   19-625
   Gomez Diaz v. Barr
                                                                                     BIA
                                                                                 Khan, IJ
                                                                             A208 834 546


                        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 ASUMMARY 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 for the Second Circuit,
   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
   City of New York, on the 5th day of June, two thousand twenty.

   PRESENT:
              RICHARD J. SULLIVAN,
              MICHAEL H. PARK,
              WILLIAM J. NARDINI,
                    Circuit Judges.
   _____________________________________

   LUIS GOMEZ DIAZ,

                        Petitioner,

                   v.                                              19-625

   WILLIAM P. BARR, UNITED STATES
   ATTORNEY GENERAL,

                        Respondent.
_____________________________________

FOR PETITIONER:                             EMMANUELLE G. BERDUGO (Boaz S.
                                            Morag, on the brief), Cleary Gottlieb
                                            Steen & Hamilton LLP, New York,
                                            NY; Andrea A. Sáenz, Molly
                                            Lauterback,    Brooklyn     Defender
                                            Services, Brooklyn, NY.

FOR RESPONDENT:                             REGINA BYRD (Bernard A. Joseph,
                                            Senior Litigation Counsel, on the brief),
                                            for Joseph H. Hunt, Assistant
                                            Attorney      General,     Office     of
                                            Immigration       Litigation,      Civil
                                            Division, United States Department
                                            of Justice, Washington, DC.

      UPON     DUE     CONSIDERATION,          IT    IS   HEREBY       ORDERED,

ADJUDGED, AND DECREED that this petition for review of a decision of the

Board of Immigration Appeals (“BIA”) is DENIED.

      Petitioner Luis Gomez Diaz, a native and citizen of Honduras, seeks review

of a February 25, 2019 decision of the BIA, which reversed the August 25, 2017

decision of an Immigration Judge (“IJ”) granting Gomez Diaz cancellation of

removal. In re Gomez Diaz, No. A208 834 546 (B.I.A. Feb. 25, 2019), rev’g No. A208

834 546 (Immig. Ct. N.Y. City Aug. 25, 2017). The BIA concluded that Gomez

Diaz had not established that his removal would result in exceptional and

extremely unusual hardship to his U.S. citizen son (“J”), and accordingly ordered

him removed to Honduras.         We assume the parties’ familiarity with the

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underlying facts and procedural history. Where, as here, the BIA reverses the IJ,

we review the BIA’s decision as the final agency decision. Yan Chen v. Gonzales,

417 F.3d 268, 271 (2d Cir. 2005).

                                    Applicable Law

      “[O]btaining cancellation of removal is a two-step process.”           Mendez v.

Holder, 566 F.3d 316, 319 (2d Cir. 2009) (internal quotation marks and alterations

omitted). First, an alien must demonstrate “that he meets the statutory eligibility

requirements.” Id. at 320 (2d Cir. 2009) (internal quotation marks omitted). Such

a showing requires that the alien prove, among other things, that his “removal

would result in exceptional and extremely unusual hardship to [his] spouse,

parent, or child, who is a citizen of the United States or an alien lawfully admitted

for permanent residence.” 8 U.S.C. § 1229b(b)(1)(D). Exceptional and extremely

unusual hardship is a high standard that requires demonstrating that the

“qualifying relative[] would suffer hardship that is substantially different from, or

beyond, that which would normally be expected from the deportation of an alien

with close family members here.” In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 65

(B.I.A. 2001); see also In re Andazola-Rivas, 23 I. & N. Dec. 319, 321–22 (B.I.A. 2002).

In making that determination, the agency considers, among other evidence, “the

ages, health, and circumstances of . . . United States citizen relatives.” Monreal-


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Aguinaga, 23 I. & N. Dec. at 63. While a lower standard of living and diminished

educational opportunities are also relevant factors, they will generally be

insufficient to independently support a hardship showing. See id. at 63–64; see

also Andazola-Rivas, 23 I. & N. Dec. at 323.

         Second, even if an alien meets the statutory requirements, “the Attorney

General in his discretion decides whether to grant or deny relief.” Mendez, 566

F.3d at 320 (internal quotation marks omitted).

