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Josefa Rosario v. Eric H. Holder

December 6, 2010

JOSEFA ROSARIO, PETITIONER,
v.
ERIC H. HOLDER, JR., IN HIS CAPACITY AS UNITED STATES ATTORNEY GENERAL, RESPONDENT.*FN1



The opinion of the court was delivered by: Dennis Jacobs, Chief Judge:

09-3877-ag

Rosario v. Holder

Argued: September 1, 2010

09-3877-ag

Before: DENNIS JACOBS, Chief Judge, REENA RAGGI, Circuit Judge, JED S. RAKOFF,*fn2 District Judge.

Petitioner, a citizen of the Dominican Republic, seeks 32 cancellation of removal as an abused spouse under the 1 amended Immigration and Naturalization Act. 8 U.S.C. § 2 1229b(b)(2). An Immigration Judge concluded that Rosario 3 was not "battered or subjected to extreme cruelty" as 4 defined by the statute and therefore did not warrant 5 discretionary cancellation of removal, and the Board of 6 Immigration Appeals affirmed. We dismiss the petition for 7 lack of subject matter jurisdiction because the BIA's 8 decision raises no constitutional claims or questions of 9 law.

The Petitioner, Josefa Rosario, is a citizen of the 30 Dominican Republic who seeks cancellation of removal as an 31 abused spouse under the amended Immigration and 32 Naturalization Act. 8 U.S.C. § 1229b(b)(2). An Immigration 33 Judge ("IJ") found that Rosario was not "battered or 2 1 subjected to extreme cruelty" within the meaning of the 2 statute and therefore did not warrant discretionary 3 cancellation of removal. The Board of Immigration Appeals 4 ("BIA") affirmed. We dismiss Rosario's petition for lack of 5 subject matter jurisdiction because the BIA's decision 6 raises no constitutional claims or questions of law.

8 BACKGROUND

9 Rosario was found credible by the IJ; we therefore 10 adduce the facts to which she testified. 11 Rosario entered the United States on a one-month non- 12 immigrant tourist visa in 1994. After overstaying by 13 approximately two years, she married Pedro Martinez, a U.S. 14 citizen, and petitioned to adjust her status to Legal 15 Permanent Resident in 1996.

16 The marriage soured soon after the petition was filed, 17 and Martinez became aggressive and insulting. There were 18 approximately five incidents of physical abuse or 19 intimidation in the three-month period between June 1997 and 20 September 1997, when Martinez was jailed (for offenses 21 unrelated to Rosario). There are no allegations of abuse 22 after his release from prison in 2000.

23 During the incidents of abuse, Martinez (variously) 24 grabbed Rosario by the arms and shoulders, shook her, 3 1 verbally insulted her, and threw her on the bed. Martinez 2 also demanded money from her and threatened to withdraw her 3 application for a Green Card. Rosario did not report these 4 incidents to the police or seek medical attention.

5 During this time, Rosario's Green Card application 6 languished, and, in 2000, it was denied as abandoned. In 7 2002, the Department of Homeland Security served Rosario 8 with a Notice to Appear and charged her with removal.

9 At her Notice to Appear hearing, Rosario admitted she 10 was in the U.S. illegally and conceded removability. Soon 11 afterward, she filed a petition for Special Rule 12 Cancellation of Removal under 8 U.S.C. § 1229b(b)(2)(A), 13 which gives the Attorney General discretion to cancel the 14 removal of an otherwise deportable alien who has been 15 "battered or subjected to extreme cruelty" by her U.S. 16 citizen spouse.

17 In 2008, an IJ denied Rosario's petition, concluding 18 that she had not been "battered or subjected to extreme 19 cruelty." Rosario appealed this decision to the BIA, which 20 ...


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