin. R. at 122-27. The decision on petitioner’s VAWA self- petition is not at issue in this petition for review. -3- 1. Background Petitioner concedes that she entered the United States without inspection in June 1990, making her subject to removal. On or ab out April 29, 1997, she married an American citizen whom she had known for about two years. She contends that after the marriage, her husband “tota lly changed his attitude toward her abusing her verbally and forcing her to engage in sexual relations with him against her will.” Pet. Opening Br. at 6. Petitio ner lived with her husband for less than three months before she left him. At the time of the IJ hearing, she was still married to her husband, but had been separate d from him for over two years. Respondent began removal proceedings against petiti oner on December 8, 1997. Petitioner sought cancellation of removal un der the battered spouse provisions of § 1229b(b)(2). 1 An alien seeking to qualify for cancellation of removal under this section must demonstrate that:

(i)(I) the alien has been battered or subjected to extreme cruelty by a spouse or parent who is or was a Unite d States citizen [. . .];-4- [. . .] (ii) the alien has been physically present in the U nited States for a continuous period of not less than 3 years im mediately preceding the date of such application, and the iss uance of a charging document for removal proceedings shall not toll the 3-year period of continuous physical presence in the United States; (iii) the alien has been a person of good moral cha racter during such period, subject to the provisions of subparagr aph (C); (iv) the alien is not inadmissible under paragraph (2) or (3) of section 1182(a) of this title, is not deportable un der paragraphs (1)(G) or (2) through (4) of section 1227(a) of thi s title (except in a case described in section 1227(a)(7) of this title where the Attorney General exercises discretion to grant a waiver), an d has not been convicted of an aggravated felony; and (v) the removal would result in extreme hardship to the alien, the alien's child, or the alien's parent. 8 U.S.C. § 1229b(b)(2). The IJ denied relief, finding that petitioner had n ot satisfied the statutory requirement of showing that she had been subject to extreme cruelty or battery by her spouse. See id. § 1229b(2)(i). Specifically, the IJ determined (1 ) that the verbal abuse alleged by petitioner was insufficientto constitute “extreme cruelty” within the meaning of § 1229b, and (2) that petitio ner had changed her story during the hearing and from previous affidavits she had filed concerning the alleged abuse and marital rape, making her testimony on these subjects not credible.2 Petitioner had meanwhile filed a petition for revie w in this court from the

BIA’s initial decision. It was assigned Case No. 0 2-9535. She voluntarily dismissed Case No. 02-9535 on April 2, 2003, after the BIA agreed to reopen her case. -5- The BIA summarily affirmed the IJ’s decision. Peti tioner and respondent then filed a joint motion to reopen the proceedings with the BIA, noting the lack of precedent concerning the meaning of “extreme cru elty” under the battered spouse provisions and requesting the BIA to reconsi der whether the case had been proper for a summary adjudication. The BIA grantedthe motion to reopen and again dismissed the appeal, this time with a reasoned decision. 2 The BIA stated that although the battered spouse provisions did no t require petitioner to demonstrate that she suffered physical violence in order to establish “extreme cruelty,” petitioner had failed to meet her burden to show that the abuse she alleged, consisting of insults, name calling, and u se of derogatory language in reference to her during the short time she lived wi th her husband, rose to the level of extreme cruelty. The BIA further agreed with th e IJ that petitioner’s testimony concerning marital rape had not been credible. Petitioner now raises three issues concerning the B IA’s decision. She contends that the BIA erred in finding that the ong oing verbal abuse did not constitute “extreme cruelty” within the meaning of the VAWA. She also contends that the BIA failed to apply properly the relaxed e videntiary standards of the3 Petitioner has moved to strike the motion to dismis s, contending that it

should have been filed within fifteen days after sh e filed her notice of appeal, as required by 10th Cir. R. 27.2(A)(3). Even if the f iling is untimely, however, we may not ignore the jurisdictional issue raised in the motion. This court has an independent obligation to determine its subject matter jurisdiction. See, e.g., Franklin Sav. Corp. v. United States (In re Franklin Sav. Corp.) , 385 F.3d 1279, 1286 n.6 (10th Cir. 2004), cert. denied, 73 U.S.L.W. 3673 (U.S. Oct. 3, 2005) (No. 04-1462). -6- VAWA in determining that her testimony concerning m arital rape was not credible. Finally, she contends that the BIA impro perly required her to provide additional evidence about the incidents of marital rape on appeal despite its procedures that prevented her from doing so.

