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