Paucar v. Garland

21-6043-ag
Paucar v. Garland

In the
United States Court of Appeals
For the Second Circuit
________

AUGUST TERM 2022

ARGUED: JANUARY 20, 2023
DECIDED: JULY 12, 2023
AMENDED: OCTOBER 10, 2023

No. 21-6043-ag

JUAN PABLO PAUCAR,

Petitioner,

v.

MERRICK B. GARLAND, United States Attorney General,

Respondent.
________

Appeal from the Board of Immigration Appeals.
________

Before: WALKER, RAGGI, and LEE, Circuit Judges.
________

Petitioner Juan Pablo Paucar petitions for review of a
January 22, 2021 Board of Immigration Appeals (“BIA”) decision
(1) affirming an Immigration Judge’s denial of his application for
cancellation of removal and (2) denying his motion to remand. The
BIA rejected Paucar’s ineffective assistance of counsel claim, declined
 No. 21-6043

to remand for consideration of additional hardship relating to his
cancellation application, and declined to remand to await
adjudication of his U visa application. Paucar argues that the BIA
(1) applied an incorrect standard when reviewing his ineffective
assistance of counsel claim, (2) overlooked and mischaracterized his
new hardship evidence, and (3) failed to follow precedent when
denying his request for remand while awaiting the adjudication of his
U visa application. We are persuaded by Paucar’s arguments.
Accordingly, we GRANT Paucar’s petition for review, VACATE the
BIA’s decision, and REMAND for further proceedings consistent
with this opinion.
________

LINDSAY NASH, Kathryn O. Greenberg
Immigration Justice Clinic, New York, N.Y. (Paige
Austin, Make the Road New York, Brooklyn, N.Y.,
on the briefs), for Petitioner.

BRENDAN P. HOGAN, Trial Attorney, Office of
Immigration Litigation, Civil Division, United
States Department of Justice, Washington, D.C.
(Brian Boynton, Acting Assistant Attorney
General, Civil Division, United States Department
of Justice, Washington, D.C.; Cindy S. Ferrier,
Assistant Director, Civil Division, United States
Department of Justice, Washington, D.C., on the
brief), for Respondent.
________

JOHN M. WALKER, JR., Circuit Judge:

Petitioner Juan Pablo Paucar petitions for review of a
January 22, 2021 Board of Immigration Appeals (“BIA”) decision
(1) affirming an Immigration Judge’s (“IJ”) denial of his application
for cancellation of removal and (2) denying his motion to remand. See

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In re Paucar, No. AXXX XX0 803 (B.I.A. Jan. 22, 2021), aff’g No. AXXX
XX0 803 (Immigr. Ct. N.Y.C. May 4, 2018). The BIA rejected Paucar’s
ineffective assistance of counsel claim, declined to remand for
consideration of additional hardship relating to his cancellation
application, and declined to remand to await adjudication of his U
visa application. Paucar argues that the BIA (1) applied an incorrect
standard when reviewing his ineffective assistance of counsel claim,
(2) overlooked and mischaracterized his new hardship evidence, and
(3) failed to follow precedent when denying his request for remand
while awaiting the adjudication of his U visa application. We are
persuaded by Paucar’s arguments. Accordingly, we GRANT
Paucar’s petition for review, VACATE the BIA’s decision, and
REMAND for further proceedings consistent with this opinion.

BACKGROUND

I. Proceedings Before the IJ

Paucar, a native and citizen of Ecuador, unlawfully entered the
United States in 1999, when he was seventeen years old. In 2005,
Paucar began a relationship with his now-wife, also a native and
citizen of Ecuador. The couple has two daughters, both native-born
U.S. citizens.

In 2012, Paucar filed an asylum application, prepared by the
Thomas T. Hecht, P.C. law firm (“the Hecht Law Firm”). Later that
year, after being placed in removal proceedings, Paucar withdrew his
asylum application, conceded his removability, and filed an
application for cancellation of removal under 8 U.S.C. § 1229b(b)(1). 1

1See 8 U.S.C. § 1229b(b)(1) (permitting the cancellation of removal of a non-
citizen who (A) has been physically present in the United States for a continuous
period of at least ten years, (B) demonstrates good moral character during such
period, (C) has not been convicted of certain disqualifying offenses, and

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In support of his application for cancellation of removal, Paucar
asserted that removal would cause “exceptional and extremely
unusual hardship” 2 to his two U.S. citizen daughters, “J.P.” and
“S.P.,” because (1) they would not receive the same education in
Ecuador as in the United States; (2) J.P. was being treated for asthma,
and her asthma medication would be much more expensive in
Ecuador; and (3) it would be difficult for Paucar to support his family
in Ecuador. At the time of Paucar’s merits hearing, which took place
in February 2016, J.P. and S.P. were, respectively, seven and six years
old. At that hearing, Paucar’s evidence of hardship largely consisted
of letters from J.P.’s pediatrician describing her asthmatic condition—
with the most recent letter dated more than eight months prior to the
hearing—as well as various medical records from 2011 and 2012.
Paucar also testified at the hearing, but counsel at the Hecht Law Firm
asked Paucar only four brief questions about hardship.
Consequently, Paucar did not address how his daughters were doing
in school or whether they had any special needs or mental health
issues, and he only gave a cursory description of J.P.’s asthma.
During cross-examination, Paucar was questioned in greater detail
about J.P.’s asthma, but his counsel declined to elicit any clarifying
testimony on redirect.

