United States Court of Appeals For the First Circuit No. 22-1538
JULIO BENIGNO BLANCO CONTRERAS; GLORIA ISABEL MARMOL LOPEZ,
Petitioners,
v.
PAMELA BONDI, Attorney General,*
Respondent.
PETITION FOR REVIEW OF A DECISION OF THE BOARD OF IMMIGRATION APPEALS
Before
Gelpí, Lipez, and Thompson, Circuit Judges.
Randy Olen for petitioners.
Rebecca Hoffberg Phillips, Senior Litigation Counsel, Office of Immigration Litigation, with whom Brian Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Daniel E. Goldman, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.
April 9, 2025
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Pamela Bondi is automatically substituted for former Attorney General Merrick B. Garland as respondent. LIPEZ, Circuit Judge. Petitioners Julio Benigno Blanco
Contreras and Gloria Isabel Marmol Lopez, a husband and wife who
are natives and citizens of Guatemala, petition for review of the
Board of Immigration Appeals' ("BIA's") decision upholding the
Immigration Judge's ("IJ's") denial of their applications for
cancellation of removal pursuant to section 240A(b)(1) of the
Immigration and Nationality Act ("INA") (codified at 8 U.S.C.
§ 1229b(b)(1)). Their applications were denied on the basis that
petitioners did not establish that their removal and their family's
relocation to Guatemala would impose "exceptional and extremely
unusual hardship" on their children who are United States citizens.
8 U.S.C. § 1229b(b)(1). Because we determine that the BIA legally
erred by failing to consider key record evidence in its review of
the IJ's decision -- findings in a psychological report assessing
the mental health status of one of petitioners' children -- we
grant the petition, vacate the BIA's order, and remand for further
proceedings.
I. A. Background Law
When an IJ determines that a noncitizen is removable for
violating immigration laws, the noncitizen may still have means of
obtaining discretionary relief from removal. See id. § 1229b. As
relevant here, an IJ "may cancel removal of" a noncitizen "who is
inadmissible or [removable] from the United States." Id.
- 2 - § 1229b(b)(1). If the IJ grants a noncitizen's application for
cancellation of removal, the noncitizen will be permitted to remain
in the country lawfully. Id.
In deciding whether to cancel the removal of a
noncitizen, and grant lawful-permanent-resident status, the IJ
"proceeds in two steps." Wilkinson v. Garland, 601 U.S. 209, 212
(2024). First, the IJ must determine whether the noncitizen meets
the statutory requirements to be eligible for cancellation of
removal. Id. Noncitizens who do not already possess
lawful-permanent-resident status must establish that (1) they
"ha[ve] been physically present in the United States for a
continuous period of not less than 10 years" before applying for
cancellation; (2) they "ha[ve] been . . . person[s] of good moral
character during such period"; (3) they "ha[ve] not been convicted
of" certain criminal offenses; and (4) their "removal would result
in exceptional and extremely unusual hardship to the
[noncitizens'] spouse[s], parent[s], or child[ren]" who are
citizens or lawful permanent residents "of the United States."
8 U.S.C. § 1229b(b)(1)(A)-(D).
Second, after determining whether the noncitizen is
eligible for cancellation of removal, the IJ must decide "whether
to exercise . . . discretion favorably and grant the noncitizen
relief in the particular case." Wilkinson, 601 U.S. at 212-13.
- 3 - An IJ's decision on an application for cancellation of
removal may be appealed to the BIA. 8 C.F.R. § 1003.1(b)(3). On
appeal, the BIA reviews the IJ's conclusions of law and
discretionary determinations de novo and its findings of fact for
clear error. Id. § 1003.1(d)(3)(i)-(ii); see also In re S-H-, 23
I. & N. Dec. 462, 464 (BIA 2002) ("[T]he [BIA] must defer to the
factual determinations of an [IJ] in the absence of clear error.").
B. Facts and Procedural History
Contreras entered the United States without inspection
in 2001, when he was around twenty-five years old, hoping to escape
the poverty and violence of his native country. In 2002, he was
joined by Lopez, then age thirty-five, who was admitted to the
United States as a nonimmigrant visitor authorized to remain for
six months. Neither Contreras nor Lopez has left the country since
entering. The couple, who have been together for over twenty-five
years, have two children who are United States citizens -- a son,
A.B.M., and a daughter, M.B.M.
