16-4229
Tobar-Bautista v. Sessions

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 ELECTRON IC 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 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the

9 th day of February, tw o thousand eighteen.

Present: ROSEMARY S. POOLER, ROBERT D. SACK, Circuit Judges

. PAUL A. ENGELMAYER, 1 District Judge

.

_____________________________________________________

DANIEL O. TOBAR-BAUTISTA,

Petitioner

,

v. 16-4229

JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL,

Respondent

.

_____________________________________________________

Appearing for Petitioner: David M. Sperling, Central Islip, N.Y.

1 Judge Paul A. Engelmayer, United States District Court for the Southern District of New York, sitting by designation.2 Appearing for Respondent: Aric A. Anders on, Office of Immigration Litigation, U. S. Department of Justice (Chad A. R eadler, Acting Assistant Attorney General, Kohsei Ugumori, Senior Litigation Counsel, on the brief ), Washington, D.C.

Petition for review of a decision from the Board of Immigration Appeals.

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the petition for review of said Board of Immigration Appeals (“BIA”)
decision be GRANTED and the decision VACATED and REMANDED for further
consideration consistent with this order.

Petitioner Daniel O. Tobar-Bautista, a native and citizen of El Salv ador, seeks review of a November 30, 2016 order of the Board of Immigra tion Appeals (“BIA”), affirming an April 22, 2016 decision of an immigration judge (“IJ”) de nying cancellation of removal and ordering him
removed to El Salvador. In re Daniel O. Tobar-Bautista , No. A095 052 100 (BIA Nov. 30, 2016) (“BIA Decision”), aff’g No. A095 052 100 (Immig. Ct. N.Y.C. Apr. 22, 2016) (“IJ Decision”). The IJ denied Tobar-Bautista’s application fo r cancellation of removal on the grounds that he
failed to demonstrate his cance llation would cause “ex ceptional and extremel y unusual hardship” to his U.S. citizen daughters. The IJ also determined that he w ould have discretionarily denied the application for relief. The BIA affirmed on th e hardship determination only and did not reach the discretionary determination. We assume th e parties’ familiarity with the remaining underlying facts and pr ocedural history.

We review the IJ’s decision only as modified by the BIA. See Yang v. U.S. Dep’t of

Justice , 426 F.3d 520, 522 (2d Cir. 2005) (reviewing IJ ’s decision “minus the single argument for denying relief that was rejected by the BIA” ). Generally, where the BIA does not explicitly reject the discretionary determination of the IJ and instead “rest[s] its decision entirely on other grounds,” we review the IJ’s decision only insofar as it was reached by the BIA. Urgen v.
Holder , 768 F.3d 269, 272 (2d Cir. 2014). However, wher e the BIA’s failure to consider grounds raised by the IJ precludes meaningful judicial review, we will review the IJ decision directly. Id

.

Applicants for cancellation of re moval must meet four statutory criteria to be eligible for this form of relief from deportation: (1) ten ye ars of continuous physical presence in the United States prior to the date of application, (2 ) good moral character duri ng the period of required continuous physical presence, (3 ) no convictions of certain classes of offenses, and (4) establishment that their deportation woul d produce “exceptional a nd extremely unusual hardship” to a spouse, parent, or child who is a United States citizen or lawful permanent resident. 8 U.S.C. § 1229b(b)(1). In this case, the government conceded that Tobar-Bautista met the first three criteria, so the only eligibility element Tobar-Bautista was required to prove was
that his removal would cause “ex ceptional and extremely unusual ha rdship” to his U.S. citizen daughters. We observe at the outs et that the IJ found Tobar-Bautis ta’s testimony to be credible.

Our jurisdiction to review the agency’s deni al of cancellation of removal based on failure to satisfy the hardship requirement is limited to constitutional claims and questions of law. 8 U.S.C. § 1252(a)(2)(B), (D); Barco-Sandoval v. Gonzales , 516 F.3d 35, 39-40 (2d Cir. 2008).3 Accordingly, our review of the hardship determ ination is limited to whether the decision “is made without rational jus tification or based on an erroneous legal standard, or rests on factfinding which is flawed by an error of law.” Mendez v. Holder , 566 F.3d 316, 322 (2d Cir. 2009) (internal citation and quotation marks omitted). An agency makes an error of law when “some facts important to the subtle de termination of ‘exceptional and extremely unusual hardship’ have been totally overlooked and others have been seriously mischaracterized.” Id. at 323. But “the agency does not commit an ‘error of law’ ever y time an item of evidence is not explicitly considered or is described with imperfect accuracy.” Id.

Immigration courts are guided in their hard ship analyses by the seminal BIA decisions in In re Monreal-Aguinaga , 23 I&N Dec. 56 (BIA 2001) and In re Andazola-Rivas , 23 I&N Dec. 319 (BIA 2002). “ Matter of Andazola and Matter of Monreal are the starting points for any analysis of exceptional and extremely unusual hardship.” In re Gonzalez Recinas , 23 I&N Dec. 467, 469 (BIA 2002). In re Monreal explained:

For cancellation of removal, we consider the ages, health, and circumstances of qualifying lawful permanent resident and United States citizen relatives. For example, an applicant who has elderly pare nts in this country who are solely dependent upon him for support might well have a strong case. Anothe r strong applicant might have a qualifying child with very serious health issues, or compelling special needs in school. A lower standard of living or adverse country conditions in the country of return are factors to consider only insofar as they may affect a qualifying relative, but generally will be insufficient in themselves to support a finding of exceptional and extremely unusual hardship. As with extreme ha rdship, all hardship factors should be considered in the aggregate when assessing exceptiona l and extremely unusual hardship.

