Ramsundar v. Barr

     18-2845
     Ramsundar v. Barr
                                                                                         BIA
                                                                                 A074 974 786
                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                               AMENDED 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 TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   22nd day of October, two thousand twenty.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            DENNY CHIN,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   SHANTAL RAMSUNDAR,
14            Petitioner,
15
16                       v.                                            18-2845
17                                                                     NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Daniel E. Jackson, Erie County Bar
24                                        Association, Volunteer Lawyers
25                                        Project, Inc., Batavia, NY.
26
27   FOR RESPONDENT:                    Jeffrey Bossert Clark, Acting
28                                        Assistant Attorney General; Keith I.
29                                        McManus, Assistant Director; John F.
30                                        Stanton, Trial Attorney, Office of
31                                        Immigration Litigation, United
32                                        States Department of Justice,
33                                        Washington, DC.
 1         UPON DUE CONSIDERATION of this petition for review of a Board

 2   of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,

 3   ADJUDGED, AND DECREED that the petition for review is GRANTED.

 4         Petitioner Shantal 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 Shantal

 7   Ramsundar, No. A 074 974 786 (B.I.A. Sep. 18, 2018). We assume

 8   the   parties’    familiarity   with    the   underlying   facts   and

 9   procedural history.

10         As   an   initial   matter,   because   Ramsundar    has   timely

11   petitioned for review of the denial of a motion to reopen, but

12   not from the underlying decision, we have reviewed only the

13   denial of her motion to reopen. See Ke Zhen Zhao v. U.S. Dep’t

14   of Justice, 

265 F.3d 83

, 89–90 (2d Cir. 2001). Our review would

15   generally be limited to constitutional claims and questions of

16   law because Ramsundar was ordered removed for aggravated

17   felonies, see U.S.C. § 1252(a)(2)(C), (D), but it is not so

18   limited here. Ramsundar requested reopening to apply for relief

19   from removal under the Convention Against Torture (“CAT”).

20   Accordingly, the jurisdictional limitation does not apply

21   because a CAT claim is distinct from an order of removal. See

22   Nasrallah v. Barr, 

140 S. Ct. 1683

, 1692–93 (2020); Sharif v.

                                         2
 1   Barr, No. 

965 F.3d 612

, 619 (8th Cir. 2020) (noting that

 2   jurisdictional limit does not apply to motion to reopen CAT

 3   claim). “We review the denial of motions to reopen immigration

 4   proceedings for abuse of discretion.” Ali v. Gonzales, 

448 F.3d 5

  515, 517 (2d Cir. 2006).

 6        To obtain reopening, a movant must present new, previously

 7   unavailable   evidence    that    establishes      her   prima   facie

 8   eligibility for the relief sought. See 8 C.F.R. § 1003.2(c)(1);

 9   INS v. Abudu, 

485 U.S. 94

, 104 (1988). The BIA did not address

10   whether the evidence was previously unavailable but denied the

11   motion   because   Ramsundar     did   not   establish   prima   facie

12   eligibility for relief.   The issue is thus whether the BIA abused

13   its discretion in reaching that conclusion. See Lin Zhong v.

14   U.S. Dep’t of Justice, 

480 F.3d 104

, 117 (2d Cir. 2007) (“a denial

15   of immigration relief stands or falls on the reasons given by

16   the IJ or BIA” (internal quotation marks and brackets omitted)).

17      To demonstrate prima facie eligibility for relief from

18   removal, Ramsundar had to “show a ‘realistic chance’ that [s]he

19   will be able to obtain such relief.” Jian Hui Shao v. Mukasey,

20   

546 F.3d 138

, 168 (2d Cir. 2008).            CAT relief requires the

21   applicant to show that she would more likely than not be tortured.

22   8 C.F.R. §§ 1208.16(c), 1208.17. Torture is defined in part as

                                       3
 1   pain and suffering “inflicted by or at the instigation of or

 2   with the consent or acquiescence of a public official or other

 3   person acting in an official capacity.”

Id. § 1208.18(a)(1). 4

  An applicant for CAT relief must establish that someone in her

 5   “particular alleged circumstances is more likely than not to

 6   be tortured.” Mu-Xing Wang v. Ashcroft, 

320 F.3d 130

, 144 (2d

 7   Cir. 2003) (emphasis omitted).    With her motion to reopen,

 8   Ramsundar submitted a declaration from an expert, Dr. Nathan

 9   Pino, which was prepared for Ramsundar’s father’s removal

10   proceedings, and a short supplemental declaration from Dr. Pino

11   concerning her own case.

