16-1612-ag
De Leon-Solis v. Sessions
                                                                                         BIA
                                                                                  Vomacka, IJ
                                                                                 A088 444 325

                            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 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 22nd day of May, two thousand seventeen.

PRESENT:           RALPH K. WINTER,
                   REENA RAGGI,
                                  Circuit Judges,
                   ALVIN K. HELLERSTEIN,
                                 District Judge.*
_____________________________________
ELVER DE LEON-SOLIS,
                            Petitioner,

                   v.                                                 No. 16-1612-ag

JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
                           Respondent.
_____________________________________

APPEARING FOR PETITIONER:                   THEODORE G. HARTMAN (S. Michael
                                            Musa-Obregon, Sergei Orel, on the brief),
                                            Musa-Obregon and Associates, Maspeth,
                                            New York.



* Judge Alvin K. Hellerstein, of the United States District Court for the Southern District
of New York, sitting by designation.

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APPEARING FOR RESPONDENT:                 CHAD A. READLER, Acting Assistant
                                          Attorney General (Terri J. Scadron, Assistant
                                          Director, Hillel R. Smith, Trial Attorney, on the
                                          brief), Office of Immigration Litigation, United
                                          States Department of Justice, Washington, D.C.

       UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is DISMISSED.

       Petitioner Elver De Leon-Solis, a native and citizen of Guatemala, seeks review of

the BIA’s April 26, 2016 affirmance of an Immigration Judge’s (“IJ’s”) September 30,

2015 denial of cancellation of removal. See In re Elver De Leon-Solis, No. A088 444 325

(B.I.A. Apr. 26, 2016), aff’g No. A088 444 325 (Immig. Ct. N.Y.C. Sept. 30, 2015).

Under the circumstances of this case, we review the IJ’s decision as modified by that of the

BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

Specifically, because the BIA did not reach the IJ’s moral character ruling, we consider

only its conclusion that De Leon-Solis failed to show that his removal would cause

hardship to his U.S.-citizen daughter. In conducting our review, we assume the parties’

familiarity with the underlying facts and procedural history of this case, which we

reference only as necessary to explain our decision to dismiss the petition.

       To demonstrate eligibility for cancellation of removal, a nonpermanent resident

such as De Leon-Solis must establish, among other things, that his “removal would result

in exceptional and extremely unusual hardship to” a qualifying relative, here, his

U.S.-citizen daughter.   8 U.S.C. § 1229b(b)(1)(D).       An “exceptional and extremely

unusual hardship” is one that is substantially beyond the ordinary hardship that would be


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expected when a close family member leaves the country, and is “limited to truly

exceptional situations.” In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 62 (B.I.A. 2001)

(internal quotation marks omitted); see Barco-Sandoval v. Gonzales, 516 F.3d 35, 38 (2d

Cir. 2008). In making this hardship determination, the agency considers “the age, health,

and circumstances of the qualifying family members, including how a lower standard of

living or adverse country conditions in the country of return might affect those relatives.”

In re Gonzalez Recinas, 23 I. & N. Dec. 467, 468 (B.I.A. 2002) (citing In re

Monreal-Aguinaga, 23 I. & N. Dec. at 63).

       De Leon-Solis argues that the agency failed properly to consider evidence of

potential hardship to his U.S.-citizen daughter in his absence, in light of his wife’s illness

and of his providing the sole financial support for his family. In this context, our review is

limited to constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(B), (D);

Barco-Sandoval v. Gonzales, 516 F.3d at 39. Although a failure to consider relevant

factors implicates a question of law, see Mendez v. Holder, 566 F.3d 316, 323 (2d Cir.

2006), the record here reflects that the agency did consider the appropriate factors. It

noted that De Leon-Solis’s three-year-old daughter was in good health and would continue

living in the United States with her mother, and it explicitly acknowledged De

Leon-Solis’s other concerns—including his wife’s illness, the close relationship De

Leon-Solis shares with his daughter, and the singular financial support he provides.

Nevertheless, the agency concluded that those concerns did not rise to the level of

“exceptional and extremely unusual hardship.”                8 U.S.C. § 1229b(b)(1)(D).

Accordingly, De Leon-Solis’s challenges to the denial of cancellation do not raise


                                              3
questions of law but instead “‘quarrel[] over the correctness of the factual findings or

justification for the discretionary choices’ made by the agency, . . . [which we] lack

jurisdiction to review.” Barco-Sandoval v. Gonzales, 516 F.3d at 42 (quoting Xiao Ji

Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006)).

       We have considered De Leon-Solis’s remaining arguments and conclude that they

are without merit. For the foregoing reasons, the petition for review is DISMISSED for

lack of jurisdiction.

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




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