Arkel Ballardo CASTRO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
No. 12-2523
United States Court of Appeals, First Circuit.
Aug. 16, 2013.
727 F.3d 125
The FDIC, as a matter of federal law, succeeded to the assets of Downey Savings as receiver. See
The plaintiffs argue that these circumstances are not enough to permit U.S. Bank to exercise a power-of-sale provision in a transferred mortgage. They point out that the property is in Massachusetts and that Massachusetts law requires a specific written assignment of a real estate mortgage. See Ibañez, 941 N.E.2d at 51-53. This argument is all sizzle and no steak.
The plaintiffs’ mortgage was assigned to U.S. Bank by operation of federal law, which specifically authorizes the FDIC to transfer assets of a failed financial institution “without ... assignment.”
III. CONCLUSION
We need go no further. For the reasons elucidated above, the judgment of the district court is affirmed.
Affirmed.
John P. Garan, on brief, for petitioner.
Gregory M. Kelch, Trial Attorney, Office of Immigration Litigation, Civil Division,
Before LYNCH, Chief Judge, HOWARD and THOMPSON, Circuit Judges.
LYNCH, Chief Judge.
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, 2193-2201, 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.
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 or whatever they would have in their hand.” 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 acknowledged that his mother has never physically abused him. 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.”
The IJ noted that Castro‘s grandmother 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. The IJ concluded, “[b]ased on [these] facts, I cannot find that [Castro‘s] mother subjected him to extreme cruelty.”
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 “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.”
The federal courts lack jurisdiction to review these discretionary grants to cancel removal. See
Because we retain jurisdiction over questions of law under
In contrast, “discretionary or factual determinations continue to fall outside the jurisdiction of the courts of appeals.” 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). Thus, we have typically declined to review whether a petitioner is eligible for discretionary cancellation of removal because he or his family would suffer “extreme hardship” if he were removed. See
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. Santana-Medina v. Holder, 616 F.3d 49, 52 (1st Cir.2010). Again, we distinguished between factual and legal challenges, saying that the petitioner‘s claim was “at best a challenge to the way the IJ
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 determination, we lack jurisdiction over his claim. 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 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
[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.
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 v. Holder, 627 F.3d 58 (2d Cir.2010); Johnson v. Attorney Gen., 602 F.3d 508 (3d Cir.2010); Stepanovic v. Filip, 554 F.3d 673 (7th Cir.2009); Ramdane v. Mukasey, 296 Fed.Appx. 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.