In a May 4, 2018 written decision, the IJ (Poczter, J.) denied
Paucar’s application for cancellation of removal and ordered Paucar
removed to Ecuador. While finding that Paucar had demonstrated
good character and met the other eligibility requirements for
cancellation of removal, the IJ concluded that Paucar had not
demonstrated that his removal would result in exceptional and
extremely unusual hardship to his daughters. Specifically, the IJ

(D) establishes that removal would result in “exceptional and extremely unusual
hardship” to qualifying family members).
2 Id. § 1229b(b)(1)(D).

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noted Paucar’s testimony that he was unsure whether his wife and
children would accompany him to Ecuador if he were to be removed,
that J.P. and S.P. had each visited Ecuador without any problems, and
that, should J.P. and S.P. remain in the United States, their mother and
community would continue to support them. With respect to J.P.’s
asthma, the IJ noted that J.P.’s 2012 medical records indicated that
“she ‘almost never’ shows symptoms.” Cert. Admin. Rec. (“CAR”) at
697. And, as to J.P.’s and S.P.’s education, the IJ found that Paucar
had not shown that his daughters had any special educational needs.

II. Proceedings Before the BIA

On May 17, 2018, Paucar, represented by new counsel,
appealed to the BIA. On July 2, 2018, while the appeal was pending,
Paucar moved to remand his case to the IJ. 3 In his motion, Paucar
alleged ineffective assistance of prior counsel and presented
additional evidence of hardship.

As to ineffective assistance of counsel, Paucar submitted a
sworn declaration stating that, in 2012, counsel at the Hecht Law Firm
misled him to believe that he was eligible to apply for a green card
because he had been living in the United States “por los diez años”
(for the ten years). Id. at 634. Instead of submitting such an
application (which would have been denied because Paucar was not
in fact eligible to affirmatively apply for a green card), counsel at the
Hecht Law Firm filed an asylum application on Paucar’s behalf. After
Paucar’s asylum application was denied as untimely, see 8 U.S.C.
§ 1158(a)(2)(B) (providing that asylum application must be filed

Paucar’s motion was titled “Motion to Reopen Removal Proceedings.” CAR
3

at 594. However, at the time his motion was filed, Paucar’s appeal from the IJ’s
decision was still pending, and there was thus no final administrative decision.
Accordingly, we, like the BIA, treat Paucar’s motion as a motion to remand. See
id. at 4.

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“within 1 year” of alien’s arrival in the United States), Paucar was
placed in removal proceedings, and counsel sought cancellation of
removal. Of significance, over the next 3.5 years, counsel at the Hecht
Law Firm, who met with Paucar on only two occasions for a total of
less than one hour, did not explain to Paucar what cancellation of
removal is, that it requires a showing of hardship, and what types of
hardship would qualify. According to Paucar, “[a]ll he said was that
my case would be granted and that it was a positive factor that my
daughter [J.P.] has asthma.” CAR at 636. Paucar claims that counsel
at the Hecht Law Firm did not tell him he would be testifying at his
merits hearing, prepare him for such testimony, or conduct any
meaningful investigation into his case. Paucar was thus surprised
about the questions asked during his hearing and “didn’t really
understand what was happening.” Id. at 637. When Paucar’s
application for cancellation of removal was denied, counsel at the
Hecht Law Firm told him to find another attorney to file an appeal.

Paucar consulted another attorney and ultimately reported the
Hecht Law Firm to the New York City Department of Consumer
Affairs. Paucar met with an assistant district attorney for Manhattan
and filed bar complaints against the firm with the attorney grievance
committee of the New York State Supreme Court’s First Appellate
Division and the U.S. Department of Justice’s Executive Office for
Immigration Review. Paucar was also one of thirty-three plaintiffs in
a civil fraud case filed in the Southern District of New York against
attorneys of the Hecht Law Firm; the case was settled in April 2020.
See Guzman v. Hecht, No. 18 Civ. 3947 (S.D.N.Y. Apr. 2, 2020), Dkt. No.
177.

To establish that his family would suffer hardship if he were
removed, Paucar’s May 2018 declaration to the BIA described J.P.’s
asthma in greater detail, noting that she takes daily pills, has two
inhalers that she uses three times a day, and that she receives an

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injection from her doctor when experiencing an attack. Paucar stated
that J.P.’s medication had changed two months earlier because her
condition had not been improving, and that her most recent attack
had occurred a month earlier. Paucar also explained that the
humidity in Ecuador would negatively affect J.P.’s asthma, but that
she had been able to go on short trips to visit her grandparents there
because her doctor at home had provided her with the medication she
needed.

Paucar also stated that, “since . . . kindergarten,” J.P.’s teachers
have reported that she is “very shy, sensitive, and withdrawn and has
difficulty speaking with others.” CAR at 639. J.P. became even more
withdrawn upon learning that her father might be leaving the
country, and J.P.’s teachers recommended that she see a psychologist.
Paucar explained that S.P. also had become withdrawn upon learning
that her father might be deported, and that she had been taking
“special classes” for the previous three years and during the summers
“to help her with pronunciation.” Id. Paucar also described, among
other things, that he lives with and supports his mother-in-law, a
lawful permanent resident who suffers from “a memory condition”
that worsened after a head injury and diabetes, and that his stepson
is a member of a gang in Ecuador, where he is currently incarcerated
for armed robbery. Id. 639–40.

