20

- 3222 Cervantes

- Nieto v. Garland BIA A 087 576 821


## 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.

At a stated term of the United States Court of Appeals for the Second Circuit, held 

### 1 at the Thu rgood Marshall United States Courthouse, 40 Foley Square, in the City of New 

### 2 York, on the 1 4 t h d a y of D e c e m b e r , two thousand twenty

- two

. 

### 3 4 PRESENT: 

### 5 ROBERT D. SACK , 

### 6 RICHARD J. SULLIVAN , 

### 7 EUNICE C. LEE , 

### 8 Circuit Judges. 

### 9

_____________________________________ 

### 10 11 GERMAN EDUARDO CERVANTES

- NIETO , 

### 12 13 Petitioner , 

### 14 15

v. 20

- 3222 

### 16 17 MERRICK B. GARLAND , UNITED STATES 

### 18 ATTORNEY GENERAL , 

### 19 20 Respondent

. 

### 21

_____________________________________ 

### 22 23 FOR PETITIONER : John C. Barrera
, Barrera Legal Group
, Nampa
, ID

. 

### 24 25 FOR RESPONDENT: Brian M. Boynton , Principal Deputy Assistant Attorney 

### 26 General, Anthony P. Nicastro , Assistant Director, 

### 27 Andrew B. Insenga , Trial Attorney, Office of 

### 28 Immigration Litigation
, United States Department of 

### 29 Justice, Washington, DC. 

### 30 31

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

### 1

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

### 2

petitio n for review is GRANTED and that the BIA decision is VACATE D and REMANDED for 

### 3

reconsideration in accordance with the fo llowing

. 

### 4

Petitioner German Eduardo Cervantes

- Nieto
, a native and citizen of Peru
, seek s review of 

### 5

a n August 26, 2020
, decision of the BIA denying his motion to reissue its February 2020 decision

. 

### 6

In re Cervantes

- Nieto , No. A 087 576 821 (B.I.A. Aug. 26, 2020 ). We assume the parties’ 

### 7

familiarity with the underlying facts and procedural history. 

### 8

Our review is limited to the BIA’s denial of Cervantes

- Nieto’s motion to reissue the 

### 9

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

### 10

v. U.S. Dep’t of Jus t. , 265 F.3d 83, 89

– 90 (2d Cir. 2001). We review the denial of a motion to 

### 11

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

### 12

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

### 13

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

### 14

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

### 15

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

### 16

In rejecting Cervantes

- Nieto’s ineffective assistance of counsel claim as a basis for 

### 17

reissuance, the BIA stated that Cervantes

- Nieto had not submitted an affidavit in support of his 

### 18

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

### 19

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

. C ontrary to the 

### 20

BIA’s statem ent , however, Cervantes

- Nieto had submitted a document from his attorney titled 

### 21

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

### 22

the February 2020 decision and accepted responsibility for the mistake

. Id. at 300. It is unclear 

### 23

### 3 from the BIA’s decision whether its statement that Cervantes

- Nieto submitted “[n]o affidavit” in 

### 1

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

### 2

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

### 3

requirements for a valid affidavit. Id

. at 3. Our inability to tell from the BIA’s opinion whether 

### 4

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

### 5

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

### 6

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

### 7

review

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

### 8

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

### 9

legal conclusion

. I f the BIA intended it as a factual statemen t, it abused its discretion because it 

### 10

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

### 11

that a document

— whether adequate or not

— had been submitted in support of Cervantes

- Nieto’s 

### 12

motion. Likewise, i f the BIA intended it s statement as a legal conclusion as to the document’s 

### 13

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

### 14

To be sure, on remand
, the BIA may deem that Cervantes

- Nieto fail ed to substantially 

### 15

comply with Lozada or to support a finding of prejudice

. See Yi Long Yang v. Gonzales , 478 

### 16

F.3d 133, 142

– 43 (2d Cir. 2007) (“[W]e have not required a slavish adherence to the [ Lozada ] 

### 17

requirements, holding only that substantial compliance is necessary

. ”). B ut the BIA did not 

### 18

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

. S ee Ping 

### 19

Chen , 502 F.3d at 75

. Though the g overnment provides possible rationales for the BIA’s 

### 20

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

### 21

v. U.S. Dep’t of Just

. , 426 F.3d 104, 113 (2d Cir. 2005). 

### 22

23

### 4 For the foregoing reasons, the petition for re view is GRANTED , the BIA’s decision is 

### 1

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

. 

### 2

FOR THE COURT: 

### 3 Catherine O ’ Hagan Wolfe
, 

### 4 Clerk of Court 

### 5