2. Jurisdictional Issue As respondent points out, the threshold issue is wh ether we have jurisdiction to review the BIA’s denial of petition er’s request for cancellation of removal. 3 The issues petitioner raises for review present two separate jurisdictional inquiries. First, do we have jurisd iction to review the BIA’s determination that the non-physical abuse petitione r suffered did not rise to the level of “extreme cruelty”? Second, do we have jur isdiction to review the BIA’s determination that petitioner’s allegations of mari tal rape were not credible? We conclude that we lack jurisdiction over each of the se issues. We retain jurisdiction over petitioner’s third issue, a proce dural claim involving her alleged-7-

failure to present an affidavit in support of her a llegations of abuse, and on that claim, we affirm on the merits.

a. Extreme cruelty determination Petitioner’s first issue asks “whether [her husband ’s] anger, jealousy, violent looks, verbal abuse, name calling, and maki ng very derogatory remarks in front of [petitioner’s] friends and neighbors [rose ] to the level of extreme cruelty[.]” Pet. Opening Br. at 14. The applicabl e jurisdictional principle is contained in 8 U.S.C. § 1252(a)(2)(B), which states : (2) Matters not subject to judicial review

. . . . (B) Denials of discretionary relief Notwithstanding any other provision of law, no court shall have jurisdiction to review – (i) any judgment regarding the granting of relief u nder section . . . 1229b . . . of this title[.] The statute does not define the meaning of “any jud gment regarding the granting of relief.” Our previous cases shed lighton the meaning of this phrase, however. We have determined that § 1252 precludes us from reviewing decisions under § 1229b that involve the exercise of the agency’s discretion. Morales4 We left open the possibility that some judicial rev iew would remain

available to address “‘background principles of statutory construction and constitutional concerns.’” Morales Ventura , 348 F.3d at 1262 (quoting CalcanoMartinez v. INS, 533 U.S. 348, 350 n.2 (2001)). Congress has now superseded this language and made express what we suggested in Morales Venturaas part of the Real ID Act of 2005, Pub. L. No. 109-13, 119 St at. 231, 310. The Act creates a new subparagraph, 8 U.S.C. § 1252(a)(2)(D), permi tting judicial review of “constitutional claims or questions of law raised upon a petition for review.” Id. The new subparagraph was made applicable “to cases in which the final administrative order of removal, deportation, or ex clusion was issued before, on, or after the date of enactment” of the Act. Real I D Act § 106(b). Concerned about the potential effect of this new st atute on the jurisdictional issues in this case, the panel reque sted supplemental briefing from the parties on the effect, if any, of the Real ID A ct on our jurisdiction to review the final order of removal at issue here. Having r eviewed the supplemental briefs filed by the parties, we are satisfied that the Rea l ID Act does not provide this court with jurisdiction to review the agency’s dete rminations on the “extreme cruelty” and credibility issues. See, e.g., Vasile v. Gonzales , 417 F.3d 766, 768- 69 (7th Cir. 2005). -8- Ventura v. Ashcroft , 348 F.3d 1259, 1261-62 (10th Cir. 2003). 4 We retain jurisdiction, however, to review the agency’s non-discretionary decisions. Sabido Valdivia v. Gonzales , 423 F.3d 1144, 1148-49 (10th Cir. 2005). The determination of whether a particular decision is d iscretionary or non-discretionary is made on a case-by-case basis. Decisions that involve a “judgment call” by the agency, or for which there i s “no algorithm” on which review may be based, are considered discretionary and hence immune from review. Id. at 1149 (quotation omitted). Decisions for which there is a clear standard, and for which no evaluation of non-discre tionary criteria is required, by contrast, may be considered non-discretionary and thus reviewable.-9-

