18

- 2845 Ramsundar v. Barr BIA A 074 974 786 

### 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**  **ELECTR ONIC 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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Mar**  **shall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 1**  **7 th**  **d a**  **y of August,**  **two thousand twenty**  **.** 4 5 **PRESENT:** 6 **GUIDO CALABRESI ,**  7 **DENNY CHIN ,**  8 **SUSAN L. CARNEY ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **SHANTAL RAMSUNDAR ,**  13 **Petitioner ,**  14 15

**v. 18** 

**- 2845**  16 **NAC** 17 **WILLIAM P. BARR, UNITED STATES**  18 **ATTORNEY GENERAL ,**  19 **Respondent .**  20

**_____________________________________** 21 22 **FOR PETITIONER :**  Daniel E. Jackson , Erie County 23 Bar Association , Volunteer Lawyers 24 Project, Inc ., Batavia , NY

. 25 26 **FOR RESPONDENT:** Ethan P. Davis , Acting Assistant 27 Attorney General ; Keith I. 28 McManus , Assistant Director; John 29 F. Stanton , Trial Attorney, Office 30 of Immigration Litigation , United 31 States Department of Justice, 32 Washington, D C. 332 UPON DUE CONSIDERATION of this petition for review of a 1
Board of Immigration Appeals (“BIA”) decision, it is hereby 2
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 3

is GRANTED

. 4

Petitioner Shan tal 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 7

Shantal Ramsundar , No. A 074 974 786 (B.I.A. Sep. 18, 2018 ). 8
We assume the parties’ familiarity with the underlying facts 9
and procedural history. 10
As an initial matter, because Ramsundar has timely 11
petitioned for review of the denial of a motion to reopen, 12
but not from the underlying decision, we have review ed only 13

the denial of her motio n to reopen. See Ke Zhen Zhao v. U.S. 14
Dep’t of Justice , 265 F.3d 83, 89

– 90 (2d Cir. 2001). O ur 15

review would generally be limited to constitutional claims 16
and questions of law because Ramsundar was ordered removed 17
for aggravated felonies, s ee U.S.C. § 1252(a)(2)(C), (D) , but 18

it is not so limited here. Ramsundar requested reopening to 19
apply for relief fr o m removal under the Convention Against 20

Torture (“CAT”) . Accordingly, the jurisdictional limitation 21
does not apply because a CAT claim is dist inct from an order 223 of removal. See Nasrallah v. Barr , 140 S. Ct. 1683 , 1692

– 93 1

(202 0); Sharif v. Barr , No. 965 F.3d 612, 619 (8th Cir. 2020) 2
(noting that jurisdictional limit does not apply to motion to 3
reopen CAT claim). “ We review the denial of motions to reopen 4
immigration proceedings for abuse of discretion

. ” Ali v. 5

Gonzales , 448 F.3d 515, 517 (2d Cir. 2006 )

. 6
To obtain reopening, a movant must present new, 7
previously unavailable evidence that establishes her prima 8
facie eligibility for the relief sought. See 8 C.F.R. 9

§ 1003.2(c)(1); INS v. Abudu , 485 U.S. 94, 104 (1988). The 10

BIA did not address whether the ev idence was previously 11

unavailable but denied the motion because Ramsundar did not 12
establish prima facie eligibility for relief. T he issue is 13

thus whether the BIA abused its discretion in reaching that 14

conclusion. See Lin Zhong v. U.S. Dep’t of Justice , 4 80 F.3d 15
104, 117 (2d Cir. 2007) (“a denial of immigration relief 16
stands or falls on the reasons given by the IJ or BIA” 17
(internal quotation marks and brackets omitted)). 18
To demonstrate prima facie eligibility for relief from 19

removal, Ramsundar had to “ show a ‘realistic chance’ that 20

[s]he will be able to obtain such relief.” Jian Hui Shao v. 21

Mukasey , 546 F.3d 138, 168 (2d Cir. 2008). CAT relief 224 requires the applicant to show that she would more likely 1

than not be tortured. 8 C.F.R. §§ 1208.16(c), 1208.17. 2

Torture is defined in part as pain and suffering “inflicted 3
by or at the instigation of or with the consent or 4
acquiescence of a public official or other person acting in 5
an official capacity.” Id. § 1208.18(a)(1). An applicant 6

f or CAT relief must establish that someone in her “particular 7
alleged circumstances is more likely than not to be tortured.” 8