12       We conclude that the BIA abused its discretion by not

13   adequately explaining its conclusion that Ramsundar did not

14   submit individualized evidence of her risk of torture. The BIA

15   stated that Ramsundar “has not supported her claim that [a

16   terrorist organization] has an interest in harming her now, or

17   submitted individualized evidence of risk of future torture.”

18   However, Dr. Pino explained that Ramsundar’s father was exposed

19   as an informant for federal agencies, “making himself and his

20   family vulnerable to retaliation from those that he had helped

21   put behind bars,” which included members of a terrorist

22   organization operating in Trinidad and Tobago. Dr. Pino further

                                   4
 1   noted that Ramsundar’s father’s informant activities occurred

 2   recently, social networks in Trinidad and Tobago are stable and

 3   long lasting, and that Ramsundar’s father would be in danger

 4   if he returned to Trinidad and Tobago.        Dr. Pino concluded that

 5   “all of the dangers the father would face will equally apply

 6   to the daughter.” Thus, the BIA erred in stating that Ramsundar

 7   did not present individualized evidence without explaining why

 8   it was discounting Dr. Pino’s conclusion that the terrorist

 9   organization would target Ramsundar because of her father.

10         The   BIA   noted   that    Ramsundar’s       evidence    was    not

11   “persuasive.”       Normally,     “[w]e     defer    to   the   agency’s

12   determination of the weight afforded to an alien’s documentary

13   evidence.” Y.C. v. Holder, 

741 F.3d 324

, 334 (2d Cir. 2013).

14   However, the BIA did not make any credibility findings or

15   otherwise indicate that Dr. Pino’s conclusion was suspect or

16   based on suspect information. “[W]e require a certain minimum

17   level of analysis from the . . . BIA . . . if judicial review

18   is to be meaningful” and “we also require some indication that

19   the   [agency]    considered     material    evidence     supporting    a

20   petitioner’s claim.”      Poradisova v. Gonzales, 

420 F.3d 70

, 77

21   (2d Cir. 2005). Thus, although there may be grounds for the BIA

22   to give diminished weight to Dr. Pino’s declaration, we are

                                        5
 1   limited to the reasons given by the BIA, and the BIA did not

 2   explain why it did not find Dr. Pino’s conclusions persuasive.

 3   See Lin 

Zhong, 480 F.3d at 122

. On remand, should the BIA again

 4   deny reopening, it should explain its conclusions regarding Dr.

 5   Pino’s declarations and should consider the declarations and

 6   Ramsundar’s claims in their totality, i.e., in the event she

 7   has established a realistic chance of torture, whether her sexual

 8   orientation and criminal history increase the likelihood that

 9   the government will acquiesce to that torture.   See Poradisova,

10 420 F.3d at 77

.

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

12   the BIA erred in concluding Dr. Pino’s declaration would not

13   affect the agency’s previous determination that Ramsundar did

14   not merit a waiver of inadmissibility under 8 U.S.C. § 1159(c).

15   See INS v. Bagamasbad, 

429 U.S. 24

, 25 (1976) (“As a general

16   rule courts and agencies are not required to make findings on

17   issues the decision of which is unnecessary to the results they

18   reach.”).

19               For the foregoing reasons, the petition for review is

20   GRANTED, the BIA’s decision is VACATED, and the case is REMANDED

21   for further proceedings consistent with this order.   This panel

22   retains jurisdiction to rule, if necessary, on the issues raised

                                      6
 1   in a petition for review after the disposition of the remand.

 2   See Shi Liang Lin v. DOJ, 

416 F.3d 184

, 192 (2d Cir.2005)

 3   (retaining jurisdiction to decide issues on appeal following

 4   remand to the BIA); cf. United States v. Jacobson, 

15 F.3d 19

,

 5   21-22 (2d Cir.1994) (retaining jurisdiction while remanding to

 6   the district court for supplementation of the record). Although

 7   the mandate shall issue forthwith, Ramsundar may return the case

 8   to this Court by notifying the Clerk of the Court within thirty

 9   days of entry of a final BIA order on remand. Such notification

10   will not require the filing of a new notice of appeal. If

11   notification occurs, the matter will be referred automatically

12   to this panel for disposition. The stay of removal previously

13   granted shall continue during the pendency of the removal

14   proceedings and any further proceedings pursuant to this order.

15                                FOR THE COURT:
16                                Catherine O’Hagan Wolfe,
17                                Clerk of Court




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