Deferential Mixed-Question Review of “Exceptional and Extremely Unusual Hardship,” with No Appellate Jurisdiction over Underlying Hardship Facts

Introduction

In Espinoza Benitez v. Blanche (1st Cir. Sept. 1, 2026), Carlos Rene Espinoza Benitez, a native and citizen of El Salvador, petitioned for review of a Board of Immigration Appeals (“BIA”) decision affirming—without opinion—an Immigration Judge’s (“IJ”) denial of cancellation of removal.

Espinoza conceded removability based on overstaying a visa and sought cancellation under 8 U.S.C. § 1229b(b)(1)(D), arguing that removal would cause “exceptional and extremely unusual hardship” to his two U.S.-citizen children, focusing primarily on his minor son’s asthma and the asserted inability to obtain needed medications in El Salvador.

The central issues before the First Circuit were (i) the proper scope and standard of judicial review after Wilkinson v. Garland, and (ii) whether the IJ’s application of the statutory hardship standard to the found facts could be disturbed.

Summary of the Opinion

The First Circuit denied the petition. Because the BIA affirmed without opinion, the court reviewed the IJ’s decision as the final agency action (per Castillo-Diaz v. Holder).

Applying Wilkinson v. Garland, the court held that it could review only the agency’s application of the “exceptional and extremely unusual hardship” standard to the adjudicated facts—a mixed question that is “primarily factual” and thus reviewed deferentially. The court reiterated it lacked jurisdiction to revisit underlying factual disputes about the child’s medical condition or the evidentiary weight of medical and country-conditions proof.

On the merits of the mixed question, the court found no legal error: the IJ considered the son’s asthma history and treatment but concluded the record did not establish either (a) a sufficiently “very serious” medical condition or (b) an inability to obtain treatment/medication in El Salvador, particularly given the absence of specific evidence on availability and cost. The court also agreed that other hardship factors, considered in the aggregate, did not rise beyond ordinary consequences of removal.

Analysis

Precedents Cited

1. Review framework and jurisdiction

  • Castillo-Diaz v. Holder, 562 F.3d 23 (1st Cir. 2009): When the BIA affirms without opinion, the IJ’s decision is treated as the final agency decision. This procedural rule mattered because Espinoza’s arguments had to target the IJ’s reasoning directly.
  • Wilkinson v. Garland, 601 U.S. 209 (2024): The controlling Supreme Court authority on the scope of review in hardship determinations. The First Circuit applied Wilkinson for two propositions:
    • Courts may review the agency’s application of the hardship standard to a given set of facts as a mixed question (within 8 U.S.C. § 1252(a)(2)(D)).
    • That mixed-question review is deferential because it is “primarily factual,” while underlying factual disputes remain unreviewable.
  • Argueta Castillo v. Blanche, 177 F.4th 307 (1st Cir. 2026), and Samayoa v. Bondi, 146 F.4th 128 (1st Cir. 2025): First Circuit applications of Wilkinson, reinforcing the same boundary: no review of underlying facts, but review remains for legal questions and legal-standard application to found facts.
  • Figueroa v. Garland, 119 F.4th 160 (1st Cir. 2024): Cited for the deferential posture in this circuit after Wilkinson and for noting that the First Circuit had not pinned down the “precise” deferential standard—though it found that unnecessary here.
  • Xirum v. Bondi, 141 F.4th 345 (1st Cir. 2025): Used to distinguish unreviewable factual quarrels (e.g., how serious the asthma is as a matter of fact) from reviewable legal claims (e.g., whether the IJ ignored evidence altogether). The court treated Espinoza’s “ignored evidence” contention as legal but rejected it on the record.

2. The hardship standard and BIA factor framework

  • Cano v. Bondi, 152 F.4th 237 (1st Cir. 2025), quoting Tacuri-Tacuri v. Garland, 998 F.3d 466 (1st Cir. 2021): Reiterates the high bar—hardship must be “substantially different from, or beyond” that normally expected from removal. The opinion notes Tacuri-Tacuri was “abrogat[ed] on other grounds” as recognized by Figueroa, but its hardship articulation remains operative in the court’s discussion.
  • Matter of Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001): The core BIA precedent supplying the multi-factor, totality-of-the-circumstances approach (including the “health of … qualifying family members” and examples such as a “child with very serious health issues”). The First Circuit approved the IJ’s use of Monreal-Aguinaga as the organizing framework and emphasized the IJ evaluated the factors “in the aggregate.”
  • Matter of Andazola-Rivas, 23 I. & N. Dec. 319 (BIA 2002), and Matter of Gonzalez Recinas, 23 I. & N. Dec. 467 (BIA 2002): These are comparator cases applying Monreal-Aguinaga. The IJ used them to situate Espinoza’s evidence along the spectrum of hardship. The First Circuit highlighted the IJ’s distinction from Gonzalez Recinas (single mother, six children, no Spanish, no ties), finding the comparison reasonably rejected on this record.
  • Matter of J-J-G-, 27 I. & N. Dec. 808 (BIA 2020): Another application of the same hardship standard, cited as part of the BIA’s doctrinal line the IJ followed.