After applying for asylum and withholding of removal in
2013 but failing to appear for their scheduled asylum interviews,
petitioners were issued Notices to Appear that charged them with
being subject to removal under the INA.1 Petitioners conceded
1Contreras was charged with being subject to removal pursuant to section 212(a)(6)(A)(i) of the INA as a noncitizen present in the United States without being admitted or paroled. Lopez was charged with being subject to removal pursuant to section - 4 - removability and indicated that they would be seeking voluntary
departure, withholding of removal, and cancellation of removal.
A hearing on petitioners' applications was completed in
May 2019. During an earlier portion of the hearing, petitioners
clarified that they were no longer pursuing voluntary departure or
withholding of removal, leaving only their requests for
cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1). The
parties agreed that petitioners satisfied the first three
statutory criteria to be eligible for cancellation of removal such
that only the "exceptional and extremely unusual hardship"
requirement and the IJ's ultimate discretionary determination were
in play.
To satisfy the fourth statutory criterion, petitioners
submitted written evidence, including personal affidavits and
medical documentation, and presented extensive testimony, all of
which was aimed at showing the hardship that petitioners' removal
to Guatemala would cause their minor children. As background,
Lopez, whom the IJ found to be a credible witness, testified about
her own difficult circumstances. She stated that she grew up in
Guatemala with seven siblings, that her family was very poor, and
that she was forced to leave school at age twelve because her
237(a)(1)(B) of the INA as a noncitizen who, after being admitted as a nonimmigrant, remained in the United States longer than permitted. - 5 - family could no longer afford it. She also explained that she had
diabetes, gastritis, high blood pressure, and high cholesterol and
that she took twelve pills per day and visited her doctor every
three months to manage those ailments. Lopez expressed her worry
that she would be unable to afford to see a doctor or continue her
medical treatment in Guatemala.
Lopez repeatedly voiced concern for how her son A.B.M.
and daughter M.B.M., who, at the time, were fifteen and nine,
respectively, would fare in Guatemala.2 She explained that A.B.M.
and M.B.M. had not been to Guatemala and were unfamiliar with its
customs and traditions, although both could speak, read, and write
in Spanish fluently. Lopez also testified that the family would
not have a place to live in Guatemala, and Lopez believed that she
and Contreras would be unable to afford to continue sending their
children to school, whereas both children were doing well in their
schools in the United States. Further, Lopez voiced fear for her
children's safety in Guatemala because of the prevalence of violent
2 When asked whether A.B.M. and M.B.M. would remain in the United States if their parents were removed to Guatemala, Lopez replied that she "cannot respond to that question" because she and Contreras "have not saved any money to go and live there." However, both Lopez and Contreras specified in their cancellation applications that if they were removed, their children would come with them.
- 6 - crime and her family's personal experiences with gang violence in
that country.3
Of primary relevance here, Lopez emphasized that she
believed petitioners' removal would harm A.B.M. in particular
because of his physical and mental health struggles. She testified
that A.B.M. suffered from obesity, high cholesterol, and seasonal
allergies, requiring him to maintain a diet high in fruits,
vegetables, and water and to see a doctor every three months. A
patient note from a physical examination of A.B.M. in April 2016
(hereinafter "the 2016 physical examination report"), which
petitioners submitted as documentary evidence, corroborated
Lopez's testimony regarding A.B.M.'s physical health. In addition
to the ailments that Lopez described, the 2016 physical examination
report reflected that A.B.M. suffered from acanthosis nigricans (a
skin disorder), bilateral astigmatism, snoring with apnea and mild
tonsillar hypertrophy, and a vitamin D deficiency, and that he had
undergone an appendectomy.
Lopez further testified that about ten years earlier,
when A.B.M. was six years old, he was touched sexually by peers in
his kindergarten class. Lopez explained that, after the assault,
petitioners did not take A.B.M. out of school based on counsel
3 Lopez testified that several members of her family in Guatemala had been threatened and extorted by gangs, and one of her sisters was kidnapped by a gang and never heard from again. - 7 - from his teacher that if he left school, A.B.M. would feel guilty
and responsible for the assault. A.B.M. also did not receive
counseling or psychological services following the assault, Lopez
elaborated, because the psychologist to whom A.B.M. was referred
told Lopez that her son "hadn't suffered that much."
