United States Court of Appeals 

For the First Circuit 

No. 15-1149 

KAMINA PANDIT; SHAILESHKUMAR PANDIT, 

Petitioners, 

v. 

LORETTA LYNCH, 

Attorney General of the United States, 

Respondent. 

PETITION FOR REVIEW OF AN ORDER OF 

THE BOARD OF IMMIGRATION APPEALS 

Before 

Lynch, Thompson, and Barron, 

Circuit Judges. 

John J. Hykel and Renee Hykel Cuddy on brief for petitioners. 

Benjamin C. Mizer, Principal Deputy Assistant Attorney 

General, Civil Division, Derek C. Julius, Senior Litigation 

Counsel, Office of Immigration Litigation, and Katherine A. Smith, 

Trial Attorney, Office of Immigration Litigation, Civil Division, 

U.S. Department of Justice, on brief for respondent. 

May 26, 2016 
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BARRON, Circuit Judge. Kamina and Shaileshkumar Pandit 

("the Pandits") have petitioned this Court for review of the denial 

by the Board of Immigration Appeals ("BIA") of the Pandits' motion 

to re-open removal proceedings. As we conclude the BIA acted 

within its discretion, we deny the petition. 

I.

The Pandits are natives and citizens of India who have 

lived as nonpermanent residents of the United States for the past 

21 years. They reside in Massachusetts with their 19-year-old 

daughter, Pooja, who is a United States citizen. 

On November 2, 2009, the Department of Homeland Security 

began removal proceedings against the Pandits on the grounds that 

they had arrived in the United States without a valid entry 

document, see 8 U.S.C. § 1182(a)(7)(A)(i)(I), and that they were 

present in the United States without being "admitted," see 8 U.S.C. 

§ 1182(a)(6)(A)(i). The Pandits conceded removability on the 

former ground, but they sought cancellation of removal pursuant to 

Section 240A(b) of the Immigration and Nationality Act ("INA"). 

That section, codified at 8 U.S.C. § 1229b(b), grants the Attorney 

General discretion to cancel the removal of an alien if the alien 

satisfies four statutory criteria. 

The Pandits argued in their applications to the 

Immigration Judge ("IJ") that they were entitled to cancellation 

of removal because they: (A) "ha[d] been physically present in the 
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United States for a continuous period of not less than 10 years 

immediately preceding the date of [their] application"; (B) "ha[d] 

been [] person[s] of good moral character during such period"; (C) 

"ha[d] not been convicted of" a qualifying offense; and (D) could 

"establish[] that removal would result in exceptional and 

extremely unusual hardship to" a "spouse, parent, or child[] who 

[wa]s a citizen of the United States": their daughter, Pooja. 8 

U.S.C. § 1229b(b)(1). 

To prove that Pooja would suffer "exceptional and 

extremely unusual hardship" if the Pandits were removed from the 

United States, the Pandits contended that Pooja could not live in 

the United States without her parents and would thus be forced to 

move back to India with them if they were deported. They further 

expressed concerns that Pooja "would face difficulties acclimating 

to the different educational and cultural system in India," as she 

had only limited knowledge of the Gujarati language and because, 

they contended, India's cultural norms surrounding women's role in 

society differed from those in the United States. In addition, 

Pooja herself testified that she would not be able to adjust to a 

life in India. She specifically testified that she had become 

sick on each of her prior visits to India as a result of the food 

and the weather and that she had once been hospitalized for four 

hours. 
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On October 17, 2013, the IJ denied the Pandits' 

application to cancel removal. The IJ found that the Pandits met 

two of the statutory criteria, because they had been "physically 

present in the United States for a continuous period of not less 

than 10 years" and they had not been convicted of any qualifying 

crimes under the INA. See id. § 1229b(b)(1)(A), (C). But the IJ 

also found that the Pandits had failed to show that their removal 

would result in "exceptional and extremely unusual hardship" to 

Pooja.1

The IJ further determined that, even if the Pandits had 

met all of the statutory criteria, they would not "merit a 

favorable exercise of discretion" under the INA, see id. 

