“Silent Standards, Loud Deference” – The First Circuit’s Re-affirmation of Highly Deferential Review in Cancellation-of-Removal Hardship Cases
Goncalves Leao v. Bondi, No. 24-1239 (1st Cir. July 14, 2025)

I. Introduction

The decision in Goncalves Leao v. Bondi provides the most comprehensive post-Wilkinson v. Garland treatment by the First Circuit of how federal courts must navigate the razor-thin line between (a) legal questions they can review and (b) the largely insulated discretionary hardship determinations made by Immigration Judges (“IJs”) and the Board of Immigration Appeals (“BIA”). In doing so, the court:

• Clarifies that when the BIA “adopts and affirms” or “agrees with” an IJ, the two decisions fuse into a single agency decision for appellate review;
• Re-emphasises that federal courts owe “highly deferential” review—rather than de novo scrutiny—to mixed questions of law and fact such as whether hardship is “exceptional and extremely unusual” under 8 U.S.C. § 1229b(b)(1)(D);
• Confirms that the BIA need not recite its standards of review formulaically (“clear error” or “de novo”) so long as the opinion reflects their correct application; and
• Declines to impose any categorical requirement that non-citizens produce expert or medical reports to prove hardship, leaving evidentiary sufficiency to the IJ’s sound discretion.

II. Case Background

• Parties: Leonardo Goncalves Leao (“Petitioner”) – a Brazilian national; Pamela J. Bondi, U.S. Attorney General (“Respondent”).
• Facts: Leao entered the U.S. unlawfully in 2004 to parent his U.S.-citizen son, Gustavo. After ICE initiated removal, Leao conceded removability yet sought cancellation of removal (INA § 240A(b)) alleging that removal would cause Gustavo “exceptional and extremely unusual hardship.”
• IJ Decision (2019): Acknowledged sympathetic facts but found hardship not sufficiently exceptional.
• BIA Decision (2024): (a) Gustavo had “aged-out” (turned 21) during appeal, thus no longer a “child,” and (b) alternatively, the IJ’s hardship analysis was correct.
• First Circuit Petition: Leao challenged only the hardship ruling, not the age-out theory; the court thus addressed the hardship prong exclusively.

III. Summary of the Judgment

The First Circuit denied Leao’s petition. Key holdings:

1. The BIA’s express agreement with the IJ renders the two decisions “one,” so appellate review looks at the aggregate reasoning of both.
2. Under 8 U.S.C. § 1252(a)(2)(B)(i), courts lack jurisdiction to revisit discretionary determinations, but retain jurisdiction over legal or constitutional issues (8 U.S.C. § 1252(a)(2)(D)). Under Wilkinson, whether facts meet the hardship threshold is a mixed question, reviewable but deferential.
3. No legal error occurred: the BIA applied the correct standards implicitly, weighed the Monreal factors appropriately, did not impermissibly “cherry-pick” evidence, and legitimately treated the lack of corroborating expert/medical reports as an evidentiary gap—not a rigid prerequisite.
4. Substantively, Petitioner failed to establish hardship “substantially beyond that which ordinarily accompanies a parent’s removal,” given Gustavo’s age, presence of a custodial mother with income, and availability of therapy irrespective of Leao’s location.

IV. Analytical Commentary

A. Precedents Cited and Their Influence

• Wilkinson v. Garland, 601 U.S. 209 (2024)
  – Divided the 42B analysis into two steps and characterised the hardship inquiry as a “mixed question” subject to limited judicial review. The First Circuit leaned heavily on this framework to justify deference.
• Contreras v. Bondi, 134 F.4th 12 (1st Cir. 2025)
  – Restated jurisdictional limits and mixed-question review; provided standards for when BIA/IJ decisions merge.
• Adeyanju v. Garland, 27 F.4th 25 (1st Cir. 2022)
  – Allowed review where the agency deviates from a “settled course of adjudication.” Petitioner relied on this; the court found no deviation.
• Matter of Monreal-Aguinaga, 23 I.&N. Dec. 56 (BIA 2001)
  – Enumerated eight non-exhaustive hardship factors. The First Circuit reaffirmed that the agency need not tick every factor in every case.
• Samayoa Cabrera v. Barr, 939 F.3d 379 (1st Cir. 2019)
  – Recognised a “presumption of regularity” in BIA review even when the decision is silent on standards of review; adopted again here.

