“Substantial Evidence” Takes Centre Stage: Eleventh Circuit Sets the Review Standard for Exceptional-and-Extremely-Unusual-Hardship Determinations

1. Introduction

In Isaac Lopez-Martinez & Martha Martinez-Lara v. U.S. Attorney General, Nos. 23-10105 & 23-12058, the U.S. Court of Appeals for the Eleventh Circuit confronted an unresolved procedural question: What standard of judicial review applies when a federal court reviews the Board of Immigration Appeals’ (BIA) application of the “exceptional and extremely unusual hardship” test found in 8 U.S.C. § 1229b(b)(1)(D)?

Although the Supreme Court’s recent decision in Wilkinson v. Garland, 601 U.S. 217 (2024) recognised that courts possess jurisdiction over such hardship determinations (classifying them as “mixed questions of law and fact”), it left open the level of deference federal courts must give to the agency. Judge Newsom, writing for a unanimous panel, now answers that question: the substantial-evidence standard governs.

The consolidated petitions arose from a married couple’s bid to cancel their removal to Mexico on the ground that deportation would impose an “exceptional and extremely unusual hardship” on their U.S.–citizen son, I.L., who has ADHD and learning disabilities. The Immigration Judge (IJ) and the BIA denied cancellation; the parents petitioned for review. The Eleventh Circuit affirmed, but first took the opportunity to craft an analytical framework for future hardships challenges.

2. Summary of the Judgment

Jurisdiction – Guided by Wilkinson and 8 U.S.C. § 1252(a)(2)(D), the court confirmed jurisdiction over “questions of law,” including mixed questions, while lack of jurisdiction remains over pure factual findings.
Standard of Review Adopted – Applying an adapted Google LLC v. Oracle America/U.S. Bank v. Village at Lakeridge methodology, the court held that hardship determinations are primarily factual mixed questions reviewed for substantial evidence rather than “arbitrary and capricious” or de novo review.
Application to the Merits – Substantial evidence supported the BIA’s finding that, although removal would be difficult for I.L., the hardship did not pass the very high statutory threshold. The petitioners failed to show that needed medical and educational services were not reasonably available in Mexico.
Holding – Petitions for review DENIED.

3. Analysis

3.1 Precedents Cited & Their Influence

Wilkinson v. Garland, 601 U.S. 217 (2024) – Recognised hardship determinations as reviewable “mixed questions,” overruling circuit cases (including Eleventh Circuit’s Flores-Alonso) that had treated them as unreviewable discretion.
Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020) – Defined “questions of law” to include applications of law to undisputed facts, forming the jurisdictional gateway.
Google LLC v. Oracle America, Inc., 593 U.S. 1 (2021) & U.S. Bank Nat’l Ass’n v. Village at Lakeridge, 583 U.S. 387 (2018) – Supreme Court road-map on teasing apart mixed questions and selecting review standards; Eleventh Circuit borrowed and modified their framework for the court/agency context.
Ming Dai, 593 U.S. 357 (2021); Nasrallah v. Barr, 590 U.S. 573 (2020); Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) – Provided broader administrative-law backdrop (substantial-evidence versus Chevron etc.).
ADAPSO v. Board of Governors, 745 F.2d 677 (D.C. Cir. 1984) (Scalia, J.) – Cited for distinction between substantial-evidence and arbitrary-and-capricious review.
BIA precedents: Matter of Monreal-Aguinaga, 23 I.&N. Dec. 56 (2001); Matter of J-J-G-, 27 I.&N. Dec. 808 (2020) – Supply content of hardship test (serious condition plus reasonable unavailability of care).