This court has not previously decided whether a det ermination that particular conduct rises to the level of “extreme c ruelty” under § 1229b represents an exercise of the agency’s discretionary judgment. Our decision in Morales
Ventura , however, is persuasive here. In that case, we de termined that the issue of whether an alien showed “exceptional and extreme ly unusual hardship” was discretionary because “[t]here is no algorithm for determining when a hardship is ‘exceptional and extremely unusual.’” 348 F.3d at 1262. “The decision regarding when hardship has reached that level is a judgment call.” Id. Notwithstanding petitioner’s attempt to recast the BIA’s decision o n extreme cruelty as a pure question of law involving our de novo review, the s ame is true here. Determining whether a given course of conduct is “e xtremely cruel” involves more than simply plugging facts into a formula. Th e agency is required to make a judgment whether the cruel conduct alleged is suffi ciently extreme to implicate the purposes of the statute. This decision involve s the exercise of agency discretion. This case, in fact, presents a prime example of whythe determination of whether “extreme cruelty” has occurred is discretio nary rather than nondiscretionary. Congress could have chosen to defin e “extreme cruelty” with sufficient specificity to clarify under what circum stances verbal abuse would qualify. It could also have taken a more categoric al approach to the definition of-10-

“extreme cruelty.” It did not do so. Instead, it left the specific determination to the agency. Petitioner stresses the Congressional purpose in en acting the VAWA to offer protection to victims of abuse. We note, how ever, that in the same bill in which Congress created the form of relief known as cancellation of removal, and provided a special, streamlined form of that relief for battered spouses, see Illegal Immigration Reform and Immigrant Responsibility Actof 1996, P.L. 104-208, § 304(a), 110 Stat. 3009-594 (codified in part at 8 U.S.C. § 1229b(b)(2)), it also specifically stripped the courts of power to reviewagency discretionary judgments regarding the form of relief it had just created, see id. § 306(a)(2), 110 Stat. 3009- 607 (codified in part at 8 U.S.C. § 1252(a)(2)(B)). Had Congress intended to preserve or create judicial review of such discreti onary decisions in the interest of battered spouses, it could have done so by specific ally and explicitly exempting battered spouse relief from the operation of the ju risdiction-stripping provisions of IIRIRA. It did so, for example, by specificallyexempting discretionary decisions on asylum applications. See 8 U.S.C. § 1252(a)(2)(B)(ii) (exempting from jurisdiction-stripping provision those decisio ns reached under 8 U.S.C. § 1158(a)). Yet Congress did not do so. In legislat ion generally, and in this area particularly, Congress knows how to address an issu e of jurisdiction which it desires to be accorded special treatment. The omis sion of such special treatment5 We note that Hernandezwas decided under a version of IIRIRA’s

transitional rules that specifically deprived the c ourts of the ability to review (continued...) -11- here is a significant consideration affecting our a nalysis of the petitioner’s claims. In short, we are not disposed to create a jurisdict ional exception where Congress refused to do so. The decision whether the verbal abuse in a given ca se constitutes “extreme cruelty” is just the sort of non-algorithmic decisi on that requires a non-reviewable “judgment call” by the Attorney General. See Morales Ventura , 348 F.3d at 1262. There is no hard-and-fast rule to distinguish “extr eme cruelty” from other, less severe, forms of cruel behavior. Such decisions ar e committed to agency discretion, and we cannot review them. We recognize that the Ninth Circuit has specificall y rejected this line of reasoning. See Hernandez v. Ashcroft , 345 F.3d 824, 833-34 (9th Cir. 2003). The Ninth Circuit has held that unlike “extreme hardshi p,” “extreme cruelty” is a measure “that can . . . be assessed on the basis of objective standards.” Id. at 834. While “extreme hardship” may encompass broader cate gories of human experience than “extreme cruelty,” we disagree with the Ninth Circuit’s statement that “extreme cruelty simply provides a [non-discre tionary] way to evaluate whether an individual has suffered psychological ab use that constitutes domestic violence.” Id. at 835. 55 (...continued)

