Ballardo Castro v. Holder

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Jeffrey R. Howard, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [12-2523]

Case: 12-2523

Document: 00116570643

Page: 1

Date Filed: 08/16/2013

Entry ID: 5756928

United States Court of Appeals
For the First Circuit

No. 12-2523
ARKEL BALLARDO CASTRO,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS

Before
Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.

John P. Garan on brief for petitioner.
Gregory M. Kelch, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Stuart F.
Delery, Acting Assistant Attorney General, Civil Division, and
Linda S. Wernery, Assistant Director, Office of Immigration
Litigation, on brief for respondent.

August 16, 2013

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LYNCH, Chief Judge.

Date Filed: 08/16/2013

Entry ID: 5756928

Arkel Ballardo Castro applied for

"special rule cancellation" of his removal from the United States
under section 203 of the Nicaraguan and Central American Relief Act
(NACARA), Pub. L. No. 105-100, §§ 201-204, 111 Stat. 2160, 21932201, as amended by Pub. L. No. 106-386, § 1510(b), 114 Stat. 1464,
1531 (2000).

He applied for relief as a "child [who] has been

battered or subjected to extreme cruelty" by a parent who acquired
lawful permanent resident status under the NACARA. See id. § 203.
An

Immigration

Judge

(IJ)

found

that

Castro

did

not

merit

discretionary cancellation of removal because he was not "battered
or subjected to extreme cruelty." The Board of Immigration Appeals
(BIA) affirmed.

We lack jurisdiction over Castro's petition for

review because Castro does not raise a constitutional claim or
question of law on appeal.
I.
Castro is a native and citizen of Guatemala who came to
the United States illegally in May of 2000.
The Department of Homeland Security (DHS) issued Castro
a notice to appear in removal proceedings on September 17, 2007.
In those proceedings, Castro admitted that he was removable as
charged but sought cancellation of removal under section 203 of
NACARA.
The Victims of Trafficking and Violence Protection Act of
2000 (VTVPA) amended the NACARA cancellation provision, making

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additional categories of aliens eligible for this discretionary
relief.
subjected

Under the VTVPA, an alien who "has been battered or
to

extreme

cruelty"

by

a

parent

who

is

a

NACARA

beneficiary is eligible for cancellation of removal.

See Pub. L.

No. 106-386, § 1510(b), 114 Stat. 1464, 1531 (2000).

Castro seeks

cancellation of removal under this provision, claiming that his
mother Liliana Castro, a NACARA beneficiary, subjected him to
extreme cruelty.1
At a merits hearing before an IJ on April 6, 2011, Castro
testified that his mother came to the United States when he was
nine years old, leaving him in the care of his grandmother and
later his uncles.

He admitted that his mother traveled to the

United States to provide a better life for him.
Castro initially lived with his grandmother and several
cousins.

He said that his grandmother would hit him for "any

little thing that [he] would do" using a belt or a stick.
When Castro was 11 years old he began to live with
various uncles, moving to a different uncle's house periodically.
As a result of these moves, he changed schools five times after his
mother left.
Castro conceded that some uncles were good, but testified
that other uncles were bad and would scold and hit him with a "belt

1

Liliana Castro was granted legal permanent resident status
under NACARA on February 1, 2007.
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or whatever they would have in their hand."

Entry ID: 5756928

Castro's declaration

further explains that his uncles punished him using "belts[,] tree
branches, broom sticks and whatever they could put their hands on."
He stated that he lived "in constant fear of anyone that lived
around [him]."
During this period, Castro spoke to his mother once or
twice a month.

She always knew where he was, sent him clothes two

to three times a year, and sent his uncles money for his schooling.
Castro reunited with his mother when he came to the
United States when he was nineteen years old in 2000.

At the time

of the merits hearing, eleven years later, Castro still lived with
his mother.

He said he has a good relationship with her and that

she "treats [him] like a child still."
Castro

also

physically abused him.

acknowledged

that

his

mother

has

never

Moreover, he said that his mother did not

know that his uncles were abusive until he arrived in the United
States, at which time she felt "bad, really bad" and confronted
some of them.
In an oral decision, the IJ found that Castro's testimony
was credible.

She decided that he was not eligible for "special

rule cancellation" of removal under NACARA, however, because he
"has not shown that his mother either battered him or subjected him
to extreme cruelty."

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The

IJ

noted

Page: 5

that

Date Filed: 08/16/2013

Castro's

grandmother

Entry ID: 5756928

and

uncles

mistreated and hit him after his mother left Guatemala when he was
nine years old. However, the IJ commented that Ms. Castro left her
son "in the hands of family members, she did not know that they
abused him, she sent her son money, spoke to him on the phone every
two to four weeks, [and] sent him clothes."
The IJ further noted that Ms. Castro had never physically
abused her son.
cannot

find

that

The IJ concluded, "[b]ased on [these] facts, I
[Castro's]

mother

subjected

him

to

extreme

cruelty."
Castro appealed to the BIA.

