United States Court of Appeals For the First Circuit
No. 23-1412
MARIANO ORTIZ TREJO,
Petitioner,
v.
PAMELA BONDI, Attorney General,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Montecalvo, Lipez, and Aframe, Circuit Judges.
Randy Olen for petitioner.
Todd J. Cochran, Senior Trial Attorney, U.S. Department of Justice, Civil Division, with whom Daniel E. Goldman, Senior Litigation Counsel, Office of Immigration Litigation, and Brett A. Shumate, Acting Assistant Attorney General, Civil Division, were on brief, for respondent.
August 29, 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. Mariano Ortiz Trejo, a native and
citizen of Mexico, petitions for review of the denial of his
application for cancellation of removal under section 240A(b)(1)
of the Immigration and Nationality Act ("INA") (codified at 8
U.S.C. § 1229b(b)(1)). He contends that he is entitled to this
relief because if he were removed to Mexico, his minor son would
suffer "exceptional and extremely unusual hardship," 8 U.S.C.
§ 1229b(b)(1)(D), and he argues that the Board of Immigration
Appeals ("BIA") legally erred in determining otherwise. Because
we discern no error in the BIA's decision, we deny the petition.
I.
Ortiz Trejo entered the United States without inspection
in 1999.1 After briefly returning to Mexico in 2004 to care for
his ailing parents, Ortiz Trejo reentered the United States without
inspection in 2005 and has not left the country since that time.
Ortiz Trejo lives with his son, J.O. -- a United States
citizen -- and J.O.'s mother in Rhode Island.2 To support his
family, Ortiz Trejo works at a construction company in
Massachusetts, which allows him to contribute about $1,400 per
month to his household's monthly expenses of $2,000. J.O.'s
1 We draw the relevant facts from the administrative record, including testimony from Ortiz Trejo, whom the Immigration Judge ("IJ") found credible. 2 J.O.'s mother has a permit to work in the United States but is not a legal permanent resident.
- 2 - mother, who works at a pizza restaurant, contributes the remaining
$600 per month.
In July 2015, Ortiz Trejo was served a Notice to Appear
charging him with being subject to removal under the INA. In
response, he conceded removability and applied for cancellation of
removal, arguing that his removal to Mexico would cause exceptional
and extremely unusual hardship to his minor son. He also applied
for voluntary departure in the alternative.
At the November 2018 hearing on the merits of his
applications,3 Ortiz Trejo testified that J.O., who was eight years
old at the time, would fare poorly if his father were removed to
Mexico.4 Ortiz Trejo explained that he and J.O. are very close,
3 During this hearing, Ortiz Trejo stated that he would not be moving forward with an application for asylum and withholding of removal that he had filed in February 2012 and thus was seeking only cancellation of removal and, alternatively, voluntary departure. 4 In a written declaration in support of his cancellation application submitted to the IJ at the start of the merits hearing, Ortiz Trejo stated that J.O. would accompany him if he were removed to Mexico. However, Ortiz Trejo had previously asserted in his cancellation application that if he were ordered removed, J.O. would continue to live in the United States. He did not clarify during his testimony before the IJ which of those statements was accurate. Given that J.O. lives with his mother, who is not in removal proceedings, the BIA stated that it was "assum[ing] that [J.O.] will remain in this country" upon Ortiz Trejo's removal. See In re Calderon-Hernandez, 25 I. & N. Dec. 885, 886 (BIA 2012) ("Where both parents are living in the United States and the parent who is in [removal] proceedings indicates an intention that a child will remain in the United States upon his or her removal, . . . [i]t is reasonable . . . to assume that the child will be cared for and supported by the parent who remains here . . . ."). Ortiz Trejo does not argue that this assumption was erroneous, so we
- 3 - noting that he "take[s] [J.O.] to karate, to the park, to school,
to games, and at all times [J.O. is] always looking for [him]."
Ortiz Trejo testified that if he were removed, "it would be very
difficult . . . to provide" J.O. with the quality of life to which
he was accustomed. For example, Ortiz Trejo estimated that, in
Mexico, he would make roughly fifty dollars per week and thus would
not "earn enough to be able to contribute" to his family's
expenses.
Much of Ortiz Trejo's testimony focused on his son's
physical health challenges. He attested that his "son has a
medical problem with his allergies" and, specifically, is allergic
to "[p]ollen, mold, hot water,5 and whatever is green." When he
was four years old, J.O. experienced an "[a]naphylactic reaction"
that required a visit to the emergency room. After that episode,
Ortiz Trejo and J.O.'s mother began taking J.O. to the doctor every
week or so for allergy shots and were continuing to do so as of
the date of the hearing. Progress notes from these visits with
his doctor reflected that J.O. "[f]eels [his allergy shots] have
been very ben[e]ficial" and "reports good control of [his]
allergies." J.O. was also given an EpiPen following his allergic
will likewise assume that J.O. will not accompany his father to Mexico. Ortiz Trejo explained that his son breaks out in welts and 5
experiences shortness of breath if his shower water is too hot.
- 4 - reaction to use in case of emergency, and he was prescribed allergy
medication to take daily. J.O.'s allergy treatments and medication
are paid for by his Rhode Island-sponsored health insurance.
Before his testimony began, in support of his
applications, Ortiz Trejo asked the IJ to admit as evidence various
documents, including a written evaluation of J.O. completed in
August 2018 by a licensed psychologist. That evaluation diagnosed
J.O. with "Adjustment Disorder Unspecified" and "[p]roblems"
related to his father's immigration proceedings. The evaluation
also noted, among other things, that J.O. "has demonstrated
irritability in response to his father's potential deportation"
and that Ortiz Trejo's removal "would result in a significant loss
for" J.O. The government objected to the admission of the
psychological evaluation, arguing that it was "unreliable, full of
speculation," and "comments on matters that are outside of the
expertise of a psychologist." Finding the evaluation potentially
"probative," the IJ admitted it into evidence but noted that, in
light of the subsequent testimony, he would "give [the evaluation]
whatever weight [he] deems appropriate." Ortiz Trejo did not
mention the evaluation during his subsequent testimony, nor did he
comment on his son's mental health generally.
Following the close of evidence, the IJ determined that
Ortiz Trejo had not established that J.O. would experience
"exceptional and extremely unusual hardship" due to his father's
- 5 - removal. In reaching that conclusion, the IJ found "the likelihood
that [J.O] would have [another] allergic reaction requiring an
emergency room visit" to be "extremely low" and that J.O. suffers
from "essentially seasonal allergies" that "are controllable."
The IJ further found that J.O.'s "mother works and earns money
to be able to provide for" J.O. and that J.O. "would still receive
treatment for his allergies from the state of Rhode Island" if his
father were removed. The IJ therefore denied Ortiz Trejo's
application for cancellation of removal. The IJ also determined,
however, that Ortiz Trejo had "met the statutory obligations for
voluntary departure" outlined in 8 U.S.C. § 1229c(b) and thus
granted him voluntary departure "in lieu of removal."
Ortiz Trejo appealed to the BIA, which affirmed the IJ's
denial of cancellation of removal and grant of voluntary
departure.6 The BIA concluded that the IJ "properly considered
the relevant hardships in the aggregate" and "appropriately
evaluated the health of [Ortiz Trejo's] son." Responding directly
to Ortiz Trejo's argument that the IJ had "failed to consider" the
August 2018 psychological evaluation of J.O., the BIA noted that
the IJ had "state[d] that he evaluated all evidence of record."
Then, after noting that the evaluation "states that [J.O.] has
6Ortiz Trejo also asked the BIA to remand his case to the IJ so he could submit additional evidence on his cancellation application, and the BIA denied that motion. Ortiz Trejo does not appeal this denial, so we do not address it further.
- 6 - 'Adjustment Disorder, Unspecified' and 'problems' related to
[Ortiz Trejo's] immigration circumstances," the BIA concluded that
Ortiz Trejo "has not shown the [IJ] overlooked evidence of a
medical condition affecting his son that establishes [that J.O.]
would experience exceptional and extremely unusual hardship upon
[Ortiz Trejo's] removal." Ortiz Trejo timely sought our review.7
II.
A. Scope of Review
"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.'"
Contreras v. Bondi, 134 F.4th 12, 18 (1st Cir. 2025) (quoting
Aguilar-Escoto v. Garland, 59 F.4th 510, 515 (1st Cir. 2023)).
To be eligible for cancellation of removal, Ortiz Trejo
must establish, among other things, that his "removal would result
in exceptional and extremely unusual hardship to [his] spouse,
parent, or child, who is a citizen" or lawful permanent resident
"of the United States." 8 U.S.C. § 1229b(b)(1)(D).8 "'[T]he
7 We subsequently granted Ortiz Trejo's unopposed motion to hold his petition in abeyance pending the Supreme Court's decision in Wilkinson v. Garland, 601 U.S. 209 (2024). 8 A noncitizen seeking cancellation of removal also must "ha[ve] been physically present in the United States for a continuous period of not less than 10 years immediately" before applying for that relief, be "a person of good moral character
- 7 - application of the exceptional and extremely unusual hardship
standard to a given set of facts' is a mixed question of law and
fact . . . ." Contreras, 134 F.4th at 19 (quoting Wilkinson v.
Garland, 601 U.S. 209, 217 (2024)). We have jurisdiction to
consider this mixed question as "a question of law under
§ 1252(a)(2)(D)." Wilkinson, 601 U.S. at 217; see
Guerrero-Lasprilla v. Barr, 589 U.S. 221, 228 (2020) (holding that
a "mixed question of law and fact" constitutes "a 'questio[n] of
law' within the meaning of § 1252(a)(2)(D)" (alteration in
original)). Our review of the BIA's hardship determination must
be "deferential." Wilkinson, 601 U.S. at 225.9
We also may consider a petitioner's claim that the BIA's
decision "turns a blind eye to salient facts or completely
overlooks critical evidence." Contreras, 134 F.4th at 20 (citation
modified). A failure to consider key evidence is an error of law
that we review de novo. Id.; Alay v. Bondi, 145 F.4th 1, 6 (1st
Cir. 2025). We do not, however, have jurisdiction to review the
IJ's findings of fact. Patel v. Garland, 596 U.S. 328, 347 (2022)
during such period," and "not been convicted" of specified crimes. 8 U.S.C. § 1229b(b)(1)(A)-(C). The level of deference owed remains an "open question" in 9
this circuit. Nolasco v. Bondi, 134 F.4th 677, 682 (1st Cir. 2025). We need not answer that question now, however, because we reach the same conclusion regardless of whether we apply the highly deferential substantial evidence standard, as the government urges, or the abuse of discretion standard that Ortiz Trejo appears to advance. See id. (taking same approach).
- 8 - ("Federal courts lack jurisdiction to review facts found as part
of discretionary-relief proceedings . . . .").
B. Discussion
Ortiz Trejo advances two arguments on appeal. He asserts
that the BIA "[i]gnored" key record evidence,10 and he also contends
that the BIA's conclusion that J.O. would not suffer exceptional
and extremely unusual hardship due to his father's removal was
erroneous, primarily taking aim at the IJ's factual findings that
the BIA "merely ratified." We address each argument in turn.
1. Whether the BIA Ignored Key Record Evidence
Ortiz Trejo claims that the BIA committed legal error
because it ignored salient record evidence -- namely, the
psychological evaluation of J.O. -- in reviewing for clear error
the IJ's findings of fact on J.O.'s health conditions. In support,
Ortiz Trejo relies on our recent decision in Contreras.11 There,
we concluded that the BIA erred as a matter of law by ignoring in
its review of the IJ's factual findings a report, also not
Because our review is focused on the BIA's decision, "[w]e 10
construe the parties' arguments with respect to the 'agency' -- i.e., the BIA and IJ together -- as instead concerning only the BIA." Contreras, 134 F.4th at 18 n.5. Ortiz Trejo filed his opening brief in October 2024, and 11
Contreras was decided in April 2025. See 134 F.4th at 12. The day before oral argument, Ortiz Trejo submitted a citation of supplemental authorities pursuant to Federal Rule of Appellate Procedure 28(j), asserting that this case is "controlled" by Contreras. Ortiz Trejo then reiterated that assertion during oral argument.
- 9 - mentioned by the IJ in making those findings, that detailed the
ongoing psychological harms suffered by the petitioners' minor son
due to sexual abuse that he experienced as a young child. 134
F.4th at 22-23. Ortiz Trejo's reliance is misplaced, however,
because, despite superficial similarities, this case differs
substantially from Contreras.
In Contreras, we explained that "while the BIA need not
discuss every piece of evidence offered, it is not free to
disregard important evidence in the record." Id. at 21 (citation
modified). However, "[w]hen 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." Domingo-Mendez v. Garland,
47 F.4th 51, 58 (1st Cir. 2022) (second alteration in original)
(quoting Lin v. Mukasey, 521 F.3d 22, 28 (1st Cir. 2008)). Our
holding in Contreras was grounded in the fact that the BIA's
conclusion upon reviewing the IJ's factfinding was "facially
inconsistent with" the psychological report that detailed the
aftermath of the abuse that the petitioners' son suffered. 134
F.4th at 22. That report, completed by a licensed mental health
counselor, noted that the abuse had never been treated with "the
necessary importance," stated that the petitioners' son was
continuing to suffer "significant distress and impairment" because
of that abuse, "concluded that [his] 'presentation and history are
- 10 - consistent with Major Depression,'" and "recommended that [he]
'obtain continued psychotherapeutic services to address
his depressive disorder.'" Id. at 17. Nevertheless, the BIA
concluded that the petitioners' son "has never required mental
health counseling, medication, or any specialized medical
treatment." Id. at 22. "Because the BIA failed to explain how it
reconciled its conclusion with the . . . report's contrary
findings," we were "left to conclude that the BIA 'simply ignored'"
them. Id. (quoting Cortes v. Garland, 105 F.4th 124, 136 (4th
Cir. 2024)).
By contrast, in this case, the record does not support
Ortiz Trejo's contention that the BIA "[i]gnored" the evaluation
in reviewing the IJ's factfinding on J.O.'s health. There is no
question that the BIA was aware of the psychological
evaluation -- for example, the BIA noted that the evaluation
diagnosed J.O. with "Adjustment Disorder" and "problems" related
to Ortiz Trejo's "immigration circumstances." And, unlike in
Contreras, where the BIA's decision was incompatible with the
content of the report at issue, see 134 F.4th at 22, nothing in
the BIA's decision here conflicts with the evaluation's findings
and conclusions. Rather, after "[c]onsidering the [IJ's]
statement that he evaluated all evidence of record" and making
specific reference to the evaluation's findings, the BIA simply
determined that Ortiz Trejo "has not shown" that the IJ "overlooked
- 11 - evidence of a medical condition affecting" J.O. In other words,
we conclude that the BIA determined the evaluation's content did
not render the IJ's findings on J.O.'s health clearly erroneous
after it duly considered the evaluation. Indeed, the BIA's
decision gives no "reason to believe" otherwise. Domingo-Mendez,
47 F.4th at 58 (quoting Lin, 521 F.3d at 28).
Our conclusion that the BIA considered the evaluation
but nonetheless found no clear error in the IJ's factfinding is
reinforced by the fact that Ortiz Trejo himself did not seem to
believe his son's mental health condition was particularly
salient. Although he testified at length about his son's physical
ailments, Ortiz Trejo did not once mention his son's mental health.
That fact, too, distinguishes this case from Contreras, where the
petitioners "emphasized" their minor son's "mental health
struggles" and testified about the sexual abuse of their son and
its consequences, which were the focus of the psychological report
at issue. 134 F.4th at 17.
In advancing his claim of error, Ortiz Trejo asserts
that the BIA should not have relied upon the IJ's statement that
he "evaluated all evidence of record" in assessing the IJ's
factfinding because such statements are invoked in "[v]irtually
every IJ decision." To be sure, we agree with Ortiz Trejo that an
"evaluated all evidence" statement by the IJ cannot insulate the
BIA's decision from legal error. The BIA has its own obligation
- 12 - to consider the full record in reviewing the IJ's factfinding for
clear error. Here, however, the BIA's determination that the IJ's
factfinding was not clearly erroneous was not based solely on the
IJ's "all evidence of record" statement. Rather, as explained
above, the BIA's opinion provides no reason to doubt that it
conducted its own evaluation of the totality of the evidence in
the record.
What is more, there is every reason to believe that the
IJ, too, "evaluated all evidence" before him. That is, the record
here belies Ortiz Trejo's assertion that the IJ did not consider
the evaluation of J.O. in making his findings of fact. Indeed,
the IJ explicitly found that the evaluation could be "probative"
and, in response to the government's request to give it "limited
weight" because it was "unreliable [and] full of speculation," the
IJ stated that he would accord the evaluation "whatever weight
[he] deems appropriate." In light of the IJ's statements, the
most reasonable conclusion is not that the IJ ignored or overlooked
the evaluation but that, after considering the evaluation and the
government's objection to it, he decided to give it "reduced
weight." Accordingly, our consideration of the BIA's decision
here necessarily differs from our review in Contreras, where the
BIA's failure to address the report at issue was a particularly
"glaring omission" because "the IJ did not even acknowledge" that
report. 134 F.4th at 22. This difference, along with the ones
- 13 - described above, refute Ortiz Trejo's contention that our
reasoning in Contreras compels us to hold that the BIA legally
erred in this case. Here, we cannot conclude that the BIA
disregarded key record evidence in its review for clear error of
the IJ's findings of fact.
2. Whether the BIA Misapplied the Hardship Standard
Ortiz Trejo also contends that the BIA erred in
concluding, based on its de novo assessment of the hardship
inquiry, that J.O.'s medical condition would not cause him to
suffer exceptional and extremely unusual hardship if his father
were removed to Mexico. "[T]o rise to the level of 'exceptional
and extremely unusual,' the hardship to a noncitizen's qualifying
relative must be 'substantially beyond that which would ordinarily
be expected to result from' removal." Nolasco v. Bondi, 134 F.4th
677, 686 (1st Cir. 2025) (quoting In re Monreal-Aguinaga, 23
I. & N. Dec. 56, 56 (BIA 2001)). This standard "constitutes a
high threshold," although it "is not so restrictive that only a
handful of applicants . . . will qualify for relief." In re
Gonzalez Recinas, 23 I. & N. Dec. 467, 470 (BIA 2002). "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
lower standard of living or adverse country conditions in the
- 14 - country of return might affect those relatives.'" Contreras, 134
F.4th at 20-21 (quoting Gonzalez Recinas, 23 I. & N. Dec. at 468).
Although Ortiz Trejo frames his argument as a challenge
to the BIA's application of the hardship standard, he primarily
takes issue with the IJ's factual findings that J.O. suffers from
"seasonal allergies" and is unlikely "to suffer [another] allergic
reaction requiring an emergency room visit." As we noted above,
however, we lack jurisdiction to review the IJ's findings of fact.
See Patel, 596 U.S. at 331. We thus may consider Ortiz Trejo's
argument only to the extent that he contends the facts as found by
the IJ regarding J.O.'s medical condition required the BIA to
conclude that Ortiz Trejo's removal would cause exceptional and
extremely unusual hardship to J.O.
Properly considered, we see no merit in Ortiz Trejo's
assertion of error. To reiterate, in addition to the factual
findings on J.O.'s health with which Ortiz Trejo takes issue, the
IJ found that J.O.'s allergies "are controllable," that J.O.'s
"mother works and earns money to be able to provide for" J.O., and
that if Ortiz Trejo were removed, J.O.'s "health situation . . .
would not be affected" because J.O. "would still receive treatment
for his allergies from the state of Rhode Island." Moreover, to
the extent that Ortiz Trejo contends J.O.'s mental health should
factor into the hardship calculus, the psychological evaluation
reported that J.O. would experience, in essence, significant
- 15 - emotional difficulty upon his father's return to Mexico. We cannot
conclude on these facts that, if Ortiz Trejo were ordered removed,
J.O. would suffer hardship that is "substantially different from,
or beyond, that which would normally be expected from" the removal
of a close family member. Monreal-Aguinaga, 23 I. & N. Dec. at
65; see also Nolasco, 134 F.4th at 686 (quoting the agency in
observing that "emotional hardship [is] not [an] unusual
consequence[] of removal"). Accordingly, Ortiz Trejo has not
carried his burden to establish hardship to his son that is
exceptional or extremely unusual.
III.
For the foregoing reasons, we deny the petition for
review.
So ordered.
- 16 -