United States Court of Appeals For the First Circuit
No. 24-1239
LEONARDO GONCALVES LEAO,
Petitioner,
v.
PAMELA J. BONDI, Attorney General,*
Respondent,
PETITION FOR REVIEW OF A DECISION OF THE BOARD OF IMMIGRATION APPEALS
Before
Gelpí, Lipez, and Thompson, Circuit Judges.
Annelise M. J. de Araujo, with whom Araujo & Fisher, LLC was on brief, for petitioner.
Spencer Shucard, with whom Brian Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Keith I. McManus, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
July 14, 2025
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Pamela J. Bondi is automatically substituted for former Attorney General Merrick B. Garland as respondent. GELPÍ, Circuit Judge. After being charged with
violating immigration laws and conceding removability, Petitioner
Leonardo Goncalves Leao ("Petitioner") sought cancellation of
removal. He claimed that his removal would cause exceptional and
extremely unusual hardship to his then-minor son, Gustavo -- a
U.S. citizen. The immigration judge ("IJ") disagreed, holding
that Petitioner failed to meet the high burden to establish such
hardship. The Board of Immigration Appeals ("BIA") subsequently
affirmed the IJ's judgment on two independent grounds: (1) it held
that because Gustavo had turned 21 years old while the appeal was
pending, Petitioner could no longer count him as a qualifying
relative in his cancellation of removal petition; and (2) in the
alternative, it agreed with the IJ's hardship determination. This
petition for review followed. Because we discern no error in the
hardship determination, we deny the petition for review and do not
address the BIA's age-based rationale.
I.
A. Legal Background
A noncitizen found removable for violating immigration
law may seek discretionary cancellation of removal under section
240A(b)(1) of the Immigration and Nationality Act (codified at 8
U.S.C. § 1229b(b)(1)). If an IJ grants the application, the
noncitizen may remain in the country as a lawful permanent
resident. Id.
- 2 - In evaluating a noncitizen's application for
cancellation of removal, known as a 42B application, the IJ
"proceeds in two steps." Wilkinson v. Garland, 601 U.S. 209, 212
(2024). First, the IJ determines whether a noncitizen has
established four statutory requirements: (1) the noncitizen "has
been physically present in the United States for a continuous
period of not less than 10 years immediately preceding the date of
[the] application"; (2) the noncitizen "has been a person of good
moral character during such period"; (3) the noncitizen "has not
been convicted of" certain criminal offenses; and (4) the
noncitizen's "removal would result in exceptional and extremely
unusual hardship to the [noncitizen's] spouse, parent, or child,
who is a citizen of the United States or a[ noncitizen] lawfully
admitted for permanent residence." 8 U.S.C. § 1229b(b)(1)(A)-(D).
Then, at the second step, the "IJ decides whether to exercise his
discretion favorably and grant the noncitizen relief in the
particular case." Wilkinson, 601 U.S. at 212-13. The "noncitizen
bears the burden of proving that he both 'satisfies the applicable
eligibility requirements' and 'merits a favorable exercise of
discretion.'" Id. at 213 (quoting 8 U.S.C. § 1229a(c)(4)(A)).
Following an unfavorable IJ decision, the noncitizen may
appeal to the BIA. 8 C.F.R. § 1003.1(b)(3). The BIA, in turn,
reviews de novo "the IJ's conclusions of law and discretionary
- 3 - determinations," and examines for clear error the IJ's factual
findings. Contreras v. Bondi, 134 F.4th 12, 15 (1st Cir. 2025).
B. Factual and Procedural Background
In 2001, Petitioner, a native and citizen of Brazil, had
a brief relationship with Aparecida dos Santos ("Ms. dos Santos").
Unbeknownst to Petitioner, Ms. dos Santos became pregnant and moved
to the United States. There, she gave birth to their son Gustavo
(a U.S. citizen) in February 2002. Motivated by a desire to be
with his son, Petitioner entered the United States without
inspection via the Mexican border on June 8, 2004. By the end of
that day, Petitioner had arrived in Boston, Massachusetts, and met
Gustavo for the first time. Since then, Gustavo has lived with
Ms. dos Santos, but Petitioner has lived nearby, providing
financial and emotional support.
