United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-2929

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Tabassum Saleheen, *

*

Petitioner, *

* Petition for Review of an

v. * Order of the Board of

* Immigration Appeals.

Eric H. Holder, Jr., Attorney *

General of the United States, *

*

Respondent. *

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Submitted: June 14, 2010

Filed: August 27, 2010

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Before LOKEN, ARNOLD, and GRUENDER, Circuit Judges.

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ARNOLD, Circuit Judge.

Tabassum Saleheen, a native and citizen of Bangladesh, appeals an order of the

Board of Immigration Appeals denying her application for cancellation of removal.

We reject Ms. Saleheen's contention that the BIA engaged in improper factfinding and

we dismiss the remainder of her appeal for lack of subject matter jurisdiction.

I.

Ms. Saleheen married Serajus Saleheen, who is also from Bangladesh. Shortly

after their marriage, Mr. Saleheen entered the United States on an H-1B visa for

nonimmigrant temporary specialty workers and Ms. Saleheen followed on an H-4 visa
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for nonimmigrant spouses of specialty workers. While they were living in Colorado,

Mr. Saleheen began to abuse Ms. Saleheen physically and emotionally. Ms. Saleheen

gave birth to their daughter, Saneesha, at the end of 2000. In the spring of 2002,

Mr. Saleheen told his wife to take a vacation to Bangladesh with Saneesha; after

leaving for the trip, she discovered that the immigration paperwork necessary for her

to re-enter the United States was missing from her luggage. Mr. Saleheen assured her

that he would get the papers to her but did not send them. Soon after Ms. Saleheen

arrived in Bangladesh, her husband had her served with a Bangladeshi affidavit of

divorce. Ms. Saleheen initially challenged the divorce proceeding, contending that

Mr. Saleheen had not met the requirements for divorce under Islamic law in

Bangladesh. She eventually dropped her challenge, and the Bangladeshi divorce was

granted in September, 2002; documents in the record indicate that Ms. Saleheen may

have appealed the divorce.

While still in Bangladesh, Ms. Saleheen filed for divorce in Colorado state

court, which refused to recognize the Bangladeshi divorce because, inter alia, it

concluded that the Bangladeshi child-custody rules violated public policy.

Ms. Saleheen re-entered the United States in 2003 on an H-4 visa that authorized her

to stay for a year. In 2005, Mr. Saleheen became a lawful permanent resident of the

United States, and Ms. Saleheen applied for permanent residency as his dependent

spouse; she was denied because of the Bangladeshi divorce and her failure to show

that she and Mr. Saleheen currently had a bona fide relationship.

A month later, Ms. Saleheen was charged with having overstayed her visa and

was placed in removal proceedings. See 8 U.S.C. § 1227(a)(1)(B). She admitted

removability but applied for cancellation of removal based on Mr. Saleheen having

abused her. See 8 U.S.C. § 1229b(b)(2)(A)(i)(II). Five months after her Colorado

divorce was granted, Ms. Saleheen married a student who had entered the country on

a temporary F-1 student visa. Two weeks later, the IJ held a hearing on

Ms. Saleheen's cancellation claim, in which she testified that Mr. Saleheen had abused
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her from December, 1999, until she left for Bangladesh in the spring of 2002. After

the IJ determined that she did not meet the statutory requirements to be considered for

cancellation of removal, Ms. Saleheen appealed to the BIA. The BIA dismissed the

appeal: Though it concluded that she did, in fact, meet the statutory requirements, the

BIA decided her circumstances did not warrant granting her that discretionary relief.

Ms. Saleheen filed a petition for review.

II.

In order to be considered for "[s]pecial rule" cancellation for "battered spouse,"

Ms. Saleheen had to meet certain statutory requirements by showing, inter alia, that

she had "been battered or subjected to extreme cruelty by a spouse ... who is or was

a lawful permanent resident." 8 U.S.C. § 1229b(b)(2)(A)(i)(II). The BIA concluded,

contrary to what the IJ decided, that the statute's plain language did not require that

the abusive spouse be a permanent resident when the abuse occurred: According to

the BIA, the statutory provision requiring proof that the abusive spouse "is or was a

lawful permanent resident" covers a situation, like Ms. Saleheen's, "where an alien is

abused by an individual who is not a legal permanent resident [at the time], but who

is a legal permanent resident ... at the time the abused alien seeks relief."

