          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
            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.




                                 - 3 -
             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


      1The 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).


                                        - 4 -
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.


                                   - 7 -
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


                                    - 8 -
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").


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