An evaluation of A.B.M. completed by a licensed mental
health counselor in July 2018, when A.B.M. was fourteen years old,
and submitted by petitioners (hereinafter "the 2018 psychological
report") provided additional details regarding the sexual abuse
A.B.M. experienced as a kindergartner. According to the 2018
psychological report, A.B.M. alerted his teacher to "unusual
behaviors in the bathroom with two other students" and later told
Lopez that the other students had "touched his penis and would not
allow him to pull his pants up." Lopez reported the incident to
the school, and she was told that a subsequent investigation
substantiated A.B.M.'s account. However, the school did not file
a report with child services or law enforcement. The 2018
psychological report noted that, after the assault, A.B.M. became
fearful, anxious, and upset, refusing to go to school "because he
was so scared of the other students." He also began wetting the
bed every night. Lopez "sought assistance from the school" but
received only "minimal response," so she and Contreras opted to
send A.B.M. to a new school.
- 8 - The licensed mental health counselor determined that,
following the assault, A.B.M.'s parents "were not given the needed
services they should have been offered through counseling, child
services and possibly [the] court system"; that A.B.M. "was not
afforded the resources of mental health counseling to assist with
his fears and anxiety[] or legal advocacy to address the assault
he suffered"; and that the assault was not treated with "the
necessary importance." The counselor also concluded that A.B.M.'s
"presentation and history are consistent with Major Depression"
and that, at the time of the evaluation, his symptoms persisted,
"clearly caus[ing] [A.B.M.] significant distress and impairment."
She recommended that A.B.M. "obtain continued psychotherapeutic
services to address his depressive disorder."
After the close of evidence, the IJ determined that,
although petitioners would be entitled to a favorable exercise of
discretion, they had not established that A.B.M. and M.B.M. would
experience "exceptional and extremely unusual hardship" due to
their parents' removal. In reaching that conclusion, the IJ made
factual findings that M.B.M. had no medical issues; that both
children were doing well in school and could speak, read, and write
in Spanish; and that "both parents would be able to work in
Guatemala to support the family were they to return." The IJ also
found "insufficient evidence that [A.B.M.] currently suffers from
any mental health conditions or disorders as a result" of being
- 9 - sexually abused and, specifically referencing the 2016 physical
examination report, determined that A.B.M. was otherwise
"generally healthy." Based on those findings, and while
reiterating that he would have granted petitioners relief had they
met the hardship standard, the IJ denied petitioners' applications
for cancellation of removal and ordered them removed to Guatemala.
The IJ did not mention the 2018 psychological report in his
decision.
Petitioners appealed to the BIA, which affirmed the IJ's
denial of cancellation of removal. The BIA rejected petitioners'
claim that the IJ's finding on A.B.M.'s health was erroneous,
explaining that because A.B.M. "has never required mental health
counseling, medication, or any specialized medical treatment," it
"discern[ed] no clear error in the [IJ's] factual finding that
[A.B.M.] does not suffer from any serious medical conditions."
The BIA also found no error in the IJ's determination that neither
Lopez's health struggles nor the conditions in Guatemala would
result in the requisite hardship to A.B.M. and M.B.M. Following
the BIA's decision, petitioners timely sought this court's review.
Subsequently, we held this petition in abeyance at the
joint request of the parties while petitioners' request for a grant
of prosecutorial discretion was pending.4 We later granted
4 The government ultimately declined to exercise prosecutorial
discretion in petitioners' case. - 10 - petitioners' unopposed motion to hold this petition in abeyance in
light of the Supreme Court's grant of certiorari in Wilkinson v.
Attorney General, No. 21-3166, 2022 WL 4298337 (3d Cir. Sept. 19,
2022), reversed in part, vacated in part sub nom. Wilkinson v.
Garland, 601 U.S. 209 (2024). That decision was anticipated to
resolve a circuit split regarding a federal appellate court's
jurisdiction to review the determination of whether a noncitizen
has established "exceptional and extremely unusual hardship."
With Wilkinson now decided, we can resolve this case.
II. When the BIA does not expressly adopt the IJ's decision,
"we review the BIA's decision rather than the IJ's."
