Dutt v. Garland ( 2021 )

19-719
Dutt v. Garland
BIA
A089 577 493
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 23rd day of September, two thousand twenty-one.
5
6 PRESENT:
7 GERARD E. LYNCH,
8 DENNY CHIN,
9 WILLIAM J. NARDINI,
10 Circuit Judges.
11 _____________________________________
12
13 MANU DUTT,
14 Petitioner,
15
16 v. 19-719
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Michael W. Ross, Jacob D.
24 Alderdice, Jenner & Block LLP, New
25 York, NY.
26
27 FOR RESPONDENT: Brian Boynton, Acting Assistant
28 Attorney General; Julie M.
29 Iversen, Senior Litigation
1 Counsel; Lynda A. Do, Trial
2 Attorney, Office of Immigration
3 Litigation, United States
4 Department of Justice, Washington,
5 DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is GRANTED.
10 Petitioner Manu Dutt, a native and citizen of India,
11 seeks review of a March 12, 2019, decision of the BIA denying
12 his motion to reopen to apply for cancellation of removal.
13 In re Manu Dutt, No. A 089 577 493 (B.I.A. Mar. 12, 2019).
14 We assume the parties’ familiarity with the underlying facts
15 and procedural history.
16 We review the BIA’s denial of a motion to reopen for
17 abuse of discretion. Jian Hui Shao v. Mukasey, 546 F.3d 138,
18 168–69 (2d Cir. 2008). “An abuse of discretion may be found
19 in those circumstances where the [BIA’s] decision provides no
20 rational explanation, inexplicably departs from established
21 policies, is devoid of any reasoning, or contains only summary
22 or conclusory statements; that is to say, where the [BIA] has
23 acted in an arbitrary or capricious manner.” Ke Zhen Zhao
2
1 v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001)
2 (internal citations omitted).
3 The agency may deny a motion to reopen if a noncitizen
4 fails to establish prima facie eligibility for the relief
5 sought. See INS v. Abudu, 485 U.S. 94, 104–05 (1988);
6 Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005)
7 (concluding that prima facie standard requires applicant to
8 show a “realistic chance that he will be able to establish
9 eligibility” for relief (internal quotation marks omitted)).
10 A nonpermanent resident, like Dutt, may have his removal
11 cancelled if, in relevant part, he demonstrates that his
12 “removal would result in exceptional and extremely unusual
13 hardship” to a qualifying relative -- here, his U.S. citizen
14 wife and children. 8 U.S.C. § 1229b(b)(1). Our jurisdiction
15 to review the agency’s determination that Dutt failed to
16 establish his prima facie eligibility for cancellation of
17 removal because he had not demonstrated the requisite level
18 of hardship is limited to constitutional claims and questions
19 of law. 8 U.S.C. § 1252(a)(2)(B)(i), (D); Barco-Sandoval v.
20 Gonzales, 516 F.3d 35, 38–42 (2d Cir. 2008); Sepulveda v.
21 Gonzales, 407 F.3d 59, 64 (2d Cir. 2005). With his motion
3
1 to reopen, Dutt submitted affidavits, medical records, and a
2 psychological assessment regarding the declining financial,
3 physical, and mental health of his U.S. citizen wife and two
4 sons.
5 We remand because the BIA did not adequately explain its
6 conclusion that Dutt did not make a prima facie showing of
7 hardship. The BIA stated that Dutt “present[ed] sympathetic
8 circumstances,” but concluded, without further explanation,
9 that “the evidence proffered with the motion is insufficient
10 to make a prima facie showing that [Dutt’s] removal would
11 result in exceptional and extremely unusual hardship to a
12 qualifying relative.” The BIA did not make any reference to
13 Dutt’s evidence, or otherwise indicate what alleged hardship
14 it considered in reaching this conclusion, including whether
15 it considered his wife to be a qualifying relative. “[W]e
16 require a certain minimum level of analysis from the . . .
17 BIA . . . if judicial review is to be meaningful” and “[w]e
18 also require some indication that the [agency] considered
19 material evidence supporting a petitioner’s claim.”
20 Poradisova, 420 F.3d at 77. On remand, should the BIA again
21 deny reopening, it should explain what qualifying relatives
4
1 and evidence it considered in reaching its conclusion. See
2 id.
3 For the foregoing reasons, the petition for review is
4 GRANTED, the BIA’s decision denying reopening is VACATED, and
5 the case is REMANDED for further proceedings consistent with
6 this order. All pending motions and applications are DENIED
7 and stays VACATED.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe,
10 Clerk of Court
5