         In reviewing an IJ’s cancellation-of-removal decision, the BIA is “prohibited

. . . from making findings of fact,” and instead reviews the IJ’s findings for clear

error.     Wu Lin v. Lynch, 813 F.3d 122, 126 (2d Cir. 2016) (citing 8 C.F.R.

§ 1003.1(d)(3)(i), (iv)).   Should the BIA determine that any of the IJ’s factual

findings were clearly erroneous, it must “provide[] sufficient justification for its

conclusion.”     Id. at 129.   Otherwise, the BIA “may review questions of law,

discretion, and judgment and all other issues in appeals from decisions of

immigration judges de novo.”          8 C.F.R. § 1003.1(d)(3)(ii); see also Wallace v.

Gonzales, 463 F.3d 135, 141 (2d Cir. 2006) (“Although any reversal by the BIA of an

IJ’s discretionary determination must involve consideration of the underlying

facts, a review of the factual record by the BIA does not convert its discretionary




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determination as to whether a petitioner warrants an adjustment of status into

improper factfinding.”).

      In turn, our jurisdiction to review an agency’s cancellation-of-removal

decision is even more narrowly circumscribed. Specifically, we lack jurisdiction

to review discretionary determinations – including decisions that a petitioner is

statutorily ineligible for cancellation of removal because he failed to demonstrate

exceptional and extremely unusual hardship. See 8 U.S.C. § 1252(a)(2)(B); Barco-

Sandoval v. Gonzales, 516 F.3d 35, 38–39 (2d Cir. 2008) (acknowledging that

exceptional and extremely unusual hardship is a discretionary decision). Instead,

we may review only constitutional claims and questions of law, which include

“the application of a legal standard to undisputed or established facts.” Guerrero-

Lasprilla v. Barr, 140 S. Ct. 1062, 1067 (2020); see also 8 U.S.C. § 1252(a)(2)(B)(i), (D);

Barco-Sandoval, 516 F.3d at 39 (noting that we may review whether the agency’s

factfinding “is flawed by an error of law” or whether the agency’s discretionary

decision was “an abuse of discretion because it was made without rational

justification or based on a legally erroneous standard” (internal quotation marks

omitted)). Our review of such claims is de novo. Pierre v. Holder, 588 F.3d 767,

772 (2d Cir. 2009).




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                                         Discussion

       In this case, the BIA denied relief solely on the basis that Gomez Diaz failed

to establish that his removal would result in exceptional and extremely unusual

hardship for J. To reach such a conclusion, the BIA was required to assess the IJ’s

findings of fact – to the extent such findings were not clearly erroneous – and make

a discretionary determination as to whether Gomez Diaz had met his statutory

burden. Though its order is not a model of clarity, we conclude that the BIA

applied the correct standard of review and reached a reasoned decision that was

supported by the record.

       First, we see no legal error in the BIA’s decision that the psychological effect

Gomez Diaz’s removal would have on J did not rise to the level of an exceptional

and extremely unusual hardship. To start, irrespective of the factual disputes, the

BIA determined that depression and anxiety are common responses following the

removal of a loved one. It therefore concluded that “the emotional hardship

experienced by [J] appears to be the type of hardship that we have found does not

meet the exceptional and extremely unusual hardship standard.” 1                   Certified



1 Contrary to Gomez Diaz’s argument, the BIA plainly conducted a forward-looking assessment
of how Gomez Diaz’s removal would affect J. It cited repeatedly to the IJ’s forward-looking
assessment and the forward-looking psychosocial evaluation prepared by Dr. David Szuster
before determining that this type of emotional hardship is not unusual in removal proceedings.



                                              6
Administrative Record (“CAR”) at 4.              As there is no indication that this

conclusion depended on any independent factfinding by the BIA, and because the

BIA did not otherwise commit a legal error or apply its discretion in an unjustified

manner, that alone is enough to end our inquiry.

       The BIA also correctly applied clear-error review when it rejected the IJ’s

finding that J’s depression predated his father’s incarceration, and it did not

conduct independent factfinding as to Gomez Diaz’s claims. The BIA did not

discard the IJ’s finding “simply because the [BIA] would have weighed the

evidence differently or decided the facts differently had it been the factfinder.”