In a supplemental filing on July 31, 2018, Paucar presented
additional evidence of hardship totaling nearly 400 pages. This
evidence included: (1) updated medical records stating that J.P. has
“[m]oderate persistent asthma with (acute) exacerbation” that is “not
well-controlled,” and describing J.P.’s medication regimen, including
oral steroids and antihistamines and both steroid and albuterol
inhalers, id. at 210–12; (2) a recent report by a clinical psychologist
stating that J.P. has “severe social phobia,” J.P.’s “progress in school
has been severely affected by the threat of deportation” and her

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“constant[] worr[y]” regarding violence in Ecuador if deported, S.P.
has a “severe speech impediment” that renders her often
“unintelligible” and for which she receives extra services at school,
and S.P. meets the criteria for post-traumatic stress disorder due to
her prolonged exposure to the trauma of her parents possibly being
deported, id. at 230–34; (3) documentation describing country
conditions in Ecuador, including the risk of violence, lack of mental
health services, and climate effects on people with asthma, id. at 266–
579; (4) medical records for Paucar’s mother-in-law, id. at 254–55; and
(5) proof of Paucar’s cooperation with government authorities in
investigating the Hecht Law Firm for fraud, as it would relate to his
U visa application, id. at 257–61.

In a January 14, 2020 written decision, the BIA dismissed
Paucar’s appeal and denied his motion to reopen and remand. Three
months later—after Paucar filed a petition to review the BIA’s
decision in this Court—the BIA sua sponte reinstated Paucar’s appeal
and motion, noting that it had not “consider[ed] all of the evidence
submitted by [Paucar].” Id. at 124.

Thereafter, in May and July 2020, Paucar submitted
supplemental evidence in support of his motion. In the May
submission, Paucar included proof that his U visa application had
been submitted to U.S. Citizenship and Immigration Services
(“USCIS”) and was then pending, as well as various articles
describing the risk of COVID-19 for asthmatic patients and the extent
of the COVID-19 outbreak in Ecuador.

In the July submission, Paucar presented evidence related to
J.P.’s then-recent mental health crisis. In a sworn declaration
supported by J.P.’s medical records, Paucar explained that then-
eleven-year-old J.P. expressed suicidal ideation and tried to harm
herself on multiple occasions. At the recommendation of her doctors,

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J.P. was hospitalized for over two weeks in June 2020, during which
time she was diagnosed with major depressive disorder. Upon
discharge, J.P. returned home, where she requires constant
monitoring. According to Paucar, J.P. receives medication for her
depression, but the specific dosage needs to be monitored by her
doctor because of her asthma. Paucar stated that the doctors said that
J.P. will likely continue to need medication and therapy “probably
[for] at least five years.” Id. at 29. Paucar also submitted evidence of
the lack of mental health services in Ecuador, including specifically
for girls and adolescents.

On January 22, 2021, a divided panel of the BIA dismissed
Paucar’s appeal and denied his motion to remand. The BIA did not
dispute the fact or extent of Paucar’s prior counsel’s ineffectiveness,
but concluded that Paucar was not prejudiced by it. The BIA noted
that the IJ had already considered many of the hardship issues raised
by Paucar on appeal, including J.P.’s asthma, decreased educational
opportunities for J.P. and S.P., and poor economic conditions in
Ecuador. The BIA acknowledged the additional evidence Paucar
submitted regarding his mother-in-law’s health, his stepson’s
criminal history, and S.P.’s need for special education and language
classes, but determined that such evidence did not establish hardship.
The BIA considered evidence of J.P.’s hospitalization for depression,
but rejected it as insufficient because Paucar did not “submit[]
objective evidence reflecting that [J.P.] received additional treatment
after discharge or continues to require additional treatment” and
J.P.’s medical records did not describe “the facts or issues” leading to
her hospitalization. Id. at 6. The BIA also found that Paucar had not
shown that adequate medical care is not reasonably available in
Ecuador to treat J.P.’s conditions. Finally, the BIA concluded that
remand to await the adjudication of Paucar’s U visa petition was

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unnecessary because Paucar could request a stay of removal from
USCIS.

Paucar timely petitioned for review of the BIA’s decision.

DISCUSSION

Paucar advances three arguments on appeal: (1) the BIA
applied an incorrect standard when reviewing his ineffective
assistance of counsel claim or, alternatively, the BIA failed to consider
the practical impact of prior counsel’s conduct; (2) the BIA overlooked
and mischaracterized his new hardship evidence or, alternatively, the
BIA departed from its prior practice (as demonstrated in unpublished
decisions) when reviewing such evidence; and (3) the BIA failed to
follow precedent when denying his request for remand to await the
outcome of his U visa application.

