Fourth Circuit Vacates Cancellation Denial Where Petitioner Was Never Heard on Third-Country Hardship

The Fourth Circuit has granted a petition for review filed by a Guinean mother who was denied cancellation of removal after being granted withholding of removal to Guinea based on her fear that her daughters would face female genital mutilation there, holding that she was never given a fair opportunity to present evidence that removal to a third country would cause her daughters exceptional hardship.

The Court held that the immigration judge's order limiting briefing to the narrow legal question of whether withholding relief categorically barred cancellation left the petitioner no opportunity to develop the separate factual question of third-country hardship, and that the promised evidentiary hearing on that question never occurred. The Court vacated the BIA's order and remanded, over a dissent that would have found the procedural argument forfeited and any error harmless.

The full text of Keita v. Blanche can be found here: https://www.ca4.uscourts.gov/opinions/241226.P.pdf

BIA Clarifies That a Parent's Choice to Leave a Child in the U.S. Does Not Alone Create Hardship

The Board of Immigration Appeals has sustained DHS's appeal from a grant of cancellation of removal to a Guatemalan father whose six-year-old U.S. citizen daughter would likely enter foster care if he were removed, since the child's mother is incapacitated and her adult half-sister cannot serve as a long-term caregiver.

The Board held that the immigration judge legally erred by finding hardship based on the respondent's choice to leave his daughter in the United States without parental care, reaffirming Matter of Ige and extending its reasoning to cancellation of removal: absent a showing that the child would suffer extreme hardship accompanying the parent abroad, the hardship of remaining behind is generally attributable to parental choice rather than removal. The Board also clarified that care by a responsible non-parent can be sufficient for a qualifying relative child, and remanded for further fact-finding on hardship, including the respondent's failure to submit an affidavit or documentation of care arrangements as required.

The full text of Matter of Lopez-Davila can be found here: https://www.justice.gov/eoir/media/1452826/dl?inline

Seventh Circuit Denies Cancellation Petition and Sanctions Counsel for AI-Hallucinated Brief

The Seventh Circuit has denied a petition for review filed by a Mexican respondent who sought non-LPR cancellation of removal. The agency denied cancellation based on a domestic violence conviction and, independently, because the respondent failed to establish exceptional and extremely unusual hardship to his U.S. citizen wife.

The Court held that Illinois battery under 720 ILCS 5/12-3(a)(1) qualifies as a crime of violence and that the respondent’s mother and siblings were protected family members for purposes of the domestic violence ground. The Court also found that the hardship issue was waived and, alternatively, that substantial evidence supported the agency’s hardship determination. The Court sanctioned counsel $5,000 after the opening brief included fabricated quotations, misstated cases, and record assertions contradicted by the evidence.

The full text of Perez-Castillo v. Blanche can be found here: https://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Submit=Display&Path=Y2026/D06-01/C:25-1988:J:Brennan:aut:T:fnOp:N:3550588:S:0

First Circuit Upholds Hardship Denial in Cancellation Case

The First Circuit has denied a petition for review filed by a Guatemalan father who sought cancellation of removal based on hardship to his two U.S. citizen daughters. The petitioner argued that his daughters’ anxiety, sleepwalking, and eye conditions satisfied the exceptional and extremely unusual hardship standard.

The Court found that the agency’s hardship determination was supported by the record. The medical evidence did not compel a finding of qualifying hardship, the children’s conditions appeared stable, and the petitioner’s savings undercut his financial hardship claim. The Court also noted that care was reasonably available in Guatemala.

The full text of Argueta Castillo v. Blanche can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/25-1297P-01A.pdf

Sixth Circuit Finds that Hardship Should be Reviewed under Substantial Evidence Standard

The Sixth Circuit has determined that it will review the agency’s hardship determination in a cancellation of removal case under the deferential substantial evidence standard.

The full text of Baltazar Us v. Blanche can be found here: https://www.opn.ca6.uscourts.gov/opinions.pdf/26a0125p-06.pdf

BIA Finds that Cancellation Applicant has not Rebutted Presumption he Lacked Good Moral Character

The Board of Immigration Appeals has determined that a cancellation applicant who sustained two DUI convictions during the good moral character period had not rebutted the presumption that he lacked good moral character because “[c]aring for his son and maintaining gainful employment do not constitute an ‘unusual case’ sufficient to ‘overcome the strong evidence’ that the respondent lacked good moral character based on recidivist conduct involving DWI offenses.”

