Tobar-Bautista v. Sessions

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 ...

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