On October 9, 2014, the U.S. Department of Homeland
Security issued and served Petitioner with a Notice to Appear,
charging him with impermissibly entering the United States. As a
result, Petitioner was detained until November 5, 2014, when an IJ
released him on bond. In April 2015, Petitioner admitted the
allegations and conceded removability, but he expressed an intent
to seek cancellation of removal. So he filed a 42B Application in
- 4 - May 2016. Citing his heavy caseload, the IJ set the hearing date
on Petitioner's 42B application for April 25, 2019.1
The hearing occurred as originally scheduled. The
presiding IJ accepted Petitioner's five documentary exhibits. We
summarize the relevant evidence, starting with Petitioner's
testimony.
Petitioner stated his age (42 years at the time) and
recounted his journey from Brazil to the United States. He
described his relationship with Gustavo, explaining how he
consistently saw him three times per week. Petitioner said that
Gustavo grew up a happy, calm kid. But Petitioner noticed that
Gustavo began to change in 2014 -- around the time of Petitioner's
detention. Petitioner testified that, as of the date of the
hearing, Gustavo "[wa]s out of school" and "refusing to go back to
his studies."
Petitioner's testimony, along with the other evidence,
paints a bleak picture. As Petitioner's brief puts it, Gustavo
was "a teenager out of control and spiraling downwards." On one
occasion, Gustavo broke a classmate's cell phone. And, on another,
he brought a box cutter to school. His troubles extended beyond
1 In setting the hearing date, the IJ flagged to Petitioner's counsel that "if [she] ha[d] everything ready to go and all supporting documents say in a couple of months, [he] would consider a motion to move [the hearing] up if [he] had a cancellation." Petitioner nowhere suggests that he filed any such motion.
- 5 - the classroom: at one point, police detained him for stealing a
cell phone at the YMCA. Following the alleged theft, police told
Petitioner that Gustavo was hanging out with troublesome peers,
including someone accused of a local shooting.
With Petitioner's blessing, Ms. dos Santos moved Gustavo
to the Town of Walpole. Despite the distance from negative peer
influences, Gustavo's problems persisted. He refused to go to
school, lost multiple jobs, and used marijuana. Petitioner
admitted that he tried talking to Gustavo and that Gustavo had
refused help, even with resources available to him.
Petitioner stated that he wished to stay in the country
so that he could continue supporting Gustavo in this pivotal time.
And he expressed concern that his removal would cause Gustavo to
lose his emotional support system. He likewise feared that, if he
were removed to Brazil, he would be making much less money ($160
per week there versus $850 per week in the United States) and thus
would be less able to financially support Gustavo.
On cross-examination, the government extracted
concessions from Petitioner. For instance, Petitioner
acknowledged that Gustavo was healthy and that it was ultimately
Gustavo's choice whether to follow advice or not. Petitioner also
noted that Gustavo had never lived with him. Petitioner admitted,
too, that Gustavo had refused the opportunity to provide live
testimony or an affidavit to support Petitioner at the hearing.
- 6 - And Petitioner conceded that Gustavo had visited Brazil before.
He explained, however, that neither he nor Ms. dos Santos would be
able to afford Gustavo's flight to Brazil if Petitioner was
removed.
Turning to the documentary evidence, Petitioner's
declaration tracked much of his testimony, with a few additional
details. In particular, he added that the catalyst for Gustavo's
spiral was not only Petitioner's detention, but also the deaths of
two family members. Petitioner also noted that Gustavo spent much
of his time locked in his bedroom, sometimes smoking marijuana.
Ms. dos Santos's declaration similarly corroborated
Petitioner's testimony. She explained the extent of Petitioner's
support for her and Gustavo, and how she would be unable to support
Gustavo alone. She described how she saw Gustavo beginning to
change during Petitioner's detention and experiencing anxiety
about losing his father. She also confirmed that Gustavo had
routinely refused offers to help, including from his parents and
the local government. She, too, shared that Gustavo had developed
a marijuana smoking habit. And she expressed her worry about what
would happen following Petitioner's removal: Gustavo would "find[]
bad examples to follow in the vacuum that would be left by
[Petitioner's] absence," and his "chances of turning his life
around would be gone."