The BIA nonetheless decided that Ms. Saleheen was not "deserving of special

rule cancellation of removal as a matter of discretion." Section § 1229b(b) provides

that the attorney general "may" grant cancellation of removal to an eligible individual

and thus the attorney general's decision whether to grant or deny relief is

discretionary. See Guled v. Mukasey, 515 F.3d 872, 880 (8th Cir. 2008). In its

decision, the BIA first set out "positive equities weighing in [Ms. Saleheen's] favor,"

noting that except for her trip to Bangladesh, she had lived in this country for about

eight years, she had an eight-year-old child who was a United States citizen, she had

no criminal record, and she had been employed since 2004. The BIA also described

as "negative factors" her ground of removability (overstaying her visa) and her receipt

of food stamps for two years. The BIA then listed "additional factors" that it deemed
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relevant because Ms. Saleheen was seeking relief "as the battered spouse of a lawful

permanent resident." The BIA observed that she last had contact with Mr. Saleheen

in 2002, "except for a few phone calls," and found that their marriage "ended for all

intents and purposes" the same year; and it stated that Ms. Saleheen remarried in

September, 2007, and thus was "no longer dependent on [her abuser] for status" or in

an abusive relationship with him. The BIA concluded that "given the underlying

purpose of the battered spouse provisions ... to enable non-citizens to leave their

abusive citizen or permanent resident spouses who may use the threat of deportation

or sponsorship of an immigration benefit to maintain control over them, ... on balance,

the respondent has not demonstrated that she is entitled to cancellation of removal

under section [§ 1229b(b)(2)] ... as a matter of discretion considering the length of

time since the relationship ended, the divorce, and the re-marriage."

An applicable statute provides that "no court shall have jurisdiction to review

... any judgment regarding the granting of relief under section ... 1229b," except that

an appropriate court of appeals may review "constitutional claims or questions of

law." 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D). We have no jurisdiction to review the

"ultimately discretionary denial of cancellation of removal," but we may review

"nondiscretionary determinations underlying [that decision], such as the predicate

legal question whether the [BIA] properly applied the law to the facts in determining

an individual's eligibility." Sanchez-Velasco v. Holder, 593 F.3d 733, 735

(8th Cir. 2010) (internal quotation marks and citations omitted).

Here the BIA plainly stated that it was exercising its discretion in denying relief

to Ms. Saleheen, and if that is so, we have no jurisdiction unless Ms. Saleheen has

raised colorable legal or constitutional claims. In order to be colorable, "a claim must

have some possible validity." A claim is not colorable "if it is immaterial and made

solely for the purpose of obtaining jurisdiction or is wholly insubstantial and

frivolous." Garcia-Aguillon v. Mukasey, 524 F.3d 848, 850 (8th Cir. 2008) (internal

quotation marks and citations omitted).
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III.

Ms. Saleheen first contends that we have jurisdiction to review the denial of

relief even though the BIA "labeled" its decision as discretionary, because it

committed a legal error by imposing two new eligibility requirements: The purported

new requirements bar relief "if the time between the battery or extreme cruelty and the

disposition of the application for relief is too great" and "where the victim remarries

during the pendency of his or her removal proceedings." But we don't think that Ms.

Saleheen may create jurisdiction merely by characterizing the BIA's list of reasons for

not favorably exercising its discretion as "legislating" a new class of aliens who are

per se ineligible for special rule consideration. Cf. Garcia-Aguillon, 524 F.3d at 850.

And because we conclude that the BIA did not create a new class of ineligible aliens,

we need not address Ms. Saleheen's contention that the BIA lacks the authority to do

so.