The full text of Matter of Palma-Olvera can be found here: https://www.justice.gov/eoir/media/1421101/dl?inline

Second Circuit Finds that Child Must Remain under 21 on Date of Adjudication of Cancellation of Removal Application

The Second Circuit has affirmed the denial of a motion to reopen, filed by an applicant for cancellation of removal, because his daughter had reached the age of 21 during the pendency of the motion to reopen. “Under 8 U.S.C. § 1229b(b)(1)(D), a qualifying ‘child’ must be under the age of 21 at the time an application for cancellation of removal is adjudicated.”

The full text of Yupangui-Yunga v. Bondi can be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/a63f27ea-ec10-481a-8b77-097dadbbc82f/12/doc/23-6522_opn.pdf

BIA Overturns Discretionary Grant of Cancellation of Removal to Long-Time LPR

The Board of Immigration Appeals has overturned the discretionary grant of cancellation of removal to a lawful permanent resident who accompanied a 14-year-old girl to buy cocaine and to sell Xanax.

The full text of Matter of MacDonald can be found here:

https://www.justice.gov/eoir/media/1414981/dl?inline

BIA Overturns Hardship Finding for Cancellation Applicant whose Children Suffer Developmental Delays and Autism

The Board of Immigration Appeals has overturned an exceptional and extremely unusual hardship finding involving a child with autism and anxiety, two other children with developmental delays, and their mother. “While the respondent’s daughter has been diagnosed with autism and an anxiety disorder and his sons have been diagnosed with developmental delays, the conditions of all three United States citizen children are presently being managed by individualized education programs or early intervention services. As all three children would continue to remain in the United States with the respondent’s United States citizen wife upon the respondent’s removal, they would continue to receive medical care through state Medicaid, as well as specialized educational support in the State of New Jersey.”

This decision is disgraceful, and can only be interpreted as an attempt to interpret the hardship requirement for cancellation in a manner that is impossible to ever meet. Even under deferential standards, I cannot imagine this withstanding federal court review (which thankfully, we can now get on hardship determinations).

The full text of Matter of Buri Mora can be found here:

https://www.justice.gov/eoir/media/1411661/dl?inline

First Circuit Remands MTR for Cancellation of Removal

The First Circuit has remanded a motion to reopen filed by applicants for cancellation of removal. “It is unclear whether the BIA concluded that (1) as a matter of fact, Petitioners failed to corroborate their assertions about the serious educational hardship L.C. would face in Guatemala, or (2) as a matter of law, L.C.'s claimed hardship would not be exceptional and extremely unusual even if it were corroborated.” “If the BIA meant to hold that Petitioners provided insufficient factual corroboration for their claim that L.C. would be deprived of an education in Guatemala, it did not explain its reason for so holding. In particular, the BIA does not appear to have addressed the salient aspects of the country conditions evidence that would seem to support the claimed hardship if considered in light of L.C.'s individual circumstances.”

The full text of Garcia v. Bondi can be found here:

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1296P-01A.pdf

First Circuit Finds that Agency Ignored Key Hardship Evidence

The First Circuit has remanded a cancellation of removal case, finding that the agency failed to consider a crucial psychological report about the qualifying relative’s psychological hardship and history of trauma.

The full text of Lopez v. Bondi can be found here:

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/22-1538P-01A.pdf

Eleventh Circuit Finds Applicant is not Eligible for Cancellation when Child Ages out Before Merits

The Eleventh Circuit has determined an applicant is not eligible for non-LPR cancellation of removal when his child turned 21 after filing the application but before the merits hearing. The court declined to determine if an exception to this rule would apply when there was undue delay by the court in hearing the application, finding no such delay in this case.

The full text of Diaz-Arellano v. US Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/202212446.pdf

Seventh Circuit Affirms no Jurisdiction to Review Discretionary Denial of Cancellation Application

The Seventh Circuit has reaffirmed that it lacks jurisdiction to review a discretionary denial of a cancellation of removal application.

