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,

,

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,

, 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,

, 104–05 (1988);

6 Poradisova v. Gonzales,

(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.

(a)(2)(B)(i), (D); Barco-Sandoval v.

20 Gonzales,

, 38–42 (2d Cir. 2008); Sepulveda v.

21 Gonzales,

(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,

. 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

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