Elver DE LEON-SOLIS, Petitioner, v. Jefferson B. SESSIONS III, United States Attorney General, Respondent, 690 F. App'x 758

SUMMARY ORDER 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. [ AXXX XXX XXX ] (B.I.A. Apr. 26, 2016), aff'g No. [ AXXX XXX XXX ] (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)(l)(D). An “exceptional and extremely unusual hardship” is one that is substantially beyond the ordinary hardship that would be 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, 231. & 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. 2009), 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)(l)(D).

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