certain discretionary decisions. See Hernandez , 345 F.3d at 833 & n.6. This case is subject to the permanent provisions of IIRIRA. -12- We further reject petitioner’s contention, that the agency regulations have channeled the BIA’s exercise of discretion to such an extent that its decision on the “extreme cruelty” decision can no longer be con sidered discretionary. Petitioner relies on 8 C.F.R. § 204.2(c), which permits the spouse of a citizen or lawful permanent resident who has been battered or subjected to extreme cruelty to self-petition for adjustment of status. This re gulation defines “battery or extreme cruelty” as follows: (vi) Battery or extreme cruelty. For the purpose o f this chapter, the phrase “was battered by or was the subject of extre me cruelty” includes, but is not limited to, being the victim of any act or threaten ed act of violence, including any forceful detention, which results or threatens to r esult in physical or mental injury. Psychological or sexual abuse or exploitati on, including rape, molestation, incest (if the victim is a minor), or forced prosti tution shall be considered acts of violence. Other abusive actions may also be acts of violence under certain circumstances, including acts that, in and of thems elves, may not initially appear violent but that are a part of an overall pattern o f violence. The qualifying abuse must have been committed by the citizen or lawful p ermanent resident spouse, must have been perpetrated against the self-petitio ner or the self-petitioner's child, and must have taken place during the self-pe titioner's marriage to the abuser. 8 C.F.R. § 204.2(c)(1)(vi). Assuming that the Attorney General could establish an algorithm for defining “extreme cruelty” by regulatory definition , and thereby subject his determinations to judicial review under a non-discr etionary, objective standard, he-13-

has not done so here. The definition cited above i s far from algorithmic. It requires consideration of many discretionary factor s. If the regulation were applied here, for example, the BIA would need to co nsider whether petitioner’s husband’s “anger, jealousy, violent looks, verbal abuse, name calling, and making very derogatory remarks in front of [petitioner’s] friends and neighbors,” Pet. Opening Br. at 14, qualified as “threatened act[s] of violence” that “result[ed] or threaten[ed] to result in physical or mental injury ” for purposes of the regulation. While the regulation makes reference to “psychologi cal abuse,” the specific examples provided (rape, molestation, incest, and f orced prostitution) all appear to be much more severe than the allegations of abus e the BIA found credible in this case. Considerable discretion also is provide d by the phrases “includes, but is not limited to” and “may . . . be acts of violen ce under certain circumstances.” In petitioner’s case, at least, this regulation doe s not provide a binding, objective standard that would channel the BIA’s discretion ina manner making it subject to judicial review.

b. Marital rape determination Section 1229b likewise bars us from reviewing petit ioner’s second issue: whether the BIA improperly neglected to apply the “ any credible evidence” standard to petitioner’s claim of marital rape. Ma rital rape clearly falls within any reasonable definition of battery. Had the agen cy found petitioner’s6 The Ninth Circuit, considering the jurisdictional i mpact of similar

language in a provision granting spouses subjected to battery or extreme cruelty an exemption from the joint filing requirement for removal of the conditional basis for permanent resident status, see 8 U.S.C. § 1186a(c)(4), has concluded that such language was designed to help battered spouses meet their evidentiary burden by eliminating evidentiary corroboration req uirements, and therefore could not have been intended to strip federal courts of j urisdiction over adverse credibility determinations. See Oropeza-Wong v. Gonzales , 406 F.3d 1135, 1143- 47 (9th Cir. 2005). The Ninth Circuit’s analysis f ails to consider that Congress could have intended to require both that the agency consider all credible evidence (continued...) -14- allegations on this point credible, its determinati on of whether the marital rape constituted a battery for purposes of statutory eli gibility would have been an objective, non-discretionary determination subject to our review. The problem is that the agency did not find petitioner’s allegatio ns credible. It is the reviewability of this credibility decision itself t hat we must consider. The key provision of § 1229b applicable here provid es that “[i]n acting on applications under this paragraph, the Attorney Gen eral shall consider any credible evidence relevant to the application.” 8 U.S.C. § 1229b(b)(2)(D). Petitioner contends that this provision establishes a mandatory, objectivelydefined and non-discretionary duty to consider “anycredible evidence,” the breach of which should give rise to judicial review . The statute goes on to state, however, that “[t]he determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General .” Id. (emphasis added). 6 Judicial review is precluded, because we lack6 (...continued)