- 7 - After the IJ heard the testimony and reviewed the
documentary evidence, the parties had an opportunity to present
closing arguments. Petitioner argued that this was no ordinary
case, in part, because Gustavo did not have "a physical health
issue" nor was he "receiving special attention at school[,] such
as an individualized educational plan." Instead, Petitioner
contended that the case was about a rebellious teenager spiraling
out of control and in need of his father. That downward trend,
Petitioner pressed, would exacerbate after Petitioner's removal,
such that Gustavo would not "become[] a good adult and turn[] his
life around." "[T]aking away that chance from [Gustavo],"
Petitioner stressed, would be "exceptional."
The government then had its opportunity to close. It
began by conceding the importance of a present parent in an
adolescent's life. Still, it insisted that Petitioner had failed
to prove that his removal would cause Gustavo exceptional and
extremely unusual hardship. The government cited Gustavo's age at
the time of the hearing (17 years old), his responsibility for
poor decision-making, and the presence of his mother, who would
remain his primary caretaker after Petitioner's removal and thus
blunt the severity of any hardship.
After closing arguments, the IJ issued an oral ruling.
He remarked that, although the case was "very close" and the facts
were "very sympathetic," Petitioner failed to prove that his
- 8 - removal would cause Gustavo exceptional and extremely unusual
hardship. The IJ made the following factual findings to support
that conclusion: (1) Petitioner was a credible witness;
(2) Gustavo was 17 years old and had various troublesome incidents,
including bringing a boxcutter to school, breaking a classmate's
phone, and stealing a cell phone at the YMCA; (3) Gustavo had
dropped out of school and refused to hold a job; (4) the record
did not reflect that Gustavo suffered from any medical issues;
(5) Gustavo lived with his mother, who worked full-time and earned
roughly $32,000 per year; (6) Petitioner provided financial and
emotional support to Gustavo; (7) Petitioner talked to Gustavo
regularly; and (8) Petitioner never lived with Gustavo.
In his legal analysis, the IJ addressed the four
statutory factors noted above, finding that Petitioner had met the
first three -- physical presence in the United States for at least
ten years, good moral character, and no convictions for the
specified offenses. The government does not contest those
findings, and we therefore focus only on the IJ's analysis of the
fourth factor: whether Petitioner had proven that his removal would
result in exceptional and extremely unusual hardship.
The IJ began by acknowledging that Gustavo would
experience hardship if Petitioner were removed. But he decided
that the hardship "would not be substantially beyond that which
would ordinarily be expected." The IJ bolstered his conclusion by
- 9 - pointing to Ms. dos Santos, who was Gustavo's primary caretaker
and had a steady income. The IJ then took notice of the lack of
evidence showing Gustavo had a medical diagnosis. "[I]ndeed," he
observed, Petitioner's counsel "argue[d] this [wa]s not a case in
which [Gustavo] ha[d] any medical issues, but rather the separation
and [Gustavo's] life would essentially go in a bad
direction . . . if [Petitioner] was deported."
The IJ next considered whether Gustavo had academic or
learning disabilities. And he found that none were apparent from
the record. Although the IJ noted Gustavo's brief stint in
substance abuse therapy in 2018, he found that such therapy would
remain available in Petitioner's absence. The IJ also mentioned
the lack of record evidence suggesting that Petitioner "provide[d]
healthcare services or health insurance to [Gustavo]." Likewise,
he stated that Petitioner had proffered no expert or medical
reports "to provide an opinion that would be helpful to [the IJ]
on the issue of what effect [Petitioner's] removal would have
on . . . Gustavo."
As for Petitioner's relationship with Gustavo, the IJ
found that Petitioner "d[id] help [Gustavo] financially and
emotionally in both support and in an attempt to get his life back
on track." And from Brazil, the IJ said, Petitioner could earn a
living and continue to "provide that guidance and advice [to
Gustavo] either telephonically or messaging." At bottom, despite
- 10 - Gustavo's troubles and Petitioner's role in Gustavo's life, the IJ
held that Petitioner had failed to carry his burden of showing
that Gustavo would experience exceptional and extremely unusual
hardship if Petitioner were removed from the country.
Petitioner filed a notice of appeal on May 22, 2019.
Because of the BIA's alleged delay in issuing transcripts,
Petitioner claims he could not submit his appellate brief to the
BIA until September 2021.
