Full Opinion

25-2880-ag Diaz v. Blanche United States Court of Appeals for the Second Circuit August Term, 2026 (Argued: October 19, 2026 Decided: November 5, 2026) Docket No. 25-2880-ag _____________________________________ ISMAEL D. DIAZ, Petitioner, v. TODD BLANCHE, UNITED STATES ATTORNEY GENERAL, Respondent. Before: LOHIER, Chief Judge, PARKER and PÉREZ, Circuit Judges. Petitioner Ismael D. Diaz applied for cancellation of removal before an Immigration Judge (IJ), claiming that his removal would result in exceptional and extremely unusual hardship to his three children. The IJ denied his application. Diaz then appealed to the Board of Immigration Appeals (BIA), which rejected his claim of hardship as well as his motion to remand to the IJ based on new evidence of his children’s mental health conditions. Before this Court, Diaz argues that the agency’s hardship determination is clearly erroneous and that the BIA abused its discretion by denying his motion to remand. Because we conclude that the BIA’s hardship determination was not clearly erroneous and that the BIA reasonably determined that Diaz failed to establish prima facie eligibility for cancellation of removal, we DENY the petition. H. RAYMOND FASANO, Youman, Madeo & Fasano, LLP, New York, NY, for Petitioner. LAURA HALLIDAY HICKEIN, Senior Litigation Counsel, Office of Immigration Litigation (Brett A. Shumate, Assistant Attorney General, Shelley R. Goad, Assistant Director, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, DC, for Respondent. PER CURIAM: Petitioner Ismael D. Diaz, a native and citizen of El Salvador, seeks review of the October 17, 2025 decision of the Board of Immigration Appeals (BIA) affirming the denial by an Immigration Judge (IJ) of his application for cancellation of removal and denying his motion to remand. We assume the parties’ familiarity with the underlying facts and the record of prior proceedings, to which we refer only as necessary to explain our decision to deny the petition. 2 I We review the IJ’s decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Our jurisdiction to review the agency’s denial of cancellation of removal under 8 U.S.C. § 1229b is limited to constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D); Wilkinson v. Garland, 601 U.S. 209, 212, 217 (2024). In Toalombo Yanez v. Bondi, 140 F.4th 35, 42 (2d Cir. 2025), this Court held that review of the agency’s hardship determination in cancellation of removal proceedings under 8 U.S.C. § 1229b(b)(1)(D) is for clear error. After we decided Toalombo Yanez, the Supreme Court issued its decision in Urias-Orellana v. Bondi, 607 U.S. 537 (2026), which held that when reviewing “the agency’s persecution determination” as to asylum seekers who may qualify as refugees under 8 U.S.C. § 1158(b)(1)(A), we “review the entirety of the agency’s conclusions—both the underlying factual findings and the application of the [Immigration and Nationality Act] to those findings—for substantial evidence.” Urias-Orellana, 607 U.S. at 545. Urias-Orellana thus “resolve[d] the proper- standard question as it relates to the courts of appeals’ review of the agency’s persecution determination” as to asylum seekers. Id. (emphasis added). Later, in Al 3 Saidi v. Blanche, 185 F.4th 286 (2d Cir. 2026), a panel of our Court applied the substantial-evidence standard to a likelihood of torture determination in a deferral of removal case under a different regulatory scheme, the U.N. Convention Against Torture. See id. at 292, 297, 306–07; see also 8 C.F.R. § 1208.17. Both the persecution determination in Urias-Orellana and the likelihood of torture determination in Al Saidi involved a mixed question of law and fact. Although Al Saidi identified Toalombo Yanez as among the precedents implicated by its general discussion of substantial-evidence review and suggested that Urias-Orellana had abrogated Toalombo Yanez, see 185 F.4th at 297 & n.2, Al Saidi’s discussion of Toalombo Yanez was clearly unnecessary to the disposition of that case. Neither Al Saidi nor, for that matter, Urias-Orellana involved the question presented in Toalombo Yanez—that is, the standard of review of the agency’s hardship determination in cancellation of removal proceedings under 8 U.S.C. § 1229b(b)(1)(D). Al Saidi’s broad assertion that Urias-Orellana requires that we review mixed questions of law and fact for substantial evidence in all cases, regardless of the statutory or regulatory source, is, therefore, clearly dicta. See Baraket v. Holder, 632 F.3d 56, 59 (2d Cir. 2011) (“[I]t is not substantive discussion of a question or lack thereof that distinguishes holding from dictum, 4 but rather whether resolution of the question is necessary for the decision of the case.”); Jimenez v. Walker, 458 F.3d 130, 142–43 (2d Cir. 2006). We therefore remain bound by Toalombo Yanez’s clear-error standard of review of the agency’s hardship determination under § 1229b(b)(1)(D). II A Diaz first challenges the BIA’s determination that he is ineligible for cancellation of removal because he failed to show “exceptional and extremely unusual hardship” to his three children, who are United States citizens. 8 U.S.C. § 1229b(b)(1)(D). Diaz argues that he demonstrated that his children would suffer financial and emotional hardship if he were removed to El Salvador and that the agency failed to consider the cumulative impact of relocating his children, including the disruption to their schooling and relationships. But the agency appears to have “cumulatively” considered Diaz’s testimony about his children and their relocation, Certified Administrative Record (“CAR”) at 4, including the children’s “ages, health, and circumstances,” In re Monreal- Aguinaga, 23 I. & N. Dec. 56, 63, 65 (B.I.A. 2001). The BIA then determined that the hardship the children would experience was not “substantially beyond the 5 ordinary hardship that would be expected when a close family member leaves this country.” Id. at 62 (quotation marks omitted). The BIA also observed that Diaz’s children would relocate to El Salvador with Diaz if he were removed and that they speak Spanish at home. Because the BIA’s hardship determination was not clearly erroneous, we reject Diaz’s argument. See Toalombo Yanez, 140 F.4th at 42. And insofar as Diaz challenges the BIA’s weighing of the evidence, we lack jurisdiction to review that challenge. See Penaranda Arevalo v. Bondi, 130 F.4th 325, 340 (2d Cir. 2025). B We likewise reject Diaz’s argument that the BIA abused its discretion in denying his motion to remand. “A motion to remand that relies on newly available evidence is held to the substantive requirements of a motion to reopen.” Li Yong Cao v. U.S. Dep’t of Just., 421 F.3d 149, 156 (2d Cir. 2005). A movant must establish prima facie eligibility for the relief sought. Id. Diaz says that he established prima facie eligibility for cancellation of removal based on new evidence of his children’s mental health conditions. But the BIA considered that evidence, including evidence relating to Diaz’s eldest son and daughter, and nevertheless concluded that the evidence did not establish 6 prima facie eligibility because Diaz failed to show that his “children will be unable to obtain treatment for their mental health in El Salvador.” CAR 5. Nor has Diaz identified record evidence that adequate mental health treatment is unavailable in El Salvador. Diaz further suggests that the BIA engaged in impermissible fact finding, but we disagree. In evaluating Diaz’s motion to remand, the BIA assessed Diaz’s new evidence to determine whether he “met the heavy burden of demonstrating a likelihood that the new evidence presented would alter the result in the case.” Li Yong Cao, 421 F.3d at 156 (quotation marks omitted). We thus conclude that the BIA did not abuse its discretion in denying Diaz’s motion to remand. III We have considered Diaz’s remaining arguments and conclude that they are without merit. For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED. 7