Clear-Error Review of Hardship Mixed Questions and Strict Ineffective-Assistance Prerequisites in Non-LPR Cancellation: Ramirez Lopez v. Bondi (2d Cir. 2025)

Introduction

In Ramirez Lopez v. Bondi, the United States Court of Appeals for the Second Circuit denied a petition for review of a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge’s (IJ) denial of cancellation of removal for a non–lawful permanent resident under 8 U.S.C. § 1229b(b)(1). The petitioner, a Guatemalan national and father of two U.S. citizen children, argued that his removal would cause them “exceptional and extremely unusual hardship” and that the BIA should have remanded based on ineffective assistance of counsel.

This summary order—non-precedential under the Second Circuit’s Local Rule 32.1.1—nonetheless provides a clear and timely application of the Supreme Court’s decision in Wilkinson v. Garland (2024) and the Second Circuit’s own decisions in Toalombo Yanez v. Bondi (2025) and related cases. It clarifies (1) the current jurisdictional contours and standard of review applicable to denials of non-LPR cancellation premised on hardship, and (2) the demanding procedural and prejudice showings required to obtain a remand on ineffective-assistance grounds. The court also reiterates the strong presumption that IJs and the BIA consider all evidence in the record.

The two principal issues were:

Whether the IJ and BIA erred in finding that the petitioner did not meet the “exceptional and extremely unusual hardship” standard for his U.S.-citizen children.
Whether the BIA abused its discretion in denying a motion to remand based on ineffective assistance of counsel.

Summary of the Opinion

The Second Circuit denied the petition for review. On the hardship claim, the court held that it had jurisdiction to review only legal issues and mixed questions of law and fact; it found no legal error in the IJ’s and BIA’s analysis and no clear error in their application of the hardship standard to the established facts. The court emphasized that many of petitioner’s challenges sought reweighing of evidence or review of underlying factual findings—matters that are unreviewable after Wilkinson.

On the ineffective-assistance claim, the court upheld the BIA’s denial of remand. Petitioner concededly failed to comply with the procedural requirements for raising such claims and did not show that the alleged ineffectiveness was plain on the face of the record. He also failed to demonstrate prejudice because he did not proffer what the missing witnesses would have said or how the evidence would have changed the outcome.

Analysis

Precedents Cited and Their Influence

The court’s reasoning is anchored in several well-established decisions:

Wilkinson v. Garland, 601 U.S. 209 (2024): The Supreme Court drew a critical distinction between (a) reviewable questions of law, including the application of legal standards (such as the “exceptional and extremely unusual hardship” standard) to established facts, and (b) unreviewable underlying factual determinations. The Second Circuit relied on Wilkinson to reject petitioner’s attempts to relitigate factual issues like the seriousness of children’s conditions or the father’s level of support.
Toalombo Yanez v. Bondi, 140 F.4th 35 (2d Cir. 2025): Building on Wilkinson, Toalombo Yanez set out that the application of law to facts in hardship cases is reviewed for clear error—“less deferential than substantial evidence” but still requiring the appellate court to affirm unless it has a definite and firm conviction of error. This standard governed the court’s review here, and the court found no clear error.
Mendez v. Holder, 566 F.3d 316 (2d Cir. 2009) and Xiao Ji Chen v. U.S. Department of Justice, 471 F.3d 315 (2d Cir. 2006): These cases establish that an IJ is presumed to have considered all record evidence unless the record compellingly suggests otherwise. The court applied this presumption and found it unrebutted, noting the IJ explicitly stated she considered all admitted evidence.
Barco-Sandoval v. Gonzales, 516 F.3d 35 (2d Cir. 2007): Reinforces that applying the wrong legal standard is reviewable legal error. The court found no such error in the agency’s hardship analysis.
Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001) and Andazola-Rivas, 23 I. & N. Dec. 319 (BIA 2002): These BIA precedents define the hardship threshold as “substantially beyond the ordinary hardship” expected from family separation and describe the standard as “very high.” The agency applied these guideposts in weighing the children’s circumstances and the likelihood of exceptional hardship.
Garcia Carrera v. Garland, 117 F.4th 9 (2d Cir. 2024): Cited for the hardship standard; it underscores the high bar and the types of factors considered (age, health, educational impact, and country conditions).
Penaranda Arevalo v. Bondi, 130 F.4th 325 (2d Cir. 2025): Confirms that the weight accorded to evidence (e.g., a therapist’s letter) is a matter for the agency and is unreviewable on petition for review.
Zheng v. U.S. Department of Justice, 409 F.3d 43 (2d Cir. 2005) and Yang v. Gonzales, 478 F.3d 133 (2d Cir. 2007): Explain when failure to comply with procedural prerequisites for ineffective-assistance claims (commonly referred to as Lozada requirements) may be excused—either by substantial compliance or when ineffectiveness is plain on the face of the record. Neither exception applied here.
Debeatham v. Holder, 602 F.3d 481 (2d Cir. 2010) and Scarlett v. Barr, 957 F.3d 316 (2d Cir. 2020): Set out the prejudice requirement for ineffective-assistance claims: the petitioner must make a prima facie showing that, but for counsel’s errors, he would have been eligible for and could have made a strong showing for relief. Petitioner’s failure to proffer specific missing testimony or evidence doomed his prejudice showing.
Garcia-Villeda v. Mukasey, 531 F.3d 141 (2d Cir. 2008): Petitioner’s due process claim fails absent a showing of prejudice; the court applied this principle in tandem with the ineffective-assistance analysis.
Punin, 108 F.4th at 124: Cited for exhaustion; the court treated certain arguments as unexhausted when not raised to the BIA, reinforcing that petitioners must present issues to the agency first.

