Clear-Error Review of “Exceptional and Extremely Unusual Hardship” and Continued Reliance on Monreal-Aguinaga Post-Loper Bright: Flores-Rueda v. Bondi

Introduction

This commentary examines the Second Circuit’s summary order in Flores-Rueda v. Bondi (No. 21-6326, Oct. 14, 2025), denying a petition for review from a decision of the Board of Immigration Appeals (BIA). The case sits at the intersection of three important strands in modern immigration adjudication:

How courts review “exceptional and extremely unusual hardship” determinations under 8 U.S.C. § 1229b(b)(1)(D) after the Supreme Court’s decision in Wilkinson v. Garland (2024);
Whether the BIA’s longstanding elaboration of the hardship standard in Matter of Monreal-Aguinaga remains operative after the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo (2024); and
The rigor of procedural and evidentiary rules governing motions to remand for ineffective assistance of counsel and motions to reopen.

The petitioner, a Mexican national, sought non-LPR cancellation of removal based on hardship to his U.S.-citizen children, who have disabilities and learning issues. The immigration judge (IJ) denied relief and the BIA affirmed. The Second Circuit, applying post-Wilkinson review principles, held there was no clear error in the agency’s conclusion that the record did not demonstrate “exceptional and extremely unusual hardship” if the children remained in the United States and that the petitioner failed to meet the procedural and evidentiary thresholds for remand and reopening.

Although issued as a summary order without precedential effect, the decision is instructive in its articulation of standards of review post-Wilkinson, its treatment of Loper Bright arguments aimed at the BIA’s hardship jurisprudence, and its practical guidance on proof of relocation, corroboration of financial support, and compliance with Matter of Lozada when alleging ineffective assistance.

Summary of the Opinion

The Second Circuit denied the petition for review, upholding the BIA’s affirmance of the IJ’s denial of cancellation of removal under § 1229b(b)(1)(D) and the BIA’s denial of both remand (for ineffective assistance) and reopening (for new evidence). The court:

Confirmed that, under Wilkinson v. Garland, applying the “exceptional and extremely unusual hardship” standard to established facts presents a mixed question of law and fact, which the court reviews for clear error (citing Toalombo Yanez v. Bondi);
Declined to entertain the petitioner’s post-Loper Bright challenge to the BIA’s authority to define hardship because the argument was not exhausted before the BIA; in any event, it noted that the court continues to rely on Matter of Monreal-Aguinaga after Loper Bright (citing Toalombo Yanez);
Upheld the agency’s finding that the petitioner did not prove his children would relocate to Mexico—given their mother’s custody and the lack of evidence from her—thus requiring the hardship analysis to proceed on the premise the children would remain in the United States;
Concluded that, even considering the children’s special needs, the record did not compel a finding of exceptional hardship where there was no evidence that the children would lose services if the petitioner were removed and no corroboration of financial dependence or inability to remit support from Mexico;
Held that the petitioner forfeited his ineffective assistance claim by failing to substantially comply with Matter of Lozada and that the asserted ineffectiveness was not clear on the face of the record; and
Affirmed the denial of reopening because the “new” evidence was available and could have been obtained for the merits hearing with reasonable diligence.

Analysis

Precedents and Authorities Cited

8 U.S.C. § 1229b(b)(1)(D): Authorizes cancellation of removal for certain nonpermanent residents who show, among other things, that removal would result in “exceptional and extremely unusual hardship” to a qualifying U.S.-citizen or LPR spouse, parent, or child.
Matter of Monreal-Aguinaga, 23 I. & N. Dec. 56 (B.I.A. 2001): Canonical BIA decision calibrating the hardship standard as “substantially beyond the ordinary hardship” expected when a close family member leaves the country, yet lower than an “unconscionable” threshold. Identifies relevant factors, including ages, health, and circumstances of qualifying relatives, and recognizes that serious medical issues or compelling special educational needs can strengthen an applicant’s claim.
Matter of J-J-G-, 27 I. & N. Dec. 808 (B.I.A. 2020): Clarifies that when hardship is predicated on a qualifying relative’s health condition, the applicant should establish the seriousness of the condition and the availability (or lack thereof) of adequate medical care if the relative relocates. The court noted a similar framework applies to special education/disability-based claims.
Matter of Andazola-Rivas, 23 I. & N. Dec. 319 (B.I.A. 2002): Addresses economic hardship considerations, including an applicant’s ability to work and establish a life in the country of removal.
Wilkinson v. Garland, 601 U.S. 209 (2024): Holds that the application of the § 1229b(b)(1)(D) hardship standard to established facts constitutes a “question of law” reviewable under 8 U.S.C. § 1252(a)(2)(D), even though underlying factual determinations remain insulated from review by § 1252(a)(2)(B)(i).
Toalombo Yanez v. Bondi, 140 F.4th 35 (2d Cir. 2025): Implements Wilkinson within the Second Circuit by reviewing the mixed question—application of the hardship standard to found facts—for clear error, while treating underlying factfinding as unreviewable. Also reflects continued reliance on Monreal-Aguinaga post-Loper Bright.
Penaranda Arevalo v. Bondi, 130 F.4th 325 (2d Cir. 2025): Emphasizes that an agency does not commit legal error by choosing one factual conclusion over another; factual determinations are not for the court to reweigh as a matter of law.
Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008): Establishes that a petitioner’s failure to produce evidence can itself constitute substantial evidence supporting the agency’s decision when the petitioner bears the burden of proof.
Ud Din v. Garland, 72 F.4th 411 (2d Cir. 2023): Confirms that issue exhaustion is nonjurisdictional but mandatory when the government raises it; unexhausted arguments can be rejected on that basis.
Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988): Sets procedural prerequisites for ineffective assistance of counsel (IAC) claims in immigration cases (affidavit detailing the agreement with counsel and alleged shortcomings, notice to counsel, bar complaint or explanation).
Yi Ling Yang v. Gonzales, 478 F.3d 133 (2d Cir. 2007); Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43 (2d Cir. 2005): Hold that failure to substantially comply with Lozada forfeits IAC claims, except where ineffectiveness is clear on the face of the record.
Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149 (2d Cir. 2005): Sets abuse-of-discretion review for motions to remand.
Luna v. Holder, 637 F.3d 85 (2d Cir. 2011); Omar v. Mukasey, 517 F.3d 647 (2d Cir. 2008): Treat IAC as a constitutional claim reviewed de novo.
8 C.F.R. § 1003.2(c)(1); Norani v. Gonzales, 451 F.3d 292 (2d Cir. 2006): Require that motions to reopen be grounded in material evidence that was not available and could not have been discovered or presented at the former hearing.
Chang Hui Lin v. Holder, 538 F. App’x 65 (2d Cir. 2013) (summary order): Evidence is not “unavailable” for reopening if the applicant simply failed to attempt to obtain it in time for the merits hearing.

Legal Reasoning

1) Jurisdiction and Standard of Review Post-Wilkinson

The court framed its review within Wilkinson’s architecture: the application of the hardship standard to found facts is a reviewable mixed question. Relying on Toalombo Yanez, the court applied clear-error review to that mixed question. This is a highly deferential standard that does not permit the court to reweigh evidence but only to correct decisions that leave a “definite and firm conviction” of mistake. By contrast, the court underscored it lacks jurisdiction to revisit the IJ’s underlying factual findings—such as whether the children would relocate to Mexico, whether a qualifying relative has a “serious medical condition,” or the quantum of current financial support—each of which falls within § 1252(a)(2)(B)(i)’s bar.

2) The Hardship Showing: Relocation, Services, and Financial Corroboration

The IJ found, and the BIA accepted, that the petitioner had not established his children would relocate to Mexico with him. The children were in the physical custody of their mother, from whom the petitioner was separated, and there was no evidence from her indicating relocation was even a possibility. That failure of proof was consequential: per Jian Hui Shao, a petitioner’s omission to adduce evidence can itself support the agency’s decision; and per Penaranda Arevalo, the agency does not commit legal error by choosing one reasonable factual conclusion (no relocation) over another.

