          United States Court of Appeals
                      For the First Circuit


No. 12-2523

                      ARKEL BALLARDO CASTRO,

                           Petitioner,

                                v.

              ERIC H. HOLDER, JR., Attorney General,

                           Respondent.


              PETITION FOR REVIEW OF AN ORDER OF THE
                   BOARD OF IMMIGRATION APPEALS


                              Before

                        Lynch, Chief Judge,
               Howard and Thompson, Circuit Judges.




     John P. Garan on brief for petitioner.
     Gregory M. Kelch, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Stuart F.
Delery, Acting Assistant Attorney General, Civil Division, and
Linda S. Wernery, Assistant Director, Office of Immigration
Litigation, on brief for respondent.



                         August 16, 2013
           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.

           The Victims of Trafficking and Violence Protection Act of

2000 (VTVPA) amended the NACARA cancellation provision, making


                                   -2-
additional categories of aliens eligible for this discretionary

relief.     Under the VTVPA, an alien who "has been battered or

subjected   to   extreme   cruelty"   by   a   parent   who   is   a   NACARA

beneficiary is eligible for cancellation of removal.           See Pub. L.

No. 106-386, § 1510(b), 114 Stat. 1464, 1531 (2000).          Castro seeks

cancellation of removal under this provision, claiming that his

mother Liliana Castro, a NACARA beneficiary, subjected him to

extreme cruelty.1

            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



     1
       Liliana Castro was granted legal permanent resident status
under NACARA on February 1, 2007.

                                  -3-
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."




                                  -4-
            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 appealed to the BIA.            The BIA agreed with the

reasoning in the IJ's decision and affirmed.            The BIA noted that

Castro's mother did not subject him to extreme cruelty because she

never physically abused him and was not aware of the abuse he

sustained until he came to the United States.                  The BIA also

rejected Castro's argument that his mother should have known that

his relatives would be abusive because "there was no evidence to

establish this contention."

            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


                                        -5-
"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."     8 C.F.R. § 1240.64(a) (emphasis added).

           The federal courts lack jurisdiction to review these

discretionary    grants   to    cancel    removal.         See     8   U.S.C.

§ 1252(a)(2)(B)(i); Gonzalez-Ruano v. Holder, 662 F.3d 59, 63 (1st

Cir. 2011) (noting that section 203 of NACARA is subject to the

jurisdiction-stripping    provisions     of   8   U.S.C.   §     1252).    An

exception to this jurisdictional ban, however, is our authorization

to review any "constitutional claims or questions of law" raised in

a petition.     8 U.S.C. § 1252(a)(2)(D).         Thus, "we cannot review

discretionary determinations regarding requests for special rule

cancellation     of   removal   under     NACARA,     absent       legal   or

constitutional error."    Gonzalez-Ruano, 662 F.3d at 63.

           Because we retain jurisdiction over questions of law

under 8 U.S.C. § 1252(a)(2)(D), we exercised jurisdiction where a

petitioner argued that the BIA "imposed a new and unprecedented

requirement for entitlement to cancellation of removal," reasoning

that "the choice and shape of an applicable legal standard is

quintessentially a question of law." Ayeni v. Holder, 617 F.3d 67,

71 (1st Cir. 2010).


                                  -6-
             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 8 U.S.C.

§   1229b(b)(2)(A)(v),      (b)(1)(D).          For    example,   in    Elysee    v.

Gonzales, 437 F.3d 221 (1st Cir. 2006), we lacked jurisdiction

where a petitioner claimed that the IJ did not correctly evaluate

the hardship he would face if deported.                     Id.   at 224.        The

petitioner’s arguments that the IJ disregarded certain hardships

and gave "unfair weight" to other facts were not "questions of law

but attacks on the factual findings made and the balancing of

factors engaged in by the IJ."           Id.

             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

weighed the evidence presented, not to the standards it applied in

doing so."       Id.


                                      -7-
            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


                                            -8-
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 8 C.F.R. § 204.2(c)(1)(vi).2                 The

DHS's regulation, which interprets nearly identical language in the

Immigration and Nationality Act, states in part:

                 [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.

8 C.F.R. § 204.2(c)(1)(vi).          This regulation does not contemplate

an objective legal standard.             See Rosario, 627 F.3d at 63 (noting

that       the    regulation   invites     "the   exercise     of   considerable

discretion        in   assessing   the   totality   of   the   circumstances");

Perales-Cumpean v. Gonzales, 429 F.3d 977, 984 (10th Cir. 2005)



       2
         Castro references 8 C.F.R. § 204.2(c)(2)(vi), which
pertains to "[e]xtreme hardship," not battery or extreme cruelty.
See 8 C.F.R. § 204.2(c)(2)(vi).    We assume he intended to cite
subsection one of 8 C.F.R. § 204.2(c), which discusses "[b]attery
and extreme cruelty." Id. § 204.2(c)(1)(vi).

                                          -9-
(observing that the regulation "requires consideration of many

discretionary factors," as evidenced by phrases such as "includes,

but is not limited to" and "may . . . be acts of violence under

certain        circumstances"   (quoting    8   C.F.R.   §    204.2(c)(1)(vi))

(internal quotation marks omitted)).

                In fact, Castro's argument that psychological abuse "can

be sufficient" to constitute extreme cruelty appears to recognize

that       8    C.F.R.   §   204.2(c)(1)(vi)     fails       to   articulate   a

nondiscretionary legal standard for the "extreme cruelty" inquiry.

Thus, we lack jurisdiction to review the BIA's discretionary

determination that Castro was not subjected to extreme cruelty.

                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, 627

F.3d 58; Johnson v. Attorney Gen., 602 F.3d 508 (3d Cir. 2010);


       3
       Other circuits have not interpreted the phrase "battered or
subjected to extreme cruelty" in section 203 of NACARA. Rather,
they have interpreted that same phrase in other provisions
governing the discretionary cancellation of removal. See, e.g., 8
U.S.C. § 1229b(b)(2)(A)(i)(I) (granting the Attorney General
discretion to cancel the removal of an alien who has "been battered
or subjected to extreme cruelty by a . . . parent who is . . . a
United States citizen"). Although not interpreting NACARA special
rule cancellation, these cases are persuasive because Congress has
not indicated that it intended any difference in meaning when it
used the same phrase in different provisions governing relief from
removal. See, e.g., United States v. Blasini-Lluberas, 169 F.3d
57, 63 n.8 (1st Cir. 1999).

                                     -10-
Stepanovic v. Filip, 554 F.3d 673 (7th Cir. 2009); Ramdane v.

Mukasey, 296 F. App'x 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.




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