§ 1229a(c)(4)(A)(ii) because they had "engaged in fraud repeatedly 

in order to gain immigration benefits." Besides their initial 

illegal entry, the IJ found, the Pandits had each entered into 

(separate) fraudulent marriages for the purpose of obtaining 

immigration benefits. According to the IJ, Mr. Pandit's fraudulent 

marriage lasted for almost two years, and Mrs. Pandit's lasted for 

almost six years. And the IJ further found that a family friend 

of the Pandits, Vasant Shah, filed a fraudulent labor certification 

on behalf of Mr. Pandit and "at least one fraudulent employment 

 1 The IJ made no explicit finding as to the remaining 

requirement under the statute: that the Pandits had displayed "good 

moral character" during their time in the United States. See 8 

U.S.C. § 1229b(b)(1)(B). 
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visa petition" on behalf of Mrs. Pandit. Those "negative factors," 

the IJ concluded, outweighed the positive factors -- such as the 

Pandits' presence in the country for over sixteen years and their 

status as business owners and "prominent members of their 

community." 

The Pandits appealed the decision of the IJ to the BIA, 

but their appeal was denied on July 2, 2014. The BIA "agree[d] 

with the Immigration Judge that the [Pandits] did not show that 

their removal would result in exceptional and extremely unusual 

hardship to [Pooja]." 

The Pandits did not file a petition with this Court for 

review of the BIA's decision.2 Instead, on September 30, 2014, 

the Pandits filed a timely motion with the BIA to reopen their 

removal proceedings. The Pandits' motion relied on what the 

Pandits contended was new evidence relating to "chronic illnesses" 

suffered by Pooja and the psychological stress that she would 

suffer if her parents were removed. In support of their motion, 

the Pandits submitted materials detailing the basis for those 

contentions, including affidavits from Pooja and her mother and 

financial documentation intended to show that the Pandits will be 

unable to afford medical care for Pooja if they are deported. 

 2 For that reason, we may not consider the Pandits' argument 

that the IJ erred in finding that the Pandits did not warrant a 

favorable exercise of discretion. 
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The BIA denied the Pandits' motion to reopen on December 

29, 2014. The BIA first concluded that the Pandits had not 

demonstrated that the evidence they submitted in support of their 

motion to reopen was "new or previously unavailable." See 8 C.F.R. 

§ 1003.2(c). The BIA then went on to state that "even if it 

considered the merits" of the submitted evidence, that evidence 

"d[id] not prima facie show that [Pooja] will experience 

exceptional and extremely unusual hardship should the [Pandits] 

return to India." The Pandits filed a timely petition for review 

of the BIA's denial of their motion to reopen on January 23, 2015. 

II.

In order for a motion to reopen to succeed, it must meet 

"two threshold requirements": it must "establish a prima facie 

case for the underlying substantive relief sought," and it must 

"introduce previously unavailable, material evidence." Shah v. 

Holder, 758 F.3d 32, 36 (1st Cir. 2014) (quoting Fesseha v. 

Ashcroft, 333 F.3d 13, 20 (1st Cir. 2003)). Our review of a denial 

based on either of those requirements is for abuse of discretion. 

Fesseha, 333 F.3d at 20. To show abuse of discretion, the Pandits 

must show that the BIA "committed an error of law or exercised its 

judgment in an arbitrary, capricious, or irrational way." Shah, 
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758 F.3d at 36 (quoting Liu v. Holder, 727 F.3d 53, 56 (1st Cir. 

2013)).3

The Pandits focus their argument primarily on the BIA's 

determination that the evidence they submitted was not "new or 

previously unavailable." See 8 C.F.R. § 1003.2(c) (stating that 

"[a] motion to reopen proceedings shall not be granted unless it 

appears to the Board that evidence sought to be offered is material 

and was not available and could not have been discovered or 

presented at the former hearing"). They contend that it was 

"irrational" for the BIA to conclude that such evidence was not 

new. But the BIA also found, as an alternative ground for denying 

the motion, that the evidence (even if considered new) did not 

"prima facie show that [Pooja] will experience exceptional and 

extremely unusual hardship should the [Pandits] return to India." 

 3 The government argues we do not have jurisdiction over the 

Pandits' petition, because the BIA's denial of the motion to reopen 

was a "judgment regarding the granting of relief under 

section . . . 1229b." See 8 U.S.C. § 1252(a)(2)(B)(i) (providing 

that "no court shall have jurisdiction to review" such a judgment). 