The full text of Santiago Lopez v. Garland can be found here:

https://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Submit=Display&Path=Y2024/D06-24/C:23-2081:J:Scudder:aut:T:fnOp:N:3226504:S:0

Fourth Circuit Remands Cancellation Case due to Agency's Failure to Consider Hardship Evidence

The Fourth Circuit has remanded a petition for review of a denied cancellation of removal case, in which it determined that the agency failed to adequately address a therapist’s professional opinion that removal of the applicant would increase the likelihood that her daughter would engage in self harm.

The full text of Garcia Cortes v. Garland can be found here:
https://www.ca4.uscourts.gov/opinions/221930.P.pdf

Ninth Circuit Confirms that Date of Commission of Inadmissible Offense Triggers Stop-Time Rule

The Ninth Circuit has confirmed that the date of commission of an inadmissible offense - not the date of conviction - is what triggers the stop-time rule for cancellation of removal.

The full text of Rudnitskyy v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/09/14/21-1098.pdf

BIA Addresses MTRs for Cancellation of Removal

The Board of Immigration Appeals has determined that a respondent who moves to reopen proceedings to seek cancellation of removal for non-lawful permanent residents must make a prima facie showing of exceptional and extremely unusual hardship to his qualifying relatives. In addition, the issuance of administratively final removal order does not stop the accrual of physical presence for cancellation purposes. Finally, the BIA declined to determined if the decision in Niz Chavez represents a fundamental change in law warranting sua sponte reopening.

The full text of Matter of Chen can be found here:

https://www.justice.gov/eoir/page/file/1561876/download

BIA Finds that Grant of NACARA Cancellation Precludes Subsequent Grant of LPR or non-LPR Cancellation

The Board of Immigration Appeals has determined that a respondent who previously received NACARA cancellation of removal is not eligible for a subsequent grant of non-lawful permanent resident or lawful permanent resident cancellation of removal.

The full text of Matter of Hernandez Romero can be found here:

https://www.justice.gov/eoir/page/file/1422976/download

Fifth Circuit Finds it Lacks Jurisdiction to Review Finding that Applicant did not Make Out Prima Facie Hardship Case for Cancellation

The Fifth Circuit has determined that it does not have jurisdiction to review the agency’s denial of a motion to reopen based on the movant’s failure to make a prima facie showing of the required hardship for cancellation of removal. “The BIA’s denial of her motion based on its conclusion that she failed to establish a prima facie case for the underlying relief of cancellation of removal is tantamount to a discretionary decision on the merits barred by § 1252(a)(2)(B)(i).”

The full text of Parada-Orellana v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/19/19-60645-CV0.pdf

UPDATE: The court, on rehearing, has issued an amended opinion, withdrawing its jurisdictional analysis, but finding that Parada-Orellana did not make a prima facie showing of hardship:

https://www.ca5.uscourts.gov/opinions/pub/19/19-60645-CV1.pdf

Fourth Circuit Finds Jurisdiction to Review Hardship Determination

The Fourth Circuit has determined that whether an applicant for cancellation of removal has proven exceptional and extremely unusual hardship to a qualifying relative is a mixed question of fact and law that can be reviewed by a federal appellate court. Unfortunately, the court affirmed the denial, finding that the petitioner’s four children (including one with a diagnosed anxiety disorder) would not suffer the requisite hardship if he was removed.

The full text of Gonzalez Galvan v. Garland can be found here:

https://www.ca4.uscourts.gov/opinions/201485.P.pdf

Eighth Circuit Declines to Extend Realistic Probability Test to Overbroad FL Cannabis Statute

The Eighth Circuit has determined that Florida statutes related to cannabis are overbroad because they include parts of the cannabis plant explicitly excluded from the federal definition. Because the statute was overbroad on its face, the Eighth Circuit determined that the realistic probability test did not apply, even in the context of a petitioner applying for relief from removal.

The full text of Lopez Gonzalez v. Wilkinson can be found here:

https://ecf.ca8.uscourts.gov/opndir/21/03/193412P.pdf