The BIA agreed with the

reasoning in the IJ's decision and affirmed.

The BIA noted that

Castro's mother did not subject him to extreme cruelty because she
never physically abused him and was not aware of the abuse he
sustained until he came to the United States.

The BIA also

rejected Castro's argument that his mother should have known that
his relatives would be abusive because "there was no evidence to
establish this contention."
Castro timely sought review, arguing that the BIA erred
in concluding that his mother did not subject him to extreme
cruelty.
II.
Under section 203 of NACARA, the Attorney General has
discretion to cancel the removal of deportable aliens who were

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"battered or subjected to extreme cruelty" by a spouse or parent
that has been granted cancellation of removal under NACARA. NACARA
§ 203.

An applicant seeking NACARA special rule cancellation must

"establish by a preponderance of the evidence that he or she is
eligible for [that relief] and that discretion should be exercised
to grant relief."

8 C.F.R. § 1240.64(a) (emphasis added).

The federal courts lack jurisdiction to review these
discretionary

grants

to

cancel

removal.

See

8

U.S.C.

§ 1252(a)(2)(B)(i); Gonzalez-Ruano v. Holder, 662 F.3d 59, 63 (1st
Cir. 2011) (noting that section 203 of NACARA is subject to the
jurisdiction-stripping

provisions

of

8

U.S.C.

§

1252).

An

exception to this jurisdictional ban, however, is our authorization
to review any "constitutional claims or questions of law" raised in
a petition.

8 U.S.C. § 1252(a)(2)(D).

Thus, "we cannot review

discretionary determinations regarding requests for special rule
cancellation

of

removal

constitutional error."

under

NACARA,

absent

legal

or

Gonzalez-Ruano, 662 F.3d at 63.

Because we retain jurisdiction over questions of law
under 8 U.S.C. § 1252(a)(2)(D), we exercised jurisdiction where a
petitioner argued that the BIA "imposed a new and unprecedented
requirement for entitlement to cancellation of removal," reasoning
that "the choice and shape of an applicable legal standard is
quintessentially a question of law." Ayeni v. Holder, 617 F.3d 67,
71 (1st Cir. 2010).

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In contrast, "discretionary or factual determinations
continue

to

appeals."

fall

outside

the

jurisdiction

of

the

courts

of

Mehilli v. Gonzales, 433 F.3d 86, 93 (1st Cir. 2005)

(quoting Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir. 2005))
(internal quotation marks omitted).
declined

to

review

whether

a

Thus, we have typically

petitioner

is

eligible

for

discretionary cancellation of removal because he or his family
would suffer "extreme hardship" if he were removed.
§

1229b(b)(2)(A)(v),

(b)(1)(D).

For

example,

See 8 U.S.C.
in

Elysee

v.

Gonzales, 437 F.3d 221 (1st Cir. 2006), we lacked jurisdiction
where a petitioner claimed that the IJ did not correctly evaluate
the hardship he would face if deported.

Id.

at 224.

The

petitioner’s arguments that the IJ disregarded certain hardships
and gave "unfair weight" to other facts were not "questions of law
but attacks on the factual findings made and the balancing of
factors engaged in by the IJ."

Id.

Similarly, we lacked jurisdiction over a petitioner’s
claim that the IJ erred in deciding that he did not satisfy the
"hardship standard" in seeking cancellation of removal.
Medina v. Holder, 616 F.3d 49, 52 (1st Cir. 2010).

SantanaAgain, we

distinguished between factual and legal challenges, saying that the
petitioner’s claim was "at best a challenge to the way the IJ
weighed the evidence presented, not to the standards it applied in
doing so."

Id.

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Other circuits have made similar distinctions.

The

Seventh Circuit has explained:
We have interpreted the phrase "questions of
law" in 8 U.S.C. § 1252(a)(2)(D) to permit
judicial review of only "pure" questions of
law.
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.
Therefore,
factual
or
discretionary determinations do not constitute
reviewable
questions
of
law
under
§ 1252(a)(2)(D).
Stepanovic v. Filip, 554 F.3d 673, 678 (7th Cir. 2009) (citations
omitted).
Castro’s

sole

claim

on

appeal

is

that

substantial

evidence does not support the BIA’s finding that his mother did not
subject him to extreme cruelty.

He argues that the BIA and IJ "let

[Castro’s] mother off too easily" and that the IJ focused "largely
on irrelevant facts." Because Castro attacks factual findings made
in

the

context

of

a

discretionary

jurisdiction over his claim.

determination,

we

lack

See Mehilli, 433 F.3d at 93.