The BIA ruled on the appeal in February 2024. The
analysis underlying the decision spans two paragraphs and resolves
the appeal on two alternative grounds. First, the BIA held that,
because Gustavo had reached 21 years old while the appeal was
pending, he no longer qualified as a "child" for purposes of an
application for cancellation of removal. And second, the BIA ruled
in the alternative that it "agree[d] with the [IJ's] reasoning
that respondent did not establish [Gustavo]'s hardship would rise
to the level of exceptional or extremely unusual hardship." The
BIA acknowledged Petitioner's contention that Gustavo's problems
arose after the ICE detention in 2014, but it said that "the [IJ]
assessed [Gustavo's] circumstances, including that his biological
mother is his primary caretaker, and that he can receive therapy
even if [Petitioner] is removed." The BIA noted, too, that the IJ
found that "the record lacked any expert or medical reports which
indicate what the effect of the [Petitioner's] removal will be on
- 11 - [Gustavo]." In sum, the BIA determined that, despite the
"sympathetic circumstances presented, [it] agree[d] with the [IJ]
that" Petitioner had not "shown that [Gustavo's hardship would]
rise[] to the requisite level for cancellation of removal."
Petitioner timely sought our review.
II.
Before we address the merits, we must first draw the
boundaries of our review. That is, we must decide whether to fix
our scope on solely the BIA's decision, or to look also to the
IJ's decision. We likewise must delineate the limitations on our
jurisdiction to review a denial of an application for cancellation
of removal.
A.
We begin with the scope. We have said that "[w]hen the
BIA 'adopts and affirms' an IJ's conclusion," Varela-Chavarria v.
Garland, 86 F.4th 443, 449 (1st Cir. 2023) (quoting Barnica-Lopez
v. Garland, 59 F.4th 520, 527 (1st Cir. 2023)), or "embraces the
[IJ's] decision" but adds its own "'gloss to the IJ's findings and
conclusions, we treat the two decisions as one,'" Loja-Tene v.
Barr, 975 F.3d 58, 60 (1st Cir. 2020) (quoting Murillo-Robles v.
Lynch, 839 F.3d 88, 91 (1st Cir. 2016)). Similarly, when "the BIA
has deferred to or adopted the IJ's reasoning, we review both the
BIA's decision and relevant parts of the IJ's decision." Conde
Cuatzo v. Lynch, 796 F.3d 153, 156 (1st Cir. 2015). If, however,
- 12 - "the BIA does not adopt the IJ's findings, we review the BIA's
decision rather than the IJ's." Odei v. Garland, 71 F.4th 75, 77
(1st Cir. 2023) (quoting Aguilar-Escoto v. Garland, 59 F.4th 510,
515 (1st Cir. 2023)).
Here, the BIA stated that it "agree[d] with the [IJ's]
reasoning that [Petitioner] did not establish his son's hardship
would rise to the level of exceptional or extremely unusual
hardship." It added a bit of gloss and then, again, pronounced
its agreement with the IJ's decision "that although [Gustavo] will
face hardship upon [Petitioner's] removal," Petitioner had not
"shown that [the hardship] r[ose] to the requisite level for
cancellation of removal."
In other words, the BIA expressly adopted the IJ's
reasoning and embraced his factual findings. So we view the two
decisions as one.2 And, in doing so, "we refer to the IJ and BIA
collectively as 'the agency.'" Martinez v. Bondi, 132 F.4th 74,
2 Petitioner does not meaningfully contend with our precedent in his opening brief, ostensibly assuming that our review centers only on the BIA's decision. His reply brief, too, devotes little time to this cause. So he waived any argument challenging the scope of our review. See Odei, 71 F.4th at 79 ("It is firmly settled in our jurisprudence that 'arguments advanced in a perfunctory manner, unaccompanied by citations to relevant authority, are deemed waived.'" (quoting Ahmed v. Holder, 611 F.3d 90, 98 (1st Cir. 2010))); see also id. at 80 (holding the same for arguments first raised in a reply brief). And even if we set aside our well-settled waiver rules, we disagree with Petitioner's reading of the BIA's decision.
- 13 - 78 (1st Cir. 2025) (quoting Khalil v. Garland, 97 F.4th 54, 61
(1st Cir. 2024)).
B.
We turn next to the limitations on our review. "Congress
has sharply circumscribed judicial review of the
discretionary-relief process." Patel v. Garland, 596 U.S. 328,
332 (2022). It "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." Contreras, 134 F.4th at
19 (quoting 8 U.S.C. § 1252(a)(2)(B)(i)). Yet "[t]his bar has an
important qualification." Id. (alteration in original) (quoting
Patel, 596 U.S. at 333). "Courts retain jurisdiction to
'review . . . constitutional claims or questions of law.'" Id.
