Deferential Review of “Exceptional and Extremely Unusual Hardship” and No Consolidation of Pending Motions to Reopen: Cruz‑Lopez v. Bondi (6th Cir. 2025)

Introduction

In Jovita Cruz‑Lopez v. Pamela Bondi, the United States Court of Appeals for the Sixth Circuit denied a petition for review challenging the Board of Immigration Appeals’ (BIA) dismissal of an application for cancellation of removal. The Immigration Judge (IJ) had denied cancellation but granted voluntary departure, concluding that the petitioner failed to demonstrate “exceptional and extremely unusual hardship” to a qualifying relative under 8 U.S.C. § 1229b(b)(1)(D). The petitioner’s adult U.S.‑citizen son, Eduardo, was the qualifying relative.

Two issues frame the case: first, the substantive hardship standard after the Supreme Court’s recent decisions in Loper Bright Enterprises v. Raimondo (ending Chevron deference) and Wilkinson v. Garland (clarifying deferential review for hardship determinations); and second, a procedural question concerning whether a pending motion to reopen before the BIA can be consolidated with the petition for review under 8 U.S.C. § 1252(b)(6). The Sixth Circuit reaffirms that hardship determinations receive deferential review and holds that § 1252(b)(6) consolidation is unavailable while a motion to reopen remains undecided by the agency.

Although unpublished and “not recommended for publication,” the opinion is a useful consolidation of post‑Loper Bright interpretive methodology, Wilkinson’s review standard, and established jurisdictional limits on consolidating petitions with pending agency motions.

Summary of the Opinion

The Sixth Circuit denies the petition for review, holding that under any level of deference the petitioner failed to establish “exceptional and extremely unusual hardship” to her U.S.‑citizen son.
Applying Wilkinson v. Garland, the court reiterates that hardship determinations are mixed questions that are “primarily factual,” and therefore appellate review is deferential. The panel does not resolve the precise level of deference within that deferential framework because the claim fails regardless.
The court rejects petitioner’s request to consolidate a pending motion to reopen with the petition for review, holding that § 1252(b)(6) permits consolidation only after the BIA decides the motion (a separate, reviewable “final order”).
The panel concludes the IJ and BIA applied the correct “substantially beyond” hardship standard, considered the evidence cumulatively, and provided a reasoned analysis; the due‑process claim therefore fails.
Because the hardship showing fails, the court declines to reach whether the son “aged out” as a qualifying child during the BIA appeal.

Background

Petitioner Jovita Cruz‑Lopez, a Mexican national who unlawfully entered the United States in 1999, sought cancellation of removal based on hardship to her U.S.‑citizen son, Eduardo. At the August 2020 hearing, Eduardo was 19, worked part‑time as a line cook, and lived in a household with the petitioner’s sister and family. The petitioner believed Eduardo would not relocate to Mexico if she were removed.

The IJ denied cancellation after finding that the emotional and economic harms alleged, while real, were not “exceptional and extremely unusual.” The IJ granted voluntary departure. The BIA dismissed the appeal and denied termination based on an allegedly defective Notice to Appear (NTA). In the Sixth Circuit, petitioner challenged only the cancellation denial and asked the court to consolidate a then‑pending motion to reopen at the BIA based on purported new precedent and alleged legal error by the IJ and BIA.