Our jurisdiction to review the denial of cancellation of removal,
including the hardship determination and a denial of remand for
further review of a hardship determination, is limited to colorable
constitutional claims and questions of law. See 8 U.S.C.
§ 1252(a)(2)(B), (D); Sepulveda v. Gonzales, 407 F.3d 59, 64 (2d Cir.
2005). “We are obliged to dismiss any claim that essentially disputes
the correctness of the agency’s factfinding or the wisdom of its
exercise of discretion.” Hernandez v. Garland, 66 F.4th 94, 101 (2d Cir.
2023) (alterations and internal quotation marks omitted). We have
jurisdiction to review Paucar’s ineffective assistance of counsel claim,
to address whether the BIA applied the correct legal standards, and
to remand if the BIA seriously mischaracterized evidence. See Omar
v. Mukasey, 517 F.3d 647, 650 (2d Cir. 2008) (per curiam) (“A claim of
ineffective assistance of counsel is a constitutional claim.”); Barco-
Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir. 2007) (holding that a
“constitutional claim” or “question of law” may “arise . . . in fact-

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finding which is flawed by an error of law” or “where a discretionary
decision is argued to be an abuse of discretion because it was made
without rational justification or based on a legally erroneous
standard” (internal quotation marks omitted)); Doe v. Sessions, 886
F.3d 203, 211 (2d Cir. 2018) (holding that “the agency may commit an
error of law if important facts have been totally overlooked and others
have been seriously mischaracterized” (internal quotation marks
omitted)).

We review constitutional claims and questions of law de novo.
Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009). We otherwise review
the BIA’s decision—including its denial of Paucar’s motion for
remand to consider new evidence or to await the adjudication of his
U visa application—for abuse of discretion. See Sanusi v. Gonzales, 445
F.3d 193, 198 (2d Cir. 2006) (per curiam); Li Yong Cao v. U.S. Dep’t of
Just., 421 F.3d 149, 157 (2d Cir. 2005). The BIA abuses its discretion
when its decision rests on an error of law, inexplicably departs from
established policies, or is so devoid of any reasoning as to raise the
concern that it acted in an arbitrary or capricious manner. Ke Zhen
Zhao v. U.S. Dep't of Just., 265 F.3d 83, 93 (2d Cir. 2001); Freire v. Holder,
647 F.3d 67, 69 (2d Cir. 2011) (per curiam).

I. Ineffective Assistance of Counsel

Paucar contends that the BIA erred by applying a heightened
legal standard in evaluating whether he was prejudiced by his prior
counsel’s conduct or, alternatively, by failing to adequately consider
the impact of counsel’s ineffectiveness. We agree that the BIA erred
in its prejudice analysis.

To demonstrate ineffective assistance of counsel, Paucar must
show that counsel’s performance “fell below an objective standard of
reasonableness” and that he was prejudiced as a result of such

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deficient performance. See Strickland v. Washington, 466 U.S. 668, 687–
88 (1984); see also Rabiu v. I.N.S., 41 F.3d 879, 882 (2d Cir. 1994) (movant
must show “that competent counsel would have acted otherwise”
and “that [the movant] was prejudiced by his counsel’s performance”
(quoting Esposito v. I.N.S., 987 F.2d 108, 111 (2d Cir. 1993) (per
curiam))). Here, the parties do not dispute that prior counsel’s
performance was deficient; the sole issue, therefore, is whether
Paucar was prejudiced by prior counsel’s deficient performance. To
establish prejudice in this context, Paucar must show that, “but for
counsel’s unprofessional errors,” there is a “reasonable probability”
the IJ would have granted the relief Paucar requested. Matter of
Melgar, 28 I. & N. Dec. 169, 171 (B.I.A. 2020). Such a probability is
demonstrated where a movant makes “a prima facie showing that, but
for counsel’s ineffectiveness, ‘he would have been eligible for . . .
relief,’ and ‘could have made a strong showing in support of his
application.’” Scarlett v. Barr, 957 F.3d 316, 326 (2d Cir. 2020) (quoting
Rabiu, 41 F.3d at 882). While this prejudice standard is factually
demanding, it requires a “reasonably probable,” not a “likely,” grant
of relief.

We agree with Paucar that the BIA improperly imposed a
heightened standard when evaluating whether Paucar was
prejudiced by prior counsel’s deficient performance. On at least two
occasions in its decision, while discussing prejudice and hardship, the
BIA cited Matter of Coelho, a case in which the BIA imposed a “heavy
burden” on a party moving to reopen or remand based on newly
available evidence. 20 I. & N. Dec. 464, 473 (B.I.A. 1992) (concluding
that “a prima facie showing of eligibility for the underlying relief
being sought is largely irrelevant” and that “the Board ordinarily will
not consider a discretionary grant of a motion to remand unless the
moving party meets a ‘heavy burden’ and presents evidence of such

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a nature that the Board is satisfied that . . . the new evidence offered
would likely change the result in the case” (emphasis added)).

The government argues that the BIA cited Coelho not to assess
prejudice from prior counsel’s ineffective representation but only to
support the BIA’s other finding that Paucar’s newly available
evidence in support of his motion to remand did not demonstrate
hardship. This argument is unpersuasive for two reasons: First, at no
point did the BIA cite the correct “reasonable probability” standard
for evaluating prejudice. Indeed, the only standard discussed in
analyzing prejudice was the “heavy burden” Coelho standard. And,
second, the BIA’s prejudice analysis itself suggests that it applied a
more onerous standard than required. See Alom v. Whitaker, 910 F.3d
708, 713–14 (2d Cir. 2018) (per curiam) (reversing BIA decision where
BIA “failed to acknowledge the [correct] standard . . . . [and its]
commentary implie[d] that it applied [an incorrect standard]”); see
also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289–90 (2d Cir.
2007) (remanding where BIA analysis was “insufficient to determine
whether the correct legal standard was applied”).