(omission in original) (quoting 8 U.S.C. § 1252(a)(2)(D)).
Recent developments in our precedent and that of the
Supreme Court have clarified the questions subject to our review
in this context. Most relevant here, a petitioner's challenge to
"'the application of the exceptional and extremely unusual
hardship standard to a given set of facts'" -- "a mixed question
of law and fact" -- constitutes a "'reviewable question of law.'"
Id. (quoting Wilkinson, 601 U.S. at 217). So too does a
petitioner's claim that the agency disregarded its settled course
- 14 - of adjudication. See Adeyanju v. Garland, 27 F.4th 25, 37 (1st
Cir. 2022).
But the Supreme Court has reiterated that we lack
jurisdiction to review factual questions. Wilkinson, 601 U.S. at
222 ("[A] court is still without jurisdiction to review a factual
question raised in an application for discretionary relief."
(citing Patel, 596 U.S. at 347)). That means we cannot disturb
the agency's factual findings, such as "an IJ's determination that
a witness was credible or that a child 'had a serious medical
condition.'" Contreras, 134 F.4th at 19 (quoting Wilkinson, 601
U.S. at 222).
III.
Assured of the scope of our review and our jurisdiction,
we move to the merits. Petitioner raises a slew of challenges to
the agency's hardship determination. Most of his claims relate to
the agency's failure to follow its settled course of
adjudication -- legal questions subject to our de novo review.
See id. at 20 ("[W]e review preserved claims of legal error (that
is, claims that turn on pure questions of law) de novo."
(alteration in original) (quoting United States v.
Padilla-Galarza, 990 F.3d 60, 73 (1st Cir. 2021))). And his final
complaint is that the agency erred in its ultimate hardship
determination. As the Supreme Court has instructed, our review of
that determination -- a "primarily factual" "mixed
- 15 - question" -- "is deferential." Wilkinson, 601 U.S. at 225; see
also Figueroa v. Garland, 119 F.4th 160, 166 & n.7 (1st Cir. 2024).
We begin with the legal questions. Petitioner claims
that the agency ran afoul of its settled course of adjudication in
five ways: (1) the BIA did not explicitly state a standard of
review; (2) the BIA applied the incorrect standards of review;
(3) the agency sidestepped some of the Monreal factors in making
its determination; (4) the agency cherry-picked evidence; and
(5) the agency impermissibly demanded expert or medical reports to
prove hardship. We take these arguments in turn and find none to
be persuasive.
1. Failed to State the Standard
First, Petitioner contends that the BIA erred by
neglecting to expressly invoke a standard of review. Not so.
Petitioner rests his argument on Hernandez v. Garland,
where the Second Circuit stated that "the BIA must not only state
the correct standard, but apply it." 66 F.4th 94, 102 (2d Cir.
2023). Working from that statement, Petitioner seems to suggest
that the BIA has a duty to expressly spell out the standard of
review in each of its decisions.
No matter the effect of the Second Circuit's ruling, it
does not control here. Indeed, we have flatly rejected such a
"standard-of-review-based challenge" where the BIA's opinion
- 16 - "found the IJ's holding to be 'correct[]' and cited legal authority
for its conclusion." See Samayoa Cabrera v. Barr, 939 F.3d 379,
383 (1st Cir. 2019). And to the extent that Petitioner invites us
to revisit that precedent, we decline to do so because he has not
developed sufficient argumentation. See Odei, 71 F.4th at 79.
2. Applied the Wrong Standard
Second, building off the mistaken premise that the BIA
needed to explicitly invoke the standard of review, Petitioner
asserts that the BIA then applied the wrong one. We disagree.
The BIA reviews an IJ's factual findings for clear error
and the IJ's ultimate hardship determination de novo. See Barros
v. Garland, 31 F.4th 51, 57 (1st Cir. 2022). "For our part, we
review de novo the question of whether the BIA applied the correct
standard of review." Khalil, 97 F.4th at 67.
As we just explained, the BIA need not recite the
familiar incantations "clear error" or "de novo" in reaching its
decision. See Samayoa Cabrera, 939 F.3d at 383. That is so
because we attach a "presumption of regularity . . . to the BIA's
official acts." Id. (quoting Enwonwu v. Gonzáles, 232 F. App'x
11, 15 (1st Cir. 2007) (per curiam)). And we spot legal error
only where the petitioner shows some evidence or indication that
the BIA employed the wrong standard. See id. ("[W]hile it is true
that the BIA's opinion does not explicitly spell out the standard
of review it applied on this point, we see no evidence that it
- 17 - reviewed the IJ's conclusion for clear error . . . ."); see also
Nolasco v. Bondi, 134 F.4th 677, 686 (1st Cir. 2025) ("[T]here is
no indication that an incorrect standard was applied here.").
There is no such indication here. Start with the
allegedly suspect factual findings. Petitioner insists that the
BIA must have applied the wrong standard of review because it did
not disturb the IJ's baseless conclusions. He offers as an example
the IJ's finding about Petitioner's ability to provide adequate
guidance to Gustavo from Brazil. Had the BIA conducted the
requisite clear-error review, Petitioner attests, it would have
found to be unsupported the IJ's conclusion that Petitioner "can
provide that guidance and advice either telephonically or
messaging from Brazil."
Petitioner is wrong. To continue Petitioner's example,
the IJ's factual finding about Petitioner's ability to provide
guidance from Brazil was a "predictive finding[] of what may or
may not occur in the future" -- a factual finding subject to the
BIA's clear-error review. Samayoa Cabrera, 939 F.3d at 382
(quoting Matter of Z-Z-O-, 26 I. & N. Dec. 586, 590 (BIA 2015)).
And as we've already mentioned, the rest of Petitioner's challenges
to the IJ's factual findings were subject to the same clear-error
review by the BIA. See Barros, 31 F.4th at 57. That standard is
a tough one to meet and requires deference unless -- "after
whole-record review -- [the BIA] ha[s] 'a strong, unyielding
- 18 - belief' that the [IJ] stumbled." Adeyanju, 27 F.4th at 33 (second
alteration in original) (quoting United States v.
Rivera-Carrasquillo, 933 F.3d 33, 42 (1st Cir. 2019)).
Given the BIA's decision, we cannot say that it applied
the wrong standard to the IJ's factual findings. After
acknowledging the difficult situation Petitioner's removal has put
Gustavo in, the BIA stated "[h]owever, the [IJ] assessed the son's
circumstances," and proceeded to list important factual findings.
This process of first addressing Petitioner's argument before
deferring to the findings of the IJ is consistent with clear-error
review. So we see no evidence that the BIA reviewed the IJ's
findings for anything besides clear error and reject Petitioner's
argument. See Samayoa Cabrera, 939 F.3d at 383.
Nor has Petitioner convinced us that the BIA skirted its
obligation to review de novo the IJ's hardship determination. The
sum total of Petitioner's argument on this score is that the BIA's
one-paragraph exposition reflects "a highly deferential (non-de
novo) review to the entire hardship decision," or worse yet, "a
thoughtless summary of [the BIA's] favorite parts [of] the IJ's
decision." That lone sentence, however, does not provide an
indication that the BIA applied the wrong standard of review. To
the contrary, the BIA stated, "we agree with the [IJ's] reasoning
that [Petitioner] did not establish his son's hardship," and cited
its guiding precedent on this legal issue, Matter of Monreal. To
- 19 - agree with "suggests not deference to, but rather alignment with"
the IJ's assessment. DeCarvalho v. Garland, 18 F.4th 66, 74 (1st
Cir. 2021). Alongside the supportive citation, see Khalil, 97
F.4th at 68, we find no indication that the BIA failed to review
the IJ's hardship determination de novo.
For these reasons, we reject Petitioner's arguments that
the BIA reviewed his appeal under an incorrect standard of review.
3. Ignored Monreal Factors
Third, Petitioner claims that the agency disregarded its
settled course of adjudication when it did not consider all the
Monreal factors. We are unpersuaded.
Both parties agree that the BIA's decision in Matter of
Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001), is the starting
point for determining what constitutes exceptional and extremely
unusual hardship standard. There, the BIA explained that the
relevant factors to consider include (1) the age of the qualifying
family member, (2) "family ties in the United States and abroad,"
(3) "length of residence in this country," (4) "the health of the
[petitioner] and qualifying family members," (5) "the political
and economic conditions in the country of return," (6) "the
possibility of other means of adjusting status," (7) "the
[petitioner's] involvement and position in his or her community
here," and (8) the petitioner's "immigration history." Id. at 63.
