Second Circuit Finds that Hardship Determination is Subject to Clear Error Review

The Second Circuit has determined that it will review the agency’s hardship determination as it relates to cancellation of removal for nonlawful permanent residents under a clear error standard. Under the deferential clear-error standard of review, “a finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ‘Clear error’ review generally has been recognized as being less deferential to the factfinder than ‘substantial evidence’ review, and though the difference between the two standards is, on the surface, subtle, traditionally, clear error review has been considered somewhat stricter (i.e., allowing somewhat closer judicial review) than the substantial evidence standard.“

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

https://ww3.ca2.uscourts.gov/decisions/isysquery/ee5a9581-65e6-4df0-8d62-453b78c084f2/2/doc/22-6267_opn.pdf

Ninth Circuit Applies Substantial Evidence Standard to Non-LPR Cancellation Hardship Analysis

The Ninth Circuit has determined that it will apply substantial evidence review to the agency’s determination that an applicant has not demonstrated exceptional and extremely unusual hardship to a qualifying relative for the purpose of an application for cancellation of removal for non-lawful permanent residents.

The full text of Gonzalez-Juarez v. Bondi can be found here:
Https://cdn.ca9.uscourts.gov/datastore/opinions/2025/05/20/21-927.pdf

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

First Circuit Rejects Agency's Hardship Determination

The First Circuit has remanded a cancellation of removal case, finding that the agency failed to evaluate how the qualifying relative’s specific learning disabilities would influence the hardship he would suffer if his parents were deported.

The full text of Duarte de Martinez v. Bondi can be found here:

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1057P-01A.pdf

Third Circuit Applies Substantial Evidence Standard to Hardship Review

The Third Circuit has determined that the substantial evidence standard applies to a federal court’s review of the agency’s hardship finding in a cancellation of removal case.

The full text of Wilkinson v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/213166p.pdf

Seventh Circuit Construes Exceptional and Extremely Unusual Hardship

The Seventh Circuit has determined that the agency’s definition of exceptional and extremely unusual hardship to qualifying relatives is not entitled to any deference. Further, the Court construed “exceptional and extremely unusual hardship” as requiring hardship sustained by a deported alien’s qualifying relatives that’s significantly different from or greater than the hardship that a deported alien’s family normally experiences.

The full text of Moctezuma-Reyes v. Garland can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0274p-06.pdf

Fifth Circuit Applies no Deference to BIA's Hardship Determination

The Fifth Circuit has affirmed the agency’s hardship finding in a cancellation of removal case, finding that even if it accorded that determination no deference, the applicant had not established that his U.S.-citizen son would suffer exceptional and extremely unusual hardship without him.

The full text of Cuenca-Arroyo v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/23/23-60100.CV0.pdf

Fourth Circuit Remands Cancellation of Removal Application

The Fourth Circuit has reviewed the agency’s hardship determination in a cancellation of removal application and remanded the proceedings because it was not clear that the Immigration Judge had considered a treating therapist’s predication 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

Supreme Court Finds Hardship Determinations are Reviewable in Federal Court

The Supreme Court has determined that the “exceptional and extremely unusual hardship” standard in non-LPR cancellation of removal cases is a mixed question of fact and law, subject to federal court review. “The facts underlying any determination on cancellation of removal therefore remain unreviewable. For instance, an IJ’s factfinding on credibility, the seriousness of a family member’s medical condition, or the level of financial support a noncitizen currently provides remain unreviewable. Only the question whether those established facts satisfy the statutory eligibility standard is subject to judicial review. Because this mixed question is primarily factual, that review is deferential.”

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

https://www.supremecourt.gov/opinions/23pdf/22-666diff_f2bh.pdf