For example, in discussing new evidence regarding the special
education and language classes S.P. received for her speech
impediment—evidence that Paucar attested would have been
available to counsel at the Hecht Law Firm—the BIA noted that
Paucar did not “clearly explain . . . the extent of the concerns regarding
[these needs].” CAR at 6 (emphasis added). To establish prejudice,
however, Paucar need not conclusively establish his entitlement to
relief; he need only make a sufficiently strong showing to establish
that there is a “reasonable probability” of such entitlement to relief.
Melgar, 28 I. & N. Dec. at 171; see also Scarlett, 957 F.3d at 326. And,
here, the BIA appears to have overlooked the clinical psychologist’s
report showing that S.P. “has a severe speech impediment and was
difficult to understand, often unintelligible” and that, if she “were to

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lose access to the speech services she receives, particularly at her age,
it could permanently undermine her speech development.” CAR at
232. The BIA also separately overlooked the clinical psychologist’s
remarks regarding J.P.’s “severe social phobia,” id. at 231, evidence of
which apparently would have been available to the Hecht Law Firm
at the 2016 merits hearing, see id. at 639 (Paucar declaration stating
that, “since . . . kindergarten,” J.P. had been “very shy, sensitive, and
withdrawn and has difficulty speaking with others”). The BIA thus
erred by applying a heightened standard to, and thereby not
adequately considering, the evidence Paucar presented to establish
that he was prejudiced by prior counsel’s ineffectiveness. 4

We also briefly address Paucar’s alternative argument: that the
BIA did not adequately consider the impact of counsel’s
ineffectiveness when it relied on the IJ’s tainted findings in evaluating
prejudice. Specifically, Paucar claims that the BIA disregarded
Paucar’s new hardship evidence—some of which would have been
available to prior counsel, had counsel requested it—because, in its
view, the IJ had already “considered many of the hardship issues

4 The government defends the BIA’s decision not to “afford significant weight”
to the psychologist’s report, noting, inter alia, that (1) the report did not address
whether S.P. was enrolled in special education and speech therapy classes at the
time the Hecht Law Firm represented Paucar, and (2) the author of the report did
not claim to be a trained speech therapist. We note, however, that in Paucar’s July
2018 sworn declaration, he stated that “[S.P.] has had to take special classes the last
three or so school years and summers to help her with pronunciation.” CAR at 639
(emphasis added). There was thus evidence that S.P. was being treated for her
speech impediment when the Hecht Law Firm was representing Paucar at the
merits hearing in February 2016. Moreover, to the extent that the government asks
us to affirm the BIA’s decision based on reasons not provided by the BIA, we
decline to do so. See Wu v. I.N.S., 436 F.3d 157, 164 (2d Cir. 2006) (“It is not the
function of a reviewing court in an immigration case to scour the record to find
reasons why a BIA decision should be affirmed. Rather, we take the Board’s
decision as we find it, and if the reasoning it advances for denying a petitioner’s
claim cannot support the result, we will vacate the decision.”).

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raised . . . on appeal.” Id. at 5. We agree that the BIA erred by
discounting the impact of counsel’s ineffectiveness.

In considering J.P.’s asthma, for example, the IJ noted that J.P.’s
then-most recent medical records indicated that she had last
experienced an asthma flare over three years earlier and that J.P. had
been able to travel to visit her grandparents in Ecuador on three
occasions. On appeal, however, Paucar explained that his prior
counsel had not produced the most recent medical records, which
indicated that J.P.’s asthma had worsened, and had not adequately
developed the record with respect to the long-term effects of living
with asthma in Ecuador. Because Paucar’s ineffective assistance of
counsel claim was based on such failures to develop the record, it was
error for the BIA to reject this claim simply because some of the
hardship issues raised on appeal had previously been considered in
some form by the IJ. 5

In sum, we conclude that the BIA erred by applying a
heightened standard and by relying on the IJ’s tainted findings when
considering whether Paucar was prejudiced by prior counsel’s
deficient performance. On remand, the BIA should differentiate

5 With respect to the long-term effects of J.P.’s asthma in Ecuador, the
government argues that Paucar has not indicated on appeal whether J.P. would
accompany him to Ecuador. As Paucar explained at oral argument, however,
there is a presumption that his daughters would accompany him to Ecuador, given
that his wife is also in removal proceedings. Cf. Matter of Calderon-Hernandez, 25 I.
& N. Dec. 885, 886 (B.I.A. 2012) (explaining that “where the parents intend for their
United States citizen child to remain in this country upon their deportation, they
must provide both an affidavit stating that intention and accompanying evidence
to demonstrate who could care for and support the child”; but “[w]here both
parents are living in the United States and the parent who is in proceedings
indicates an intention that a child will remain in the United States upon his or her
removal, an affidavit and other documentary evidence regarding the care and
support of the child is not required”); accord Matter of J-J-G-, 27 I. & N. Dec. 808,
811 n.3 (B.I.A. 2020).

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between two types of hardship evidence presented by Paucar in his
appeal and motion to remand: (1) hardship evidence that was
available to prior counsel (and thus could form the basis for Paucar’s
claim of prejudice), for which Paucar must show that there is a
“reasonable probability” of establishing his eligibility for cancellation
of removal, Melgar, 28 I. & N. Dec. at 171, and (2) evidence that was
not previously available to prior counsel, for which Paucar must show
that the evidence “would likely change the result in the case,” Coelho,
20 I. & N. Dec. at 473.