Aguilar-Escoto v. Garland, 59 F.4th 510, 515 (1st Cir. 2023)
(quoting Lin v. Mukasey, 521 F.3d 22, 26 (1st Cir. 2008)). Because
the BIA affirmed the IJ's decision after determining that the IJ's
findings and conclusions were not erroneous -- rather than
expressly adopting the IJ's reasoning -- "we focus our review on
the BIA's decision." Id.; see also Odei v. Garland, 71 F.4th 75,
77-78 (1st Cir. 2023).5
5Both petitioners and the government assume incorrectly that our review is of the IJ's and BIA's decisions together. See Espinoza-Ochoa v. Garland, 89 F.4th 222, 230 (1st Cir. 2023) ("When the BIA adopts the IJ's decision but adds its own gloss, we 'review the decisions of both the BIA and the IJ' together." (quoting Aldana-Ramos v. Holder, 757 F.3d 9, 14 (1st Cir. 2014))). We construe the parties' arguments with respect to the - 11 - Petitioners raise multiple challenges on appeal. First,
they argue that, contrary to the BIA's determination, the record
evidence shows that A.B.M. and M.B.M. would suffer "exceptional
and extremely unusual hardship" if their parents were removed to
Guatemala. Second, they contend that the BIA erred by "completely
ignor[ing]" key record evidence. Third, they challenge some of
the IJ's findings of fact as "plainly erroneous." We address each
challenge in turn, beginning with our jurisdiction.
A. Jurisdiction and Standard of Review
As the Supreme Court has noted, "Congress has sharply
circumscribed judicial review of the discretionary-relief
process." Patel v. Garland, 596 U.S. 328, 332 (2022).
Specifically, Congress has stripped courts of "jurisdiction to
review . . . any judgment regarding the granting of" discretionary
relief, which includes the denial of an application for
cancellation of removal under § 1229b. 8 U.S.C.
§ 1252(a)(2)(B)(i). However, "[t]his bar has an important
qualification." Patel, 596 U.S. at 333. Courts retain
jurisdiction to "review . . . constitutional claims or questions
of law." 8 U.S.C. § 1252(a)(2)(D). While for many years
"interpretation of this statutory scheme largely rested with the
lower courts," the Supreme Court has recently "turned its attention
"agency" -- i.e., the BIA and IJ together -- as instead concerning only the BIA. - 12 - to the jurisdictional provisions of § 1252(a)(2)" "on multiple
occasions." Figueroa v. Garland, 119 F.4th 160, 164 (1st Cir.
2024). Three such occasions, ending with Wilkinson, are relevant
here.
First, in Guerrero-Lasprilla v. Barr, the Supreme Court
held that a "mixed question of law and fact" -- i.e., "the
application of law to undisputed or established facts" --
constitutes a "'questio[n] of law' within the meaning of
§ 1252(a)(2)(D)" and is therefore reviewable. 589 U.S. 221, 228
(2020) (alteration in original). Then, in Patel, the Supreme Court
held that "[f]ederal courts lack jurisdiction to review facts found
as part of discretionary-relief proceedings" under both
§ 1252(a)(2)(B)(i) and § 1252(a)(2)(D). 596 U.S. at 339-40, 343,
347. For example, an IJ's determination that a witness was
credible or that a child "had a serious medical condition" is an
unreviewable finding of fact. Wilkinson, 601 U.S. at 222.
Finally, pulling this line of cases together, the Wilkinson Court
clarified that "the application of the exceptional and extremely
unusual hardship standard to a given set of facts" is a mixed
question of law and fact that "is reviewable as a question of law
under § 1252(a)(2)(D)." Id. at 217.6
6Wilkinson thus abrogated our previous holdings that characterized "the agency's hardship determination as an unreviewable 'factual inquiry,'" Figueroa, 119 F.4th at 165 - 13 - Petitioners' first argument -- that the BIA erred in
concluding that their removal would not impose "exceptional and
extremely unusual hardship" on A.B.M. and M.B.M. based on the
established facts -- falls squarely within Wilkinson's holding.
See id. Thus, we easily conclude that we have jurisdiction to
address this argument. Our review of the BIA's determination "is
deferential." Id. at 225.7
We also have jurisdiction to address petitioners' second
contention -- that the BIA "completely ignore[d]" key record
evidence. A BIA decision that "turn[s] a blind eye to salient
facts" or "completely overlook[s] critical evidence" is erroneous
as a matter of law. Diaz-Valdez v. Garland, 122 F.4th 436, 446
(1st Cir. 2024) (first quoting Sihotang v. Sessions, 900 F.3d 46,
(quoting Tacuri-Tacuri v. Garland, 998 F.3d 466, 471 (1st Cir. 2021)), resolving the circuit split as described.
