     18-1336
     Narain v. Barr
                                                                                                                    BIA
                                                                                                            A091 505 432
                            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
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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 28th day of January, two thousand twenty.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PETER W. HALL,1
 9                 Circuit Judges.
10   _____________________________________
11
12   GAMDUR NARAIN,
13                 Petitioner,
14            v.                                                                              18-1336
15                                                                                            NAC
16   WILLIAM P. BARR, UNITED STATES
17   ATTORNEY GENERAL,
18                 Respondent.
19   _____________________________________
20
21   FOR PETITIONER:                                   Jaspreet Singh, Jackson Heights,
22                                                     NY.
23
24   FOR RESPONDENT:                                   Joseph H. Hunt, Assistant
25                                                     Attorney General; Papu Sandhu,
26                                                     Assistant Director; W. Daniel
27                                                     Shieh, Senior Litigation Counsel,

     1
      Judge Christopher F. Droney, who was originally assigned to the panel, retired from the Court, effective January 1,
     2020, prior to the resolution of this case. The remaining two members of the panel, who are in agreement, have
     determined the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v. Desimone, 140 F.3d 457, 458-59
     (2d Cir. 1998).
1                                     Office of Immigration Litigation,
2                                     United States Department of
3                                     Justice, Washington, DC.
4
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 petition for review

8    is DENIED.

9          Petitioner Gamdur Narain, a native and citizen of India,

10   seeks review of an April 6, 2018, decision of the BIA denying

11   his motions to reopen.          In re Gamdur Narain, No. A 091 505

12   432   (B.I.A.   Apr.    6,   2018).       We    assume   the    parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15         “We review the denial of motions to reopen immigration

16   proceedings for abuse of discretion, mindful that motions to

17   reopen ‘are disfavored.’”        Ali v. Gonzales, 448 F.3d 515, 517

18   (2d Cir. 2006) (quoting INS v. Doherty, 502 U.S. 314, 322-23

19   (1992)).     An alien may file one motion to reopen no later

20   than 90 days after the final administrative decision is

21   rendered.       8 U.S.C.     § 1229a(c)(7)(A),      (C)(i);     8 C.F.R.

22   § 1003.2(c)(2).        Narain    filed   two   motions   to    reopen   in

23   January and February 2018 and does not dispute that they were

                                         2
1    untimely filed following the BIA’s September 2017 decision

2    affirming his removal order.                The time limitation may be

3    excused based on ineffective assistance of counsel.                     Rashid

4    v. Mukasey, 533 F.3d 127, 130 (2d Cir. 2008).                   However, to

5    prevail on an ineffective assistance claim, Narain had to

6    “allege facts sufficient to show both 1) ‘that competent

7    counsel would have acted otherwise’ and 2) ‘that he was

8    prejudiced by his counsel’s performance.’”                Rabiu v. INS, 41

9    F.3d 879, 882 (2d Cir. 1994) (quoting Esposito v. INS, 987

10   F.2d    108,    111    (2d   Cir.   1993)).       To   show   the   requisite

11   prejudice, he had to establish that the outcome of the

12   proceeding      would    have   been   different       had    counsel    acted

13   otherwise.      Debeatham v. Holder, 602 F.3d 481, 486 (2d Cir.

14   2010); Esposito, 987 F.2d at 111.

15          The BIA did not abuse its discretion in determining that

16   Narain    was    not    prejudiced     by     either    the   attorney     who

17   represented him before the immigration judge (“IJ”) or by the

18   attorney who represented him on appeal and filed his first

19   untimely motion to reopen.             The BIA reasonably determined

20   that the testimony of Narain’s children and a psychological

21   evaluation      diagnosing      them       with   stress,     anxiety,     and

                                            3
1    depression would not have resulted in a grant of cancellation.

2    The   BIA   correctly   noted   that   although   Narain’s    daughter

3    stated that she would remain in the United States if her

4    father was moved, Narain had testified that his children would

5    accompany him to India.     Moreover, even if Narain’s children

6    remained in the United States and had financial hardship and

7    difficulty    completing    college    because    their   father   was

8    removed, this difficulty would not rise to the level of

9    “exceptional and extremely unusual hardship.”              See In re

10   Andazola-Rivas, 23 I. & N. Dec. 319, 320-21, 324 (2002)

11   (holding that general emotional, academic, and financial

12   hardship is common and not sufficient to meet the standard

13   where the parent has some means of providing for children and

14   where the children would not be deprived of all educational

15   opportunities).     Additionally, although the psychological

16   evaluation reported that Narain’s daughter was experiencing

17   significant anxiety because her father was ordered removed,

18   this evaluation did not show that Narain’s daughter would

19   experience      emotional       or      psychological        hardship,

20   “‘substantially’ beyond the ordinary hardship that would be

21   expected when a close family member leaves this country,” as

                                       4
1    it concluded that she could need additional counseling, but

2    not that she was undergoing treatment.       In re Monreal-

3    Aguinaga, 23 I. & N. Dec. 56, 62 (BIA 2001); see also In re

4    Andazola, 23 I. & N. Dec. at 322 (noting that exceptional and

5    extremely unusual hardship is a “very high standard”).

6        As to the harm that Narain’s children would experience

7    if they accompanied him to India, the IJ evaluated this harm

8    in his decision.   Accordingly, the BIA did not abuse its

9    discretion in determining that Narain was not prejudiced by

10   the failure to submit this evidence before the IJ.    See In

11   re Monreal, 23 I. & N. Dec. at 62; In re Andazola, 23 I. & N.

12   Dec. at 322.

13       The BIA also did not abuse its discretion in determining

14   that Narain was not prejudiced by his second attorney, who

15   represented him on his appeal to the BIA and in his first

16   motion to reopen because, as discussed above, Narain did not

17   demonstrate that the result would be different if proceedings

18   were reopened or remanded.   See Debeatham, 602 F.3d at 486.

19   Additionally, as noted by the BIA, Narain did not identify

20   any errors in the IJ’s decision that his second attorney

21   failed to raise on appeal.

                                  5
1       For the foregoing reasons, the petition for review is

2   DENIED.   As we have completed our review, the pending motion

3   for a stay of removal in this petition is DISMISSED as moot.

4   Any pending request for oral argument in this petition is

5   DENIED in accordance with Federal Rule of Appellate Procedure

6   34(a)(2), and Second Circuit Local Rule 34.1(b).

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




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