We also believe that Ms. Saleheen's argument that the BIA was acting "ultra

vires" by "legislating" new eligibility criteria fails to recognize the roles of Congress

and the attorney general under § 1229b(b)(2)(A). Congress chose to enact

requirements that an alien must meet before being considered for special cancellation

of removal. See id. Once those minimal standards are met, Congress granted the

attorney general the discretion to decide whether to grant relief. Nothing in the statute

forbids the agency from considering particular factual matters in deciding whether

relief is appropriate. Nor did Congress set out particular factual matters that must be

considered, as it has done in other contexts. We have described the attorney general's

power to grant cancellation of removal as "roughly equivalent to executive clemency,

over which the executive branch has unfettered discretion." Guled, 515 F.3d at 880

(citing INS v. Yueh-Shaio Yang, 519 U.S. 26, 30 (1996)). 

Here the BIA simply explained its rationale for denying relief to Ms. Saleheen,

and Ms. Saleheen cannot create a colorable claim by arguing that it somehow

exceeded its authority by relying on those considerations. As the Supreme Court
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stated in Yueh-Shaio Yang, when addressing another immigration law under which

satisfaction of the statutory requirements "establishes only the alien's eligibility" for

discretionary relief, "[s]uch eligibility in no way limits the considerations that may

guide the Attorney General in exercising her discretion to determine who, among

those eligible, will be accorded grace." Id. at 31 (emphasis in original). We reject Ms.

Saleheen's attempt to manufacture jurisdiction by recasting the BIA's reasons for its

discretionary decision as ultra vires conduct. Cf. Garcia-Aguillon, 524 F.3d at 849-

50.

We also lack jurisdiction over Ms. Saleheen's contention that the BIA

committed a legal error by "overlooking and mischaracterizing" what she describes

as "crucial evidence in the record." In making this argument, Ms. Saleheen again

challenges the manner in which the BIA exercised its discretion, without raising a

colorable legal claim.

IV.

Ms. Saleheen next contends that the BIA violated its own regulations by

making factual findings. See 8 C.F.R. § 1003.1(d)(3)(iv). Because she raises a

question of law, we conclude that we have jurisdiction to decide the issue. We review

the matter de novo, giving due deference to the agency's interpretation of its own

regulations. Olmsted v. Holder, 588 F.3d 556, 558 (8th Cir. 2009). The relevant

regulation provides that the BIA reviews an IJ's factual findings for clear error and,

except for taking administrative notice of facts that are commonly known, the BIA

"will not engage in factfinding in the course of deciding appeals" but may remand to

the IJ if additional factfinding is necessary. 8 C.F.R. § 1003.1(d)(3)(i), (iv). The BIA

has interpreted the regulation to permit it to rely on uncontested facts in the record.

See A-S-B-, 24 I. & N. Dec. 493, 498 (2008).

We see no merit in Ms. Saleheen's assertion that the BIA engaged in improper

factfinding when it stated that she was "no longer in an abusive relationship with
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Mr. Saleheen." The IJ found that the Saleheens' relationship ended over five years

earlier and that the abuse ended at the same time as the relationship. The BIA's

statement that Ms. Saleheen was no longer in an abusive relationship was no more

than a restatement of the IJ's findings. And given the IJ's finding that no abuse or

physical contact had occurred in over five years, we see no merit in Ms. Saleheen's

contention that the BIA was required to remand to determine whether circumstances

had changed after the IJ's decision.

Ms. Saleheen also maintains that the BIA improperly engaged in factfinding by

stating that after she was divorced and had remarried, she was no longer dependent

on her abuser for her immigration status. We disagree. As we have already said, the

BIA explained in its decision that the relevant statute was intended to "enable noncitizens to leave ... [abusive] spouses who may use the threat of deportation or

sponsorship of an immigration benefit to maintain control over them." We therefore

believe that, in context, the BIA's remark that Ms. Saleheen's immigration status was

no longer dependent on her abuser meant that Ms. Saleheen – after her divorce and

remarriage – was no longer eligible for derivative immigration benefits afforded to her

as Mr. Saleheen's spouse, and thus Mr. Saleheen could not wield power over her by

threatening to undermine her eligibility for those benefits. We agree with the attorney

general that the BIA was not factfinding – it was commenting on the legal effects of

their divorce.

V.

We reject Ms. Saleheen's contention that the BIA engaged in inappropriate

factfinding, and we dismiss the remainder of the appeal for lack of jurisdiction.

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