II. Evaluation of Paucar’s Newly Available Hardship Evidence

Paucar next argues that, apart from his ineffective assistance of
counsel claim, the BIA erred by mischaracterizing and overlooking
newly available hardship evidence submitted in support of his appeal
and motion to remand. He also argues that the BIA arbitrarily
departed from its prior practice in evaluating his hardship evidence.
See Paucar Br. at 47–49 (collecting unpublished decisions in which the
BIA granted motions to remand in cancellation cases based on
evidence of qualifying family members’ depression, suicidal ideation,
or other psychological disorders); Paucar Addendum (“Add.”) at 8–
48 (same); Paucar Reply Add. at 2–4 (same). We agree that the BIA
erred in evaluating Paucar’s newly available hardship evidence. 6

In its decision, the BIA concluded that the new evidence of J.P.’s
major depressive disorder, suicidal ideation, and self-harm was not
likely to change the outcome of Paucar’s cancellation of removal
application because J.P.’s hospital records “do not reference or
describe the facts or issues underlying the mental health concerns that

As noted supra, we also conclude that the BIA mischaracterized or overlooked
6

evidence regarding S.P.’s speech impediment and special educational needs, as
well as J.P.’s early psychological symptoms—evidence that Paucar claimed would
have been available to prior counsel.

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led to her hospitalization” and Paucar did not submit “objective
evidence” that J.P. had received “additional treatment after discharge
or continues to require additional treatment.” CAR at 6.

The BIA, in reaching these conclusions, overlooked and
mischaracterized the record evidence of J.P.’s serious mental illness.
J.P.’s discharge papers stated that she had been diagnosed with
“severe” “[m]ajor depressive disorder,” and that the reason for her
hospitalization was “[s]tabilization of suicidal ideation.” Id. at 33.
Such diagnosis was consistent with the observations made by a
clinical psychologist two years earlier regarding J.P.’s “withdrawal”
from others and her “developmentally inappropriate excessive
anxiety,” which the psychologist diagnosed as “severe Separation
Anxiety Disorder and Social Phobia.” Id. at 231–34. Additionally, in
his sworn declaration, Paucar attested that, in the days leading up to
J.P.’s hospitalization, he and his wife “learned that [J.P.] tried to hurt
herself twice and that she had fallen behind in school.” Id. at 27.
Paucar stated that J.P. “revealed this to us after we learned she had
been deleting emails from her school.” Id. In its decision, the BIA
provided no explanation for why the hospital records, particularly in
conjunction with the psychological report and Paucar’s sworn
declaration, were insufficient to confirm J.P.’s diagnosis.

For similar reasons, the BIA erred by overlooking or
mischaracterizing evidence regarding J.P.’s treatment. J.P.’s
discharge paperwork listed follow-up details for a mental health
clinic, as well as prescriptions for a daily anti-depressant. While the
discharge instructions do not state the time and date of J.P.’s follow-
up appointments (which were to take place at a separate mental
health facility near Paucar’s home), or the duration of her treatment,
Paucar asserted that J.P. had been participating in weekly therapy
sessions and that J.P.’s doctors expected that she would likely need to
continue medication and therapy for at least five years. In the absence

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of an adverse credibility finding as to Paucar—or some other reason
to place less weight on Paucar’s sworn declaration or the evidence as
a whole—the BIA has not explained why it is reasonable to expect
Paucar to provide additional “objective evidence” regarding J.P.’s
treatment. See Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009) (per
curiam) (“The IJ did not make an adverse credibility determination,
and we are not confident that, after taking the overlooked evidence
into account and describing it accurately, the agency would come to
the conclusion that Petitioner has not met the standard of ‘exceptional
and extremely unusual hardship.’”); cf. Alvarado-Carillo v. I.N.S., 251
F.3d 44, 54 (2d Cir. 2001) (BIA erred in affirming denial of asylum
without explaining “why it would have been ‘reasonable to expect the
provision of [additional corroborating] materials under its own
standards’” (quoting Diallo v. I.N.S., 232 F.3d 279, 289 (2d Cir. 2000))).7

Because the BIA overlooked and mischaracterized material
evidence, we conclude that the BIA erred in denying Paucar’s motion
to remand based on insufficient evidence of hardship. See Doe, 886
F.3d at 211 (“[T]he agency may commit an error of law if important
facts have been totally overlooked and others have been seriously
mischaracterized.” (internal quotation marks omitted)).

Although it is not necessary to address Paucar’s alternative
argument—that the BIA arbitrarily departed from prior practice
reflected in unpublished decisions—we note briefly that, in this
Circuit, unpublished BIA decisions generally do not have
precedential value. See Ajdin v. Bureau of Citizenship & Immigr. Servs.,
437 F.3d 261, 264–65 (2d Cir. 2006) (per curiam) (“[T]he BIA[’s]
fail[ure] to adhere to one of its prior unpublished decisions . . . is of

7 Because the BIA overlooked evidence of J.P.’s diagnosis and treatment, its
analysis regarding the medical care available in Ecuador to treat J.P. was also
flawed.

