Rosario v. Holder
2010 U.S. App. LEXIS 24882
| 2d Cir. | 2010Background
- Rosario, a Dominican citizen, seeks cancellation of removal under 8 U.S.C. § 1229b(b)(2) as an abused spouse.
- An IJ found Rosario not battered or subjected to extreme cruelty and denied relief; BIA affirmed.
- Rosario overstayed a 1994 tourist visa, married a U.S. citizen in 1996, and faced several incidents of abuse by her husband between 1997 and 1997.
- No abuse allegations after 2000; the Green Card petition was denied as abandoned earlier.
- The petition for review challenges the BIA’s determination and the court must decide its jurisdiction to review such discretionary decisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA’s extreme cruelty finding is reviewable | Rosario argues the BIA’s legal standard or its application is reviewable | The BIA’s finding is discretionary, non-reviewable under statute | No jurisdiction to review unless legal error or rationality issue |
| Whether the BIA applied the correct legal standard for 'battered or subjected to extreme cruelty' | BIA applied correct statute and standard | BIA’s judgment rests on factual weighing within discretion | BIA used the correct law and standard; no legal error shown |
| Whether Rosario's claim falls under a reviewable legal question under St. Cyr and REAL ID Act | Eligibility determinations are reviewable when statutory standards govern | Discretionary exercise not reviewable unless legal questions arise | No reviewable legal question; petition dismissed for lack of jurisdiction |
Key Cases Cited
- INS v. St. Cyr, 533 U.S. 289 (U.S. 2001) (suspension clause concerns and eligibility reviewability)
- Rodriguez v. Gonzales, 451 F.3d 60 (2d Cir. 2006) (non-discretionary underlying determinations reviewable)
- Sepulveda v. Gonzales, 407 F.3d 59 (2d Cir. 2005) (moral character and legal questions; underlying determinations reviewable)
- Xiao Ji Chen v. Gonzales, 471 F.3d 315 (2d Cir. 2006) (statutory/constitutional questions limit review scope)
- Argueta v. Holder, 617 F.3d 109 (2d Cir. 2010) (review of constitutional/legal questions in discretionary decisions)
- Barco-Sandoval v. Gonzales, 516 F.3d 35 (2d Cir. 2008) (extreme hardship generally; review limited to certain legal questions)
- Mendez v. Holder, 566 F.3d 316 (2d Cir. 2009) (three scenarios for review of mixed questions of law and fact)