On the whole, the Second Circuit found no legal or clear-error basis to disturb the agency’s decision, leading to denial of the petition and vacatur of all stays.

III. Detailed Analysis

A. Precedents and Authorities Cited

1. Scope of review and mixed questions after Wilkinson

• 8 U.S.C. § 1252(a)(2)(D) – This provision restores jurisdiction over “constitutional claims or questions of law” even where other subsections (e.g. § 1252(a)(2)(B)) bar review of discretionary decisions like cancellation of removal.
• Wilkinson v. Garland, 601 U.S. 209 (2024) – The Supreme Court clarified that:

  “[T]he application of a legal standard to undisputed or established facts” is a “question of law” for purposes of § 1252(a)(2)(D).

  This matters because hardship determinations involve both:
  • What facts exist (factual findings), and
  • Whether those facts satisfy the statutory “exceptional and extremely unusual hardship” standard (legal application).
• Toalombo Yanez v. Bondi, 140 F.4th 35 (2d Cir. 2025) – Cited for the proposition that the “ultimate hardship determination is a mixed question of law and fact that we review for clear error.” This post-Wilkinson Second Circuit case operationalizes the Supreme Court’s framework, treating hardship determinations as:
  • Not wholly unreviewable “discretionary judgments,” but
  • Reviewable mixed questions subject to a demanding clear error standard.
• Castellanos-Ventura v. Garland, 118 F.4th 250 (2d Cir. 2024) – Cited on the standard of review: pure questions of law are reviewed de novo (the court gives no deference to the agency on purely legal issues).

In Tenemaza, the court explicitly anchors its jurisdiction and review standard in these cases, signaling the ongoing refinement of appellate oversight of cancellation decisions after Wilkinson.

2. Burden of proof and corroboration

• 8 U.S.C. § 1229b(b)(1)(D) – Cancellation of removal for certain nonpermanent residents requires proof that:

  “removal would result in exceptional and extremely unusual hardship” to a qualifying relative (e.g., U.S.-citizen child).

• 8 U.S.C. § 1229a(c)(4)(A)–(B) – This general burden-of-proof provision applies to applications for relief from removal. It requires:
  • The applicant to demonstrate that they satisfy the eligibility requirements.
  • The IJ to determine if testimony is credible, persuasive, and sufficiently specific.
  • That when the IJ determines corroboration is needed, such evidence “must be provided unless the applicant demonstrates that the applicant does not have the evidence and cannot reasonably obtain the evidence.”
• Pinel-Gomez v. Garland, 52 F.4th 523 (2d Cir. 2022) – Interpreting the identical corroboration language in the asylum statute, the court held:

  “An IJ may deny a claim for relief based on the applicant’s failure to provide reasonably obtainable corroborating evidence.”

  Tenemaza extends this logic squarely into the cancellation-of-removal context—something already built into the statute, but here explicitly reaffirmed.

3. Presumption that the agency considered the evidence

• Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520 (2d Cir. 2005) and Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005) – These cases establish that when the BIA adopts and supplements an IJ’s decision, the court reviews the IJ’s decision “as modified and supplemented” by the BIA.
  In Tenemaza, the court follows this pattern in reviewing both agency levels.
• Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315 (2d Cir. 2006) – Provides the key presumption:

  “[W]e presume that an IJ has taken into account all of the evidence before him, unless the record compellingly suggests otherwise.”

• Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008) – Clarifies that the agency must “explicitly consider relevant evidence” but need not “expressly parse or refute on the record each individual argument or piece of evidence.”

In Tenemaza, these precedents sustain the court’s rejection of the petitioners’ claim that the IJ ignored certain evidence such as the psychoemotional report, tax records, and U.S.-based letters.

4. Exhaustion and abandonment

• Ud Din v. Garland, 72 F.4th 411 (2d Cir. 2023) – Affirms that issue exhaustion is:

  “mandatory in the sense that a court must enforce the rule if a party properly raises it.”

  If the government invokes non-exhaustion, the court generally cannot reach the unexhausted issue.
• Vera Punin v. Garland, 108 F.4th 114 (2d Cir. 2024) – Explains that an argument is unexhausted if it cannot be “closely matched up with a specific argument made to the BIA.”
• Debique v. Garland, 58 F.4th 676 (2d Cir. 2023) – Establishes that issues not meaningfully raised in the petitioner’s brief to the court are deemed abandoned and will not be considered.

