768 F.3d 1179
11th Cir.2014Background
- Butalova, a Slovak citizen, entered the U.S. as a nonimmigrant in 1995 and overstayed.
- INS issued an IOSC in 1997 alleging removability; she failed to appear, and an IJ ordered removal in absentia in 1997.
- She moved to reopen in 2009 arguing lack of notice and for possible adjustment of status; the IJ denied and the BIA affirmed in 2010.
- In 2013 she sought to reopen under VAWA, claiming she was battered or subjected to extreme cruelty by her U.S. citizen husband; USCIS status remained pending.
- BIA denied the motion to reopen and later denied reconsideration; Butalova petitioned for review of both orders.
- Court dismissed for lack of jurisdiction, holding the BIA’s battered-spouse determination under § 1154(a)(1)(A)(iii) is discretionary and not reviewable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review the BIA's denial of a motion to reopen. | Butalova argues for review of BIA’s denial on merits. | Government contends discretionary BIA determinations under INA § 242(a)(2)(B)(ii) are not reviewable. | Lack of jurisdiction; discretionary BIA denial not reviewable. |
| Whether the BIA’s decision that Butalova was not battered or subjected to extreme cruelty is reviewable. | Butalova contends BIA erred in finding no prima facie eligibility. | BIA’s determination is discretionary and not subject to review under § 242(a)(2)(B)(ii). | Discretionary; not reviewable. |
| Whether the court retains jurisdiction to review constitutional or legal questions arising from the petitions. | Butalova cites potential constitutional issues or legal errors. | Only constitutional or legal questions are reviewable under § 242(a)(2)(D). | No cognizable constitutional/legal issues were raised; petitions dismissed for lack of jurisdiction. |
Key Cases Cited
- Ruiz v. Gonzales, 479 F.3d 762 (11th Cir. 2007) (jurisdiction for reviewing motions to reopen is de novo for jurisdiction)
- Kucana v. Holder, 558 U.S. 233 (2010) (judicial review of discretionary agency actions constrained by statute)
- Ali v. U.S. Att’y Gen., 443 F.3d 804 (11th Cir. 2006) (review of discretionary determinations follows regulation-based framework)
- Bedoya-Melendez v. U.S. Attorney General, 680 F.3d 1321 (11th Cir. 2012) (battered-spouse determination under § 1229b(b)(2) discretionary)
- Guzman-Munoz v. U.S. Att’y Gen., 733 F.3d 1311 (11th Cir. 2013) (denial of motion to reopen where relief sought was new discretionary VAWA claim)
- Patel v. U.S. Att’y Gen., 334 F.3d 1259 (11th Cir. 2003) (cannot review denial of motion to reopen if underlying removal order barred)
- Scheerer v. U.S. Att’y Gen., 513 F.3d 1244 (11th Cir. 2008) (recognizes limited grounds to review discretionary relief)
- Alvarez Acosta v. U.S. Att’y Gen., 524 F.3d 1191 (11th Cir. 2008) (abuse-of-discretion challenges not legal questions under § 1252(a)(2)(D))
- Bedoya-Melendez v. U.S. Attorney General, 680 F.3d 1321 (11th Cir. 2012) (reiteration of discretionary nature of battered-spouse determinations)