     18-2845
     Ramsundar v. Barr
                                                                                   BIA
                                                                           A074 974 786
                              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 17th day of August, 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
24                                       Bar Association, Volunteer Lawyers
25                                       Project, Inc., Batavia, NY.
26
27   FOR RESPONDENT:                     Ethan P. Davis, Acting Assistant
28                                       Attorney General; Keith I.
29                                       McManus, Assistant Director; John
30                                       F. Stanton, Trial Attorney, Office
31                                       of Immigration Litigation, United
32                                       States Department of Justice,
33                                       Washington, DC.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review

 4   is GRANTED.

 5       Petitioner Shantal Ramsundar, a native and citizen of

 6   Trinidad and Tobago, seeks review of a September 18, 2018,

 7   decision of the BIA denying her motion to reopen.             In re

 8   Shantal Ramsundar, No. A 074 974 786 (B.I.A. Sep. 18, 2018).

 9   We assume the parties’ familiarity with the underlying facts

10   and procedural history.

11       As   an   initial   matter,   because   Ramsundar   has   timely

12   petitioned for review of the denial of a motion to reopen,

13   but not from the underlying decision, we have reviewed only

14   the denial of her motion to reopen.     See Ke Zhen Zhao v. U.S.

15   Dep’t of Justice, 265 F.3d 83, 89–90 (2d Cir. 2001).            Our

16   review would generally be limited to constitutional claims

17   and questions of law because Ramsundar was ordered removed

18   for aggravated felonies, see U.S.C. § 1252(a)(2)(C), (D), but

19   it is not so limited here. Ramsundar requested reopening to

20   apply for relief from removal under the Convention Against

21   Torture (“CAT”).   Accordingly, the jurisdictional limitation

22   does not apply because a CAT claim is distinct from an order

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 1   of removal.    See Nasrallah v. Barr, 140 S. Ct. 1683, 1692–93

 2   (2020); Sharif v. Barr, No. 965 F.3d 612, 619 (8th Cir. 2020)

 3   (noting that jurisdictional limit does not apply to motion to

 4   reopen CAT claim).     “We review the denial of motions to reopen

 5   immigration proceedings for abuse of discretion.”                 Ali v.

 6   Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).

 7       To     obtain   reopening,     a   movant   must    present     new,

 8   previously unavailable evidence that establishes her prima

 9   facie    eligibility   for   the   relief   sought.     See   8   C.F.R.

10   § 1003.2(c)(1); INS v. Abudu, 485 U.S. 94, 104 (1988).               The

11   BIA did not address whether the evidence was previously

12   unavailable but denied the motion because Ramsundar did not

13   establish prima facie eligibility for relief.            The issue is

14   thus whether the BIA abused its discretion in reaching that

15   conclusion.    See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

16   104, 117 (2d Cir. 2007) (“a denial of immigration relief

17   stands or falls on the reasons given by the IJ or BIA”

18   (internal quotation marks and brackets omitted)).

19       To demonstrate prima facie eligibility for relief from

20   removal, Ramsundar had to “show a ‘realistic chance’ that

21   [s]he will be able to obtain such relief.”            Jian Hui Shao v.

22   Mukasey, 546 F.3d 138, 168 (2d Cir. 2008).                 CAT relief

                                        3
 1   requires the applicant to show that she would more likely

 2   than not be tortured.           8 C.F.R. §§ 1208.16(c), 1208.17.

 3   Torture is defined in part as pain and suffering “inflicted

 4   by   or   at   the   instigation   of    or   with   the     consent    or

 5   acquiescence of a public official or other person acting in

 6   an official capacity.”      Id. § 1208.18(a)(1).            An applicant

 7   for CAT relief must establish that someone in her “particular

 8   alleged circumstances is more likely than not to be tortured.”

 9   Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003)

10   (emphasis omitted).       With her motion to reopen, Ramsundar

11   submitted a declaration from an expert, Dr. Nathan Pino, which

12   was prepared for Ramsundar’s father’s removal proceedings,

13   and a short supplemental declaration from Dr. Pino concerning

14   her own case.

15        We conclude that the BIA abused its discretion by not

16   adequately explaining its conclusion that Ramsundar did not

17   submit individualized evidence of her risk of torture.                 The

18   BIA stated that Ramsundar “has not supported her claim that

19   [a terrorist organization] has an interest in harming her

20   now, or submitted individualized evidence of risk of future

21   torture.”      However,   Dr.   Pino    explained    that    Ramsundar’s

22   father was exposed as an informant for federal agencies,

                                        4
 1   “making himself and his family vulnerable to retaliation from

 2   those that he had helped put behind bars,” which included

 3   members of a terrorist organization operating in Trinidad and

 4   Tobago.   Dr. Pino further noted that Ramsundar’s father’s

 5   informant activities occurred recently, social networks in

 6   Trinidad and Tobago are stable and long lasting, and that

 7   Ramsundar’s father would be in danger if he returned to

 8   Trinidad and Tobago.        Dr. Pino concluded that “all of the

 9   dangers the father would face will equally apply to the

10   daughter.”    Thus, the BIA erred in stating that Ramsundar did

11   not present individualized evidence without explaining why it

12   was discounting Dr. Pino’s conclusion that the terrorist

13   organization would target Ramsundar because of her father.

14       The   BIA    noted   that   Ramsundar’s       evidence      was   not

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

16   determination    of   the    weight      afforded    to    an    alien’s

17   documentary evidence.”      Y.C. v. Holder, 741 F.3d 324, 334 (2d

18   Cir. 2013).     However, the BIA did not make any credibility

19   findings or otherwise indicate that Dr. Pino’s conclusion was

20   suspect or based on suspect information.             “[W]e require a

21   certain minimum level of analysis from the . . . BIA . . . if

22   judicial review is to be meaningful” and “we also require

                                       5
 1   some     indication      that    the   [agency]        considered       material

 2   evidence supporting a petitioner’s claim.”                   Poradisova v.

 3   Gonzales, 420 F.3d 70, 77 (2d Cir. 2005).                   Thus, although

 4   there may be grounds for the BIA to give diminished weight to

 5   Dr. Pino’s declaration, we are limited to the reasons given

 6   by the BIA, and the BIA did not explain why it did not find

 7   Dr. Pino’s conclusions persuasive.               See Lin Zhong, 480 F.3d

 8   at 122.     On remand, should the BIA again deny reopening, it

 9   should     explain       its    conclusions      regarding     Dr.           Pino’s

10   declarations       and    should     consider     the    declarations           and

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

12   has established a realistic chance of torture, whether her

13   sexual     orientation         and   criminal     history    increase           the

14   likelihood     that      the    government      will    acquiesce       to    that

15   torture.    See Poradisova, 420 F.3d at 77.

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

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

18   affect the agency’s previous determination that Ramsundar did

19   not    merit   a   waiver       of   inadmissibility       under    8    U.S.C.

20   § 1159(c).     See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)

21   (“As a general rule courts and agencies are not required to

22   make findings on issues the decision of which is unnecessary

                                            6
1   to the results they reach.”).

2       For the foregoing reasons, the petition for review is

3   GRANTED, the BIA’s decision is VACATED, and the case is

4   REMANDED    for   further   proceedings   consistent   with   this

5   order.     All pending motions and applications are DENIED and

6   stays VACATED.

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




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