The Second Circuit in Tenemaza applies these principles to:

• Refuse to consider the petitioners’ objection to exclusion of witness testimony (unexhausted before the BIA).
• Treat as abandoned the argument that corroborating evidence was unavailable or not reasonably obtainable (not argued in the Second Circuit brief).

B. The Court’s Legal Reasoning

1. Jurisdiction and standard of review

The court begins by reciting the jurisdictional limitation in § 1252(a)(2)(D) and the governing standards:

• It may review constitutional claims and questions of law, including application of the legal hardship standard to established facts, per Wilkinson.
• Pure legal questions are reviewed de novo (Castellanos-Ventura).
• The “ultimate hardship determination” is a mixed question of law and fact reviewed for clear error (Toalombo Yanez).

“Clear error” is a highly deferential standard: the court will overturn the agency’s finding only if left with a strong conviction that a mistake has been made. This sets a high bar for petitioners challenging the agency’s hardship evaluation.

2. The hardship standard: “exceptional and extremely unusual”

The court quotes Wilkinson for the formulation:

“Exceptional and extremely unusual hardship” is “hardship that is substantially different from or beyond that which would ordinarily be expected to result from ... removal.”

Thus, mere economic difficulties, family separation, or the ordinary hardships of relocation typically are insufficient. The hardship must stand out as extraordinary when compared to the “normal” consequences of removal that Congress implicitly accepted when it enacted the immigration statutes.

3. Evaluation of the evidence and the corroboration requirement

Under 8 U.S.C. § 1229a(c)(4)(B), an IJ must evaluate whether:

1. The testimony is credible,
2. Persuasive, and
3. Refers to specific facts.

Even if the testimony is credible, an IJ can require corroborating evidence and can deny relief if such evidence is reasonably obtainable but not provided. Applying this framework, the court notes:

• The IJ found the Fernandezes’ testimony lacked adequate “detail and specificity” on critical points, especially about conditions in Ecuador and the alleged experiences of friends.
• The IJ reasonably determined that evidence such as:
  • Letters or statements from friends and family in Ecuador,
  • Country reports,
  • News articles
  should have been produced to corroborate the hardship narrative.
• The petitioners did not:
  • Explain why these documents could not be obtained, or
  • Demonstrate that they did not have access to such materials.

Given this, the Second Circuit accepts:

• That corroboration was reasonably obtainable; and
• That its absence offered an independent basis to deny cancellation, in line with Pinel-Gomez.

4. Rejection of the “failure to consider evidence” argument

The petitioners argued that the IJ failed to consider certain evidence:

• A “psychoemotional” report describing what the petitioners told a professional about Ecuadorian conditions.
• Letters from acquaintances in the United States.
• Tax returns and medical records.

The court responds in two steps:

1. Presumption of consideration.
   The IJ’s decision:
   • Identified all exhibits by number.
   • Explicitly stated that all evidence was considered.
   Under Xiao Ji Chen, the court presumes the IJ actually reviewed the evidence unless the record compellingly shows otherwise. No such compelling indication existed here.
2. Materiality and lack of objective country-conditions proof.
   The court notes that none of the allegedly “ignored” evidence:
   • Supplied objective evidence of Ecuadorian country conditions, or
   • Filled the evidentiary gap identified by the IJ.
   For example, a psychoemotional report that simply relays the petitioners’ own statements does not qualify as independent corroboration of conditions in Ecuador.

In short, even if fully credited, the disputed evidence would not have fundamentally altered the hardship assessment because it did not supply the necessary objective corroboration.

5. Issue exhaustion: preclusion of two witnesses

The petitioners argued that the IJ improperly barred live testimony from two witnesses due to:

• Defects in the witness list submitted by counsel, and
• A stipulation that the witnesses would testify consistently with their written statements.

The government, however, objected that this argument was not raised to the BIA. The Second Circuit:

• Agreed with the government that the argument was unexhausted.
• Relied on Ud Din and Vera Punin to hold that where:
  • An argument in the court of appeals cannot be “closely matched” to one made before the BIA,
  • The court has no authority to consider it.

The lesson is practical and sharp: any challenge to an IJ’s evidentiary ruling must be raised explicitly to the BIA, or it will be lost on petition for review. That includes arguments framed as due process violations or claims of unfairness in the hearing process.

6. Abandonment of challenge to corroboration availability

A critical piece of the BIA’s decision was its finding that corroborating evidence was reasonably obtainable. To rebut this, the petitioners would have needed to argue in the Second Circuit that:

• They did not have the evidence, and
• They could not reasonably obtain it.

But the court notes:

• The petitioners “do not dispute” the BIA’s finding that corroboration was reasonably obtainable.
• They also do not argue that there was “good cause” for failing to present the evidence that the IJ identified.

Under Debique, the court therefore deems this issue abandoned. Even if the issue were not abandoned, the court explains that the BIA did not err in treating lack of corroboration as an independent ground for denial.

IV. Impact and Practical Significance

A. Impact on cancellation-of-removal practice

While Tenemaza is a non-precedential summary order, its analysis is consistent with, and helps illuminate, several trends in contemporary cancellation-of-removal jurisprudence in the Second Circuit:

1. Corroboration is often outcome-determinative.
   The case reinforces that hardship claims, especially those involving dangerous or unstable country conditions abroad, should be supported by:
   • Country reports (e.g. U.S. State Department reports).
   • Local or international NGO reports.
   • News articles about crime, economic conditions, or political instability.
   • Letters or affidavits from individuals with direct knowledge in the home country.
   Reliance solely on generalized, anecdotal, or second-hand oral testimony is usually insufficient, particularly where the IJ has asked for corroboration and none is provided.
2. Aggregate hardship is not a substitute for missing core elements.
   The IJ explicitly considered all hardship factors “in the aggregate.” The Second Circuit accepted that framing but held that aggregate consideration cannot:
   • Cure the failure to substantiate key assumptions (e.g., that Ecuador’s conditions are exceptionally dangerous for the family), or
   • Transform ordinary hardship into “exceptional and extremely unusual” hardship without robust supporting facts.
3. Quality of testimony matters: detail and specificity.
   Even assuming credibility, testimony that:
   • Lacks concrete examples, dates, or identifiable persons, or
   • Remains vague about the alleged dangers abroad
   is less likely to carry the heavy hardship burden—especially absent corroborative documentation.

B. Post-Wilkinson standard of review for hardship determinations

In the broader doctrinal landscape, Tenemaza operates as a practical application of several key post-Wilkinson points:

• Hardship determinations are not immune from appellate review, but:
  • They are treated as mixed questions, not pure discretion.
  • The standard is clear error, which is highly deferential.
• Because the harshness threshold—“exceptional and extremely unusual hardship”—is now understood as a legal standard applied to facts, petitioners can theoretically argue that the agency misapplied the standard. However:
  • Where the record is thin, particularly on corroboration, it is difficult to show such misapplication was clearly erroneous.
  • Tenemaza illustrates how, even under this new framework, the court will not disturb an agency denial absent clear factual or legal error.

C. Strict enforcement of exhaustion and abandonment

Tenemaza also highlights the risk of procedural missteps:

• Issue exhaustion before the BIA:
  • Arguments about IJ error—whether evidentiary, procedural, or constitutional—must be explicitly presented to the BIA.
  • General complaints about fairness will typically not suffice if they cannot be matched to a specific ground in the BIA appeal.
• Abandonment on petition for review:
  • Even if an issue was raised below, it must be meaningfully argued in the Circuit brief.
  • Silence on a key agency rationale (e.g., “corroboration was reasonably obtainable”) is treated as forfeiture.

Practitioners and litigants should infer from Tenemaza that:

1. A meticulous and comprehensive BIA brief is essential to preserve appellate options.
2. Appellate briefing must directly confront each independent basis upon which the BIA affirmed the IJ.

D. Persuasive (though non-precedential) weight

Because Tenemaza is a summary order, it:

• Does not create binding precedent in the Second Circuit.
• Can, however, be cited in later cases as persuasive authority under FRAP 32.1 and Local Rule 32.1.1.

As a practical matter, its reasoning aligns with, and is anchored in, published decisions like Pinel-Gomez, Toalombo Yanez, and Wilkinson. Those published cases remain the principal sources of binding doctrine, but Tenemaza is likely to be referenced for its application of those principles to the common fact pattern of hardship-based cancellation for parents of U.S.-citizen children.

