*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 for 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, Colorado (Leonor Perretta,

Utzinger & Perretta, PLLC, Salt Lake City, Utah, on the briefs) for Petitioner.
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John C. Cunningham, Senior Litigation Counsel (Linda S. Wendtland, Assistant

Director, with him on the briefs), United States Department of Justice,

Washington, D.C., for Respondent.

David Neslin, Arnold & Porter, Denver, Colorado, Leslie M. Hill and Mona

Luddy Benach, Arnold & Porter, Washington, D.C., Dan Kesselbrenner and Gail

Pendleton, National Immigration Project of the National Lawyers Guild, Boston,

Massachusetts, Leslye Orloff and Joyce Noche, NOW Legal 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 motion to dismiss the petition for

review, contending that this court lacks jurisdiction to review the discretionary

decisions that are the subject of petitioner’s petition for review. We dismiss the

petition for review in part for lack of jurisdiction. As to the remainder of the

petition, we affirm.
1The battered spouse provisions were added to the Act as part of the

Violence Against Women Act of 1994 (VAWA). An alien may seek relief under

the VAWA either by requesting cancellation of removal proceedings, or by filing

a visa petition. See 8 C.F.R. §§ 204.1(a)(3), 204.2(c) (describing procedures for

self-petitioning for visa). Each of these actions is independent of the other. The

agency denied petitioner’s VAWA visa petition administratively. See Admin. R.

at 122-27. The decision on petitioner’s VAWA self-petition is not at issue in this

petition for review.

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1. Background

Petitioner concedes that she entered the United States without inspection in

June 1990, making her subject to removal. On or about April 29, 1997, she

married an American citizen whom she had known for about two years. She

contends that after the marriage, her husband “totally 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. Petitioner 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 separated from him for over two years.

Respondent began removal proceedings against petitioner on December 8,

1997. Petitioner sought cancellation of removal under 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 United States citizen 

[. . .];
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[. . .]

(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, and the issuance 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 character during

such period, subject to the provisions of subparagraph (C);

(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 (except in a

case described in section 1227(a)(7) of this title where the Attorney

General exercises discretion to grant a waiver), and 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 not 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 insufficient to constitute “extreme cruelty”

within the meaning of § 1229b, and (2) that petitioner 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.
2Petitioner had meanwhile filed a petition for review in this court from the

BIA’s initial decision. It was assigned Case No. 02-9535. She voluntarily

dismissed Case No. 02-9535 on April 2, 2003, after the BIA agreed to reopen her

case.

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The BIA summarily affirmed the IJ’s decision. Petitioner and respondent

then filed a joint motion to reopen the proceedings with the BIA, noting the lack

of precedent concerning the meaning of “extreme cruelty” under the battered

spouse provisions and requesting the BIA to reconsider whether the case had been

proper for a summary adjudication. The BIA granted the 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 not 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 use of derogatory language in

reference to her during the short time she lived with her husband, rose to the level

of extreme cruelty. The BIA further agreed with the IJ that petitioner’s testimony

concerning marital rape had not been credible.

Petitioner now raises three issues concerning the BIA’s decision. She

contends that the BIA erred in finding that the ongoing 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 evidentiary standards of the
3Petitioner has moved to strike the motion to dismiss, contending that it

should have been filed within fifteen days after she filed her notice of appeal, as

required by 10th Cir. R. 27.2(A)(3). Even if the filing 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).

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VAWA in determining that her testimony concerning marital rape was not

credible. Finally, she contends that the BIA improperly 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 whether we have

jurisdiction to review the BIA’s denial of petitioner’s request for cancellation of

removal. 3

 The issues petitioner raises for review present two separate

jurisdictional inquiries. First, do we have jurisdiction to review the BIA’s

determination that the non-physical abuse petitioner suffered did not rise to the

level of “extreme cruelty”? Second, do we have jurisdiction to review the BIA’s

determination that petitioner’s allegations of marital rape were not credible? We

conclude that we lack jurisdiction over each of these issues. We retain

jurisdiction over petitioner’s third issue, a procedural claim involving her alleged
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failure to present an affidavit in support of her allegations 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 making very derogatory remarks in

front of [petitioner’s] friends and neighbors [rose] to the level of extreme

cruelty[.]” Pet. Opening Br. at 14. The applicable 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 under section

. . . 1229b . . . of this title[.]