Legal Reasoning

I. Hardship Determination

Jurisdiction and Standard of Review. The court’s authority to review the denial of cancellation is limited to constitutional claims and questions of law under 8 U.S.C. § 1252(a)(2)(B)(i), (D). Under Wilkinson, the application of the hardship standard to established facts is a legal question the court can review. Following Toalombo Yanez, the Second Circuit reviewed that mixed question for clear error, affirming unless left with a “definite and firm conviction” of mistake—while refusing to revisit underlying factfinding (e.g., how often the parent saw the children, whether specific health or educational needs existed, or the level of financial support provided).

Consideration of Evidence. The petitioner argued the agency failed to consider all hardship evidence. The court applied the Xiao Ji Chen presumption that the IJ considered all evidence unless the record clearly shows otherwise. Here, the IJ explicitly noted she considered all admitted evidence, and the opinion catalogues what was considered: petitioner’s testimony on parenting time, the lack of specific health or educational needs for the children, the custody arrangement and voluntary support payments, inconsistencies with a therapist’s letter (e.g., letter stating “joint custody” and 12–15 days/month versus testimony of weekends and holidays), questions about why petitioner had not sought full custody despite the mother’s criminal history, the fact that the children would remain in the United States with their mother, and the therapist’s limited-contact letter documenting sadness and anxiety.

No Legal Error; No Clear Error. The court found no “total oversight” or “serious mischaracterization” of material evidence under Mendez. It also noted that several of petitioner’s arguments either invited impermissible reweighing of evidence or were unreviewable attacks on factual determinations under Wilkinson. On the developed record, the IJ and BIA concluded that the children would experience typical sadness and anxiety from separation, had no serious health or educational needs, would remain safely in the United States, and that petitioner had not shown inability to continue voluntary support from Guatemala (he owned land valued at $75,000). Under the applicable high standard from Monreal and Andazola, the court found no clear error in concluding that exceptional and extremely unusual hardship was not established.

Preservation and Waiver. The court also emphasized procedural bars: arguments about financial hardship and the therapist’s testimony were deemed waived or unexhausted because they were not adequately raised before the BIA. Additionally, the weight the IJ afforded to the therapist’s letter was unreviewable under Penaranda Arevalo.

II. Denial of Remand for Ineffective Assistance of Counsel

Standard and Procedural Gatekeeping. The court reviewed the denial of remand for abuse of discretion and ineffective-assistance/due process issues de novo. To raise ineffective assistance, a petitioner must comply with established procedural requirements (commonly known as Lozada requirements): submit an affidavit detailing the agreement with prior counsel, notify prior counsel of the allegations with an opportunity to respond, and state whether a bar complaint was filed or explain why not. The petitioner conceded he satisfied none of these requirements. While substantial compliance or a record that plainly shows ineffective assistance can excuse noncompliance, neither applied here. Without the procedural record, the court explained, it is impossible to know what steps counsel took or what information petitioner provided.

Prejudice. Even assuming deficient performance, the petitioner must show prejudice: that, but for counsel’s errors, he would have been eligible for and could have made a strong showing for cancellation. Here, the petitioner did not identify what the children’s mother or the therapist would have testified to, nor did he explain how clarifications about finances or custody would affect the hardship calculus. The absence of proffered evidence foreclosed a finding of prejudice under Scarlett and Debeatham and also defeated his related due process claim under Garcia-Villeda.

Impact

Although a non-precedential summary order, Ramirez Lopez is instructive on several fronts in the post-Wilkinson landscape:

