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Pandit v. Lynch

United States Court of Appeals, First Circuit

May 26, 2016

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.

         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.

         Before Lynch, Thompson, and Barron, Circuit Judges.

          OPINION

         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 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.

         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 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 ...


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