B. Court’s Legal Reasoning

1. Scope of Review: Because the BIA “embraced” the IJ’s reasoning, the First Circuit treated both opinions as a single agency action.
2. Jurisdictional Gatekeeping: The court reaffirmed that factual challenges masquerading as legal arguments remain non-reviewable; only genuine legal/constitutional complaints pass through the § 1252(a)(2)(D) portal.
3. No Error in Implicit Standards: The absence of explicit words (“clear error,” “de novo”) is not fatal. The First Circuit invoked the “presumption of regularity” and found no hint the BIA applied the wrong lens.
4. Monreal Factors Applied Flexibly: The hardship determination is holistic, not a mechanical scorecard. Failure to enumerate all eight factors is not per se reversible error.
5. Evidentiary Weight: The agency was entitled to discount the father’s conjecture about remote parenting, to note the lack of corroborating expert testimony, and to rely on Gustavo’s mother’s stabilising presence and income.

C. Impact on Future Litigation

• Predictability in Hardship Appeals. Immigration counsel must now expect even stricter deference from the First Circuit where the BIA says “we agree with the IJ.” Cosmetic drafting attacks (e.g., “they didn’t say ‘clear error’”) will rarely gain traction.
• Strategic Evidence-Gathering. Although the court declined to impose an expert-report requirement, its discussion underscores that lack of corroboration can doom hardship arguments. Practitioners should submit psychological evaluations, IEPs, medical records, etc., whenever possible.
• ‘Aged-Out’ Relatives Still Irrelevant if Hardship Fails. The panel bypassed the BIA’s alternative “age-out” ground, signalling that courts may dispose of petitions on the easiest (often discretionary) prong, reinforcing the need to win on every issue at the agency level.
• Monreal Remains Good Law. Despite two decades of critiques, the decision revalidates Monreal as the governing metric and accepts its flexible application.
• Presumption of Regularity Elevated. Expect the government to cite Goncalves Leao whenever petitioners fault the BIA for brevity or lack of “magic words.”

V. Complex Concepts Simplified

• Cancellation of Removal (42B). A discretionary relief allowing certain long-time, non-LPR (lawful permanent resident) non-citizens to stay if they meet four statutory prerequisites, including “exceptional and extremely unusual hardship” to a qualifying relative.
• Exceptional and Extremely Unusual Hardship. Hardship that is substantially worse than what is typically expected when a parent/spouse/child is removed. It is a deliberately high bar; most families suffer “ordinary” hardship, which is not enough.
• Mixed Question of Law and Fact. An issue that requires both fact-finding (what happened?) and application of a legal standard (do those facts meet the statutory threshold?). Courts review such questions deferentially in the immigration context.
• Standard of Review. The level of scrutiny a reviewing body applies. For the BIA: IJ’s facts = “clear error”; IJ’s ultimate hardship decision = de novo. For federal courts: legal issues de novo, hardship determinations deferential.
• Presumption of Regularity. An administrative law doctrine whereby reviewing courts assume agencies applied the correct procedures and standards unless evidence suggests otherwise.
• Settled Course of Adjudication. A line of consistent agency decisions establishing a de-facto rule. Deviation, without explanation, can constitute legal error reviewable by courts.

VI. Conclusion

Goncalves Leao v. Bondi solidifies a two-fold message. First, petitioners must bring robust, corroborated evidence to prove—not merely assert—how removal will devastate qualifying relatives. Second, once the BIA and IJ speak with a unified voice, appellate courts will accord their hardship determinations extraordinary respect, intervening only for clear legal missteps.

The decision thus fortifies the “silent standards, loud deference” approach: agencies need not recite talismanic language, yet their fact-laden hardship assessments will stand firm unless the petitioner exposes a bona-fide legal or constitutional flaw. For immigration practitioners, the case underscores that the real battle remains in the IJ hearing room—by the time an appeal reaches the First Circuit, the pathway to reversal is narrow indeed.