Narain v. Barr BIA A091 505 432

18-1336
Narain v. Barr
BIA
A091 505 432
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.

At a stated term of the United States Court of Appeals 1
for the Second Circuit, held at the Thurgood Marshall 2
United States Courthouse, 40 Foley Square, in the City of 3
New York, on the 28
th
day of January, two thousand twenty. 4
5
PRESENT: 6
DENNIS JACOBS, 7
PETER W. HALL,
1
8
Circuit Judges. 9
_____________________________________ 10
11
GAMDUR NARAIN, 12
Petitioner, 13
v. 18-1336 14
NAC 15
WILLIAM P. BARR, UNITED STATES 16
ATTORNEY GENERAL, 17
Respondent. 18
_____________________________________ 19
20
FOR PETITIONER: Jaspreet Singh, Jackson Heights, 21
NY. 22
23
FOR RESPONDENT: Joseph H. Hunt, Assistant 24
Attorney General; Papu Sandhu, 25
Assistant Director; W. Daniel 26
Shieh, Senior Litigation Counsel, 27

1
Judge Christopher F. Droney, who was originally assigned to the panel, retired from the Court, effective January 1,
2020, prior to the resolution of this case. The remaining two members of the panel, who are in agreement, have
determined the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v. Desimone, 140 F.3d 457, 458-59
(2d Cir. 1998).

2

Office of Immigration Litigation, 1
United States Department of 2
Justice, Washington, DC. 3
4
UPON DUE CONSIDERATION of this petition for review of a 5
Board of Immigration Appeals (“BIA”) decision, it is hereby 6
ORDERED, ADJUDGED, AND DECREED that the petition for review 7
is DENIED. 8
Petitioner Gamdur Narain, a native and citizen of India, 9
seeks review of an April 6, 2018, decision of the BIA denying 10
his motions to reopen. In re Gamdur Narain, No. A 091 505 11
432 (B.I.A. Apr. 6, 2018). We assume the parties’ 12
familiarity with the underlying facts and procedural history 13
in this case. 14
“We review the denial of motions to reopen immigration 15
proceedings for abuse of discretion, mindful that motions to 16
reopen ‘are disfavored.’” Ali v. Gonzales, 448 F.3d 515, 517 17
(2d Cir. 2006) (quoting INS v. Doherty, 502 U.S. 314, 322-23 18
(1992)). An alien may file one motion to reopen no later 19
than 90 days after the final administrative decision is 20
rendered. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. 21
§ 1003.2(c)(2). Narain filed two motions to reopen in 22
January and February 2018 and does not dispute that they were 23

3

untimely filed following the BIA’s September 2017 decision 1
affirming his removal order. The time limitation may be 2
excused based on ineffective assistance of counsel. Rashid 3
v. Mukasey, 533 F.3d 127, 130 (2d Cir. 2008). However, to 4
prevail on an ineffective assistance claim, Narain had to 5
“allege facts sufficient to show both 1) ‘that competent 6
counsel would have acted otherwise’ and 2) ‘that he was 7
prejudiced by his counsel’s performance.’” Rabiu v. INS, 41 8
F.3d 879, 882 (2d Cir. 1994) (quoting Esposito v. INS, 987 9
F.2d 108, 111 (2d Cir. 1993)). To show the requisite 10
prejudice, he had to establish that the outcome of the 11
proceeding would have been different had counsel acted 12
otherwise. Debeatham v. Holder, 602 F.3d 481, 486 (2d Cir. 13
2010); Esposito, 987 F.2d at 111. 14
The BIA did not abuse its discretion in determining that 15
Narain was not prejudiced by either the attorney who 16
represented him before the immigration judge (“IJ”) or by the 17
attorney who represented him on appeal and filed his first 18
untimely motion to reopen. The BIA reasonably determined 19
that the testimony of Narain’s children and a psychological 20
evaluation diagnosing them with stress, anxiety, and 21

4

depression would not have resulted in a grant of cancellation. 1
The BIA correctly noted that although Narain’s daughter 2
stated that she would remain in the United States if her 3
father was moved, Narain had testified that his children would 4
accompany him to India. Moreover, even if Narain’s children 5
remained in the United States and had financial hardship and 6
difficulty completing college because their father was 7
removed, this difficulty would not rise to the level of 8
“exceptional and extremely unusual hardship.” See In re 9
Andazola-Rivas, 23 I. & N. Dec. 319, 320-21, 324 (2002) 10
(holding that general emotional, academic, and financial 11
hardship is common and not sufficient to meet the standard 12
where the parent has some means of providing for children and 13
where the children would not be deprived of all educational 14
opportunities). Additionally, although the psychological 15
evaluation reported that Narain’s daughter was experiencing 16
significant anxiety because her father was ordered removed, 17
this evaluation did not show that Narain’s daughter would 18
experience emotional or psychological hardship, 19
“‘substantially’ beyond the ordinary hardship that would be 20
expected when a close family member leaves this country,” as 21

5

it concluded that she could need additional counseling, but 1
not that she was undergoing treatment. In re Monreal-2
Aguinaga, 23 I. & N. Dec. 56, 62 (BIA 2001); see also In re 3
Andazola, 23 I. & N. Dec. at 322 (noting that exceptional and 4
extremely unusual hardship is a “very high standard”). 5
As to the harm that Narain’s children would experience 6
if they accompanied him to India, the IJ evaluated this harm 7
in his decision. Accordingly, the BIA did not abuse its 8
discretion in determining that Narain was not prejudiced by 9
the failure to submit this evidence before the IJ. See In 10
re Monreal, 23 I. & N. Dec. at 62; In re Andazola, 23 I. & N. 11
Dec. at 322. 12
The BIA also did not abuse its discretion in determining 13
that Narain was not prejudiced by his second attorney, who 14
represented him on his appeal to the BIA and in his first 15
motion to reopen because, as discussed above, Narain did not 16
demonstrate that the result would be different if proceedings 17
were reopened or remanded. See Debeatham, 602 F.3d at 486. 18
Additionally, as noted by the BIA, Narain did not identify 19
any errors in the IJ’s decision that his second attorney 20
failed to raise on appeal. 21

6

For the foregoing reasons, the petition for review is 1
DENIED. As we have completed our review, the pending motion 2
for a stay of removal in this petition is DISMISSED as moot. 3
Any pending request for oral argument in this petition is 4
DENIED in accordance with Federal Rule of Appellate Procedure 5
34(a)(2), and Second Circuit Local Rule 34.1(b). 6
FOR THE COURT: 7
Catherine O’Hagan Wolfe, 8
Clerk of Court 9