in support of an alien’s application, and that the agency’s discretionary decision concerning what constitutes such credible evidence not be judicially reviewed. We note also that Oropeza-Wongappears to be inconsistent with prior Ninth Circuit precedent noting the entirely discretionaryand hence unreviewable nature of the Attorney General’s credibility determination s pursuant to § 1229b(b)(2)(D). See Nakamoto v. Ashcroft , 363 F.3d 874, 880 (9th Cir. 2004). -15- jurisdiction to review any “decision or action of t he Attorney General the authority for which is specified under this subchap ter to be in the discretion of the Attorney General.” 8 U.S.C. § 1252(a)(2)(B)(ii). Petitioner contends that the IJ and the BIA failed to follow this “any credible evidence” standard in their decisions. Sp ecifically, she argues that her testimony at the IJ hearing should not be considere d inconsistent with her prior affidavits and therefore incredible merely because it included new (and more serious) allegations of marital rape, absent from t he affidavits. She further contends that she was unaware of the definition of marital rape until the IJ defined it at the hearing. She asserts that eviden ce of marital rape cannot generally be objectively corroborated by evidence o ther than the victim’s own testimony, and that the IJ should have provided herwith further opportunity to explain her testimony at the hearing. Finally, she asserts that the IJ and the BIA should have considered the nature and impact of dom estic abuse in making their credibility determinations. All of these attacks g o to the agency’s determination-16-

of what evidence was credible and the weight to be given to the evidence. They therefore involved a discretionary decision that we cannot review.

c. Affidavit issue In petitioner’s final claim of error, she contends that the BIA erred by requiring her to come forward on appeal with an aff idavit to explain her testimony before the IJ. In context, the BIA’s statement was as follows: [Petitioner] did not explain her escalating testimo ny regarding her husband’s marital rape at her hearing as counsel ch ose not to ask further questions. . . . Her explanation on appeal is limited to a generalized assertion that marital rape is consiste nt with the pattern of verbal and emotional abuse and that her failure to recognize or mention marital rape is consistent with recorded so cietal response. [Petitioner] provides no detailed explanation, or affidavit , for her testimony about repeated incidents of marital rape when she had not previously indicated in the documentary evidence th at she had been raped or for the increased elaboration regarding th ese incidents as the hearing progress[ed]. Supp. Admin. R. at 7 (emphasis added). Petitioner contends that since the BIA does not cre ate its own record but relies on testimony and evidence presented to the IJ, see 8 C.F.R. § 1003.1(d)(3)(i), (iv); Matter of Fedorenko , 19 I. & N. Dec. 57, 73-74 (BIA 1984), the BIA improperly relied upon her failure t o provide an affidavit explaining her testimony as grounds for affirming the IJ’s adverse credibility finding. If petitioner is barred by law from prese nting evidence to the BIA, then the BIA’s determination that petitioner could have or should have provided such-17-

evidence would seem to lie outside the discretionary sphere of determining “what evidence is credible and the weight to be given that evidence.” 8 U.S.C. § 1229b(b)(2)(D). It appears, therefore, that we h ave limited jurisdiction to address this issue. Nevertheless, we affirm. The BIA found that the re cord before it contained no explanation of petitioner’s “escalating testimony” concerning spousal rape. Supp. Admin. R. at 7. The BIA’s statement concerni ng an affidavit can be read as invoking the petitioner’s responsibility to move fo r remand to the IJ for further fact-finding if she were not satisfied with the record as it stood. See 8 C.F.R. § 1003.1(d)(3)(iv). Petitioners routinely submit a ffidavits in connection with such motions to remand. See, e.g., Ezeagwuna v. Ashcroft , 325 F.3d 396, 403 (3d Cir. 2003). The BIA simply noted petitioner’s fail ure to provide any explanation, by affidavit or otherwise, that would either explai n the facts before it or justify a remand for further factual findings. The BIA did n ot err in noting the absence of evidence to justify a remand. The petition for review is DISMISSED in part for la ck of subject matter jurisdiction, and the BIA’s decision is AFFIRMED inpart. Petitioner’s motion to strike respondent’s motion to dismiss is denied.