20-3222

Cervantes-Nieto v. Garland

BIA

A087 576 821

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 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 the Second Circuit, held 

2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 

York, on the 14th 3 day of December, two thousand twenty-two.

4

5 PRESENT:

6 ROBERT D. SACK,

7 RICHARD J. SULLIVAN,

8 EUNICE C. LEE,

9 Circuit Judges.

10 _____________________________________

11

12 GERMAN EDUARDO CERVANTES-NIETO,

13

14 Petitioner,

15

16 v. 20-3222

17

18 MERRICK B. GARLAND, UNITED STATES

19 ATTORNEY GENERAL,

20

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONER: John C. Barrera, Barrera Legal Group, Nampa, ID.

25

26 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney

27 General, Anthony P. Nicastro, Assistant Director, 

28 Andrew B. Insenga, Trial Attorney, Office of 

29 Immigration Litigation, United States Department of 

30 Justice, Washington, DC.

31
2

1 UPON DUE CONSIDERATION of this petition for review of a decision of the Board of 

2 Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED, AND DECREED that the 

3 petition for review is GRANTED and that the BIA decision is VACATED and REMANDED for 

4 reconsideration in accordance with the following.

5 Petitioner German Eduardo Cervantes-Nieto, a native and citizen of Peru, seeks review of 

6 an August 26, 2020, decision of the BIA denying his motion to reissue its February 2020 decision. 

7 In re Cervantes-Nieto, No. A087 576 821 (B.I.A. Aug. 26, 2020). We assume the parties’ 

8 familiarity with the underlying facts and procedural history.

9 Our review is limited to the BIA’s denial of Cervantes-Nieto’s motion to reissue the 

10 February 2020 decision because the petition is timely only as to that decision. See Ke Zhen Zhao 

11 v. U.S. Dep’t of Just., 265 F.3d 83, 89–90 (2d Cir. 2001). We review the denial of a motion to 

12 reissue for abuse of discretion. See Ping Chen v. U.S. Att’y Gen., 502 F.3d 73, 75 (2d Cir. 2007)

13 (per curiam). “The BIA abuses its discretion if its decision provides no rational explanation, 

14 inexplicably departs from established policies, is devoid of any reasoning, or contains only 

15 summary or conclusory statements.” Id. “The BIA also abuses its discretion when it fails to 

16 consider the facts of record relevant to the motion.” Id.

17 In rejecting Cervantes-Nieto’s ineffective assistance of counsel claim as a basis for 

18 reissuance, the BIA stated that Cervantes-Nieto had not submitted an affidavit in support of his 

19 motion or complied “whatsoever” with the requirements for an ineffective assistance claim as set 

20 forth in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988). Joint App’x at 3. Contrary to the 

21 BIA’s statement, however, Cervantes-Nieto had submitted a document from his attorney titled 

22 “affidavit” in which the attorney explained his failure to timely petition this Court for review of 

23 the February 2020 decision and accepted responsibility for the mistake. Id. at 300. It is unclear 
3

1 from the BIA’s decision whether its statement that Cervantes-Nieto submitted “[n]o affidavit” in 

2 support of his claim was intended as a factual conclusion that no document was submitted or, as 

3 suggested by the government, as a legal conclusion that the document did not meet the 

4 requirements for a valid affidavit. Id. at 3. Our inability to tell from the BIA’s opinion whether 

5 it was making a factual or legal statement indicates an abuse of discretion in and of itself. 

6 “Despite our generally deferential review of IJ and BIA opinions,” a decision requiring the Court 

7 to divine what the BIA meant falls short of the “minimum level of analysis” required for “judicial 

8 review . . . to be meaningful.” Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005).

9 Ultimately, the BIA abused its discretion whether it intended its statement as a factual or a 

10 legal conclusion. If the BIA intended it as a factual statement, it abused its discretion because it 

11 “fail[ed] to consider the facts of record relevant to the motion,” Ping Chen, 502 F.3d at 75, namely 

12 that a document—whether adequate or not—had been submitted in support of Cervantes-Nieto’s 

13 motion. Likewise, if the BIA intended its statement as a legal conclusion as to the document’s 

14 adequacy, it abused its discretion because the conclusion was “devoid of any reasoning.” Id.

15 To be sure, on remand, the BIA may deem that Cervantes-Nieto failed to substantially 

16 comply with Lozada or to support a finding of prejudice. See Yi Long Yang v. Gonzales, 478 

17 F.3d 133, 142–43 (2d Cir. 2007) (“[W]e have not required a slavish adherence to the [Lozada] 

18 requirements, holding only that substantial compliance is necessary.”). But the BIA did not 

19 provide such analysis on the record before us. That constitutes an abuse of discretion. See Ping 

20 Chen, 502 F.3d at 75. Though the government provides possible rationales for the BIA’s 

21 decision, we do not independently search the record for explanations of agency action. Jin Chen 

22 v. U.S. Dep’t of Just., 426 F.3d 104, 113 (2d Cir. 2005). 

23
4

1 For the foregoing reasons, the petition for review is GRANTED, the BIA’s decision is 

2 VACATED, and the case is REMANDED for further proceedings consistent with this order.

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe,

5 Clerk of Court