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no moment because unpublished opinions of the BIA have no
precedential value.”); Douglas v. I.N.S., 28 F.3d 241, 245 (2d Cir. 1994)
(“[Unpublished BIA] decisions should not be relied upon as binding
precedent in unrelated matters.”). Some of our sister circuits,
however, seem to have taken a different approach. See, e.g., Sang Goo
Park v. Att’y Gen., 846 F.3d 645, 654 (3d Cir. 2017) (“There is no
apparent administrative-law principle that removes unpublished,
nonprecedential agency decisions from the reach of review for
arbitrariness.”); Davila-Bardales v. I.N.S., 27 F.3d 1, 5–6 (1st Cir. 1994)
(“[W]e see no earthly reason why the mere fact of nonpublication
should permit an agency to take a view of the law in one case that is
flatly contrary to the view it set out in earlier (yet contemporary)
cases, without explaining why it is doing so.”); see also Vargas v. I.N.S.,
938 F.2d 358, 362 (2d Cir. 1991) (citing unpublished BIA decisions with
similar fact patterns and concluding that “[p]atently inconsistent
application of agency standards to similar situations lacks rationality
and is arbitrary” (internal quotation marks omitted)). 8 On remand,
the BIA can of course examine the evidence presented by Paucar in a
manner consistent with its prior decisions. 9

8 In Douglas v. I.N.S., 28 F.3d 241 (2d Cir. 1994), this court distinguished Vargas,

noting that the case “did not explicitly consider the issue of the precedential value
of unpublished BIA decisions, and its reliance on those decisions is in tension with
8 C.F.R. § 3.1(g),” id. at 245.
9 Paucar requests that we instruct the BIA to remand this matter to the IJ for

further fact-finding. While we recognize that Paucar’s appeal has been pending
for more than five years and that a speedy resolution of this case is desirable, we
decline to instruct the BIA to grant Paucar’s motion to remand given the
discretionary nature of such motions.

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III. Paucar’s U Visa Application

As a final matter, Paucar argues that the BIA erred by not
applying agency precedent to his request for a remand to await
adjudication of his U visa by USCIS.

By way of background, USCIS can issue up to 10,000 so-called
“U visas” each fiscal year to individuals without legal status who are
victims of a qualifying crime and assist law enforcement in the
investigation or prosecution of such a crime. See 8 U.S.C.
§§ 1101(a)(15)(U)(i), 1184(p)(2)(A). In support of his motion to
remand, Paucar submitted (1) a letter from the Manhattan District
Attorney’s Office stating Paucar’s cooperation with an investigation
of the practices of prior counsel, (2) bar complaints against prior
counsel filed with the grievance committees of the New York State
Supreme Court’s First Appellate Division and the U.S. Department of
Justice’s Executive Office for Immigration Review, (3) an application
he submitted to the New York City Department of Consumer Affairs
seeking a U visa law enforcement certification based on his
cooperation, and (4) a filing receipt to establish that he had filed a
U visa application with USCIS. In his May 2020 brief to the BIA,
Paucar argued that his pending U visa application supported his
motion for remand because it would change the outcome of his case
and “because it presumptively entitles him to a continuance before
the IJ while his visa is adjudicated.” CAR at 82 (citing Matter of
Sanchez Sosa, 25 I. & N. Dec. 807 (B.I.A. 2012)).

In Matter of Sanchez Sosa, the BIA established a standard for
“determining whether an alien has established good cause to
continue a case involving a U nonimmigrant visa petition.” 25 I. & N.
Dec. at 807. The BIA explained that IJs “have broad discretionary
authority over continuances based on the regulations, which state that
an ’Immigration Judge may grant a motion for continuance for good

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cause shown,’” but there are certain factors an IJ must evaluate to
determine “whether good cause exists to continue proceedings to
await adjudication by the USCIS.” Id. at 812 (some internal quotation
marks omitted) (quoting 8 C.F.R. § 1003.29). These factors include
“(1) the [Department of Homeland Security’s (“DHS”)] response to
the motion; (2) whether the underlying visa petition is prima facie
approvable; and (3) the reason for the continuance and other
procedural factors.” Id. at 812–13. “As a general rule, there is a
rebuttable presumption that an alien who has filed a prima facie
approvable [U visa] application with the USCIS will warrant a
favorable exercise of discretion for a continuance for a reasonable
period of time.” Id. at 815.

Here, the BIA concluded that Paucar’s pending U visa
application did not warrant remand to the IJ. In so concluding, the
BIA cited Sanchez Sosa for the proposition that “[t]he adjudication of
[Paucar’s] request for a U visa is within DHS’s jurisdiction.” CAR at
8. The BIA then noted that Paucar had not established that his U visa
application “ha[d] been favorably adjudicated” and that Paucar could
request a stay of removal from DHS directly. Id.

Paucar argues that the BIA erred by not applying the Sanchez
Sosa factors—including, primarily, whether Paucar’s U visa
application was prima facie approvable—to determine whether to
grant his request for remand. The government argues that the Sanchez
Sosa factors apply only in “ongoing proceedings pending the
adjudication of U-visa applications” or where the noncitizen has
previously moved to continue before the IJ, but not, as in the case
here, where removal proceedings before the IJ have concluded and

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Paucar did not initially request a continuance from the IJ.
Government Br. at 49 (emphasis omitted).