23 I&N Dec. at 63-64. In addition to these factors, In re Andazola-Rivas also considered the accumulated assets of the petitioner regarding the hardship that would be experienced by his or her qualifying relatives. 23 I&N Dec. at 324 (findi ng that the accumulation of significant assets
is a relevant factor insofar as it eases the tran sition experienced by the family). The “exceptional and extremely unusual hardship” standard is high, but “not so restrictive th at only a handful of applicants, such as those who have a qualifying relative with a serious medical condition, will qualify for relief.” In re Gonzalez Recinas , 23 I&N at 470.

Though the IJ’s decision recites the appropriate legal standards, 1 the decision misapplies legal standards, entirely overlooks certain key evidence, and seriously mischaracterizes other pieces of evidence, such that the decisi on is erroneous as a matter of law.

The IJ properly identifies Tobar-Bautista’ s two U.S. citizen daughters (Genesis and Angela) as qualifying relatives. The IJ then obs erves that “[t]o show that his daughters suffer from asthma, Tobar-Bautista submitted various medical documents that simply do not show the requisite hardship.” IJ Decision at 7. But Tobar-B autista is not required to demonstrate that the

1 Just as we must look behind the “rhetoric employed in the petition” to determine whether it actually raises a “constitutional claim” or “question of law,” Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 329 (2d Cir. 2006), we must also look behind the rhetoric of the IJ decision to determine whether he or she actually employs the legal
standards recited.4 asthma alone satisfies the hardship standard, as the IJ states here. Instead, “all hardship factors should be considered in the aggregate.” In re Monreal-Aguinaga , 23 I&N at 64. It was error for
the IJ to determine that the medical doc uments alone did not establish hardship.

The IJ also mischaracterizes key fact ors regarding the hard ship determination, particularly regarding the heal th problems of Tobar-Bautista’ s youngest child (Genesis). Though the letter from Harriet L. Hellman, CPNP, Ph.D ., observed that Genesis suffers from “health problems [that] are significant and require ongoin g evaluation and treatment,” Record on Appeal at 217, the IJ mischaracterized Genesis’ health problems as minor ailments in direct
contradiction of the record evidence. Similarl y, the IJ describes Hellman’s assessment of the older daughter’s asthma as “unde r control,” but fails to acknowledge Hellman’s report that she has treated the older daughter for “severe re spiratory distress.” Reco rd on Appeal at 216. Significantly, the IJ did not questio n the credibility of Hellman.

The IJ also failed to account for several ot her key factors identified in previous BIA cases, including the extensive record evidence indi cating that Tobar-Bautist a is the primary wage earner in the family and that his wages are be low the poverty line. Assets—or lack thereof—are a factor for the immigration court to consider in its hardship determination. See In re AndazolaRivas , 23 I&N Dec. at 324 (finding that the petitio ner had some assets including a home, two vehicles, and $7,000 in a savings account that “would su rely help her in esta blishing a new life in Mexico.”). The IJ also failed to account for the vo latile country conditions in El Salvador and the hardship faced by Angela and Genesis due to their fa ther’s residence there or if they were forced to return there with their father since he is the primary financial provider for the family. In re Monreal-Aguinaga , 23 I&N Dec. at 63-64. The IJ also fa iled to consider the ages of the daughters at the time of his de cision—13 and almost 12 (now 15 and almost 14)—which the BIA
has held to be a relevant factor in the hardship determination. See, e.g.

, In re Andazola-Rivas , 23 I&N Dec. at 324 (finding that the good health and young age of the childre n—in that case, 6 and 11—would make it easier for them to adapt to life in Mexico).

The IJ also determined that even if T obar-Bautista met the statutory eligibility for cancellation, the IJ would have denied his applica tion “as an exercise of its broad discretion.” IJ Decision at 9. This discretionary decision is premised primarily on the IJ’s concerns about Tobar-Bautista’s DWI arrests over a decade prior to the IJ decision, including the “societal costs of driving under the in fluence of alcohol.” Id . The record evidence, including both TobarBautista’s own testimony and letters from his partner and employer, indicates that TobarBautista attended 60 days of rehabilitation, a six-month program on alcoholism by Catholic Charities, and is now a “changed man” and “co mpletely clean.” Reco rd on Appeal 70, 352, 355. The IJ suggested that Tobar-Bautista had not “taken full responsibility ” for his DWI arrests
because Tobar-Bautista has an occasional dri nk and no longer attends Alcoholics Anonymous meetings. IJ Decision at 9-10; Record on Appeal at 72-73. Given the “ordinary remand requirement” that requires the agency to determine matters in the first instance, Gonzales v.
Thomas , 547 U.S. 183, 186 (2006) (quoting INS v. Orlando Ventura , 537 U.S. 12, 16, 17 (2002)), we remand the discretionary determination for BIA review.5 Accordingly, the petition for review here by is GRANTED and the decision of the BIA is
VACATED and REMANDED for further consideration consistent with this order. Each side to
bear its own costs.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk