United States Court of Appeals For the First Circuit
No. 23-1947
GUSTAVO EVELIO MENDEZ NOLASCO and BLANCA AMERICA NIZ MENDEZ,
Petitioners,
v.
PAMELA J. BONDI, United States Attorney General,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Barron, Chief Judge, and Rikelman, Circuit Judge.**
Kristian R. Meyer, with whom Kevin P. MacMurray and MacMurray & Associates were on brief, for petitioners.
Joanna L. Watson, Senior Trial Attorney, Office of Immigration Litigation, Civil Division, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil
* 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. ** Judge Selya heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel's decision. The remaining two panelists issued the opinion pursuant to 28 U.S.C. § 46(d). Division, and Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
April 23, 2025
- 2 - RIKELMAN, Circuit Judge. Gustavo Evelio Mendez Nolasco
("Gustavo") and Blanca America Niz Mendez ("Blanca") petition for
review of the denial of their applications for cancellation of
removal under 8 U.S.C. § 1229b.1 They contend both that their four
children would suffer exceptional and extremely unusual hardship
if they were to return to Guatemala, and that the Board of
Immigration Appeals (BIA) made several errors of law in concluding
otherwise. Finding no legal error in the agency's application of
the hardship standard to the record here, we deny the petition.
I. BACKGROUND
A. Relevant Facts2
Petitioners are natives and citizens of Guatemala.
Gustavo entered the United States without inspection in 1981, and
Blanca entered the United States without inspection in 2001. The
couple married in the United States in 2004. They live in Lynn,
Massachusetts, where they are very involved with their local
church.
1For clarity, we use the first names of Petitioners and their family members in this opinion. We mean no disrespect in doing so. 2 We draw the relevant facts from the administrative record, including testimony by Gustavo and Blanca that the Immigration Judge (IJ) credited.
- 3 - Since about 2011, Gustavo has run his own company, Mendez
Landscaping and Construction. Blanca works as a bookkeeper and
manager for the company, which has six employees on its payroll.
At the immigration hearing, Gustavo estimated that the company was
worth approximately $500,000 and explained that, over the years,
he has re-invested about $200,000 back into the business, including
by purchasing trucks, trailers, and other machinery. The couple's
tax returns reported a business income of approximately $70,000
per year. In 2016, they purchased a home for $500,000, which they
have since extensively remodeled.
Gustavo and Blanca have four children; the three
youngest are United States citizens. Their fourth child, Aldo, is
twenty-six and is a Legal Permanent Resident (LPR). Aldo is
Blanca's biological son and Gustavo's stepson; he has lived with
both of them in the United States since he was ten years old. At
the time of the 2019 immigration hearing, he was studying
architecture at the local community college. Gustavo and Blanca's
three youngest children speak and understand minimal Spanish and
cannot write in Spanish. At the time of the hearing, the children
were healthy and doing well in school.
B. Procedural History
In late 2017, Petitioners were served with Notices to
Appear charging them with removability. In response, they applied
for cancellation of removal, arguing that removal would cause
- 4 - exceptional and extremely unusual hardship to their children. At
the 2019 hearing on the merits of their applications, Gustavo
testified that "everything would be ruined" if the family were
removed to Guatemala. He also stated that he was afraid that his
children would be deprived of opportunities in Guatemala, in part
because of the gang violence, poverty, and substance abuse problems
in the country. Blanca echoed those fears, testifying that her
children "would lose their education" and her husband would lose
his business. On cross-examination by the government, Gustavo and
Blanca were questioned about their previous interactions with law
enforcement. Each admitted to past arrests for various
misdemeanors, which they had not disclosed prior to the hearing,
and Blanca acknowledged one conviction.
The IJ denied Petitioners' applications for cancellation
of removal in a written order on July 22, 2019. The IJ determined
that they were statutorily ineligible for cancellation of removal
for two independent reasons. First, the IJ found that Gustavo and
Blanca had not been forthcoming about their criminal histories and
thus had not demonstrated good moral character. Second, the IJ
concluded that the couple's qualifying relative children would not
suffer the requisite level of hardship if they were to return to
Guatemala with their parents. In making the "exceptional and
extremely unusual" hardship determination, the IJ considered "the
children's comfort and familiarity with the language and way of
- 5 - life" in Guatemala, "the economic stake [Petitioners] ha[d] gained
in the United States," and Petitioners' concerns about their
children's "safety and education." The IJ made several factual
findings related to hardship; for example, she recognized the three
youngest children's limited familiarity with Spanish and the value
of Gustavo's landscaping company and the family home. The IJ also
found that, as an adult and LPR, Aldo could petition for his
parents to have their status legally adjusted, "further mitigating
the hardship the qualifying relatives would face." Although the
IJ acknowledged that the conditions in Guatemala posed
"significant" challenges for the children, she concluded that
those hardships were not "'substantially beyond that which would
ordinarily be expected' upon removal." Matter of
Monreal-Aguinaga, 23 I. & N. Dec. 56, 59 (BIA 2001).
Petitioners appealed to the BIA, which affirmed the IJ's
decision and dismissed the appeal in October 2023. The BIA
determined that the IJ had "properly considered the evidence in
the record regarding hardship" and highlighted some of the IJ's
key findings, such as the children's limited Spanish language
skills, the couple's assets, and Aldo's ability to remain in the
United States to continue his education. Then, citing several of
its precedential decisions on the hardship inquiry, the BIA
concluded that "for the reasons stated by the
[IJ], . . . Petitioners did not meet their burden of establishing
- 6 - that their removal will result in exceptional and extremely unusual
hardship to their lawful permanent resident child and their United
States citizen children." And because the BIA "agree[d] with the
[IJ]'s" exceptional and extremely unusual hardship assessment, it
did "not address the [IJ']s [additional] determination that the
[couple] did not establish the requisite good moral character."3
II. STANDARD OF REVIEW
We begin by laying out the scope of our review. In
immigration cases, we typically focus our review on the BIA's final
decision. See Loja-Tene v. Barr, 975 F.3d 58, 60 (1st Cir. 2020).
"But 'to the extent that the BIA deferred to or adopted the IJ's
reasoning, we review those portions of the IJ's decision' as well."
Khalil v. Garland, 97 F.4th 54, 61 (1st Cir. 2024) (quoting Chavez
v. Garland, 51 F.4th 424, 429 (1st Cir. 2022)). "When we discuss
the BIA and IJ's decisions as a unit, we refer to the BIA and IJ
as 'the agency.'" Id. (citation omitted). Because the BIA's
ruling rested entirely on the exceptional and extremely unusual
3 Petitioners submitted additional evidence to the BIA to provide context regarding their previous misdemeanor arrests and Blanca's conviction. The BIA noted that it "generally cannot consider any new evidence proffered on appeal," and that "[t]he additional documentation" the couple submitted was not "sufficiently material so as to warrant a remand." Petitioners do not challenge the BIA's refusal to consider this additional evidence, nor do they rely on any of that evidence in their petition to this court.
- 7 - hardship determination, we review only that aspect of the agency's
decision.
To be statutorily eligible for cancellation of removal
under the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA), Petitioners must show, among other things,
"that [their] removal would result in 'exceptional and extremely
unusual hardship'" to a qualifying relative. Figueroa v. Garland,
119 F.4th 160, 162 (1st Cir. 2024) (quoting 8 U.S.C.
§ 1129b(b)(1)(D)). The statutory exceptional and extremely
unusual hardship standard is a legal standard. See Wilkinson v.
Garland, 601 U.S. 209, 217 (2024). Thus, although we lack
jurisdiction to review the agency's ultimate exercise of
discretion in deciding whether to grant cancellation of removal in
a particular case, see 8 U.S.C. § 1252(a)(2)(B)(i), we have
jurisdiction to review the agency's application of that statutory
standard to a given set of facts because it presents "a question
of law under § 1252(a)(2)(D)," Wilkinson, 601 U.S. at 217. In
Wilkinson, the Supreme Court specified that this review is meant
to be "deferential." Id. at 225.
At the outset, the parties disagree on whether and to
what extent Wilkinson's "deferential" standard governs our review.
Petitioners contend that the Supreme Court's decision in Loper
Bright Enterprises v. Raimondo effectively abrogated Wilkinson.
See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412-13 (2024)
- 8 - (holding that "[c]ourts must exercise their independent judgment
in deciding whether an agency has acted within its statutory
authority" and "may not defer to an agency interpretation of the
law simply because a statute is ambiguous") (overruling Chevron,
U.S.A. v. Nat. Res. Def. Council, 467 U.S. 837 (1984)). In
response, the government argues that Wilkinson remains good law
and requires us to apply the deferential substantial evidence
standard in reviewing the agency's fact-intensive hardship
determination.
We need not determine the standard of review applicable
here, however, because we conclude that Petitioners' claim would
fail even under the de novo standard that they urge us to adopt.
See United States v. Goncalves, 123 F.4th 580, 586 (1st Cir. 2024).
Accordingly, without resolving that open question, we review the
agency's legal determinations de novo for the purposes of this
appeal.
Turning to the "exceptional and extremely unusual
hardship" standard, we note that Petitioners do not challenge the
agency's interpretation of that hardship standard but rather
challenge the agency's application of the undisputed standard to
the facts of their case. Thus, we apply the "exceptional and
extremely unusual hardship" standard as the BIA has interpreted
it.
- 9 - To qualify as "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." Matter
of Monreal, 23 I. & N. Dec. at 62 (citation omitted).
"[C]onsideration should be given to the age, health, and
circumstances of the qualifying family members, including how a
lower standard of living or adverse country conditions in the
country of return might affect those relatives." Matter of
Gonzalez Recinas, 23 I. & N. Dec. 467, 468 (BIA 2002). These
factors must be considered "in the aggregate." Matter of Monreal,
23 I. & N. Dec. at 64. Ultimately, however, "any hardship case
. . . succeeds or fails on its own merits and on the particular
facts presented." Matter of Recinas, 23 I. & N. Dec. at 469. All
in all, the exceptional and extremely unusual hardship "standard
is supposed to be hard to meet." Tacuri-Tacuri v. Garland, 998
F.3d 466, 474 (1st Cir. 2021), abrogation on other grounds
recognized by Figueroa, 119 F.4th at 165 (1st Cir. 2024). Thus,
relief should be granted only in "truly exceptional"
circumstances. Matter of Monreal, 21 I. &. N. Dec. at 62 (citation
omitted). With this framework in mind, we proceed to the merits.
- 10 - III. DISCUSSION
A. Whether the Agency Departed from Binding Precedent
Petitioners contend that the agency committed a legal
error when it failed to apply binding BIA precedent to the facts
of their case.4 We disagree that the agency misapplied its
precedent and thus find no legal error.
To start, some of the cases upon which Petitioners rely
in making this claim of legal error were decided before Congress
enacted IIRIRA. See Matter of O-J-O-, 21 I. & N. Dec. 381 (BIA
1996); Matter of Ige, 20 I. & N. Dec. 880 (BIA 1994). As a result,
in those cases the BIA was interpreting and applying the "extreme
hardship" standard found in the Immigration and Nationality Act's
suspension of deportation provision. See 8 U.S.C. § 1254(a)(1)
(repealed 1996). However, when Congress enacted IIRIRA, it
substituted "cancellation of removal" for "suspension of
deportation" and replaced "extreme hardship" with "exceptional and
extremely unusual hardship." See Pareja v. Att'y Gen. of U.S.,
4 Petitioners assert that the BIA "departed from its settled course of adjudication" regarding exceptional and extremely unusual hardship. The settled-course standard is typically reserved for review of discretionary decisions by the BIA. See INS v. Yang, 519 U.S. 26, 31-32 (1996). The decision challenged here -- the application of the "exceptional and extremely unusual hardship" standard to a given set of facts -- is not discretionary. See Wilkinson, 601 U.S. at 218. Thus, the more appropriate inquiry is whether the agency failed to follow its own binding precedent in evaluating Petitioners' claim. In substance, we understand this to be Petitioners' argument, and we evaluate the argument based on this understanding.
- 11 - 615 F.3d 180, 185 (3d Cir. 2010) (laying out legislative history
and BIA interpretation of IIRIRA).
As the BIA has explained, by making that change, Congress
"imposed a standard of hardship that is significantly more
burdensome than the former 'extreme hardship' standard." Matter
of Andazola-Rivas, 23 I. & N. Dec. 319, 322 (BIA 2002); see also
Matter of Monreal, 23 I. & N. Dec. at 62 ("[T]he term 'exceptional
and extremely unusual hardship' is a more restrictive standard
than the 'extreme hardship' standard . . . particularly as it was
applied in Matter of O-J-O-."). Indeed, Petitioners repeatedly
acknowledge that the "exceptional and extremely unusual" hardship
standard controls and do not contend that it is legally equivalent
to "extreme hardship."5 Thus, we conclude that the BIA did not
commit legal error by not citing to or relying upon pre-IIRIRA
precedent in deciding Petitioners' case.
Next, Petitioners argue that the BIA legally erred by
failing to conclude that their hardship claim was
indistinguishable from the successful claim in Matter of Recinas.
They contend that "under the framework of Matter of Recinas[,] a
5 In any event, as we explain in Section III.B, the record indicates that the IJ considered the relevant factors under Matter of O-J-O- and the related case law cited by Petitioners. Compare, e.g., Matter of O-J-O-, 21 I. & N. Dec. at 382-83 (listing relevant factors), with Administrative Record 81 (citing Matter of Monreal, 23 I. & N. Dec. at 63 (providing nearly identical list of "proper factors to be considered")).
- 12 - finding of hardship was required" because, like the petitioner in
Recinas, they also have multiple children who have limited Spanish
skills, and their children would face educational and financial
challenges in the country of removal. See 23 I. & N. Dec. at
469-72. The BIA applied IIRIRA's exceptional and extremely unusual
hardship standard in Matter of Recinas, so Petitioners are correct
that this precedent is relevant to their case.
But Petitioners' claim of legal error based on Recinas
nevertheless fails: That decision does not establish that the
exceptional and extremely unusual hardship standard is satisfied
whenever an applicant has multiple children who would need to learn
a new language and who would face worse educational and financial
prospects upon removal. Instead, the agency's decision in Matter
of Recinas was based on the "totality" of the circumstances
presented in that specific case. Matter of Recinas concerned a
single mother of six children who received no support from her
ex-husband, had less than $5,000 in financial assets, and had no
family in Mexico, her country of citizenship. See id. at 469-70,
472. And, critically, her own mother, on whom she relied heavily
for both financial support and regular childcare, also resided in
the United States. See id. at 470-71. In addition, two of Recinas'
children struggled to communicate in Spanish. See id. In
concluding that Recinas had met the hardship standard, the BIA
emphasized that it was considering "the totality of the burden on
- 13 - the entire family that would result when a single mother must
support a family of this size." Id. at 472. On those facts, the
BIA reasoned that "the heavy financial and familial burden on
[Recinas]," along with the lack of family support in Mexico and
the younger children's unfamiliarity with Spanish, combined "to
render the hardship in [that] case well beyond that which is
normally experienced in most cases of removal." Id.
By contrast, Petitioners here are co-parenting four
children, two of whom are legal adults. Further, Petitioners'
financial assets, which include a house and business, were valued
at over $700,000 in 2019. Additionally, the IJ found it
significant that the couple's oldest child, Aldo, was a LPR who
could petition for his parents to have their status lawfully
adjusted. To be sure, the IJ also found that the younger children
had limited Spanish skills. But that fact alone is not a basis to
conclude that the agency departed from its own precedent in Matter
of Recinas in ruling against Petitioners on the hardship inquiry,
particularly when the agency relied on other material facts to
distinguish the couple's hardship claim from the claim in that
case. See Williams v. Garland, No. 20-2074, 2024 WL 3273988, at
*4 (1st Cir. July 2, 2024) ("Rather than show that the BIA applied
different rules to similarly situated applicants for relief, the
cases provided by Williams demonstrate that the BIA applied the
- 14 - same rules, encountered differently situated applicants, and as a
result, reached different conclusions.").
B. Whether the Agency Failed to Consider Relevant Factors
We turn next to Petitioners' claims that the agency
committed legal error by failing to (i) consider relevant factors
in its hardship analysis and (ii) evaluate the relevant factors in
the aggregate. After a careful review of the agency's decision,
we see no such legal errors.
First, Petitioners contend that the agency overlooked
certain factors relevant to the hardship determination, including
the sociopolitical conditions in Guatemala, their longtime
residency in the United States, and their lack of family ties to
Guatemala. Whether the agency failed to consider relevant factors
in the hardship determination is a legal question, and so we have
jurisdiction to review it. See Perez-Trujillo v. Garland, 3 F.4th
10, 22-23 (1st Cir. 2021) (concluding that the "BIA erred as a
matter of law" by "ignor[ing] altogether a particularly salient
aspect" of the petitioner's hardship claim). But, again, we find
no legal error in the agency's analysis on this score.
The agency's decision demonstrates that it did consider
the relevant hardship factors. See Ayeni v. Holder, 617 F.3d 67,
73 (1st Cir. 2010). The IJ specifically referenced Petitioners'
longtime residency in the United States. She also considered the
effect of Guatemala's sociopolitical climate on the children,
- 15 - including the "poor education system in Guatemala," the "lower
standard of living and gang violence," and the general "difficulty
of adjusting to life in another country." And although the IJ
acknowledged that those concerns were "significant," she
nevertheless concluded that they were not "substantially beyond
that which would ordinarily be expected" (citation omitted).6 In
reviewing the couple's appeal, the BIA found that the IJ properly
considered the evidence in the record regarding hardship.
To be sure, the IJ made no explicit findings related to
the couple's family ties in Guatemala or the United States. But
unlike Petitioners' claims about country conditions in Guatemala
or their long-term residency in the United States, they have not
explained how consideration of family ties would bolster their
hardship claim. Rather, they concede that they both have family
in Guatemala and do not mention any extended family who live in
the United States. Thus, we cannot conclude it was legal error
for the agency not to explicitly address the "family ties" factor
in the absence of argument or evidence indicating how that factor
would support Petitioners' hardship claim. Cf. Aldana-Ramos v.
Holder, 757 F.3d 9, 16 (1st Cir. 2014) (remanding to agency where
6 Before our court, Petitioners contend that they would be more susceptible to the violence and economic disadvantages in Guatemala than others would be because Blanca and her daughter are women. But they never raised this argument to the agency, and so we cannot review it. See Martínez-Pérez v. Sessions, 897 F.3d 33, 41 n.6 (1st Cir. 2018).
- 16 - "[t]he factual record . . . does not preclude and would even allow
the BIA to find that petitioners" had established a protected
ground in asylum case). In sum, we find no merit to the contention
that the agency did not consider the relevant hardship factors.
Second, Petitioners suggest that the agency failed to
conduct a "totality of the circumstances" review as required by
BIA precedent. See Matter of Monreal, 23 I. & N. Dec. at 64
(explaining that "all hardship factors should be considered in the
aggregate"). But the IJ explicitly referred in her decision to
the collective "economic and emotional hardships that the children
may face" in adjusting to life in another country, as well as
"concerns about [their] safety and education" in Guatemala and
limited Spanish language skills. She then determined that those
hardships were typical of what "is expected" and did not rise to
the level of exceptional and extremely unusual. The BIA adopted
that analysis on appeal. Accordingly, we cannot conclude that the
agency failed to evaluate the hardship factors in the aggregate.
C. Whether the Agency Erred in its Review of the Record
Petitioners also claim that the BIA failed to apply the
appropriate standard of review to the IJ's factual findings. See
Barros v. Garland, 31 F.4th 51, 57 (1st Cir. 2022) ("[W]hen the
BIA reviews the IJ's findings of fact, it reviews them only for
clear error."). We have held that the BIA's application of the
incorrect standard of review to an IJ's decision is a legal error.
- 17 - See H.H. v. Garland, 52 F.4th 8, 19 (1st Cir. 2022). But there is
no indication that an incorrect standard was applied here. The
BIA cited the correct standard of review (clear error), then
concluded that there was no such error in the IJ's assessment of
the key record facts, which it proceeded to discuss.
To the extent Petitioners challenge those underlying
findings of fact -- including the IJ's determination that their
children could speak and read some Spanish, and that Aldo could
remain in the United States to finish school -- we lack
jurisdiction to review them. See Wilkinson, 601 U.S. at 222. In
any event, the IJ did not make a finding that Aldo definitively
would not relocate with the rest of the family; rather, she stated
that "it is his decision as an adult to determine whether or not
he wants to move to Guatemala with his family." From that finding,
the IJ concluded that if Aldo remained in the United States, he
could avoid any disruption to his education. And, again,
Petitioners have raised no "colorable legal question" regarding
the BIA's decision to affirm that finding under clear error review.
Pareja, 615 F.3d at 189 (petitioner's "assertion that the BIA
'assumed' that [her child] would return with her . . . is wholly
undetermined by the record").
Finally, we reject Petitioners' contention that the
record compels reversal. Petitioners acknowledge in their
briefing that to rise to the level of "exceptional and extremely
- 18 - unusual," the hardship to a noncitizen's qualifying relative must
be "substantially beyond that which would ordinarily be expected
to result from" removal. (Citing Matter of Monreal, 23 I. & N.
Dec. 19 at 62). Petitioners have failed to make this showing. The
agency found that their children are healthy, that they do well in
school, and that they speak and read some Spanish. The agency
also found that Petitioners have "considerable assets . . . which
can assist them in establishing a life in Guatemala." As the
agency indicated, "[a] lower standard of living and emotional
hardship are not unusual consequences of removal." And Petitioners
have not otherwise shown that the hardship suffered by their
children due to country conditions in Guatemala, though
significant, would be exceptional and extremely unusual compared
to that which would ordinarily result from a noncitizen's removal.
Accordingly, we disagree that the agency erred in its application
of the statutory hardship standard to the facts of this case.
IV. CONCLUSION
For all these reasons, we deny the petition for review.
- 19 -