19

- 719 Dutt v. Garland BIA A 089 577 493 

### 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 United** 2 **States Courthouse, 40 Foley Square, in the City of New York,**  3 **on the 2**  **3 r**  **d da**  **y of S**  **e p**  **t e**  **m b**  **e r**  **, two thousand twenty** 

**- one** 

**.** 4 5 **PRESENT:** 6 **GERARD E. LYNCH ,**  7 **DENNY CHIN ,**  8 **WILLIAM J. NARDINI ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **MANU DUTT ,**  13 **Petitioner ,**  14 15

**v. 19** 

**- 719**  16 **NAC** 17 **MERRICK B. GARLAND ,**  **UNITED** 18 **STATES ATTORNEY GENERAL,** 19 **Respondent**

**.** 20

**_____________________________________** 21 22 **FOR PETITIONER :**  Michael W. Ross , Jacob D. 23 Alderdice , Jenner & Block LLP, New 24 York, NY

. 25 26 **FOR RESPONDENT:** Brian Boynton , Acting Assistant 27 Attorney General ; Julie M. 28 Iversen , Senior Litigation 292 Counsel ; Lynda A. Do , Trial 1 Attorney, Office of Immigration 2 Litigation, United States 3 Department of Justice, Washington, 4 D C. 5

UPON DUE CONSIDERATION of this petition for review of a 6

Board of Immigration Appeals (“BIA”) decision, it is hereby 7

ORDERED, ADJUDGED, AND DECREED that the petitio n for review 8

is GRANTED

. 9

Petitioner Manu Dutt , a native and citizen of India , 10

seeks review of a March 12, 2019 , decision of the BIA denying 11

his motion to reopen to apply for cancellation of removal

. 12

In re Manu Dutt , No. A 089 577 493 (B.I.A. Mar. 12, 2019 ). 13

We assume the parties’ familiarity with the underlying facts 14

and procedural history

. 15

We review the BIA’s denial of a motion to reopen for 16

abuse of discretion. Jian Hui Shao v. Mukasey , 546 F.3d 138, 17

168

– 69 (2d Cir. 2008). “An abuse of discretion may be found 18

in those circumstances where the [BIA’s] decision provides no 19

rational explanation, inexplicably departs from established 20

policies, is devoid of any reasoning, or contains only summary 21

or conclusory statements; that is to say, where the [BIA] has 22

acted in an arbitrary or capricious manner.” Ke Zhen Zhao 233 v. U.S. Dep’t of Justice , 265 F.3d 83, 93 (2d Cir. 2001) 1

(internal citations omitted). 2

The agency may deny a motion to reopen if a noncitizen 3

fails to establish prima facie eligibility for the relief 4

sought. See INS v. Abudu , 485 U.S. 94, 104

– 05 (1988); 5

Poradisova v. Gonzales , 420 F.3d 70, 78 (2d Cir. 2005) 6

(concluding that prima facie standard requires applicant to 7

show a “realistic chance that he will be able to establish 8

eligibility ” for relief (internal quotation marks omitted) ). 9

A nonpermanent resident, like Dutt, may have his removal 10

cancelled if , in relevant part, he demonstrates that his 11

“removal would result in exceptional and extremely unu sual 12

hardship” to a qualifying relative

-- here, his U.S. citizen 13

wife and children. 8 U.S.C. § 1229b(b)(1). Our jurisdiction 14

to review the agency’s determination that Dutt failed to 15

establish his prima facie eligibility for cancellation of 16

removal because he had not demonstrated the requisite level 17

of hardship is limited to constitutional claims and questions 18

of law. 8 U.S.C. § 1252(a)(2)(B)(i), (D); Barco

- Sandoval v. 19

Gonzales , 516 F.3d 35, 38

– 42 (2d Cir. 2008); Sepulveda v. 20

Gonzales , 407 F.3d 59, 64 (2d Cir. 2005)

. With his motion 214 to reopen, Dutt submitted affidavits, medical records, and a 1

psychological assessment regarding the declining financial, 2

physical, and mental health of his U.S. citize n wife and two 3

sons. 4

We remand because the BIA did not adequately explain its 5

conclusion that Dutt did not make a prima facie showing of 6

hardship . The BIA stated that Dutt “present[ed] sympathetic 7

circumstances,” but concluded, without further explanation, 8

that “the evidence proffered with the motion is insufficient 9

to make a prima facie showing that [Dutt’s] removal would 10

result in exceptional and extremely unusual har dship to a 11

qualifying relative.” T he BIA did not make any ref erence to 12

Dutt’s evidence , or otherwise indicate what alleged hardship 13

it considered in reaching this conclusion , including whether 14

it considered his wife to be a qualifying relative

. “ [W]e 15

req uire a certain minimum level of analysis from the

. . . 16

BIA

. . . if judicial review is to be meaningful ” and “ [ w ] e 17

also require some indication that the [agency] considered 18

material evidence supporting a petitioner’s claim.” 19

Poradisova , 420 F.3d at 77. On remand, should the BIA again 20

deny reopening, it should explain what qualifying relatives 215 and evidence it considered in reaching its conclusion. See 1

id. 2

For the foregoing reasons, the petition for review is 3

GRANTED, the BIA’s decision denying reopening is VACATED, and 4

the case is REMANDED for further proceedings consistent with 5

this order

. All pending motions and applications are DENIED 6

and stays VACATED. 7

FOR THE COURT: 8 Catherine O ’ Hagan Wolfe , 9 Clerk of Court 10