The statute does not define the meaning of “any judgment regarding the

granting of relief.” Our previous cases shed light on 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. Morales
4We left open the possibility that some judicial review 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 Ventura as part of

the Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 310. The Act creates

a new subparagraph, 8 U.S.C. § 1252(a)(2)(D), permitting 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 exclusion was issued before, on,

or after the date of enactment” of the Act. Real ID Act § 106(b).

Concerned about the potential effect of this new statute on the

jurisdictional issues in this case, the panel requested supplemental briefing from

the parties on the effect, if any, of the Real ID Act on our jurisdiction to review

the final order of removal at issue here. Having reviewed the supplemental briefs

filed by the parties, we are satisfied that the Real ID Act does not provide this

court with jurisdiction to review the agency’s determinations on the “extreme

cruelty” and credibility issues. See, e.g., Vasile v. Gonzales, 417 F.3d 766, 768-

69 (7th Cir. 2005).

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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 discretionary or

non-discretionary is made on a case-by-case basis. Decisions that involve a

“judgment call” by the agency, or for which there is “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-discretionary criteria is required, by

contrast, may be considered non-discretionary and thus reviewable.
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This court has not previously decided whether a determination that

particular conduct rises to the level of “extreme cruelty” under § 1229b represents

an exercise of the agency’s discretionary judgment. Our decision in Morales

Ventura , however, is persuasive here. In that case, we determined that the issue

of whether an alien showed “exceptional and extremely 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 on extreme cruelty as a pure

question of law involving our de novo review, the same is true here. 

Determining whether a given course of conduct is “extremely cruel” involves

more than simply plugging facts into a formula. The agency is required to make a

judgment whether the cruel conduct alleged is sufficiently extreme to implicate

the purposes of the statute. This decision involves the exercise of agency

discretion.

This case, in fact, presents a prime example of why the determination of

whether “extreme cruelty” has occurred is discretionary rather than nondiscretionary. Congress could have chosen to define “extreme cruelty” with

sufficient specificity to clarify under what circumstances verbal abuse would

qualify. It could also have taken a more categorical approach to the definition of
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“extreme cruelty.” It did not do so. Instead, it left the specific determination to

the agency.

Petitioner stresses the Congressional purpose in enacting the VAWA to

offer protection to victims of abuse. We note, however, 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 Act of 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 review agency 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 discretionary decisions in the interest of

battered spouses, it could have done so by specifically and explicitly exempting

battered spouse relief from the operation of the jurisdiction-stripping provisions

of IIRIRA. It did so, for example, by specifically exempting discretionary

decisions on asylum applications. See 8 U.S.C. § 1252(a)(2)(B)(ii) (exempting

from jurisdiction-stripping provision those decisions reached under 8 U.S.C. §

1158(a)). Yet Congress did not do so. In legislation generally, and in this area

particularly, Congress knows how to address an issue of jurisdiction which it

desires to be accorded special treatment. The omission of such special treatment
5We note that Hernandez was decided under a version of IIRIRA’s

transitional rules that specifically deprived the courts of the ability to review

(continued...)

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here is a significant consideration affecting our analysis of the petitioner’s claims. 

In short, we are not disposed to create a jurisdictional exception where Congress

refused to do so.

The decision whether the verbal abuse in a given case constitutes “extreme

cruelty” is just the sort of non-algorithmic decision 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 “extreme cruelty” from other, less

severe, forms of cruel behavior. Such decisions are committed to agency

discretion, and we cannot review them.

We recognize that the Ninth Circuit has specifically 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 hardship,” “extreme cruelty” is a

measure “that can . . . be assessed on the basis of objective standards.” Id. at 834. 

While “extreme hardship” may encompass broader categories of human

experience than “extreme cruelty,” we disagree with the Ninth Circuit’s statement

that “extreme cruelty simply provides a [non-discretionary] way to evaluate

whether an individual has suffered psychological abuse that constitutes domestic

violence.” Id. at 835. 5
5

(...continued)

certain discretionary decisions. See Hernandez, 345 F.3d at 833 & n.6. This case

is subject to the permanent provisions of IIRIRA.