See In re R-S-H, 23 I. & N. Dec. 629, 637 (B.I.A. 2003) (internal quotation marks

omitted).    Rather, it made clear that it was “left with the definite and firm

conviction that a mistake ha[d] been committed,” – i.e., that the IJ had committed

a clear error.    Id. (internal quotation marks omitted).           Specifically, the BIA

concluded that there was “no evidence” to suggest that J had a mental-health

condition that predated Gomez Diaz’s immigration proceedings.                    CAR at 4.




To the extent that the BIA also considered J’s pre-existing medical condition, it did so only
because the parties raised that issue on appeal.




                                             7
This strong rejection of the IJ’s finding – based on an absence of evidentiary

support – is consistent with clear-error review. 2 See Wu Lin, 813 F.3d at 127–28.

       Nor did the BIA overlook or mischaracterize Dr. Szuster’s psychosocial

evaluation of J in a manner that amounted to legal error. For one thing, the BIA

expressly acknowledged the IJ’s assessment of the evaluation and incorporated

the evaluation’s findings into its own conclusion that J would not suffer

exceptional and extremely unusual hardship if his father were to be removed.

For another, the BIA’s determination that the psychosocial evaluation provides no

support for the IJ’s finding is well reasoned.               The evaluation’s conclusions

primarily contrast J’s present condition with his condition before his father was

incarcerated, the clear implication being that J’s depression is a new development.

See CAR at 424 (“[J’s] mother, Suany, reported noticing a change in [J’s] behavior

and mood since her husband was detained. [J] has low motivation and poor

energy. . . . Suany reported that when her husband was living with them, [J]

loved to socialize, attend family reunions, and run errands with his father and



2 To be sure, it is an overstatement to say that there was “no evidence” to support the IJ’s
conclusion that J had pre-existing mental health issues. CAR at 4. For instance, Gomez Diaz
offered testimony to that effect, which the IJ accepted as credible. But in light of the BIA’s
reasoned consideration of the record, we cannot conclude that its slight hyperbole amounted to
a legal error or indicated that the BIA ignored critical record evidence. Indeed, a finding may be
clearly erroneous even though it is supported by “substantial evidence.” See Wu Lin, 813 F.3d
at 128.


                                                8
mother. He was also more talkative with his family members before his father

was detained.”); id. at 425 (“In the last couple of months, Suany reported that her

son has felt depressed . . . .”); id. (“Suany expressed that her son did not behave

like this prior to her husband’s arrest.”). Although the evaluation states that J

was performing poorly in school prior to his father’s incarceration, poor academic

performance is not synonymous with diagnosable depression or anxiety.

      Second, we conclude for similar reasons that the BIA did not commit legal

error in determining that J’s financial condition is not an exceptional and

extremely unusual hardship. The BIA again made a discretionary determination

that “diminished economic circumstances,” such as those presented by Gomez

Diaz, “[do] not generally rise to the level of exceptional and extremely unusual

hardship to his qualifying relative.” Id. at 5. Even if the BIA did engage in

independent factfinding when discussing Gomez Diaz’s earnings potential – an

issue we do not decide – any error would have been harmless. The BIA made

clear that it would have reached the same conclusion even if the IJ had correctly

determined that Gomez Diaz would make “less money than at present.”             Id.

Thus, any “error is tangential to [the BIA’s] non-erroneous reasoning” and not

grounds for vacating the BIA’s decision. De La Rosa v. Holder, 598 F.3d 103, 108

(2d Cir. 2010).


                                        9
      To be sure, the BIA could have made our job easier had it expressly stated

the standard of review it was applying. Nevertheless, when its order is read in

context, it is clear that the BIA considered the record evidence, appropriately

disregarded factual findings it determined to be clearly erroneous, explained its

basis for doing so, and reached a reasonable discretionary decision that Gomez

Diaz’s removal will not work an exceptional and extremely unusual hardship on J.

                                   Conclusion

      We have considered Gomez Diaz’s remaining arguments and find them to

be without merit.   Accordingly, the petition for review is DENIED.       Gomez

Diaz’s motion for stay of removal is DENIED as moot.

                                     FOR THE COURT:
                                     Catherine O’Hagan Wolfe, Clerk of Court




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