Castro's appeal focuses on the BIA's and IJ's factual
findings, rather than issues of statutory interpretation, because
NACARA does not define the phrase "battered or subjected to extreme
cruelty."

See generally NACARA.

Therefore, like the "extreme

hardship" determination over which we lack jurisdiction, see, e.g.,
Santana-Medina,

616

F.3d

at

52,

"whether

an

alien

has

been

‘battered or subjected to extreme cruelty’ . . . generally entails

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a factual judgment, not a legal prescription," Rosario v. Holder,
627 F.3d 58, 63 (2d Cir. 2010); see also Wilmore v. Gonzales, 455
F.3d 524, 527 (5th Cir. 2006) (stating that the term "extreme
cruelty" is discretionary because it "is not self-explanatory" and
"reasonable men could differ as to its meaning").
Because Castro's mother has never physically hurt him, he
now contends that psychological abuse "can be sufficient" to
establish extreme cruelty under 8 C.F.R. § 204.2(c)(1)(vi).2

The

DHS's regulation, which interprets nearly identical language in the
Immigration and Nationality Act, states in part:
[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.
8 C.F.R. § 204.2(c)(1)(vi).

This regulation does not contemplate

an objective legal standard.

See Rosario, 627 F.3d at 63 (noting

that

the

discretion

regulation
in

invites

assessing

the

"the

exercise

totality

of

the

of

considerable

circumstances");

Perales-Cumpean v. Gonzales, 429 F.3d 977, 984 (10th Cir. 2005)

2

Castro references 8 C.F.R. § 204.2(c)(2)(vi), which
pertains to "[e]xtreme hardship," not battery or extreme cruelty.
We assume he intended to cite
See 8 C.F.R. § 204.2(c)(2)(vi).
subsection one of 8 C.F.R. § 204.2(c), which discusses "[b]attery
and extreme cruelty." Id. § 204.2(c)(1)(vi).
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(observing that the regulation "requires consideration of many
discretionary factors," as evidenced by phrases such as "includes,
but is not limited to" and "may . . . be acts of violence under
certain

circumstances"

(quoting

8

C.F.R.

§

204.2(c)(1)(vi))

(internal quotation marks omitted)).
In fact, Castro's argument that psychological abuse "can
be sufficient" to constitute extreme cruelty appears to recognize
that

8

C.F.R.

§

204.2(c)(1)(vi)

fails

to

articulate

a

nondiscretionary legal standard for the "extreme cruelty" inquiry.
Thus, we lack jurisdiction to review the BIA's discretionary
determination that Castro was not subjected to extreme cruelty.
In so holding, we join most of our sister circuits, who
have also concluded that they lack jurisdiction to review whether
a petitioner was "battered or subjected to extreme cruelty" so as
to warrant the cancellation of removal.3

See Bedoya-Melendez v.

U.S. Attorney Gen., 680 F.3d 1321 (11th Cir. 2012); Rosario, 627
F.3d 58; Johnson v. Attorney Gen., 602 F.3d 508 (3d Cir. 2010);

3

Other circuits have not interpreted the phrase "battered or
subjected to extreme cruelty" in section 203 of NACARA. Rather,
they have interpreted that same phrase in other provisions
governing the discretionary cancellation of removal. See, e.g., 8
U.S.C. § 1229b(b)(2)(A)(i)(I) (granting the Attorney General
discretion to cancel the removal of an alien who has "been battered
or subjected to extreme cruelty by a . . . parent who is . . . a
United States citizen"). Although not interpreting NACARA special
rule cancellation, these cases are persuasive because Congress has
not indicated that it intended any difference in meaning when it
used the same phrase in different provisions governing relief from
removal. See, e.g., United States v. Blasini-Lluberas, 169 F.3d
57, 63 n.8 (1st Cir. 1999).
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Stepanovic v. Filip, 554 F.3d 673 (7th Cir. 2009); Ramdane v.
Mukasey, 296 F. App'x 440 (6th Cir. 2008); Wilmore v. Gonzales, 455
F.3d 524 (5th Cir. 2006); Perales-Cumpean v. Gonzales, 429 F.3d 977
(10th Cir. 2005). But see Hernandez v. Ashcroft, 345 F.3d 824 (9th
Cir. 2003).
Even if we did have jurisdiction, however, Castro's claim
regarding the BIA's factual findings would fail.

Substantial

evidence supports the BIA's and IJ's conclusion that Castro's
mother did not subject him to extreme cruelty where she left him in
the care of relatives in Guatemala, provided financial support for
him, and was not aware that her brothers abused or mistreated
Castro until he came to the United States.
Because Castro does not raise any legal or constitutional
issue on appeal, his petition for review is dismissed for lack of
jurisdiction.

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