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. 
2 

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 
3 

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). 
4 

 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 
5 

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