Analysis

Precedents Cited and How They Shaped the Decision

Wilkinson v. Garland, 601 U.S. 209 (2024): The Supreme Court held that the application of the “exceptional and extremely unusual hardship” standard is a mixed question of law and fact that is “primarily factual,” and thus subject to deferential appellate review. The Sixth Circuit relies on Wilkinson to frame the standard of review, while noting it need not pinpoint the exact degree of deference because the petitioner loses under any deferential approach.
Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): By ending Chevron deference, Loper Bright requires courts to perform independent statutory interpretation. The Sixth Circuit observes that, even under such independent review, it has already construed “exceptional and extremely unusual hardship” consistent with the BIA’s earlier articulation in Monreal‑Aguinaga.
In re Monreal‑Aguinaga, 23 I. & N. Dec. 56, 65 (B.I.A. 2001): The BIA defined the hardship standard as requiring hardship “substantially beyond” what ordinarily accompanies removal. The IJ applied this standard; the Sixth Circuit confirms this is the operative benchmark post‑Loper Bright, as recognized in its own precedent.
Moctezuma‑Reyes v. Garland, 124 F.4th 416, 422–23 (6th Cir. 2024): After Loper Bright, the Sixth Circuit conducted its own statutory analysis and adopted Monreal’s “substantially different from, or beyond” formulation. The panel here leans on Moctezuma‑Reyes to reject petitioner’s argument that the BIA applied the wrong legal standard.
Harmon v. Holder, 758 F.3d 728, 732 (6th Cir. 2014): Establishes that when the BIA issues its own opinion, courts review the BIA’s decision as the final agency action, also considering the IJ’s reasoning to the extent adopted. The court applies that framework.
Mata v. Lynch, 576 U.S. 143, 147–48 (2015); Madrigal v. Holder, 572 F.3d 239, 242 (6th Cir. 2009): Confirm that appellate jurisdiction extends to final orders of removal and to decisions denying motions to reopen or reconsider—but not to pending motions. Citing these cases, the court refuses to consolidate the petition with a still‑pending motion to reopen.
Mu Ju Li v. Mukasey, 515 F.3d 575, 578 (6th Cir. 2008) (relying on Stone v. INS, 514 U.S. 386 (1995), abrogated on other grounds by Riley v. Bondi, 145 S. Ct. 2190 (2025)): Motions to reopen or reconsider produce separate final orders requiring separate petitions for review. The panel reiterates that if the BIA later denies the pending motion to reopen, a new petition will be necessary.
In re Gonzalez Recinas, 23 I. & N. Dec. 467, 468 (B.I.A. 2002): Recites the statutory eligibility elements for cancellation of removal; frames the legal landscape in which hardship is a required showing.
Singh v. Rosen, 984 F.3d 1142, 1154 (6th Cir. 2021): Cited alongside Moctezuma‑Reyes to underscore that, regardless of precise deference, the petitioner failed to show the requisite hardship.
Hernandez‑Perez v. Whitaker, 911 F.3d 305, 319 (6th Cir. 2018): Remand is required where the BIA fails to consider facts, cite authority, or apply precedent. The panel distinguishes Hernandez‑Perez, concluding the BIA’s analysis here was reasoned and adequate.
INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam), as quoted in Rahman v. Bondi, 131 F.4th 399, 409 (2025): Courts need not decide issues unnecessary to the disposition. Invoked to avoid reaching whether the son “aged out” as a qualifying child.

Legal Reasoning

1) Standard of Review: Deferential Post‑Wilkinson

The panel situates the inquiry within Wilkinson’s framework: hardship determinations are mixed questions that are “primarily factual.” That characterization drives a deferential standard of review. The Sixth Circuit notes it has not definitively specified the precise level of deference (e.g., clear error vs. substantial evidence) for this mixed question, but holds that the petitioner’s claim fails under any deferential standard. This approach is consistent with Moctezuma‑Reyes, which similarly avoided the precise calibration of deference because the record compelled affirmance regardless.

2) Substantive Hardship Standard: “Substantially Beyond” Ordinary Consequences

Post‑Loper Bright, courts interpret statutes without Chevron deference. Even so, the Sixth Circuit in Moctezuma‑Reyes independently adopted the Monreal‑Aguinaga formulation: the hardship must be “substantially different from, or beyond, that which would normally be expected from the deportation of an alien with close family members here.” The court confirms that this is the right yardstick, and finds the IJ applied it faithfully.

The IJ performed a cumulative assessment, considering Eduardo’s age (19), employment, ability to seek further work, lack of significant medical issues, and the presence of other family members with whom he could continue living. The IJ acknowledged that removal would likely cause emotional and economic stress but reasonably concluded that such harms are common consequences of a parent’s removal and therefore not “exceptional and extremely unusual.” The BIA agreed and offered a reasoned analysis. The Sixth Circuit finds no error in that assessment.

3) Best Interests vs. Hardship

The court rejects the argument that the IJ should have applied a “best interests of the child” framework. Cancellation of removal requires showing hardship to a qualifying relative, not proving that the parent’s removal is contrary to the child’s best interests in a holistic sense, as might be employed in child‑custody contexts. The IJ properly focused on hardship, not on a free‑floating “best interests” inquiry.

4) Cumulative Consideration and Types of Evidence

Petitioner contended the IJ and BIA failed to consider nonmedical hardships—emotional distress, economic detriment, family ties, country conditions, educational impact, and permanent separation. The opinion explains that the IJ did account for the key factors tied to the statutory inquiry, and assessed them cumulatively. Absent concrete, individualized evidence showing that the consequences in this case were “substantially beyond” the norm, the claim fails.

5) Forfeiture of Alternative‑Pathway Arguments

The panel notes the petitioner did not present evidence or argument before the IJ or the BIA that she lacked any alternative immigration pathway; the claim is therefore not considered for the first time on petition for review. This reinforces the importance of fully developing the record and legal arguments before the agency.

6) “Aging Out” Not Reached

Petitioner argued the BIA erred by treating Eduardo as having “aged out” as a qualifying child (i.e., turning 21 and thus no longer meeting the INA’s definition of “child”). Because the hardship showing failed on the merits, the court declined to reach this issue, invoking the principle that courts need not decide unnecessary questions.

7) Due Process Claim

The court rejects the due‑process challenge, concluding the BIA provided a reasoned analysis supported by record citations and legal authority—unlike in Hernandez‑Perez, where remand was required due to the absence of reasoned agency decision‑making.

