16-4229
Tobar-Bautista v. Sessions

                                  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 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 for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
9th day of February, two thousand eighteen.


Present:         ROSEMARY S. POOLER,
                 ROBERT D. SACK,
                            Circuit Judges.
                 PAUL A. ENGELMAYER,1
                            District Judge.


_____________________________________________________

DANIEL O. TOBAR-BAUTISTA,

                                    Petitioner,

                             v.                                              16-4229

JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL,

                        Respondent.
_____________________________________________________

Appearing for Petitioner:           David M. Sperling, Central Islip, N.Y.



1
  Judge Paul A. Engelmayer, United States District Court for the Southern District of New York,
sitting by designation.
Appearing for Respondent:      Aric A. Anderson, Office of Immigration Litigation, U. S.
                               Department of Justice (Chad A. Readler, Acting Assistant Attorney
                               General, Kohsei Ugumori, Senior Litigation Counsel, on the brief),
                               Washington, D.C.

Petition for review of a decision from the Board of Immigration Appeals.

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the petition for review of said Board of Immigration Appeals (“BIA”)
decision be GRANTED and the decision VACATED and REMANDED for further
consideration consistent with this order.

         Petitioner Daniel O. Tobar-Bautista, a native and citizen of El Salvador, seeks review of
a November 30, 2016 order of the Board of Immigration Appeals (“BIA”), affirming an April 22,
2016 decision of an immigration judge (“IJ”) denying cancellation of removal and ordering him
removed to El Salvador. In re Daniel O. Tobar-Bautista, No. A095 052 100 (BIA Nov. 30, 2016)
(“BIA Decision”), aff’g No. A095 052 100 (Immig. Ct. N.Y.C. Apr. 22, 2016) (“IJ Decision”).
The IJ denied Tobar-Bautista’s application for cancellation of removal on the grounds that he
failed to demonstrate his cancellation would cause “exceptional and extremely unusual hardship”
to his U.S. citizen daughters. The IJ also determined that he would have discretionarily denied
the application for relief. The BIA affirmed on the hardship determination only and did not reach
the discretionary determination. We assume the parties’ familiarity with the remaining
underlying facts and procedural history.

         We review the IJ’s decision only as modified by the BIA. See Yang v. U.S. Dep’t of
Justice, 426 F.3d 520, 522 (2d Cir. 2005) (reviewing IJ’s decision “minus the single argument
for denying relief that was rejected by the BIA”). Generally, where the BIA does not explicitly
reject the discretionary determination of the IJ and instead “rest[s] its decision entirely on other
grounds,” we review the IJ’s decision only insofar as it was reached by the BIA. Urgen v.
Holder, 768 F.3d 269, 272 (2d Cir. 2014). However, where the BIA’s failure to consider grounds
raised by the IJ precludes meaningful judicial review, we will review the IJ decision directly. Id.

         Applicants for cancellation of removal must meet four statutory criteria to be eligible for
this form of relief from deportation: (1) ten years of continuous physical presence in the United
States prior to the date of application, (2) good moral character during the period of required
continuous physical presence, (3) no convictions of certain classes of offenses, and (4)
establishment that their deportation would produce “exceptional and extremely unusual
hardship” to a spouse, parent, or child who is a United States citizen or lawful permanent
resident. 8 U.S.C. § 1229b(b)(1). In this case, the government conceded that Tobar-Bautista met
the first three criteria, so the only eligibility element Tobar-Bautista was required to prove was
that his removal would cause “exceptional and extremely unusual hardship” to his U.S. citizen
daughters. We observe at the outset that the IJ found Tobar-Bautista’s testimony to be credible.

         Our jurisdiction to review the agency’s denial of cancellation of removal based on failure
to satisfy the hardship requirement is limited to constitutional claims and questions of law.
8 U.S.C. § 1252(a)(2)(B), (D); Barco-Sandoval v. Gonzales, 516 F.3d 35, 39-40 (2d Cir. 2008).



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Accordingly, our review of the hardship determination is limited to whether the decision “is
made without rational justification or based on an erroneous legal standard, or rests on fact-
finding which is flawed by an error of law.” Mendez v. Holder, 566 F.3d 316, 322 (2d Cir. 2009)
(internal citation and quotation marks omitted). An agency makes an error of law when “some
facts important to the subtle determination of ‘exceptional and extremely unusual hardship’ have
been totally overlooked and others have been seriously mischaracterized.” Id. at 323. But “the
agency does not commit an ‘error of law’ every time an item of evidence is not explicitly
considered or is described with imperfect accuracy.” Id.

       Immigration courts are guided in their hardship analyses by the seminal BIA decisions in
In re Monreal-Aguinaga, 23 I&N Dec. 56 (BIA 2001) and In re Andazola-Rivas, 23 I&N Dec.
319 (BIA 2002). “Matter of Andazola and Matter of Monreal are the starting points for any
analysis of exceptional and extremely unusual hardship.” In re Gonzalez Recinas, 23 I&N Dec.
467, 469 (BIA 2002). In re Monreal explained:

         For cancellation of removal, we consider the ages, health, and circumstances of
         qualifying lawful permanent resident and United States citizen relatives. For example, an
         applicant who has elderly parents in this country who are solely dependent upon him for
         support might well have a strong case. Another strong applicant might have a qualifying
         child with very serious health issues, or compelling special needs in school. A lower
         standard of living or adverse country conditions in the country of return are factors to
         consider only insofar as they may affect a qualifying relative, but generally will be
         insufficient in themselves to support a finding of exceptional and extremely unusual
         hardship. As with extreme hardship, all hardship factors should be considered in the
         aggregate when assessing exceptional and extremely unusual hardship.

