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
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 non-
citizens 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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