8.29.2006

Fifth Circuit Discusses Circuit Split Re "Extreme Cruelty"

Per Wilmore v. Gonzales, 455 F.3d 524 (5th Cir. July 5, 2006):

The Ninth and Tenth Circuits have addressed the question of whether the determination of "extreme cruelty" is discretionary and are split. The Ninth Circuit concluded that it had jurisdiction because the determination of "extreme cruelty" was a reviewable legal and factual one. Hernandez v. Ashcroft, 345 F.3d 824, 833-35 (9th Cir.2003). On the other hand, the Tenth Circuit held that the determination of "extreme cruelty" was discretionary, and, thus, it did not have jurisdiction to consider a cancellation of removal claim under § 1229b(b)(2). Perales-Cumpean v. Gonzales, 429 F.3d 977 (10th Cir.2005). We find the Tenth Circuit analysis more persuasive. The Tenth Circuit . . . explain[ed] that the definition "requires consideration of many factors." Id. at 984.

In the instant case, the IJ [immigration judge] would have to determine whether the "pattern of mental and psychological abuse" alleged by Wilmore amounted to extreme cruelty. Although the extreme cruelty definition provides some guidance in making this determination, it certainly does not remove the discretion afforded by Congress. Indeed, as the Tenth Circuit stated, "[c]onsiderable discretion also is provided by the definition's phrases 'includes, but is not limited to' and 'may . . . be acts of violence under certain circumstances.' " Id. Accordingly, based on the definition of "extreme cruelty" in the federal regulations, the statutory language of § 1252(a)(2)(B), our precedent, and the persuasive reasoning of the Tenth Circuit, we conclude that a determination of "extreme cruelty" under § 1229b(b)(2)(A)(i)(I) is discretionary. As such, § 1252(a)(2)(B) precludes our review.

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