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Click here for the full text of this decision FACTS:The petitioner, Kathleen Wilmore, a native of Jamaica and citizen of the United Kingdom, entered the United States as a non-immigrant temporary visitor in 1981. Although the last extension of her temporary visitor status expired in December 1983, she has lived continuously in the United States since 1981. In 1996, Wilmore married David Wilmore, a U.S. citizen. In 1997, David filed an immigrant visa petition to allow Wilmore, as the spouse of a U.S. citizen, to apply for an adjustment in status to that of a lawful permanent resident. David subsequently withdrew the petition and filed for divorce. In February 2003, the INS served Wilmore with a notice to appear, placing her in proceedings to remove her. She was charged as being an arriving alien subject to removal pursuant to 8 U.S.C. �1182(a)(7)(A)(i)(I) (Supp. V 2005), for not being in possession of a valid unexpired immigrant visa, re-entry permit, border crossing card, or other valid entry document required by the Immigration and Naturalization Act. Shortly before the removal hearing, David filed a second immigrant visa petition on Wilmore’s behalf but later withdrew it. At the removal hearing, Wilmore appeared pro se. Wilmore testified that she and David were still married but conceded that the INS had denied her application for adjustment of status and that she did not have any other document rendering her presence in the U.S. lawful. Based on those statements, the immigration judge found her subject to removal. The immigration judge advised Wilmore that she might be able to obtain a grant of cancellation of removal, and she replied that she wished to apply for such relief. Pursuant to 8 U.S.C. �1229b(b)(1)(D), the attorney general may cancel the removal of and adjust to the status of permanent resident, an alien who “establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” After obtaining counsel, Wilmore submitted an application for cancellation of removal based on �1229b(b)(1)(D)’s exceptional and extremely unusual hardship requirement. During the hearing held on her application, Wilmore stated through counsel that she was changing her application instead to allow her to seek cancellation pursuant to 8 U.S.C. �1229b(b)(2)(A)(i)(I). Pursuant to �1229b(b)(2)(A)(i)(I), the “Attorney General may cancel removal” if an alien proves, among other things, that she “has been battered or subjected to extreme cruelty by a spouse or parent who is or was a United States citizen . . . .” At the conclusion of the hearing, the IJ found her subject to removal and further found that she had met all the eligibility requirements for “special rule” cancellation except the “extreme cruelty” requirement. Wilmore appealed to the Board of Immigration Appeals. On April 29, 2005, the BIA dismissed the appeal, stating that it concurred in the IJ’s finding that extreme cruelty was not demonstrated. The BIA also gave Wilmore an additional thirty days from the date of its order to depart voluntarily. Wilmore petitions this court for review of the BIA’s decision. HOLDING:Dismissed. Pursuant to �1252(a)(2)(B), the court lacks jurisdiction to review discretionary decisions under section 1229b but retains jurisdiction over purely legal and non-discretionary questions. Wilmore’s sole claim of error on appeal is that the IJ erred in finding that she had not established extreme cruelty. The Code of Federal Regulations defines battery or extreme cruelty as including, but not limited t 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. Other abusive actions may also be acts of violence under certain circumstances, including acts that, in and of themselves, may not initially appear violent but that are a part of an overall pattern of violence. 8 C.F.R. 204.2(c)(1)(vi) (2005). The court has held that a determination of “extreme hardship” under �1229b was discretionary because the term “was not self-explanatory, and reasonable men could easily differ as to [its] construction.” Moosa v. INS, 171 F.3d 994 (5th Cir. 1999). The court finds that the term “extreme cruelty” is not self-explanatory and that reasonable men could differ as to its meaning. The 9th U.S. Circuit Court of Appeals and 10th U.S. Circuit Court of Appeals have addressed the question of whether the determination of “extreme cruelty” is discretionary and are split. The 10th Circuit concluded that a determination of extreme cruelty involved the exercise of discretion. The language of the battered spouse provision, �1229b(b)(2), and the instant jurisdiction-stripping provision, �1252(a)(2), indicate that the extreme cruelty decision is discretionary. The court concludes that a determination of “extreme cruelty” under �1229b(b)(2)(A)(i)(I) is discretionary. As such, �1252(a)(2)(B) precludes review, the court holds. Hadwani v. Gonzales, 445 F.3d 798 (5th Cir. 2006), expressly recognized that the Real ID Act “amended 8 U.S.C. �1252(a)(2) to ensure that this court retains jurisdiction over”constitutional claims or questions of law’ raised in an alien’s petition for review.” The present case does not raise a constitutional or legal question, the court states. OPINION:Benavides, J.; DeMoss, Benavides and Prado, J.J.

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