V. Complex Concepts Simplified

A. “Exceptional and extremely unusual hardship”

This term is substantially more demanding than ordinary hardship:

• Many families experience:
  • Separation,
  • Economic difficulties,
  • Disruption to children’s education,
  • Emotional distress
  when a parent is removed. Congress assumed these ordinary consequences would occur in many cases.
• To qualify for cancellation, the hardship must be:
  • Substantially different from or
  • Beyond what is normally expected.
• Examples (not exhaustive) could include:
  • Serious medical conditions requiring ongoing care not realistically available in the home country.
  • Special educational needs that cannot be accommodated abroad.
  • Extraordinary risk of violence or persecution toward the child, beyond generalized crime.

B. Mixed questions of law and fact / Clear-error review

A mixed question of law and fact arises when:

• The underlying facts are either undisputed or established by the factfinder (e.g., the IJ), and
• The question becomes whether those facts satisfy a legal standard (here, the “exceptional and extremely unusual hardship” threshold).

Under clear-error review, an appellate court:

• Does not reweigh the evidence or substitute its own judgment lightly.
• Will reverse only if:
  • The agency’s finding is illogical, implausible, or without support in the record, or
  • It is left with a “definite and firm conviction that a mistake has been committed.”

In Tenemaza, the court found no such clear error in the agency’s conclusion that the evidence, especially lacking corroboration, failed to establish the required level of hardship.

C. Corroboration under § 1229a(c)(4)(B)

The statute requires that:

• The IJ may rely on credible testimony, but
• If the IJ determines that corroboration is necessary, the applicant must:
  • Provide the evidence, or
  • Demonstrate that it is unavailable and cannot reasonably be obtained.

What counts as “reasonably obtainable” is contextual, but the bar is not extraordinarily high. If:

• An applicant has family, friends, or community members abroad who could write letters, or
• Internationally accessible country reports and news articles are available,

courts and IJs typically regard such evidence as reasonably obtainable unless the applicant can show concrete obstacles.

D. Issue exhaustion and abandonment

• Issue exhaustion (before the BIA):
  • You cannot raise a new legal or procedural argument for the first time in the court of appeals.
  • Arguments must first be presented to the BIA with enough specificity that the BIA has a fair chance to address them.
• Abandonment (before the Court of Appeals):
  • Even if an issue was argued to the BIA, it must be squarely argued in the petition for review.
  • If a party omits or barely mentions a potentially dispositive issue (e.g., the availability of corroboration), the court treats it as forfeited.

In Tenemaza, both doctrines were decisive: one argument was barred for non-exhaustion; another was treated as abandoned.

VI. Conclusion

Tenemaza v. Bondi is a concise but instructive illustration of several important features of modern cancellation-of-removal jurisprudence in the Second Circuit:

• It confirms that, after Wilkinson and Toalombo Yanez, hardship determinations are reviewable mixed questions, but under the highly deferential clear-error standard.
• It underscores that the burden of proof lies squarely with the applicant, who must both:
  • Present detailed, specific, and credible testimony, and
  • Furnish reasonably obtainable corroborating evidence, especially regarding country conditions, when requested.
• It reinforces that the IJ and BIA are presumed to have considered all evidence, and that failure by an applicant to produce objective support for key allegations (e.g., dangerous conditions in Ecuador) can independently justify denial of relief.
• It demonstrates the strict enforcement of:
  • Issue exhaustion—arguments not raised to the BIA are beyond the court’s reach.
  • Abandonment—arguments not pursued in appellate briefing, even if preserved below, will not be entertained.

While Tenemaza itself is non-precedential, its reasoning accords with—and concretely applies—binding Second Circuit and Supreme Court authority on hardship, corroboration, and appellate review. For practitioners, it serves as a cautionary guide: in cancellation-of-removal cases, the combination of a demanding hardship standard, a rigorous corroboration requirement, and sharp procedural rules on exhaustion and abandonment leaves little room for error. Thorough evidentiary development and precise issue preservation at every administrative stage are essential if a hardship claim is to survive judicial scrutiny.

Note: This commentary is for informational and analytical purposes only and does not constitute legal advice.