3. Administrative-law deference after Loper Bright

  • Loper Bright Enterprises (Loper Bright) v. Raimondo, 603 U.S. 369 (2024), and Nolasco v. Bondi, 134 F.4th 677 (1st Cir. 2025): Espinoza invoked Loper Bright to argue deference is warranted only with “reasoned decisionmaking.” The First Circuit declined to decide whether Loper Bright supplied the relevant review standard because the IJ’s reasoning was adequate and the claim failed even under more searching review.

Legal Reasoning

  1. Final agency decision: Because the BIA affirmed without opinion, the court reviewed the IJ’s written decision as the final agency action. This foreclosed any attempt to argue the BIA supplied separate reasoning or omissions.
  2. Jurisdictional line-drawing under Wilkinson: The court separated (a) reviewable challenges to the IJ’s legal-standard application from (b) unreviewable disputes about what the facts “really” show. Espinoza’s effort to relitigate the medical seriousness of asthma and the adequacy of proof on medication access was treated largely as factual and thus outside jurisdiction.
  3. Aggregate factor assessment under Monreal-Aguinaga: The court rejected the claim that the IJ departed from agency law. The IJ applied the Monreal-Aguinaga factors and considered hardship cumulatively, not factor-by-factor in isolation.
  4. Medical hardship proof as a record-based burden: Even crediting the existence of asthma, the IJ found the record lacked “precise testimony” and corroboration about medication cost/availability and inability to afford treatment in El Salvador. The First Circuit treated this as a permissible application of the hardship standard to the facts found.
  5. Comparator-case reasoning: The IJ distinguished Gonzalez Recinas based on family structure, language fluency, and the presence of a second parent/provider. The First Circuit deemed that distinction reasonable within the deferential mixed-question review required by Wilkinson.

Impact

  • Reinforces the post-Wilkinson appellate posture: In cancellation cases, petitioners will often be limited to arguing legal error (misstating the standard, failing to consider evidence, or misapplying the standard to found facts). Attempts to reweigh medical proof or contest factual inferences will be jurisdictionally barred.
  • Signals evidentiary expectations for medical-hardship claims: Where hardship is tied to a child’s condition and treatment abroad, the agency may demand concrete proof—costs, availability, and affordability—and may treat generalized assertions (“I believe I cannot afford it,” “I do not know the cost”) as insufficient to meet the statutory burden.
  • Comparator cases remain influential: The opinion illustrates how IJs and reviewing courts use BIA “bookend” decisions (e.g., Gonzalez Recinas) to evaluate whether a petitioner’s circumstances truly fall outside the ordinary consequences of removal.
  • No endorsement caveat: The panel expressly noted that because Espinoza did not challenge the BIA precedents themselves, the court’s discussion should not be read as endorsing the BIA’s substantive approach—leaving future litigants room to mount direct challenges where properly preserved.

Complex Concepts Simplified

Cancellation of removal (non-LPR)
A discretionary form of relief allowing certain noncitizens to remain in the U.S. if they meet statutory prerequisites (including continuous presence, good moral character, and—most relevant here—proof that removal would cause “exceptional and extremely unusual hardship” to certain U.S.-citizen or LPR relatives).
“Exceptional and extremely unusual hardship”
A stringent standard higher than ordinary family separation or economic disruption. The agency evaluates hardship factors in combination (health, education, finances, family ties, and country conditions), asking whether the total hardship would be substantially beyond what is typically expected from removal.
BIA “affirmance without opinion”
A streamlined disposition where the BIA adopts the IJ’s result without separate reasoning. On judicial review, the appellate court reviews the IJ’s decision directly.
Mixed question of law and fact
A question about applying a legal rule to established facts. After Wilkinson, courts may review this application in hardship cases, but deferentially.
Jurisdictional bar vs. legal-error review
Statutes restrict courts from reviewing many discretionary-relief determinations and underlying factual disputes. But courts may still review legal questions and whether the legal standard was correctly applied to the facts the agency found.

Conclusion

Espinoza Benitez v. Blanche is a straightforward but consequential application of Wilkinson v. Garland in the cancellation context: appellate review of “exceptional and extremely unusual hardship” is confined to a deferential assessment of how the agency applied the standard to the facts it found, while disputes over those underlying facts remain largely unreviewable.

The decision also underscores a practical lesson for medical-hardship claims: petitioners should expect to substantiate not only diagnosis and treatment history, but also the concrete realities of access, availability, and affordability of comparable treatment in the country of removal.