The hardship analysis therefore proceeded on the premise that the children would remain in the United States. While the children’s disabilities could make the petitioner a “strong applicant” under Monreal-Aguinaga’s factors, the record lacked evidence that the children would lose, or experience significant disruption of, the special-education and related services they were receiving in New York if their father were removed. This absence was critical because Matter of J-J-G- directs a structured approach: when hardship is premised on health or analogous needs, applicants should document both the seriousness of the condition and the unavailability or material diminution of care if the status quo changes (through relocation or loss of parental support). The petitioner provided neither a showing that services would be lost if the children stayed, nor a tailored account of unique caregiving functions that could not be replaced by the custodial parent or other support.

The economic component fared no better. The record did not corroborate the petitioner’s claimed financial contributions or the children’s reliance on them. Nor did the petitioner present evidence that he could not secure work in Mexico and remit support, an omission that echoes Matter of Andazola-Rivas’s recognition that an applicant’s youth, employability, and skills can undermine claims of extraordinary economic hardship.

Against that evidentiary backdrop, the agency acknowledged the children’s disabilities and recognized that removal would entail emotional and financial strain. But it concluded that the cumulative hardship did not rise “substantially beyond the ordinary hardship” expected when a parent departs—a conclusion the court held was not clearly erroneous under Monreal-Aguinaga.

3) Loper Bright and the Hardship Standard

The petitioner argued that, after Loper Bright, the BIA lacks authority to define the “exceptional and extremely unusual hardship” standard and that agency precedent leaves indeterminate “what lies between exceptional and unconscionable.” The Second Circuit declined to reach the merits, holding the argument unexhausted under Ud Din because it was not presented to the BIA. The court added that, in any event, it has continued to rely on Monreal-Aguinaga post-Loper Bright (citing Toalombo Yanez), indicating—at least in this circuit—that Monreal remains the operative articulation of § 1229b(b)(1)(D)’s statutory phrase.

4) Motions to Remand and Reopen

On the motion to remand premised on ineffective assistance, the court reviewed de novo the constitutional claim and found forfeiture for failure to substantially comply with Matter of Lozada’s requirements, consistent with Yi Ling Yang and Jian Yun Zheng. The court declined to excuse noncompliance because ineffectiveness was not “clear on the face of the record.” It observed that counsel had submitted children’s school records and examined the petitioner at length, undercutting the notion of obvious ineffectiveness.

On the motion to reopen, the court applied 8 C.F.R. § 1003.2(c)(1) and Norani to hold that the “new” evidence was previously available or obtainable with reasonable diligence: the mother and a child welfare official who had known the petitioner since 2014 could have testified or provided affidavits; post-hearing leases and receipts were cumulative of documentation that could have been gathered earlier. Under Chang Hui Lin, evidence is not “unavailable” simply because the applicant did not try to get it in time.

Impact

1) Appellate Review of Hardship After Wilkinson

The opinion operationalizes Wilkinson within the Second Circuit: while legal access to review is broader (courts may review application of the standard), the standard of review is highly deferential (clear error). Petitioners should not expect the court to recalibrate the hardship calculus; rather, they must build a record that compels, under deferential scrutiny, the conclusion that hardship crosses the statutory threshold.

2) Continued Reliance on Monreal-Aguinaga Post-Loper Bright

Practitioners contemplating challenges to the BIA’s hardship framework in light of Loper Bright must:

Exhaust the argument before the BIA, or risk mandatory rejection under Ud Din; and
Reckon with the Second Circuit’s expressed willingness to continue applying Monreal-Aguinaga notwithstanding Loper Bright, at least absent a contrary en banc or Supreme Court directive.

In the near term, Monreal’s calibrated standard—“substantially beyond the ordinary hardship” but less than “unconscionable”—remains the governing articulation for § 1229b(b)(1)(D) in the Second Circuit.

3) Proof of Relocation and Corroboration Requirements

Flores-Rueda underscores three recurring evidentiary pitfalls:

Relocation must be proven, not presumed: Where a qualifying child’s custodial parent is not the applicant, affidavits or testimony from that parent are pivotal. Absent credible, concrete evidence that the child will relocate, the agency may assess hardship on the assumption the child stays in the United States.
Special needs require tailored proof of impact: It is not enough to show that a child has disabilities or an IEP. The record should explain, with documentation from providers, how the parent’s removal will disrupt existing services, caretaking arrangements, or educational outcomes, and why those disruptions go beyond the “ordinary” effects of family separation.
Financial support must be corroborated and contextualized: Applicants should substantiate ongoing contributions (pay stubs, bank records, affidavits from custodial parent) and address the feasibility of earning and remitting funds from the country of removal.

