19-131-ag
Marroquin-Alas v. Barr

                              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
17th day of June, two thousand twenty.

Present:    ROSEMARY S. POOLER,
            REENA RAGGI,
            RAYMOND J. LOHIER, JR.,
                        Circuit Judges.
_____________________________________________________________

JOSE RONALD MARROQUIN-ALAS,

                                Petitioner,

                         v.                                                 19-131-ag

WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,

                        Respondent.
_____________________________________________________

Appearing for Petitioner:       Jose Perez, Syracuse, N.Y.

Appearing for Respondent:       Joseph H. Hunt, Assistant Attorney General; Stephen J. Flynn,
                                Assistant Director; Annette M. Wietecha, Trial Attorney, Office of
                                Immigration Litigation, United States Department of Justice,
                                Washington, D.C.

        Petition for review of a Board of Immigrations Appeals decision.

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the petition for review is DENIED.
         Petitioner Jose Ronald Marroquin-Alas, a native and citizen of El Salvador, seeks review
of a December 12, 2018, decision of the BIA affirming a November 1, 2017, decision of an
Immigration Judge (“IJ”) denying his application for cancellation of removal and ordering
removal. In re Marroquin-Alas, No. A205 702 852 (B.I.A. Dec. 12, 2018), aff’g No. A205 702
852 (Immig. Ct. Buffalo Nov. 1, 2017). We assume the parties’ familiarity with the underlying
facts, procedural history, and specification of issues for review.

       We have reviewed the IJ’s decision as modified and supplemented by the BIA, that is,
without consideration of the IJ’s finding that Marroquin-Alas did not meet his burden to show
ten years’ continuous presence in United States, which the BIA did not reach, and taking note of
the BIA’s discussion of the “stop-time” rule and the evidence regarding hardship. See Xue Hong
Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). Because cancellation of
removal is a discretionary form of relief, our jurisdiction is limited to colorable constitutional
claims and questions of law, which are reviewed de novo. See 8 U.S.C. § 1252(a)(2)(B)(i), (D);
Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009); Barco-Sandoval v. Gonzales, 516 F.3d 35,
39–41 (2d Cir. 2008).

        As a nonpermanent resident, Marroquin-Alas is eligible for cancellation of removal if he
demonstrates, inter alia, that he has been continuously present in the United States for a ten-year
period preceding his application and “that [his] removal would result in exceptional and
extremely unusual hardship” to his qualifying relatives—here, his three children, who are United
States citizens. 8 U.S.C. § 1229b(b)(1). The hardship must be “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 (BIA 2001); see also In
re Andazola-Rivas, 23 I. & N. Dec. 319, 322 (BIA 2002) (exceptional and extremely unusual
hardship is a “very high standard”). In evaluating hardship, the agency considers “the ages,
health, and circumstances of qualifying . . . relatives,” including how a lower standard of living,
diminished educational opportunities, or adverse conditions in the country of removal might
affect the relatives. In re Monreal-Aguinaga, 23 I. & N. Dec. at 63–64; see also In re Gonzalez
Recinas, 23 I. & N. Dec. 467 (BIA 2002); In re Andazola-Rivas, 23 I. & N. Dec. at 323.

        Marroquin-Alas argues that the agency understated the scope of his two youngest
children’s disabilities, overstated the availability of treatment and services in El Salvador, and
failed to consider Marroquin-Alas’s role as his family’s principal source of economic support
when it determined that the hardship to his children as a consequence of his removal would not
be “exceptional and extremely unusual.” An error of law may arise where “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). But Marroquin-Alas has not identified facts that the agency overlooked or
seriously mischaracterized.

       Although Marroquin-Alas testified that he works, he also testified that his wife works for
the same employer, and there is no evidence in the record establishing that he is the family’s
principal source of economic support or showing the extent of the financial hardship his family
might experience if he were removed from the United States. The agency accurately
summarized the evidence concerning the children’s disabilities—i.e. that the middle child
receives special education services because she is below grade level in reading and math, and
that the youngest child qualifies for early intervention for “significant delays in his cognitive,
adaptive, communication, and motor skills” and is being monitored for possible autism.
Marroquin-Alas did not present evidence that the children would not continue to receive these
services or that their conditions would be aggravated if he were removed and they remained in
the United States; nor did he present evidence that comparable services are unavailable in El
Salvador. See 8 U.S.C. § 1229a(c)(4)(A)(i) (alien has the burden to show eligibility for relief
from removal). Accordingly, Marroquin-Alas’s only challenge is to the weight the agency
assigned to his evidence. We lack jurisdiction to review such a challenge. See Barco-Sandoval,
516 F.3d at 39–41.

        Because the agency’s hardship determination is dispositive of cancellation of removal,
see 8 U.S.C. § 1229b(b)(1), we decline to consider Marroquin-Alas’s argument that the agency’s
rulings concerning continuous presence were erroneous, see INS v. Bagamasbad, 429 U.S. 24, 25
(1976) (“As a general rule courts and agencies are not required to make findings on issues the
decision of which is unnecessary to the results they reach.”). We also do not consider
Marroquin-Alas’s argument that his former counsel was ineffective in failing to file an
application for asylum, withholding of removal, or relief under the Convention Against Torture
because Marroquin-Alas did not raise this claim before the agency. See Foster v. U.S. INS, 376
F.3d 75, 78 (2d Cir. 2004) (“[W]e require petitioner to raise issues to the BIA in order to
preserve them for judicial review” (internal quotation marks, brackets, and emphasis omitted));
Arango-Aradondo v. INS, 13 F.3d 610, 614 (2d Cir. 1994) (holding that BIA must review
ineffective assistance claim in first instance, either on appeal or through motion to reopen).

       We have considered the remainder of petitioner’s arguments and find them to be without
merit. Accordingly, the petition for review is hereby DENIED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk
