Morris Ndlovu v. MERRICK B. GARLAND , Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2208
MORRIS NDLOVU ,
Petitioner,
v.
MERRICK B. G ARLAND , Attorney General
of the United States,
Respondent.
____________________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A089-380-897
____________________
A RGUED J ANUARY 19, 2024 — D ECIDED A PRIL 25, 2024
____________________
Before S T . EVE , KIRSCH , and LEE , Circuit Judges.
KIRSCH , Circuit Judge. An immigration judge denied Mor-
ris Ndlovu's application for cancellation of removal. The IJ
found that, while Ndlovu was statutorily eligible for cancel-
lation, he did not merit such relief as a matter of discretion.
The Board of Immigration Appeals upheld the denial on that
basis. Because Ndlovu’s petition for review does not raise a
colorable question of law, we lack jurisdiction to review it.

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2 No. 23-2208
I
Morris Ndlovu is a South African citizen. He entered the
United States in March 2000 on a visitor’s visa but remained
beyond the permitted six months. In January 2015, the De-
partment of Homeland Security charged Ndlovu with remov-
ability under 8 U.S.C. § 1227(a)(1)(B) for having overstayed
his visa. Ndlovu conceded that he had overstayed his visa and
was subject to removal and simultaneously applied for can-
cellation of removal under 8 U.S.C. §§ 1229a(c)(4), 1229b(b)(1).
The immigration judge denied Ndlovu relief. The IJ con-
cluded that, while he met the statutory requirements for eli-
gibility for such relief, he did not merit a favorable exercise of
discretion due to his criminal record. The IJ observed that
Ndlovu had twice pleaded guilty to operating a vehicle while
intoxicated in 2000 and 2010 and had recently been arrested
for driving under the influence in 2018. The IJ also noted that
Ndlovu pleaded guilty to domestic battery in 2002 and was
again arrested for domestic battery in 2009, though those
charges were dismissed. The IJ determined that the severity
of his criminal history substantially outweighed the positive
equities and denied his application as a matter of discretion.
The Board of Immigration Appeals upheld the IJ’s determina-
tion. Ndlovu petitioned for review, arguing the IJ and BIA
erred by considering his 2000 and 2002 convictions due to
their age.
II
We cannot entertain Ndlovu’s petition unless we have ju-
risdiction. Under 8 U.S.C. § 1252(a)(2)(B)(i), we lack jurisdic-
tion to review “any judgment regarding the granting of relief
under section … 1229b,” which includes cancellation of

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No. 23-2208 3
removal. But we retain jurisdiction to review any “constitu-
tional claims or questions of law” raised in a petition for re-
view of a § 1229b determination. 8 U.S.C. § 1252(a)(2)(D).
We have held that § 1252(a)(2)(D) permits us to review
only “colorable” constitutional claims, Zamora-Mallari v.
Mukasey, 514 F.3d 679, 696 (7th Cir. 2008), and we agree with
our sister circuits that it also permits review of only colorable
questions of law, e.g., Ponce Flores v. U.S. Att’y Gen., 64 F.4th
1208, 1217 (11th Cir. 2023); Thompson v. Barr, 959 F.3d 476, 484
(1st Cir. 2020); Zambrano v. Sessions, 878 F.3d 84, 87 (4th Cir.
2017); Mendez-Castro v. Mukasey, 552 F.3d 975, 979 (9th Cir.
2009); Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2007).
Requiring that questions of law be colorable to permit our re-
view is consonant with our admonition that “[m]ere reference
to a legal standard or a constitutional provision [ ] does not
convert a discretionary decision into a reviewable legal or
constitutional question.” Moral-Salazar v. Holder, 708 F.3d 957,
962 (7th Cir. 2013). To be “colorable,” the legal argument must
have “some possible validity.” Zamora-Mallari, 514 F.3d at 696
(quoting Torres-Aguilar v. I.N.S., 246 F.3d 1267, 1271 (9th Cir.
2001)). In other words, it cannot be “immaterial and made
solely for the purpose of obtaining jurisdiction or [ ] wholly
insubstantial and frivolous.” Arbaugh v. Y & H Corp., 546 U.S.
500, 513 n.10 (2006) (quotation omitted).
Ndlovu claims that his petition raises a question of law. To
be statutorily eligible for cancellation of removal, a person
must show, among other things, that he has been a “person of
good moral character” during the ten-year period preceding
his application. 8 U.S.C. § 1229b(b)(1); Meza v. Garland, 5 F.4th
732, 735 (7th Cir. 2021). If a person is statutorily eligible, then
cancellation of removal can be granted if he “merits a

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4 No. 23-2208
favorable exercise of discretion.” 8 U.S.C. § 1229a(c)(4)(A).
Ndlovu argues that the ten-year period in § 1229(b)(1) applies
to the discretionary determination under § 1229a(c)(4)(A) and
thus the IJ and BIA committed legal error by considering con-
duct outside this period (his 2000 operating a vehicle while
intoxicated conviction and 2002 domestic battery conviction).
There is, however, no support for Ndlovu’s argument that
there is a time limit on what conduct the IJ or BIA could con-
sider in making their discretionary determinations under
§ 1229a(c)(4)(A). Unlike § 1229b(b)(1), § 1229a contains no
language circumscribing an IJ’s consideration to any time pe-
riod. And there is no justification for reading the time limit
from § 1229b into § 1229a—they impose distinct requirements
on those seeking relief. In the absence of a colorable legal
question, Ndlovu’s challenge is merely an objection to the IJ’s
and BIA’s weighing of the equities under § 1229a—discretion-
ary decisions we lack jurisdiction to review.
The petition is D ISMISSED.

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