The agency considers these facts "in the aggregate" and makes
- 20 - hardship determinations on a case-by-case basis. Nolasco, 134
F.4th at 683 (quoting Matter of Monreal, 23 I. & N. Dec. at 64).
Viewing the BIA's holding (in which it expressly cited
Monreal) together with the IJ's decision, we see no reason to
believe that the agency ignored the Monreal factors relevant to
the hardship determination in this case. To be sure, the agency's
decision did not invoke each Monreal factor. But Monreal itself
uses permissive language when discussing the factors -- that is,
it says that the eight factors "are all proper factors to be
considered." Matter of Monreal, 23 I. & N. at 63. And Petitioner
cites no authority suggesting that Monreal obligates the agency to
consider every factor in every case. What is more, Petitioner
"ha[s] not explained how consideration of [his desired factors]
would bolster [his] hardship claim." Nolasco, 134 F.4th at 685.
So "we cannot conclude it was legal error for the agency not to
explicitly address" those desired factors. Id.
4. Failed to Consider All Evidence
Fourth, Petitioner contends that the BIA cherry-picked
certain record evidence while ignoring other evidence that would
have changed the outcome. That argument resembles the petitioner's
contention in Tacuri-Tacuri v. Garland: "that the governing
caselaw 'force[s the BIA] to address the complete record.'" 998
F.3d 466, 473 (1st Cir. 2021), abrogation on other grounds
recognized by Figueroa, 119 F.4th at 165 (1st Cir. 2024)
- 21 - (alteration in original). But here, as there, the "argument falls
flat" because Petitioner "cites no caselaw to support the
proposition that the BIA must specifically address every
evidentiary submission within the record." Id. And, to the extent
Petitioner argues that the agency overlooked critical evidence,
that claim would fail, too, because he has not pointed to any such
evidence, nor has he proffered how consideration of such evidence
would bolster his claim. See Nolasco, 134 F.4th at 685.
5. Required Medical or Expert Report
Fifth, Petitioner argues that the agency defied its own
precedent by requiring him to provide expert or medical reports to
establish Gustavo's hardship. We see nothing in the record to
support such an assertion. Indeed, the BIA has acknowledged that
a testifying applicant generally "will lack the firsthand
knowledge and medical expertise needed to provide persuasive and
sufficiently specific testimony regarding the seriousness of a
qualifying relative's medical condition . . . to meet [his]
burden" of proof on that issue. Matter of J-J-G, 27 I. & N. Dec.
808, 811-12 (BIA 2020). In other words, if the record lacks expert
confirmation of a claimed medical condition, the petitioner may
have more difficulty proving the severity of the relative's medical
issues. The IJ's conclusion here that Petitioner's evidence fell
short is fully consistent with the BIA's observation and a far cry
from imposing a categorical requirement for expert or medical
- 22 - reports. And, to the extent Petitioner is seeking to dispute the
IJ's factual determination on Gustavo's medical condition, we lack
jurisdiction to second-guess that evidentiary finding. See
Contreras, 134 F.4th at 20 ("[A]part from any associated legal
errors, we may not consider . . . petitioner['s] assertion that
the IJ erred in determining that [the qualifying relative] 'does
not suffer from any serious medical conditions.'" (quoting
Wilkinson, 601 U.S. at 225)).
With the purely legal questions addressed and the
factual findings set, we turn to Petitioner's final claim. It
"boil[s] down to his fundamental disagreement with how the [agency]
weighed and considered the facts in his case." Tacuri-Tacuri, 998
F.3d at 474. Yet, as we explain, the agency "adequately explained
and supported its decision that [Petitioner] failed to meet the
'exceptional and extremely unusual hardship' standard." Id.
To constitute "exceptional and extremely unusual, the
hardship to a noncitizen's relatives must be substantially beyond
the ordinary hardship that would be expected when a close family
member leaves this country." Nolasco, 134 F.4th at 682 (citation
modified). This "standard is supposed to be hard to meet and is
evaluated in comparison to the hardships typically felt by children
whose parents are removed from the country -- this in itself sets
a high bar." Tacuri-Tacuri, 998 F.3d at 474. Although that
- 23 - standard does not mandate the hardship be "unconscionable," the
circumstances must be "truly exceptional." Matter of Monreal, 23
I. & N. Dec. at 60-61, 62. And our review of the agency's
determination "is deferential."3 Figueroa, 119 F.4th at 166.
