    15-1692
    De Leon-Solis v. Lynch
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                                A88 439 340
                             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 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
    17th day of June, two thousand sixteen.

    PRESENT:
              ROSEMARY S. POOLER,
              RAYMOND J. LOHIER, JR.,
              SUSAN L. CARNEY,
                   Circuit Judges.
    _____________________________________

    ROMILIO OTTONIEL DE LEON-SOLIS, AKA
    OROLDO MEJIA

                              Petitioner,

                      v.                                             15-1692


    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,

                   Respondent.
    _____________________________________

    FOR PETITIONER:                         S. Michael Musa Obregon, Maspeth, N.Y.

    FOR RESPONDENT:                         Elizabeth K. Fitzgerald-Sambou, Trial
                                            Attorney (Margaret Kuehne Taylor,
                                            Senior Litigation Counsel, on the
                                            brief)    Office    of    Immigration
                                            Litigation, United States Department
                                            of Justice, for Benjamin C. Mizer,
                                            Principal Deputy Assistant Attorney
                                            General, Washington, DC.
      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 Romilio Ottoniel De Leon-Solis, a native and citizen

of Guatemala, seeks review of an April 30, 2015 decision of the BIA,

affirming a November 14, 2013 decision of an Immigration Judge

(“IJ”), which denied De Leon-Solis’s application for cancellation

of removal.   In re De Leon-Solis, No. A088-439-340 (B.I.A. Apr. 30,

2015), aff’g No. A088-439-340 (Immig. Ct. N.Y.C. Nov. 14, 2013).     We

assume the parties’ familiarity with the underlying facts and

procedural history in this case.

      Under the circumstances of this case, we review the IJ’s

decision as modified by the BIA, i.e., without considering the IJ’s

bases for denying relief on which the BIA refused to rely.      See Xue

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

      In order for an alien who is not a lawful permanent resident

to demonstrate eligibility for cancellation of removal, he must

establish, inter alia, 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).   The standard

of exceptional and extremely unusual hardship requires a showing of

hardship that is “‘substantially’ beyond the ordinary hardship that

would be expected when a close family member leaves this country,”

and   is   limited   to   “truly   exceptional”   situations.   In   re

                                     2
Monreal-Aguinaga, 23 I. & N. Dec. 56, 62 (B.I.A. 2001).                In making

this hardship determination, “consideration should be given to 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”

(the “Monreal factors”).      In re Recinas, 23 I. & N. Dec. 467, 468

(B.I.A. 2002) (citing In re Monreal-Aguinaga, 23 I. & N. Dec. at 63).

       Because the agency denied cancellation of removal based on De

Leon-Solis’s failure to establish “exceptional and extremely unusual

hardship,” 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 35, 39-40 (2d Cir. 2008).          In order to ascertain

whether this Court has jurisdiction, we must

       study the argument[] asserted [and] . . . determine,
       regardless of the rhetoric employed in the petition,
       whether it merely quarrels over the correctness of the
       factual finding or justification for the discretionary
       choices, in which case [we] would lack jurisdiction, or
       whether it instead raises a ‘constitutional claim’ or
       ‘question of law,’ in which case [we] could exercise
       jurisdiction to review those particular issues.

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

2006). We have found fact-finding to constitute an error of law in

the    hardship    context   when    “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).


                                          3
     De Leon-Solis argues that the agency committed an “error of law”

by failing to consider the cumulative effect of the testimony about

the school problems of his U.S.-citizen son, Brandon, along with the

factors laid out in Monreal.   This argument is contradicted by the

record.   The agency considered the testimony about Brandon’s school

problems as well as the other relevant Monreal factors.   With respect

to Brandon’s age, health, and circumstances, the IJ observed that

Brandon was in sixth grade, lived with his mother and her husband,

gets along with his mother’s husband, would continue to live in the

same household, and “could presumably be supported financially and

emotionally by the adults residing there.”   Record on Appeal at 47.

The IJ explicitly acknowledged De Leon-Solis’s testimony “that

Brandon cannot learn well,” but further observed that De Leon-Solis

did not testify that Brandon had been diagnosed with a learning

disability and stated that he was in regular classes at school.

Record on Appeal at 46.   The agency was not required to assess the

prospective loss of educational opportunities Brandon might suffer

in Guatemala because Brandon has never lived with De Leon-Solis and

De Leon-Solis testified that Brandon would remain with his mother

and her husband in the United States. In sum, this argument is a

challenge to the agency’s fact finding and exercise of discretion,

framed as a claim of legal error.

     Similarly, De Leon-Solis’s argument that a proper weighing of

the Monreal factors would have resulted in a finding of exceptional

and extremely unusual hardship “merely quarrels over the correctness

                                  4
of the [agency’s] factual findings or justification for [its]

discretionary choice[],” which we lack jurisdiction to review.    See

Xiao Ji Chen, 471 F.3d at 329.

     For the foregoing reasons, the petition for review is DISMISSED.

                                 FOR THE COURT:
                                 Catherine O’Hagan Wolfe, Clerk




                                   5
