Ramsundar v. Barr

18-2845
Ramsundar v. Barr
BIA
A074 974 786
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 22nd day of October, two thousand twenty.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 DENNY CHIN,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 SHANTAL RAMSUNDAR,
14 Petitioner,
15
16 v. 18-2845
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Daniel E. Jackson, Erie County Bar
24 Association, Volunteer Lawyers
25 Project, Inc., Batavia, NY.
26
27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
28 Assistant Attorney General; Keith I.
29 McManus, Assistant Director; John F.
30 Stanton, Trial Attorney, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a Board
2 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
3 ADJUDGED, AND DECREED that the petition for review is GRANTED.
4 Petitioner Shantal Ramsundar, a native and citizen of
5 Trinidad and Tobago, seeks review of a September 18, 2018,
6 decision of the BIA denying her motion to reopen. In re Shantal
7 Ramsundar, No. A 074 974 786 (B.I.A. Sep. 18, 2018). We assume
8 the parties’ familiarity with the underlying facts and
9 procedural history.
10 As an initial matter, because Ramsundar has timely
11 petitioned for review of the denial of a motion to reopen, but
12 not from the underlying decision, we have reviewed only the
13 denial of her motion to reopen. See Ke Zhen Zhao v. U.S. Dep’t
14 of Justice, 265 F.3d 83, 89–90 (2d Cir. 2001). Our review would
15 generally be limited to constitutional claims and questions of
16 law because Ramsundar was ordered removed for aggravated
17 felonies, see U.S.C. § 1252(a)(2)(C), (D), but it is not so
18 limited here. Ramsundar requested reopening to apply for relief
19 from removal under the Convention Against Torture (“CAT”).
20 Accordingly, the jurisdictional limitation does not apply
21 because a CAT claim is distinct from an order of removal. See
22 Nasrallah v. Barr, 140 S. Ct. 1683, 1692–93 (2020); Sharif v.
2
1 Barr, No. 965 F.3d 612, 619 (8th Cir. 2020) (noting that
2 jurisdictional limit does not apply to motion to reopen CAT
3 claim). “We review the denial of motions to reopen immigration
4 proceedings for abuse of discretion.” Ali v. Gonzales, 448 F.3d
5 515, 517 (2d Cir. 2006).
6 To obtain reopening, a movant must present new, previously
7 unavailable evidence that establishes her prima facie
8 eligibility for the relief sought. See 8 C.F.R. § 1003.2(c)(1);
9 INS v. Abudu, 485 U.S. 94, 104 (1988). The BIA did not address
10 whether the evidence was previously unavailable but denied the
11 motion because Ramsundar did not establish prima facie
12 eligibility for relief. The issue is thus whether the BIA abused
13 its discretion in reaching that conclusion. See Lin Zhong v.
14 U.S. Dep’t of Justice, 480 F.3d 104, 117 (2d Cir. 2007) (“a denial
15 of immigration relief stands or falls on the reasons given by
16 the IJ or BIA” (internal quotation marks and brackets omitted)).
17 To demonstrate prima facie eligibility for relief from
18 removal, Ramsundar had to “show a ‘realistic chance’ that [s]he
19 will be able to obtain such relief.” Jian Hui Shao v. Mukasey,
20 546 F.3d 138, 168 (2d Cir. 2008). CAT relief requires the
21 applicant to show that she would more likely than not be tortured.
22 8 C.F.R. §§ 1208.16(c), 1208.17. Torture is defined in part as
3
1 pain and suffering “inflicted by or at the instigation of or
2 with the consent or acquiescence of a public official or other
3 person acting in an official capacity.” Id. § 1208.18(a)(1).
4 An applicant for CAT relief must establish that someone in her
5 “particular alleged circumstances is more likely than not to
6 be tortured.” Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 (2d
7 Cir. 2003) (emphasis omitted). With her motion to reopen,
8 Ramsundar submitted a declaration from an expert, Dr. Nathan
9 Pino, which was prepared for Ramsundar’s father’s removal
10 proceedings, and a short supplemental declaration from Dr. Pino
11 concerning her own case.