23 I&N Dec. at 63-64. In addition to these factors, In re Andazola-Rivas also considered the
accumulated assets of the petitioner regarding the hardship that would be experienced by his or
her qualifying relatives. 23 I&N Dec. at 324 (finding that the accumulation of significant assets
is a relevant factor insofar as it eases the transition experienced by the family). The “exceptional
and extremely unusual hardship” standard is high, but “not so restrictive that only a handful of
applicants, such as those who have a qualifying relative with a serious medical condition, will
qualify for relief.” In re Gonzalez Recinas, 23 I&N at 470.

        Though the IJ’s decision recites the appropriate legal standards,1 the decision misapplies
legal standards, entirely overlooks certain key evidence, and seriously mischaracterizes other
pieces of evidence, such that the decision is erroneous as a matter of law.

        The IJ properly identifies Tobar-Bautista’s two U.S. citizen daughters (Genesis and
Angela) as qualifying relatives. The IJ then observes that “[t]o show that his daughters suffer
from asthma, Tobar-Bautista submitted various medical documents that simply do not show the
requisite hardship.” IJ Decision at 7. But Tobar-Bautista is not required to demonstrate that the

1
  Just as we must look behind the “rhetoric employed in the petition” to determine whether it actually raises a
“constitutional claim” or “question of law,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006),
we must also look behind the rhetoric of the IJ decision to determine whether he or she actually employs the legal
standards recited.


                                                          3
asthma alone satisfies the hardship standard, as the IJ states here. Instead, “all hardship factors
should be considered in the aggregate.” In re Monreal-Aguinaga, 23 I&N at 64. It was error for
the IJ to determine that the medical documents alone did not establish hardship.

         The IJ also mischaracterizes key factors regarding the hardship determination,
particularly regarding the health problems of Tobar-Bautista’s youngest child (Genesis). Though
the letter from Harriet L. Hellman, CPNP, Ph.D., observed that Genesis suffers from “health
problems [that] are significant and require ongoing evaluation and treatment,” Record on Appeal
at 217, the IJ mischaracterized Genesis’ health problems as minor ailments in direct
contradiction of the record evidence. Similarly, the IJ describes Hellman’s assessment of the
older daughter’s asthma as “under control,” but fails to acknowledge Hellman’s report that she
has treated the older daughter for “severe respiratory distress.” Record on Appeal at 216.
Significantly, the IJ did not question the credibility of Hellman.

        The IJ also failed to account for several other key factors identified in previous BIA
cases, including the extensive record evidence indicating that Tobar-Bautista is the primary wage
earner in the family and that his wages are below the poverty line. Assets—or lack thereof—are
a factor for the immigration court to consider in its hardship determination. See In re Andazola-
Rivas, 23 I&N Dec. at 324 (finding that the petitioner had some assets including a home, two
vehicles, and $7,000 in a savings account that “would surely help her in establishing a new life in
Mexico.”). The IJ also failed to account for the volatile country conditions in El Salvador and the
hardship faced by Angela and Genesis due to their father’s residence there or if they were forced
to return there with their father since he is the primary financial provider for the family. In re
Monreal-Aguinaga, 23 I&N Dec. at 63-64. The IJ also failed to consider the ages of the
daughters at the time of his decision—13 and almost 12 (now 15 and almost 14)—which the BIA
has held to be a relevant factor in the hardship determination. See, e.g., In re Andazola-Rivas, 23
I&N Dec. at 324 (finding that the good health and young age of the children—in that case, 6 and
11—would make it easier for them to adapt to life in Mexico).

        The IJ also determined that even if Tobar-Bautista met the statutory eligibility for
cancellation, the IJ would have denied his application “as an exercise of its broad discretion.” IJ
Decision at 9. This discretionary decision is premised primarily on the IJ’s concerns about
Tobar-Bautista’s DWI arrests over a decade prior to the IJ decision, including the “societal costs
of driving under the influence of alcohol.” Id. The record evidence, including both Tobar-
Bautista’s own testimony and letters from his partner and employer, indicates that Tobar-
Bautista attended 60 days of rehabilitation, a six-month program on alcoholism by Catholic
Charities, and is now a “changed man” and “completely clean.” Record on Appeal 70, 352, 355.
The IJ suggested that Tobar-Bautista had not “taken full responsibility” for his DWI arrests
because Tobar-Bautista has an occasional drink and no longer attends Alcoholics Anonymous
meetings. IJ Decision at 9-10; Record on Appeal at 72-73. Given the “ordinary remand
requirement” that requires the agency to determine matters in the first instance, Gonzales v.
Thomas, 547 U.S. 183, 186 (2006) (quoting INS v. Orlando Ventura, 537 U.S. 12, 16, 17
(2002)), we remand the discretionary determination for BIA review.




                                                 4
        Accordingly, the petition for review hereby is GRANTED and the decision of the BIA is
VACATED and REMANDED for further consideration consistent with this order. Each side to
bear its own costs.


                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




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