It is an open question in this Circuit whether Sanchez Sosa
applies to motions to remand or reopen filed during the pendency of
an appeal where the noncitizen did not previously request such a
continuance before the IJ. See Rodriguez v. Barr, 943 F.3d 134, 144 (2d
Cir. 2019) (concluding that “the Court does not need to reach the
question of whether the Sanchez Sosa factors would apply” to a motion
to reopen filed after removal proceedings had concluded because,
after the motion was filed, USCIS denied the petitioner’s U visa
application). Other courts of appeals have addressed this question,
however, and have answered in the affirmative.

In Caballero-Martinez v. Barr, 920 F.3d 543 (8th Cir. 2019), the
Eighth Circuit concluded that the BIA erred by denying a motion to
remand merely because the U visa application and motion for remand
had been filed during the pendency of the appeal before the BIA, id.
at 548–50. The court rejected the government’s argument that Sanchez
Sosa did not apply, noting that the criminal conduct triggering the
U visa application occurred after the IJ had issued his order. Id. at
550. The court concluded that “the principle stated in Sanchez-Sosa—
pausing removal proceedings pending the adjudication of a petition
potentially rendering removal inapplicable—[should not] operate
differently depending on whether the triggering event occurs while
the case is before the IJ or before the BIA.” Id.

The Eighth Circuit applied this rule in at least one subsequent
case, noting that “both the IJ and the BIA may grant continuances on
the basis of pending U visa petitions even though they do not have
jurisdiction over U visa petitions” and that “the BIA . . . ha[s] the
authority either to apply the Sanchez Sosa factors itself or to remand
to the IJ to determine in the first instance whether a continuance [i]s

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warranted.” Quecheluno v. Garland, 9 F.4th 585, 588–89 (8th Cir. 2021)
(internal quotation marks omitted). There, as in Caballero-Martinez,
the petitioners’ U visa applications were filed while their appeal
before the BIA was pending. Id. at 587–88.

The Seventh Circuit reached a similar conclusion in Guerra
Rocha v. Barr, 951 F.3d 848 (7th Cir. 2020). There, the petitioner filed
her U visa application while her case was pending before the IJ, but
she was only able to obtain a receipt of her submitted application after
the IJ had issued a decision denying her asylum claim and ordering
her removal. Id. at 850–51. The petitioner then filed proof of her
submitted U visa application before the BIA, but the BIA declined to
remand to the IJ, summarily concluding that she was not entitled to a
continuance and that she could instead seek a stay of removal from
DHS. Id. at 851. On appeal, the Seventh Circuit held that “the BIA
abused its discretion by disregarding the criteria it committed itself to
apply in Sanchez Sosa . . . when it refused to remand [petitioner’s] case
to the IJ for consideration of her request for a continuance.” Id. at 854.

Finally, in Benitez v. Wilkinson, 987 F.3d 46 (1st Cir. 2021), the
petitioner moved to reopen and remand his case based on USCIS’s
notification that he was on a waitlist to receive a U visa, id. at 51. At
the time the petitioner moved to reopen and remand, the BIA had
issued a final order of removal. Id. at 49–51. The BIA denied his
motion to reopen and remand, reasoning that it could only grant the
motion if the petitioner had actually been granted the U visa. Id. at
51–52. On appeal, the First Circuit held that the BIA abused its
discretion by not considering the Sanchez Sosa factors, noting the
absence of “case law that indicates that post-appeal motions to reopen
are subject to a different standard.” Id. at 55. The court also noted
that “the Board has applied the same Sanchez Sosa standard to post-
appeal motions to reopen in its unpublished decisions.” Id. (first
citing In re Ramirez-Rios, No. AXXX XX8 419, 2016 WL 1084499, at *1

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(B.I.A. Feb. 29, 2016); and then citing In re Rosales De La Cruz,
No. AXXX XX6 933, 2016 WL 946691, at *1 (B.I.A. Feb. 18, 2016)). The
court concluded that, in considering motions to reopen, “the Board
must follow the Sanchez Sosa framework, or explain its reasons for
applying a different standard.” Id. at 53.

We are persuaded by the reasoning of our sister circuits. As
these courts have held, it does not matter whether Paucar initially
requested a continuance from the IJ or whether his motion to remand
was filed while proceedings before the IJ were ongoing. Indeed,
Paucar only became aware of prior counsel’s alleged misconduct—
the premise for his U visa application—after the IJ had issued its
decision and Paucar sought advice from other counsel. Thereafter, he
appears to have diligently pursued his U visa application and
presented proof of his submitted U visa application to the BIA while
his appeal was still pending. The BIA has advanced no reason why
Sanchez Sosa should not apply under these circumstances. Because
the BIA is required to follow its own precedent, see Ke Zhen Zhao, 265
F.3d at 93, we conclude that the BIA should have applied the Sanchez
Sosa factors in considering Paucar’s motion to remand as it pertains
to his U visa or explained its reasoning for not doing so. 10

CONCLUSION

For the foregoing reasons, we GRANT Paucar’s petition for
review, VACATE the BIA’s decision, and REMAND for further
proceedings consistent with this opinion.

10 We reject the government’s remaining arguments regarding the purported
futility of Paucar’s request for a remand to await the adjudication of his U visa
application. We believe that the BIA or the IJ are in the best position to determine
whether Paucar has demonstrated his prima facie eligibility for a U visa.

24