Review of hardship denials is narrow but real. Following Wilkinson and Toalombo Yanez, the Second Circuit will review how the IJ and BIA applied the “exceptional and extremely unusual hardship” standard to established facts for clear error. However, petitioners cannot reargue facts or ask the court to reweigh evidence. Success will often hinge on demonstrating misapplication of the legal standard, clear error in the mixed question, or legal defects such as ignoring key evidence or using an incorrect standard.
The presumption that the IJ considered all evidence is hard to overcome. Absent compelling record indications to the contrary, Xiao Ji Chen’s presumption controls. Practitioners must specifically point to overlooked, material evidence and explain how it would likely change the outcome, or show serious mischaracterization under Mendez.
Meticulous record development is essential to meet the “very high” hardship bar. Generic separation anxiety, weekend/holiday caregiving, and voluntary support—without specific medical, educational, or other serious needs—will rarely suffice. Detailed, consistent evidence and corroboration (medical records, school reports, expert evaluations based on more than a single brief interview, custody orders, and financial documentation) are critical.
Strict attention to exhaustion and waiver. Arguments not raised to the BIA will be deemed unexhausted. Petitioners should present all hardship theories and supporting evidence to the IJ and then to the BIA, including challenges to the weight accorded to specific evidence, if they wish to preserve them for judicial review.
Ineffective-assistance remands face high procedural and prejudice hurdles. Compliance with the Lozada-type requirements is the norm; noncompliance is excused only in narrow circumstances. A successful claim typically requires:
- Documented compliance with procedural prerequisites.
- A detailed proffer of missing testimony or evidence and why it could change the outcome.
- Clear linkage between counsel’s alleged errors and the inability to meet the hardship standard.
Clear error versus substantial evidence matters. The court’s adoption of clear-error review for mixed questions means petitioners theoretically have slightly more room than under substantial-evidence review to argue that the agency misapplied the legal standard to the facts. But the bar remains high; clear error still requires a definite and firm conviction of mistake.

Complex Concepts Simplified

Exceptional and extremely unusual hardship: A statutory standard for non-LPR cancellation under § 1229b(b)(1)(D). The hardship to a qualifying relative (such as a U.S.-citizen child) must be far beyond the normal hardship expected from a family member’s removal. Examples may include serious medical conditions, special educational needs, or other extraordinary vulnerabilities—documented and tied to the removal.
Qualifying relative: For non-LPR cancellation, typically a U.S.-citizen or lawful permanent resident spouse, parent, or child to whom the hardship would accrue.
Mixed question of law and fact: Applying a legal standard (hardship) to established facts (children’s conditions, living arrangements). Post-Wilkinson, this aspect is reviewable as a legal question; in the Second Circuit it is reviewed for clear error.
Underlying factual findings: Credibility determinations, assessments of how much support a parent provides, or whether a child has a particular medical condition are factual issues that appellate courts generally cannot reconsider in cancellation cases after Wilkinson.
Clear error vs. substantial evidence: Both are deferential standards. Under clear error, a court affirms unless left with a definite and firm conviction that a mistake has been made in applying the law to the facts. Substantial evidence is even more deferential, asking whether a reasonable adjudicator would be compelled to reach a different factual result.
Presumption of consideration of evidence (Xiao Ji Chen): Courts presume the IJ and BIA reviewed all the evidence unless the record clearly shows otherwise.
Exhaustion/Waiver: Arguments must be raised before the BIA to be reviewable by the court of appeals. Failure to do so typically results in the argument being unexhausted and unreviewable.
Ineffective assistance prerequisites (Lozada-type requirements): An affidavit explaining the agreement with prior counsel, notice to prior counsel with an opportunity to respond, and a statement about a bar complaint. Noncompliance is rarely excused and, even then, a petitioner must show prejudice.
Prejudice (ineffective assistance): The petitioner must show that, but for counsel’s errors, he would have been eligible for and could have made a strong showing for relief—typically through specific proffers of the missing evidence or testimony.

Practice Notes and Takeaways

Develop concrete, child-specific evidence beyond generalized separation harm. Obtain medical diagnoses, treatment plans, school evaluations, individualized education plans, or expert reports based on substantial contact. Where appropriate, present corroborated details of caregiving responsibilities (e.g., weekday custody, school involvement) through consistent testimony, affidavits, and documentary proof.
Address financial support rigorously. If claiming inability to support from abroad, document the petitioner’s actual income, obligations, assets (e.g., property abroad), transfer logistics, and the concrete consequences for the child’s well-being if support diminishes.
Align all statements and reports. Inconsistencies (e.g., therapist letter claiming “joint custody” versus testimony of weekend-only visitation) can significantly undercut hardship narratives.
Preserve issues. Raise all arguments and evidentiary objections before the IJ and again before the BIA. Challenge adverse weight assignments to evidence at the agency level if you plan to pursue them in court.
If ineffective assistance is contemplated, observe the procedural prerequisites and make detailed proffers of missing testimony and documentary evidence to establish prejudice. Identify specifically what the missing witnesses would say and why it matters under the hardship standard.

Conclusion

Ramirez Lopez v. Bondi reinforces the post-Wilkinson framework in the Second Circuit: courts have limited but meaningful review over the application of the hardship standard, reviewed for clear error, while leaving underlying factfinding untouched. The decision also underscores the robust presumption that the agency considered all evidence and the stringent requirements for securing a remand based on ineffective assistance, including both procedural compliance and a concrete showing of prejudice.

For future cancellation cases, the opinion’s most salient lesson is practical: success hinges on a meticulously developed and internally consistent record that demonstrates hardship well beyond ordinary family separation, coupled with vigilant preservation of issues in the administrative process. Absent such a record—and without strict adherence to procedural rules for claims like ineffective assistance—judicial review will rarely yield a different result.