Mu

- Xing Wang v. Ashcroft , 320 F.3d 130, 144 (2d Cir. 2003) 9
(emphasis omitted). With her motion to reopen, Ramsundar 10

submitted a de claration from an expert, Dr. Nathan Pino, which 11
was prepared for Ramsundar’s father’s removal proceedings , 12

and a short supplemental declaration from Dr. Pino concerning 13

her own case. 14

We conclude that t he BIA abused its discretion by not 15

adequately ex plaining its conclusion that Ramsundar did not 16

submit individualized evidence of her risk of torture. The 17

BIA stated that Ramsundar “ has not supported her claim that 18

[ a terrorist organization] has an interest in harming her 19

now, or submitted individualized evidence of risk of future 20

torture.” However, Dr. Pino explained that Ramsundar ’s 21

father was exposed as an informant for federal agencies, 225 “making himself and his family vulnerable to retaliation from 1

those that he had helped put behind bars,” which included 2

members of a terrorist organization operating in Trinidad and 3

Tobago . Dr. Pino further note d that Ramsundar’s father’s 4
informant activities occurred recently, social networks in 5
Trinidad and Tobago are stable and long lasting , and that 6
Ramsundar’s father would be in danger if he returned to 7
Trinidad and Tobago. Dr. Pino concluded that “all of the 8
dangers the father would face will equally apply to the 9
daughter.” Thus, the BIA erred in stating that Ramsundar did 10
not present i ndividualized evidence without explaining why it 11
was discounting Dr. Pino’s conclusion that the terrorist 12
organization would target Ramsundar because of her father. 13

The BIA noted that Ramsundar’s evidence was not 14
“persuasive.” Normally, “[w]e defer to th e agency’s 15
determination of the weight afforded to an alien’s 16
documentary evidence.” Y.C. v. Holder , 741 F.3d 324, 33 4 (2d 17

Cir. 2013). However, t he BIA did not make any credibility 18
findings or otherwise indicate that Dr. Pino’s conclusion was 19

suspect or based on suspect information

. “ [ W ] e require a 20
certain minimum level of analysis from the

. . . BIA

. . . if 21
judicial review is to be meaningful ” and “we also require 226 some indication that the [agency] considered material 1
evidence supporting a petitioner’s claim.” Poradisova v. 2

Gonzales , 420 F.3d 70, 77 (2d Cir. 2005). Thus, although 3
there may be grounds for the BIA to give diminished weight to 4

Dr. Pino’s declaration , we are limited to the re asons given 5

by the BIA , and the BIA did not explain why it did not find 6
Dr. Pino’s conclusions persuasive

. See Lin Zhong , 480 F.3d 7

at 122. On remand, should the BIA again deny reopening, it 8
should explain its conclusions regarding Dr. Pino’s 9

declarations and should consider the declarations and 10
Ramsundar’s claims in their totality, i.e., in the event she 11

has established a realistic chance o f torture, whether her 12
sexual orientation and criminal history increase the 13
likelihood that the government will acquiesce to that 14

torture. See Poradisova , 420 F.3d at 77. 15

Because we remand on this basis, we do not reach whether 16

the BIA erred in conclud ing Dr. Pino’s declaration would not 17

affect the agency’s previous determination that Ramsundar did 18
not merit a waiver of inadmissibility under 8 U.S.C. 19

§ 1159(c)

. See INS v. Bagamasbad , 429 U.S. 24, 25 (1976) 20
(“As a general rule courts and agencies are no t required to 21
make findings on issues the decision of which is unnecessary 227 to the results they reach.”). 1
For the foregoing reasons, the petition for review is 2

GRANTED, the BIA’s decision is VACATED, and the case is 3

REMANDED for further proceedings consistent with this 4

order

. All pending motions and applications are DENIED and 5

stays VACATED. 6

FOR THE COURT: 7 Catherine O ’ Hagan Wolfe, 8 Clerk of Court 9