4) Stringent Enforcement of Lozada and Reopening Standards

The decision confirms the Second Circuit’s firm adherence to Lozada’s procedural prerequisites for IAC claims and to the regulatory requirement that reopening be predicated on material evidence not previously available despite reasonable diligence. Attempts to “backfill” the record with evidence that could have been presented earlier are unlikely to succeed.

Complex Concepts Simplified

Cancellation of removal (non-LPR): A discretionary relief allowing certain long-term residents without lawful permanent status to avoid removal if they meet statutory criteria, including a showing of “exceptional and extremely unusual hardship” to a qualifying relative.
“Exceptional and extremely unusual hardship”: A demanding standard. Hardship must be substantially beyond what typically follows family separation due to removal. Factors include age, health, special educational needs, and cumulative circumstances. The standard is high but does not require showing that removal would be “unconscionable.”
Mixed question of law and fact: Applying a legal standard to established facts. After Wilkinson, courts may review this application in cancellation cases, but in the Second Circuit such review is for clear error—very deferential to the agency’s weighing.
Clear-error review: The appellate court does not reweigh evidence. It will overturn only if left with a firm conviction that a mistake has been made in applying the standard to the facts.
Issue exhaustion: Parties must raise arguments to the BIA before presenting them to the court of appeals. When the government invokes exhaustion, courts will generally refuse to consider unexhausted issues.
Motions to remand vs. reopen: A motion to remand asks the BIA to send the case back to the IJ for further proceedings (often for new evidence or claims like IAC). A motion to reopen asks the BIA to reopen proceedings to consider new, previously unavailable, material evidence. Both are disfavored if the evidence could have been obtained earlier with diligence.
Matter of Lozada compliance: To allege ineffective assistance, an applicant must (1) submit an affidavit detailing the agreement and counsel’s deficiencies; (2) notify prior counsel and give an opportunity to respond; and (3) file a bar complaint or explain why not. Noncompliance generally forfeits the claim unless ineffectiveness is obvious on the record.

Practical Takeaways for Practitioners

Document relocation with precision: obtain affidavits from the custodial parent and evidence of concrete plans; otherwise, expect the agency to assume the children will remain in the United States.
Translate special needs into specific hardship: include IEPs, provider letters, therapy schedules, and expert declarations explaining how the parent’s removal would materially impair services, progress, or stability beyond ordinary separation impacts.
Corroborate finances: supply objective proof of contributions and a realistic assessment of earning and remittance capacity in the country of removal.
Preserve legal arguments: exhaust any post-Loper Bright challenges to BIA precedent before the BIA.
Follow Lozada meticulously: anticipate that the Second Circuit will enforce substantial compliance; do not assume “obvious” ineffectiveness.
Build the record early: evidence that could be gathered for the merits hearing will not justify reopening later.

Conclusion

Flores-Rueda v. Bondi offers a concise but potent guide to cancellation-of-removal litigation in the Second Circuit after Wilkinson and Loper Bright. The court confirms that:

Application of the “exceptional and extremely unusual hardship” standard is reviewable but subject to clear-error deference;
Matter of Monreal-Aguinaga remains the operative hardship framework, and challenges to it must be exhausted;
Applicants must prove, not presume, critical predicates like relocation, and must corroborate both financial support and the concrete impact on special-needs services; and
Lozada compliance and the unavailability requirement for reopening are enforced strictly.

While non-precedential, the decision underscores the evidentiary rigor required to transform sympathetic circumstances into the kind of “exceptional and extremely unusual hardship” that meets § 1229b(b)(1)(D)’s demanding standard. It also maps the post-Wilkinson terrain: courts will review the application of the standard, but with substantial deference to agency adjudicators, reinforcing the imperative of meticulous record-building at the IJ level.