7 As many circuits have recognized, Wilkinson "does not provide clear guidance as to how we must determine the degree of deference owed." Cortes v. Garland, 105 F.4th 124, 133 (4th Cir. 2024). Because we resolve this case without deciding whether petitioners have met the "exceptional and extremely unusual hardship" standard, we decline to determine the precise deferential standard of review that should govern. See, e.g., Figueroa, 119 F.4th at 166 n.7 (declining to specify the standard of review post-Wilkinson where the court would reach the same conclusion regardless of the standard applied); Garcia Carrera v. Garland, 117 F.4th 9, 12 (2d Cir. 2024) (same); Moctezuma-Reyes v. Garland, 124 F.4th 416, 423 (6th Cir. 2024) (same). But see Wilkinson v. Att'y Gen., No. 21-3166, 2025 WL 759608, at *6 (3d Cir. Mar. 11, 2025) (holding as a matter of first impression "that the substantial-evidence standard governs review of a hardship determination in a cancellation-of-removal proceeding"). - 14 - 51 (1st Cir. 2018); and then quoting Aguilar-Escoto, 59 F.4th at
516-17); see also Calderon-Escobar v. Att'y Gen., No. 23-2164,
2025 WL 66347, at *3 (3d Cir. Jan. 10, 2025) ("Serious
mischaracterization of evidence or the failure to consider key
evidence may constitute an error of law."); Medrano Medrano v.
Garland, 852 F. App'x 586, 587 (2d Cir. 2021) ("A question of law
may arise where the agency overlooked or mischaracterized
evidence . . . ."). When a petitioner raises a colorable claim of
such a legal error, we may review that claim. See 8 U.S.C.
§ 1252(a)(2)(D) (permitting "review of . . . questions of law");
see also Cortes v. Garland, 105 F.4th 124, 132-33 (4th Cir. 2024)
(exercising jurisdiction to consider whether the agency ignored
key evidence put forth to establish "exceptional and extremely
unusual hardship"); Mendez v. Holder, 566 F.3d 316, 322-23 (2d
Cir. 2009) (per curiam) (same). "[W]e review preserved claims of
legal error (that is, claims that turn on pure questions of law)
de novo." United States v. Padilla-Galarza, 990 F.3d 60, 73
(1st Cir. 2021); see also Adeyanju v. Garland, 27 F.4th 25, 38
(1st Cir. 2022).
However, to the extent that petitioners challenge the
correctness of the IJ's findings of fact, we may not address their
arguments. See Wilkinson, 601 U.S. at 222 ("[A] court is still
without jurisdiction to review a factual question raised in an
application for discretionary relief."). Thus, apart from any
- 15 - associated legal errors, we may not consider, for example,
petitioners' assertion that the IJ erred in determining that A.B.M.
"does not suffer from any serious medical conditions." See id. at
225 ("[A]n IJ's factfinding on . . . the seriousness of a family
member's medical condition . . . remain[s] unreviewable.").
Assured of our jurisdiction to address petitioners'
first two contentions, we proceed to the merits of those claims.
B. Discussion
To establish "exceptional and extremely unusual
hardship" under 8 U.S.C. § 1229b(b)(1), petitioners must show that
their "qualifying relatives would suffer hardship that is
substantially different from, or beyond, that which would normally
be expected from the deportation of [a noncitizen] with close
family members" in the United States. In re Monreal-Aguinaga, 23
I. & N. Dec. 56, 65 (BIA 2001). However, petitioners "need not
show that such hardship would be 'unconscionable.'" In re Gonzalez
Recinas, 23 I. & N. Dec. 467, 468 (BIA 2002) (quoting In re
Monreal-Aguinaga, 23 I. & N. Dec. at 60). Thus, while the hardship
standard for cancellation of removal no doubt "constitutes a high
threshold," it "is not so restrictive that only a handful of
applicants . . . will qualify for relief." Id. at 470. In
determining whether the hardship standard has been met,
"consideration should be given to the age, health, and
circumstances of the qualifying family members, including how a
- 16 - lower standard of living or adverse country conditions in the
country of return might affect those relatives." Id. at 468. An
applicant whose qualifying child has "very serious health issues,"
for example, might "have a strong case" for cancellation of
removal. In re Monreal-Aguinaga, 23 I. & N. Dec. at 63.
