16-3989
Iza-Pullataxig 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
2nd day of November, two thousand seventeen.
Present: RALPH K. WINTER,
GUIDO CALABRESI,
ROSEMARY S. POOLER,
Circuit Judges.
_____________________________________________________
JOSE IZA-PULLATAXIG,
Petitioner,
v. 16-3989
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________________________
Appearing for Appellant: Michael Borja, Jackson Heights, N.Y.
Appearing for Appellee: Chad A. Readler, Acting Assistant Attorney General, United States
Department of Justice, (Song Park, Senior Litigation Counsel;
Timothy G. Hayes, Trial Attorney, Office of Immigration
Litigation, on the brief) Washington, D.C.
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UPON DUE CONSIDERATION of this petition for review of a decision of the Board
of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED, AND DECREED that
the petition for review is GRANTED.
Petitioner Jose Iza-Pullataxig, a native and citizen of Ecuador, seeks review of an
October 25, 2016, decision of the BIA affirming the September 17, 2015, decision of an
Immigration Judge (“IJ”) denying Iza-Pullataxig cancellation of removal. In re Jose Iza-
Pullataxig, No. A087 641 118 (B.I.A. Oct. 25, 2016), aff’g No. A087 641 118 (Immig. Ct. N.Y.
City Sept. 17, 2015). We assume the parties’ familiarity with the underlying facts and procedural
history in this case.
To demonstrate eligibility for cancellation from removal, a petitioner must show that he
(1) has been physically present in the United States for a continuous period of at least ten years,
(2) has been a person of good moral character during those years, (3) has not been convicted of
certain offenses, and (4) demonstrates that his removal would result in “exceptional and
extremely unusual hardship” to his U.S. citizen spouse, parent, or child. 8 U.S.C. § 1229b(b)(1).
The agency concluded that Iza-Pullataxig satisfied the first three factors but failed to establish
that his removal would cause his U.S. citizen son the requisite hardship.We have reviewed both
the IJ’s and BIA’s decisions “for the sake of completeness . . . .” Wangchuck v. Dep’t of
Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).
Our jurisdiction to review the agency’s denial of cancellation of removal based on a
petitioner’s failure to satisfy the hardship requirement is limited to constitutional claims and
questions of law. 8 U.S.C. § 1252(a)(2)(B), (D); Barco-Sandoval v. Gonzales, 516 F.3d 35, 39-
40 (2d Cir. 2008). A question of law may arise when “some facts important to the subtle
determination of ‘exceptional and extremely unusual hardship’ have been totally overlooked and
others have been seriously mischaracterized . . . .” Mendez v. Holder, 566 F.3d 316, 323 (2d Cir.
2009); Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 329 (2d Cir. 2006). We review such
claims de novo. Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir. 2007).
Here, Iza-Pullataxig argues that the agency failed to consider certain of his U.S. citizen
son’s medical records and evidence that his son’s standard of education and living would be
diminished if he were to move to Ecuador. Specifically, Iza-Pullataxig submitted a psychological
evaluation that opined that his son “is at a high risk of developing debilitating psychiatric
disorders (i.e., Adjustment Disorder) among other psychiatric conditions, should he experience[]
a separation from his father or else moving to Ecuador with his family.” App’x at 33. The report
also noted that “[s]uicide behavior is prominent among Adjustment Disorder (AD) patients of all
ages and up to one fifth of adolescent suicide victims may have an Adjustment Disorder. Bronish
and Hecht (1989) found that 70% of a series of patients with AD attempted suicide immediately
before their index admission and they remitted faster than a comparison group with major
depression.” App’x at 33. The psychological evaluation concluded that “[d]epriving [the son] of
a prominent education and medical services will cause devastating effects not only on his current
emotional and cognitive development but also on the outcome of his adolescent and adult life.”
App’x at 33.
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The IJ did not analyze the report in its decision. While it is true that “the agency does not
commit an ‘error of law’ every time an item of evidence is not explicitly considered,”Mendez,
566 F.3d at 322, here the psychological evaluation is a key piece of evidence supporting Iza-
Pullataxig’s petition for cancellation of removal. When an IJ appears to overlook “some facts
important to the subtle determination of ‘exceptional and extremely unusual hardship,” then “we
conclude that an error of law has occurred.” Mendez, 566 F.3d at 323. Nor are we “confident” as
to what hardship determination the agency would reach on a full consideration of the facts. Id.
The IJ, of course, could reach the same result, or analyze the psychological report and come to a
different conclusion. See, e.g., In re Kao, 23 I. & N. Dec. 45, 45 (BIA 2001) (finding that “[t]he
respondents met the extreme hardship requirement for suspension of deportation where their
oldest daughter, who is a 15-year-old United States citizen, has spent her entire life in the United
States, has been completely integrated into the American lifestyle, and is not sufficiently fluent
in the Chinese language to make an adequate transition to daily life in her parents’ native country
of Taiwan.”). Remand allows the agency to provide “additional investigation or explanation.”
Gonzales v. Thomas, 547 U.S. 183, 186 (2006).
For the foregoing reasons, the petition for review is GRANTED, the order of the BIA is
VACATED, and the case REMANDED to the BIA consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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