12 We conclude that the BIA abused its discretion by not
13 adequately explaining its conclusion that Ramsundar did not
14 submit individualized evidence of her risk of torture. The BIA
15 stated that Ramsundar “has not supported her claim that [a
16 terrorist organization] has an interest in harming her now, or
17 submitted individualized evidence of risk of future torture.”
18 However, Dr. Pino explained that Ramsundar’s father was exposed
19 as an informant for federal agencies, “making himself and his
20 family vulnerable to retaliation from those that he had helped
21 put behind bars,” which included members of a terrorist
22 organization operating in Trinidad and Tobago. Dr. Pino further
4
1 noted that Ramsundar’s father’s informant activities occurred
2 recently, social networks in Trinidad and Tobago are stable and
3 long lasting, and that Ramsundar’s father would be in danger
4 if he returned to Trinidad and Tobago. Dr. Pino concluded that
5 “all of the dangers the father would face will equally apply
6 to the daughter.” Thus, the BIA erred in stating that Ramsundar
7 did not present individualized evidence without explaining why
8 it was discounting Dr. Pino’s conclusion that the terrorist
9 organization would target Ramsundar because of her father.
10 The BIA noted that Ramsundar’s evidence was not
11 “persuasive.” Normally, “[w]e defer to the agency’s
12 determination of the weight afforded to an alien’s documentary
13 evidence.” Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013).
14 However, the BIA did not make any credibility findings or
15 otherwise indicate that Dr. Pino’s conclusion was suspect or
16 based on suspect information. “[W]e require a certain minimum
17 level of analysis from the . . . BIA . . . if judicial review
18 is to be meaningful” and “we also require some indication that
19 the [agency] considered material evidence supporting a
20 petitioner’s claim.” Poradisova v. Gonzales, 420 F.3d 70, 77
21 (2d Cir. 2005). Thus, although there may be grounds for the BIA
22 to give diminished weight to Dr. Pino’s declaration, we are
5
1 limited to the reasons given by the BIA, and the BIA did not
2 explain why it did not find Dr. Pino’s conclusions persuasive.
3 See Lin Zhong, 480 F.3d at 122. On remand, should the BIA again
4 deny reopening, it should explain its conclusions regarding Dr.
5 Pino’s declarations and should consider the declarations and
6 Ramsundar’s claims in their totality, i.e., in the event she
7 has established a realistic chance of torture, whether her sexual
8 orientation and criminal history increase the likelihood that
9 the government will acquiesce to that torture. See Poradisova,
10 420 F.3d at 77.
11 Because we remand on this basis, we do not reach whether
12 the BIA erred in concluding Dr. Pino’s declaration would not
13 affect the agency’s previous determination that Ramsundar did
14 not merit a waiver of inadmissibility under 8 U.S.C. § 1159(c).
15 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general
16 rule courts and agencies are not required to make findings on
17 issues the decision of which is unnecessary to the results they
18 reach.”).
19 For the foregoing reasons, the petition for review is
20 GRANTED, the BIA’s decision is VACATED, and the case is REMANDED
21 for further proceedings consistent with this order. This panel
22 retains jurisdiction to rule, if necessary, on the issues raised
6
1 in a petition for review after the disposition of the remand.
2 See Shi Liang Lin v. DOJ, 416 F.3d 184, 192 (2d Cir.2005)
3 (retaining jurisdiction to decide issues on appeal following
4 remand to the BIA); cf. United States v. Jacobson, 15 F.3d 19,
5 21-22 (2d Cir.1994) (retaining jurisdiction while remanding to
6 the district court for supplementation of the record). Although
7 the mandate shall issue forthwith, Ramsundar may return the case
8 to this Court by notifying the Clerk of the Court within thirty
9 days of entry of a final BIA order on remand. Such notification
10 will not require the filing of a new notice of appeal. If
11 notification occurs, the matter will be referred automatically
12 to this panel for disposition. The stay of removal previously
13 granted shall continue during the pendency of the removal
14 proceedings and any further proceedings pursuant to this order.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe,
17 Clerk of Court
7