Pandit v. Lynch, 824 F.3d 1

Background

Kamina and Shaileshkumar Pandit, Indian nationals, lived in the U.S. as nonpermanent residents for 21 years; their daughter Pooja is a U.S. citizen college student.
DHS initiated removal proceedings in 2009; the Pandits conceded removability but sought cancellation of removal under 8 U.S.C. § 1229b(b).
The IJ found the Pandits met continuous presence and no qualifying convictions but denied cancellation because they failed to show "exceptional and extremely unusual hardship" to Pooja and because of fraudulent immigration conduct.
The BIA affirmed the IJ on the hardship issue; the Pandits did not seek direct review but timely filed a motion to reopen based on new evidence about Pooja’s chronic medical conditions and psychological harm.
The BIA denied the motion to reopen as the evidence was not shown to be new and, alternatively, did not prima facie establish the exceptional-and-unusual-hardship standard.
The First Circuit denied the petition for review, holding the BIA did not abuse its discretion in denying the motion to reopen.

Issues

Issue	Pandits' Argument	Government's Argument	Held
Whether the BIA abused its discretion by finding the proffered evidence was not new or previously unavailable	Evidence of Pooja’s chronic illnesses and psychological harm was new and unavailable at the original hearing	Evidence was not shown to be new within 8 C.F.R. § 1003.2(c); BIA acted within discretion	Held: No abuse of discretion; BIA reasonably concluded evidence was not shown to be new (and alternatively evaluated merits)
Whether the new evidence prima facie established "exceptional and extremely unusual hardship" to a U.S. citizen child	The medical and psychological materials show hardships (medical needs, inability to remain in U.S., inability to afford care in India) that meet the statutory standard	The evidence does not show hardship substantially beyond what ordinarily results from removal; medical issues were resolving; claims of deprivation speculative; psychological effects typical	Held: No — BIA reasonably found the evidence did not prima facie meet the very high hardship standard
Whether the court has jurisdiction to review the BIA’s denial of the motion to reopen when underlying relief involves cancellation of removal	The Pandits sought review of the BIA’s denial (contending jurisdiction exists)	Government argued jurisdiction is precluded for discretionary relief under 8 U.S.C. § 1252(a)(2)(B)(i)	Held: Court exercised jurisdiction (citing controlling precedent) and reviewed for abuse of discretion
Whether the IJ’s discretionary adverse credibility/denial based on fraudulent conduct could be reviewed in this motion-to-reopen context	Pandits argued error in IJ’s discretionary denial	Government relied on discretionary findings and that Pandits did not timely appeal IJ	Held: Not considered — because Pandits failed to seek direct review of IJ’s decision, court did not reach challenge to IJ’s exercise of discretion

Key Cases Cited

Shah v. Holder, 758 F.3d 32 (1st Cir. 2014) (motion to reopen review standards and abuse-of-discretion framework)
Fesseha v. Ashcroft, 333 F.3d 13 (1st Cir. 2003) (motion-to-reopen threshold requirements)
Liu v. Holder, 727 F.3d 53 (1st Cir. 2013) (abuse-of-discretion standard for BIA rulings)
Mazariegos v. Lynch, 790 F.3d 280 (1st Cir. 2015) (jurisdiction to review BIA denial of motion to reopen)
Mata v. Lynch, 135 S. Ct. 2150 (2015) (reason for BIA’s denial of motion to reopen does not change jurisdictional analysis)
Luna v. INS, 709 F.2d 126 (1st Cir. 1983) (distinguished: applied former "extreme hardship" standard, not the current more burdensome standard)