3.2 The Court’s Legal Reasoning

Step 1: Catalogue Possible Standards
Drawing from the Administrative Procedure Act (APA) and the Immigration and Nationality Act (INA), the court listed de novo, arbitrary-and-capricious, and substantial-evidence review as contenders, noting that the INA’s § 1252(b)(4)(B) effectively grafts the substantial-evidence test onto immigration cases.
Step 2: Adopt the Google/U.S. Bank Mixed-Question Framework
Mixed questions should be separated into legal and factual parts where possible; if inseparable, classify according to whether they are “primarily legal” or “primarily factual.” For court/agency review, the Eleventh Circuit replaced the court-court “clear error” slot with substantial evidence.
Step 3: Characterise Hardship Determination
Wilkinson already labelled the hardship inquiry “primarily factual.” Ergo, the appropriate deferential review is substantial evidence.
Step 4: Apply to the Facts
Because no “reasonable adjudicator would be compelled to conclude” that I.L.’s hardships surpassed ordinary consequences of removal, the agency decision stands. The court also rejected the parents’ claim that the BIA shifted the legal standard from “reasonably available” to “available at all.” Context showed the BIA actually applied the correct test.

3.3 Potential Impact

Settles an Open Circuit Question – Post-Wilkinson, circuits were beginning to diverge; the Eleventh Circuit now aligns with the Third and Ninth Circuits in choosing substantial evidence, fostering emerging consistency.
Higher Hurdle for Non-Citizens in the Eleventh Circuit – Petitioners must now overcome the deferential substantial-evidence bar rather than seeking de novo scrutiny.
Guidance for District Courts in 8 U.S.C. § 1252(b)(4) Scope – Clarifies how to segregate pure fact (unchallengeable) from mixed fact/law (reviewable) in immigration petitions, reducing confusion in future filings.
Implications Beyond Hardship Cases – The reasoning suggests any primarily factual mixed question decided by the BIA (e.g., “extraordinary circumstances” for asylum time-bar waivers) may likewise attract substantial-evidence review.
Chevron’s Eclipse Reinforced – The court’s reliance on Loper Bright (decided the same Term) reflects the post-Chevron landscape: statutory interpretation is now reviewed de novo, but fact-heavy agency applications receive substantial-evidence deference.

4. Complex Concepts Simplified

Cancellation of Removal (Non-LPR) – A discretionary remedy allowing certain long-time undocumented residents to avoid deportation if statutory prerequisites (including 10-year presence and exceptional hardship to a qualifying U.S. relative) are met.
Exceptional and Extremely Unusual Hardship – A statutory phrase denoting “substantially beyond” the ordinary emotional or economic distress typical of deportation. High bar; illness, disability, or special-education needs often invoked.
Mixed Question of Law and Fact – An issue that requires applying a legal standard to concrete facts (e.g., does these facts satisfy “hardship”?). Courts decide which review standard applies by asking whether the issue is mostly factual or legal.
Substantial Evidence vs. Arbitrary-and-Capricious – Both are deferential. Substantial-evidence asks whether the record could reasonably support the agency’s factual finding; arbitrary-and-capricious focuses on the rationality of the agency’s decision-making process. They often overlap but are analytically distinct.
“Question of Law” Under § 1252(a)(2)(D) – Includes pure legal interpretation and mixed questions, per Guerrero-Lasprilla. Provides a narrow window of judicial review despite Congress’s general bar on reviewing discretionary relief.

5. Conclusion

The Eleventh Circuit’s decision establishes a significant procedural precedent: substantial evidence is the yardstick for reviewing BIA findings that a non-citizen has failed to demonstrate “exceptional and extremely unusual hardship.” By doing so, the court:

Provides a clear, administrable standard that harmonises with the Supreme Court’s mixed-question jurisprudence;
Cabins judicial intervention to circumstances where the agency’s view of the record is unreasonable, rather than merely debatable;
Offers litigants a concrete roadmap: isolate legal interpretation for de novo attack; accept pure factual findings unless “any reasonable adjudicator would be compelled” to disagree; contest the hardship application only by showing lack of substantial evidence.

On the merits, the court’s application of that standard confirms the formidable nature of the hardship threshold and underscores the primacy of agency fact-finding in immigration adjudication. Unless the Supreme Court intervenes or Congress amends the statute, Lopez-Martinez/Martinez-Lara will govern hardship challenges within the Eleventh Circuit and likely influence sister circuits grappling with similar post-Wilkinson questions.