Taking the facts as found, and our obligation under
Wilkinson to defer to the BIA's determination on the mixed question
of fact and law, it would be difficult to reject the conclusion
that petitioners failed to satisfy this exacting hardship
standard. We need not dwell on that issue, however, because we
conclude that the BIA did not address and contend with significant
record evidence in reviewing the IJ's factual findings for clear
error and thus its decision was flawed as a matter of law. See
Rosales Justo v. Sessions, 895 F.3d 154, 167-68 (1st Cir. 2018).
"[W]hile the BIA need not 'discuss every piece of
evidence offered,'" it is not free to disregard important evidence
in the record. Aguilar-Escoto v. Sessions, 874 F.3d 334, 337
(1st Cir. 2017) (quoting Lin, 521 F.3d at 28). That is, "'it
cannot turn a blind eye to salient facts' and 'must fairly appraise
the record.'" Aguilar-Escoto, 59 F.4th at 515 (quoting Sihotang,
900 F.3d at 51). As noted above, failure of the BIA to consider
significant record evidence constitutes a "legal error" and may
warrant remand. Diaz-Valdez, 122 F.4th at 445-46; see also
Iza-Pullataxig v. Sessions, 700 F. App'x 60, 61 (2d Cir. 2017)
- 17 - (vacating and remanding where the agency "did not analyze . . . a
key piece of evidence supporting [the noncitizen's] petition for
cancellation of removal"). The BIA's obligation to consider the
record as a whole is inescapable when a petitioner complains that
the IJ's factfinding was flawed because the IJ failed to consider
key record evidence. See Aguilar-Escoto, 59 F.4th at 517 ("[I]n
determining whether the IJ's finding . . . was clearly erroneous,
the [BIA] itself was required to consider all evidence relevant to
that analysis.").
Because the fact-intensive "exceptional and extremely
unusual hardship" inquiry presents such a high bar, it is vital
that due consideration be given to salient record evidence in this
context. See In re Gonzalez Recinas, 23 I. & N. Dec. at 470
(describing the hardship inquiry as "a high threshold"); Mendez,
566 F.3d at 323 ("[W]e are not confident that, after taking the
overlooked evidence into account and describing it accurately, the
agency would come to the conclusion that Petitioner has not met
the standard of 'exceptional and extremely unusual hardship.'").
As described above, the 2018 psychological report
provided a detailed account of the circumstances of the sexual
abuse that A.B.M. suffered. That account included an explicit
finding from the mental health counselor -- who met with A.B.M. in
person for the assessment -- that A.B.M.'s early childhood assault
had never been treated with "necessary importance." The report
- 18 - also concluded that A.B.M.'s "presentation and history are
consistent with Major Depression" and that "his symptoms clearly
cause significant distress and impairment," and it was recommended
that A.B.M. "obtain continued psychotherapeutic services to
address his depressive disorder." Such evidence was
unquestionably highly pertinent to whether petitioners made the
requisite showing of "exceptional and extremely unusual hardship,"
given that "the ages, health, and circumstances" of qualifying
family members are central to the hardship inquiry. In re Monreal-
Aguinaga, 23 I. & N. Dec. at 63; see also id. ("[A] strong applicant
might have a qualifying child with very serious health issues
. . . ."); cf. In re Kao, 23 I. & N. Dec. 45, 50 (BIA 2001)
("Extreme hardship to an applicant's children is an important
factor that must receive close attention . . . .").
The BIA's decision here "gives strong reason to believe
the BIA turned a blind eye to key relevant evidence,"
Aguilar-Escoto, 59 F.4th at 515 -- namely, critical portions of
the 2018 psychological report -- in reviewing for clear error the
IJ's factual finding that A.B.M. "does not suffer from any serious
medical conditions." While the BIA acknowledged the existence of
the 2018 report in a single-sentence summary, it did not so much
as mention, let alone engage with, several key findings contained
in that report. For example, the BIA did not remark on the
counselor's description of the symptoms A.B.M. was experiencing or
- 19 - her conclusion that A.B.M. should "obtain continued
psychotherapeutic services," nor did it acknowledge the
counselor's critical finding that A.B.M. and his parents "were not
given the needed services they should have been offered through
counseling, child services and possibly [the] court system."
