                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 16 2009

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MIRNA ELIA CARRILLO DEL REAL,                    No. 05-77213

              Petitioner,                        Agency No. A097-124-026

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,

              Respondent.



MIRNA ELIA CARRILLO DEL REAL,                    No. 06-71843

              Petitioner,                        Agency No. A097-124-026

  v.

ERIC H. HOLDER Jr., Attorney General,

              Respondent.


                      On Petition for Review of an Order of the
                           Board of Immigration Appeals




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                          Submitted December 9, 2009**
                            San Francisco, California

Before: SCHROEDER and CALLAHAN, Circuit Judges, and LYNN, *** District
Judge.

      Mirna Ella Carrillo del Real (“Carrillo”) petitions for review of the Board of

Immigration Appeals’ (“BIA”) order denying her application for cancellation of

removal under the “battered spouse provision” of the Immigration and Nationality

Act (“INA”). 8 U.S.C. § 1229b(b)(2), INA § 240A(b)(2). She also seeks review

of the BIA’s denial of her motion to reopen removal proceedings based on her

marriage to a United States citizen. We have jurisdiction pursuant to 8 U.S.C. §

1252, and we deny both petitions.1

      To be eligible for relief under section 240A(b)(2)(A)(i)(II), Carrillo must

show that her children were battered or subjected to extreme cruelty by their lawful

permanent resident (“LPR”) father. 8 U.S.C. § 1229b(b)(2)(A)(i)(II). The BIA’s

determination that the record evidence failed to establish such battery or extreme

cruelty is supported by substantial evidence. See Hernandez v. Ashcroft, 345 F.3d

          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
          ***
             The Honorable Barbara M.G. Lynn, United States District Judge for
the Northern District of Texas, sitting by designation.
      1
            Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.

                                          2
824, 834 (9th Cir. 2003) (concluding that the “existence or nonexistence” of

battery and “extreme cruelty” are factual determinations); Zehatye v. Gonzales, 453

F.3d 1182, 1185 (9th Cir. 2006) (noting that “administrative findings of fact are

conclusive unless any reasonable adjudicator would be compelled to conclude to

the contrary”) (internal quotation marks and citations omitted). Carrillo points to

no evidence in the record showing that the LPR father of her children battered

them or otherwise subjected them to cruelty. Further, the record does not compel

the conclusion that the children’s exposure, if any, to violence between their

parents constitutes “extreme cruelty” under section 240A(b)(2)(A)(i)(II).2 See 8

C.F.R. § 204.2(c)(1)(vi).

      We also conclude that the BIA did not abuse its discretion in denying

Carrillo’s motion to reopen. See Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.

2002). When Carrillo filed the motion to reopen based on her marriage to a United

States citizen, the marriage was only five days old, and the BIA reasonably

concluded that the declarations of Carrillo and her spouse failed to establish by



      2
        Although Carrillo also sought, and was denied, relief under section
240A(b)(1), she does not petition for review of that purely discretionary
determination. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005)
(holding that the court lacks jurisdiction to review the BIA’s discretionary
determination that a petitioenr has not shown “exceptional and extremely unusual
hardship” under subsection (b)(1)).

                                          3
clear and convincing evidence that their recent marriage was bona fide. See In re

Velarde-Pacheco, 23 I & N Dec. 253, 256 (BIA 2002).3

      PETITIONS DENIED.




      3
        Although in Ahmed v. Mukasey, 548 F.3d 768, 771-72 (9th Cir. 2008), we
concluded that a motion to reopen should not be denied solely under the fifth factor
of Velarde, that case is inapposite as Carrillo’s motion was denied under the fourth
Velarde factor.

                                          4