8) No Consolidation of a Pending Motion to Reopen

The petitioner asked the Sixth Circuit to consolidate her petition for review with a yet‑to‑be‑decided motion to reopen pending before the BIA, invoking § 1252(b)(6). The court holds the request is premature. Appellate jurisdiction exists over “final orders of removal,” including denials of motions to reopen or reconsider—but not over pending motions. If the BIA later denies the motion, that denial is a separate, reviewable final order that requires a separate petition for review. This tracks Mata, Madrigal, and Mu Ju Li (which rests on Stone’s separate‑order logic, notwithstanding Stone’s partial abrogation on other grounds).

Impact

Hardship claims face a high bar. This opinion reinforces that generalized emotional distress, financial strain, and family separation—though very real—are typically insufficient unless the circumstances are “substantially beyond” what ordinarily accompanies removal. Strong, individualized evidence (e.g., severe medical conditions, unique dependency, or specific, non‑speculative harms) remains essential.
Deferential review after Wilkinson means appellate courts will rarely disturb agency hardship findings absent clear misapplication of law or serious misreading of the record. This increases the premium on building a compelling factual record before the IJ.
Post‑Loper Bright interpretive stability. The Sixth Circuit’s independent construction of the hardship standard in Moctezuma‑Reyes, adopted again here, aligns with the BIA’s Monreal standard. Practitioners should not expect a more lenient textual gloss from federal courts than the BIA’s longstanding articulation.
Procedural practice point on consolidation. § 1252(b)(6) consolidation is available only after the BIA issues a decision on the motion to reopen or reconsider. Counsel should not rely on consolidating a petition for review with a still‑pending motion; instead, file a separate, timely petition if the BIA later denies the motion.
Issue preservation matters. Arguments not presented to the IJ or BIA—like the absence of alternative immigration pathways—are generally forfeited on judicial review.
“Best interests” is not the legal test. The inquiry is hardship to the qualifying relative under § 1229b(b)(1)(D), not a broad best‑interests assessment familiar from family law settings.

Complex Concepts Simplified

“Exceptional and extremely unusual hardship”: A heightened standard requiring proof that the qualifying relative’s hardship would be substantially different from or beyond what families ordinarily endure when a relative is removed. Typical emotional upset and financial strain, without more, rarely suffice.
Mixed question of law and fact (primarily factual): The legal standard is applied to case‑specific facts. Because facts dominate the analysis, appellate courts give deference to the agency’s determination and overturn only for significant legal error or lack of support in the record.
Loper Bright and Chevron’s end: Courts no longer defer to agency interpretations of ambiguous statutes simply because they are reasonable; courts interpret statutes independently. Here, the Sixth Circuit’s independent reading still matches the BIA’s Monreal standard.
Voluntary departure vs. cancellation of removal: Voluntary departure allows a noncitizen to leave the U.S. at their own expense within a set period, avoiding some penalties. Cancellation allows the person to remain and obtain lawful status if all statutory criteria—including the demanding hardship showing—are met.
Consolidation under § 1252(b)(6): A court can consolidate review of a removal order with review of a motion to reopen or reconsider—but only after the BIA has issued a decision on that motion. Pending motions are not yet reviewable.
“Aging out”: For cancellation purposes, a “child” is generally an unmarried person under 21. A qualifying relative may “age out” by turning 21 during the process. The Sixth Circuit did not decide that question here because the hardship showing failed anyway.

Practical Guidance for Practitioners

Develop a detailed, corroborated record at the IJ level. Highlight individualized, non‑speculative harms and document medical, psychological, educational, or caretaking dependencies that push the case “substantially beyond” ordinary consequences of removal.
Present all legal theories and factual predicates to the IJ and BIA to preserve them for judicial review (including arguments about alternative immigration pathways).
When a motion to reopen is pending at the BIA, do not assume consolidation with a petition for review is available; file a separate petition if the motion is denied.
Do not rely on a “best interests” framing; tether arguments to the statutory hardship factors recognized in Monreal, Recinas, and circuit precedent (age, health, circumstances, dependency, availability of support networks, etc.).
When asserting cumulative hardship, explicitly connect how the combination of factors exceeds the typical emotional and financial impacts seen in most removal cases.

Conclusion

Cruz‑Lopez v. Bondi confirms two important propositions in the Sixth Circuit. First, following Wilkinson, the application of the “exceptional and extremely unusual hardship” standard receives deferential review, and under the court’s independent post‑Loper Bright construction in Moctezuma‑Reyes, the governing test remains Monreal’s “substantially beyond” formulation. Second, under § 1252(b)(6), consolidation is unavailable for pending motions to reopen; only decided motions yield reviewable final orders requiring separate petitions.

While unpublished, the decision underscores the high evidentiary bar for cancellation of removal based on hardship to an adult U.S.‑citizen child, the need to thoroughly preserve and present arguments at the agency level, and the procedural realities of litigating in parallel before the BIA and the courts of appeals. The takeaways are clear: build a robust, individualized hardship record; align arguments with the statutory standard rather than “best interests”; and manage appellate strategy with jurisdictional timing firmly in view.