Those findings in the 2018 psychological report are
facially inconsistent with the BIA's statement that A.B.M. "has
never required mental health counseling, medication, or any
specialized medical treatment," undermining its conclusion that
the IJ's factual finding on A.B.M.'s mental health was not clearly
erroneous.8 Because the BIA failed to explain how it reconciled
its conclusion with the 2018 report's contrary findings, we are
left to conclude that the BIA "simply ignored th[ose] portion[s]"
of the 2018 report. Cortes, 105 F.4th at 136; cf. Domingo-Mendez
v. Garland, 47 F.4th 51, 58 (1st Cir. 2022) ("When the BIA's
decision is neither inconsistent with [the evidence at issue] nor
gives reason to believe the BIA was unaware of it, we have no
reason to doubt that the agency considered the evidence."
(alteration in original) (quoting Lin, 521 F.3d at 28)).
To be sure, the BIA did state that, according to the
2018 report, A.B.M. "presented symptoms consistent with major
8We agree with petitioners as a matter of logic that "[t]he fact that [A.B.M.] did not receive" mental health services "certainly does not mean he did not need" them.
- 20 - depression." Mentioning one key finding while failing to
acknowledge others, however, is not enough. See Aguilar-Escoto,
59 F.4th at 515-17 (finding error where the BIA engaged with only
two of the three pertinent complaints submitted by the petitioner);
Cortes, 105 F.4th at 136 (concluding that the agency legally erred
where, "[d]espite clearly having considered portions" of the
proffered documentary evidence, it "never addressed" another key
portion). Moreover, despite its brief mention of A.B.M.'s major
depression, the BIA did not discuss that diagnosis or analyze how
A.B.M. might be impacted because of his major depression if he and
his parents were required to relocate to Guatemala. It appears,
then, that the BIA merely repeated the "major depression" diagnosis
from the 2018 report without assessing its significance for
A.B.M.'s medical condition. The BIA's failure to address the
implications of that diagnosis is a glaring omission in its review
of the IJ's factfinding on A.B.M.'s health, particularly given
that the IJ did not even acknowledge the 2018 psychological report
in making the finding of fact on A.B.M.'s health. See Aguilar-
Escoto, 59 F.4th at 516 ("The BIA's lack of meaningful analysis on
this issue provides further grounds for believing it did not
consider the [salient evidence].").
All told, the BIA's decision plainly "lacks sufficient
indication that the key portion[s]" of the 2018 report were
considered in its review of the IJ's factual finding on A.B.M.'s
- 21 - health. Cortes, 105 F.4th at 135. Accordingly, we conclude that
the BIA erred as a matter of law. See id. at 137; see also Mendez,
566 F.3d at 323 ("[W]here, as here, some facts important to the
subtle determination of 'exceptional and extremely unusual
hardship' have been totally overlooked and others have been
seriously mischaracterized, we conclude that an error of law has
occurred."); Rosales Justo, 895 F.3d at 165 (holding that the BIA
erred "in its clearly erroneous analysis" when it "fail[ed] to
take into account the significant documentary evidence" put forth
by the petitioner).
In reaching this conclusion, we are by no means
substituting our judgment for the agency's on the issue of A.B.M.'s
medical condition. Rather, "[w]e simply hold that the BIA could
not" uphold the IJ's factfinding "without explicitly addressing
[petitioners'] primary evidence." Tanusantoso v. Barr, 962 F.3d
694, 700 (2d Cir. 2020). Remand is thus appropriate so that the
BIA may adequately consider the full record -- including the
critical 2018 psychological report -- in conducting its clear error
review. See Aguilar-Escoto, 874 F.3d at 336 ("[R]emand is required
for the BIA to consider [the petitioner's] potentially significant
documentary evidence."). On remand, the BIA retains authority to
determine what, if any, weight to give the 2018 psychological
report's key findings. But the BIA "is not free to ignore" them.
Cortes, 105 F.4th at 137.
- 22 - *** For the foregoing reasons, we grant the petition, vacate
the BIA's order, and remand to the BIA for further proceedings
consistent with this opinion.
So ordered.
- 23 -