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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 considered 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 regulation defines “battery or

extreme cruelty” as follows:

(vi) Battery or extreme cruelty. For the purpose of this chapter, 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. The qualifying abuse

must have been committed by the citizen or lawful permanent resident spouse,

must have been perpetrated against the self-petitioner or the self-petitioner's

child, and must have taken place during the self-petitioner'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-discretionary, objective standard, he
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has not done so here. The definition cited above is far from algorithmic. It

requires consideration of many discretionary factors. If the regulation were

applied here, for example, the BIA would need to consider 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 “psychological abuse,” the specific

examples provided (rape, molestation, incest, and forced prostitution) all appear

to be much more severe than the allegations of abuse the BIA found credible in

this case. Considerable discretion also is provided by the phrases “includes, but

is not limited to” and “may . . . be acts of violence under certain circumstances.” 

In petitioner’s case, at least, this regulation does not provide a binding, objective

standard that would channel the BIA’s discretion in a manner making it subject to

judicial review.

b. Marital rape determination

Section 1229b likewise bars us from reviewing petitioner’s second issue:

whether the BIA improperly neglected to apply the “any credible evidence”

standard to petitioner’s claim of marital rape. Marital rape clearly falls within

any reasonable definition of battery. Had the agency found petitioner’s
6The Ninth Circuit, considering the jurisdictional impact 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 requirements, and therefore could

not have been intended to strip federal courts of jurisdiction over adverse

credibility determinations. See Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1143-

47 (9th Cir. 2005). The Ninth Circuit’s analysis fails to consider that Congress

could have intended to require both that the agency consider all credible evidence

(continued...)

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allegations on this point credible, its determination of whether the marital rape

constituted a battery for purposes of statutory eligibility would have been an

objective, non-discretionary determination subject to our review. The problem is

that the agency did not find petitioner’s allegations credible. It is the

reviewability of this credibility decision itself that we must consider.

The key provision of § 1229b applicable here provides that “[i]n acting on

applications under this paragraph, the Attorney General 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 “any credible 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 lack
6

(...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-Wong appears to be inconsistent with prior Ninth

Circuit precedent noting the entirely discretionary and hence unreviewable nature

of the Attorney General’s credibility determinations pursuant to § 1229b(b)(2)(D). 

See Nakamoto v. Ashcroft, 363 F.3d 874, 880 (9th Cir. 2004).

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jurisdiction to review any “decision or action of the Attorney General the

authority for which is specified under this subchapter 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. Specifically, she argues that her

testimony at the IJ hearing should not be considered inconsistent with her prior

affidavits and therefore incredible merely because it included new (and more

serious) allegations of marital rape, absent from the 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 evidence of marital rape cannot

generally be objectively corroborated by evidence other than the victim’s own

testimony, and that the IJ should have provided her with 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 domestic abuse in making their

credibility determinations. All of these attacks go to the agency’s determination
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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 affidavit to explain her testimony

before the IJ. In context, the BIA’s statement was as follows:

[Petitioner] did not explain her escalating testimony regarding her

husband’s marital rape at her hearing as counsel chose not to ask

further questions. . . . Her explanation on appeal is limited to a

generalized assertion that marital rape is consistent with the pattern

of verbal and emotional abuse and that her failure to recognize or

mention marital rape is consistent with recorded societal 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 that she had been

raped or for the increased elaboration regarding these incidents as the

hearing progress[ed].

Supp. Admin. R. at 7 (emphasis added).

Petitioner contends that since the BIA does not create 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 to provide an affidavit

explaining her testimony as grounds for affirming the IJ’s adverse credibility

finding. If petitioner is barred by law from presenting evidence to the BIA, then

the BIA’s determination that petitioner could have or should have provided such
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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 have limited jurisdiction to

address this issue.

Nevertheless, we affirm. The BIA found that the record before it contained

no explanation of petitioner’s “escalating testimony” concerning spousal rape. 

Supp. Admin. R. at 7. The BIA’s statement concerning an affidavit can be read as

invoking the petitioner’s responsibility to move for 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 affidavits 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 failure to provide any explanation,

by affidavit or otherwise, that would either explain the facts before it or justify a

remand for further factual findings. The BIA did not err in noting the absence of

evidence to justify a remand.

The petition for review is DISMISSED in part for lack of subject matter

jurisdiction, and the BIA’s decision is AFFIRMED in part. Petitioner’s motion to

strike respondent’s motion to dismiss is denied.