Given that high burden and our deferential standard of
review, we cannot hold that the agency erred in reaching its
hardship determination. Recall the agency's decision. It
evaluated the relevant facts and held that Petitioner did not meet
the high burden of showing exceptional and extremely unusual
hardship. It acknowledged Petitioner's relationship with Gustavo,
3In one sentence in his opening brief, Petitioner urges "this Court [to] review the [agency's] hardship determination de novo." But the argument suffers from multiple levels of waiver. First, such a bare statement, unaccompanied by developed argumentation, "is plainly insufficient as an argument." Martinez-Burgos v. Guayama Corp., 656 F.3d 7, 10 (1st Cir. 2011). And although Petitioner spends a little more time on this proposition in his reply brief, we do not consider it. See id. ("Arguments raised for the first time in a reply brief are waived." (quoting United States v. Vanvliet, 542 F.3d 259, 265 n.3 (1st Cir. 2008))). Second, even if we set aside that threshold defect, the argument as presented in his reply brief likewise falls short for lack of development. We elaborate briefly. At its core, Petitioner's position in reply is that the Supreme Court's statement in Wilkinson -- that the "review is deferential" -- is dictum. Petitioner, however, makes no effort to wrestle with our precedent, which binds us and dictates that our review of these questions is deferential. See Contreras, 134 F.4th at 19 & n.7 (explaining that "[o]ur review of the BIA's determination 'is deferential'"). So that argument, too, is waived. See Figueroa, 119 F.4th at 166. We accordingly proceed as we did in Figueroa: viewing the BIA's hardship determination through a deferential lens, without deciding the amount of deference we afford to such determinations. See id. at 166 n.7.
- 24 - including his role financially and emotionally supporting Gustavo.
And, in light of Gustavo's troubles in school, the community, and
at home, the agency did find that Gustavo would experience hardship
after Petitioner's removal. But, given other evidence in the
record, the agency found that the hardship would not be
substantially beyond that which is normally expected when a close
family member leaves this country. It held as much because Gustavo
would still have his mother -- who is his primary caretaker and
has a stable income. The agency likewise rested its conclusion on
the fact that Gustavo would continue to have access to therapy and
other health services. And it considered, too, that Petitioner
failed to prove that Gustavo needed him for either healthcare
services or health insurance.
Petitioner says that the agency's conclusion was
"unjustifiable." In his words, "[t]he question presented was
whether a 17-year-old drug addict who had dropped out of high
school would suffer 'substantially beyond the ordinary hardship
that would be expected when a close family member leaves the
country.'" And, he continues, "nothing in the
record . . . indicate[s] that Gustavo, who had been refusing
treatment, would somehow overcome this position in light of losing
his father's presence."
We do not doubt the hardship that Gustavo has faced, let
alone what he will face following his father's removal. At the
- 25 - same time, the question before us is whether Petitioner carried
his burden of showing that Petitioner's removal would cause Gustavo
to experience exceptional and extremely unusual hardship. The
corollary requirement is that the petitioner must prove some nexus
between his remaining in the country and the qualifying relative's
hardship. Relevant here, Petitioner had to demonstrate that his
presence in the country was reasonably necessary to prevent, or at
least manage, the resulting hardship.
The agency found that Petitioner failed to make that
showing. We agree. Remember, Petitioner admitted that Gustavo
did not heed parental guidance and refused to accept available
treatment -- despite Petitioner's proximity to, and regular
contact with, Gustavo. And, aside from Petitioner's conjecture,
there was no evidence to show that Gustavo's poor decisions would
subside if the agency granted Petitioner's application for
cancellation of removal. True, Petitioner claims that Gustavo's
behaviors were symptomatic of psychological difficulties for which
he might need treatment or parental guidance and assistance. But
the agency supportably found that Petitioner did not prove that
Gustavo suffered from psychological difficulties so severe that
the loss of Petitioner's presence and in-person guidance would
result in exceptional and extremely unusual hardship. Cf. Pandit
v. Lynch, 824 F.3d 1, 4 (1st Cir. 2016).
- 26 - In sum, although we sympathize with Petitioner, we
cannot conclude that the agency got it wrong on this record.
IV.
For all these reasons, we deny the petition for review.
- 27 -