Filed: Jun. 17, 2016
Latest Update: Mar. 02, 2020
Summary: 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
Summary: 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 T..
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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
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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).
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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
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