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Stepanovic v. Filip

January 28, 2009

ZVONKO STEPANOVIC, PETITIONER,
v.
MARKR. FILIP, ACTING ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals. No. A79-766-597.

The opinion of the court was delivered by: Kanne, Circuit Judge

ARGUED OCTOBER 20, 2008

Before BAUER, KANNE, and WILLIAMS, Circuit Judges.

Zvonko Stepanovic is a citizen of Serbia and Montenegro*fn1 who faces removal from the United States. He seeks review of an order of the Board of Immigration Appeals declaring him ineligible for cancellation of removal pursuant to the battered spouse provision of the Immigration and Nationality Act § 240A(b)(2), 8 U.S.C. § 1229b(b)(2). The government contends that this court lacks jurisdiction to review the BIA's determination that Stepanovic was not subjected to "extreme cruelty" under § 1229b(b)(2). We agree and conclude that 8 U.S.C. § 1252(a)(2) prevents us from exercising jurisdiction over the BIA's determination. Accordingly, we dismiss the petition.

I. BACKGROUND

Stepanovic was born in a region of the former Republic of Yugoslavia that is now in Serbia. In 1993, he married Silvana Simic, and the two moved to South Africa. The couple had one child, Kristina, before obtaining an amicable divorce in 1996. Silvana and Kristina remained in South Africa until 1997, and they now live in Florida.

On September 30, 1997, the United States admitted Stepanovic as a non-immigrant visitor with authorization to remain for a period not to exceed six months. He be- came a self-employed cross-country truck driver and lived in Chicago. In 1998, Stepanovic met Sonja Jovanovic, a U.S. citizen working in a Serbian restaurant, and the two began dating.

Stepanovic remained in the United States past the authorized six-month time period, and in 2002, immigration authorities detained him in Spokane, Washington. On May 8, 2002, the Immigration and Naturalization Service sought to remove him for being in the United States illegally,*fn2 pursuant to 8 U.S.C. § 1227(a)(1)(B)-(C)(I). Stepanovic returned to Chicago after being released on a bond.

Approximately one month later, Stepanovic married Jovanovic and moved into her Chicago apartment. At a hearing before an immigration judge in January 2003, Stepanovic conceded removability, but at a later hearing in July, he stated that he would seek relief from removal because of his marriage to a United States citizen.

In November 2003, Stepanovic returned from a long-distance trucking trip, expecting Jovanovic to pick him up where he typically parked. She failed to appear, and he spent the night in his truck. Stepanovic received a ride home from a friend the next day, only to find that Jovanovic had locked him out of the apartment. When she finally answered the door, she appeared angry and would not let him enter. She handed him two bags of clothes and told him to leave, threatening to call the police if he did not. Jovanovic never allowed Stepanovic back into the apartment, and the two eventually divorced.

At a hearing in October 2004, Stepanovic informed the IJ that he and Jovanovic had separated and that he now intended to petition for cancellation of removal. On December 5, 2005, the IJ held a hearing on the merits of Stepanovic's application for cancellation of removal for battered spouses who have been subjected to "extreme cruelty," pursuant to 8 U.S.C. § 1229b(b)(2). In addition to the aforementioned facts, Stepanovic presented evidence that Jovanovic became involved with another man during their marriage and may have been unfaithful. Stepanovic stated that he heard from friends that Jovanovic later married this same man.

Stepanovic conceded that he was never battered or subjected to physical harm, but he claimed that he suffered mental and emotional distress as a result of these events, the deterioration of his marriage, Jovanovic's continued refusal to return his phone calls, and occasionally seeing her in public with another man. At the conclusion of the hearing, the IJ denied Stepanovic's application because he failed to meet his burden of proof for cancellation of removal, including that he did not establish that his ex-wife subjected him to "extreme cruelty."*fn3 The IJ granted Stepanovic's alternative request for voluntary departure and designated South Africa as the country of removal. Stepanovic appealed the IJ's decision to the BIA.

On October 31, 2007, the BIA dismissed his appeal. The BIA agreed with the IJ that Stepanovic failed to demonstrate that he was subjected to extreme cruelty by his spouse under ยง 1229b(b)(2). The BIA held that "[i]n light of this determination, we need not reach the other arguments raised on ...


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