It is true that we have dismissed petitions of this sort on 

jurisdictional grounds before. Valerdi v. Holder, 581 F. App'x 1, 

3 (1st Cir. 2014) (citing Parvez v. Keisler, 506 F.3d 93, 96 (1st 

Cir. 2007)). But in light of Mazariegos v. Lynch, 790 F.3d 280, 

285 (1st Cir. 2015) (citing Mata v. Lynch, 135 S. Ct. 2150, 2154 

(2015) ("Under the INA, as under our century-old practice, the 

reason for the BIA's denial [of a motion to reopen] makes no 

difference to the jurisdictional issue.")), we conclude we do have 

jurisdiction to review the BIA's denial of the Pandits' motion to 

reopen, notwithstanding that the underlying judgment denied an 

application for cancellation of removal. 
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And thus the Pandits' argument can succeed only if the BIA abused 

its discretion in so concluding. 

The submitted materials do demonstrate that Pooja, a 19-

year-old college student, has ongoing medical issues including 

chronic back pain and a facial cyst. The materials further show 

that she suffers from stress and depression from the prospect of 

her parents' removal. The materials also contain a sworn affidavit 

from Pooja in which she states that she would be unable to live in 

the United States upon her parents' deportation and thus would be 

compelled to return to India with them. And Pooja states in her 

affidavit that she has a history of falling ill on her previous 

trips to India, that her parents will not be able to afford medical 

treatment for her in India, and that she will be forced to give up 

various personal and educational freedoms if she returns to India. 

After reviewing this evidence, however, the BIA 

concluded: "While we do not minimize the hardship that the 

respondents' removal is likely to cause their daughter, the 

evidence supporting the motion does not show that her hardship is 

of such disproportionate severity that it may fairly be 

characterized as exceptional and extremely unusual in the sense 

Congress intended." In support of that conclusion, the BIA stated 

that the materials submitted by the Pandits showed that Pooja's 

medical issues were on track to be "successfully resolved." The 

BIA also concluded that the record did not support the "speculative 
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assertion" that Pooja "will be deprived of health care when her 

parents return to India." And the BIA further noted that 

psychological difficulties such as depression and anxiety are 

"typical for children whose parents are removed from the United 

States." 

The BIA's conclusions were supportable on the record. 

The medical report submitted by the Pandits shows that Pooja's 

facial cyst has been "resolved almost completely," and that report 

contains no indication that Pooja's back pain is severe. Rather, 

the report indicates that Pooja is able to maintain a "normal 

activity level." Moreover, the BIA reasonably concluded that the 

materials submitted by the Pandits did not establish that Pooja 

will be deprived of medical care if her parents are deported. Nor 

do the materials refute the BIA's conclusion that Pooja's 

psychological issues were "typical," rather than "exceptional and 

extremely unusual," for the child of immigrants facing 

deportation. 

Thus, given the "very high standard of the current law," 

In Re Andazola-Rivas, 23 I. & N. Dec. 319, 322 (BIA 2002); In Re 

Monreal-Aguinaga, 23 I. & N. Dec. 56, 59 (BIA 2001) (explaining 

that Congress intended cancellation of removal to be granted on 

the ground of hardship to a United States citizen relative only in 

"truly exceptional" cases in which removal would cause hardship to 

the citizen-relative that would be "substantially beyond that 
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which ordinarily would be expected to result" (quoting H.R. Rep. 

No. 104-828, at 213 (1996) (Conf. Rep.))),4 we conclude that the 

BIA's denial of the Pandits' motion to reopen was not an abuse of 

discretion. 

III. 

For the reasons set forth above, we deny the Pandits' 

petition for review. 

 4 Luna v. INS, 709 F.2d 126 (1st Cir. 1983), on which the 

Pandits rely, was decided under the "extreme hardship" standard 

that applied to suspension of deportation proceedings at that time, 

rather than the "exceptional and extremely unusual hardship" 

standard that now applies to cancellation of removal proceedings. 

See In Re Andazola-Rivas, 23 I. & N. Dec. 319, 322 (BIA 2002) 

(explaining that the current standard is "significantly more 

burdensome than the former 'extreme hardship' standard").