Evidence‐Based Requirement for “Exceptional and Extremely Unusual Hardship” under 8 U.S.C. § 1229b(b)(1)(D): Consideration of Intra‐Country Relocation

Introduction

Herrera-Arellano v. Garland is an appeal from a Board of Immigration Appeals (BIA) decision denying cancellation of removal under 8 U.S.C. § 1229b(b)(1)(D). Jose Manuel Herrera-Arellano, a Mexican national who entered the United States as a visitor in 2001 and overstayed, seeks relief on the ground that his removal would cause “exceptional and extremely unusual hardship” to his three U.S.-citizen sons. The Department of Homeland Security charged him as removable in 2013; an Immigration Judge (IJ) denied relief in 2019, and the BIA affirmed in a single-judge order. Herrera-Arellano petitioned the Tenth Circuit for review under 8 U.S.C. § 1252. The key issues are: (1) what evidence suffices to show hardship “substantially beyond” ordinary removal consequences; (2) whether the couple’s ability to relocate within Mexico may mitigate hardship; and (3) the standard and scope of judicial review of BIA hardship findings.

Summary of the Judgment

The Tenth Circuit denied the petition for review. It held that:

The court’s jurisdiction is limited to legal and constitutional challenges under 8 U.S.C. § 1252(a)(2)(D); factual findings (e.g., credibility, severity of medical conditions) remain unreviewable.
The application of the “exceptional and extremely unusual hardship” standard to established facts is a mixed legal question subject to deferential review.
Herrera-Arellano failed to carry his burden of proof. He offered no documentary evidence showing that adequate medical or educational services for his sons are unavailable anywhere in Mexico or that the family could not relocate to a more “cosmopolitan” area of the country.
The BIA permissibly considered the possibility of intra-country relocation to ameliorate hardship, even though no statutory or regulatory text expressly requires that analysis.

Because the BIA’s legal conclusions were correct and its factual inferences entitled to deference, the Tenth Circuit affirmed the denial of cancellation of removal.

Analysis

Precedents Cited

The Judgment examines and applies a line of BIA decisions interpreting the hardship standard in 8 U.S.C. § 1229b(b)(1)(D):

Matter of Monreal-Aguinaga, 23 I. & N. Dec. 56 (B.I.A. 2001): Established that hardship must be “substantially beyond what would ordinarily be expected” and only in “truly exceptional” cases.
Matter of Andazola-Rivas, 23 I. & N. Dec. 319 (B.I.A. 2002): Reinforced that economic detriment alone cannot satisfy the “exceptional and extremely unusual” threshold.
Matter of Recinas, 23 I. & N. Dec. 467 (B.I.A. 2002): Held that a single mother of six—including four U.S.-citizen children—demonstrated exceptional hardship where no alternative caregivers or support existed and her children lacked Spanish fluency.
Matter of J-J-G-, 27 I. & N. Dec. 808 (B.I.A. 2020): Clarified that to base hardship on a qualifying relative’s medical condition, an applicant must show (1) the seriousness of the condition and (2) that adequate medical care is not reasonably available in the country of removal.
Wilkinson v. Garland, 601 U.S. 209 (2024): Held that application of the § 1229b(b)(1)(D) hardship standard is a mixed question of law and fact reviewable under § 1252(a)(2)(D) with deference to agency determinations.
Martinez v. Garland, 98 F.4th 1018 (10th Cir. 2024): Confirmed the “deferential” review mandate post-Wilkinson in this Circuit.

These precedents shaped the framework: hardship claims must be fact-specific, cumulative, and supported by concrete evidence of unavailability or insurmountable obstacles.

Legal Reasoning

1. Jurisdiction and Standard of Review
Section 1252(a)(2)(B)(i) bars review of discretionary removal‐relief denials, but § 1252(a)(2)(D) preserves review of legal and constitutional questions. Under Wilkinson, the court may review the application of the hardship standard to established facts—a mixed question of law and fact—under a deferential lens. The underlying fact-finding (credibility, medical severity, economic calculations) is off-limits.

2. Burden of Proof and Evidentiary Gaps
An applicant for cancellation of removal must carry the burden of proof on each element of eligibility, including “exceptional and extremely unusual hardship.” The BIA correctly emphasized that Herrera-Arellano’s testimony alone was insufficient to fill evidentiary gaps. He offered no affidavits, expert reports, or country‐condition data demonstrating that adequate medical or educational services do not exist beyond his hometown.

3. Intra-Country Relocation as Mitigation
Although § 1229b(b) does not expressly mention relocation, the decision follows a logical extension of asylum‐law practice. The BIA and IJ properly considered whether the family could reduce hardship by moving to a less remote Mexican city with better infrastructure—thus preventing a finding of “exceptional” hardship if reasonable alternatives exist.

4. Aggregate Hardship Review
The Board viewed economic, educational, medical, and emotional factors cumulatively. Even assuming hardship to the children and mother was real, it did not “substantially exceed” the ordinary consequences of separation when other remedies (relocation, family support in Mexico, bilingual fluency) existed.

Impact

Herrera-Arellano v. Garland reinforces and clarifies key principles for future cancellation-of-removal petitions:

Applicants must marshal documentary evidence—expert declarations, country-condition reports, school or medical records—to prove services are unavailable in the country of removal or relocation.
BIA and IJ decisions may consider intra-country relocation as a mitigating factor, even absent explicit statutory language.
Judges exercising § 1252 review will grant deference to agency findings on mixed questions of law and fact, limiting reversible error to misapplications of legal standards, not disagreements with fact-intensive judgments.
This decision may guide practitioners to anticipate and address relocation arguments and to gather evidence on the availability of specialized services throughout the removal country.

Complex Concepts Simplified

Cancellation of Removal: A discretionary form of relief under the Immigration and Nationality Act allowing certain noncitizens to remain if they prove long residence, good moral character, and “exceptional and extremely unusual hardship” to qualifying relatives.
Exceptional and Extremely Unusual Hardship: A heightened hardship standard requiring proof that removal’s impact on close relatives is substantially beyond what family separation ordinarily causes.
Mixed Question of Law and Fact: A legal issue that applies a statutory standard to a set of established facts—reviewable as a question of law, but with deference to the agency’s factual findings and analytic judgments.
Intra-Country Relocation: The idea, borrowed from asylum law, that an applicant may avoid persecution—or here, mitigate hardship—by moving to another part of his native country.
Deferential Review: A standard requiring courts to uphold agency conclusions on mixed questions unless they are arbitrary, capricious, or legally erroneous; courts do not re-weigh evidence.

Conclusion

Herrera-Arellano v. Garland underscores the rigorous, evidence-based approach required to meet the “exceptional and extremely unusual hardship” threshold under § 1229b(b)(1)(D). The decision makes clear that an applicant’s own testimony must be bolstered by concrete documentation, that intra-country relocation is a legitimate factor in the hardship calculus, and that appellate review of hardship findings is narrow and deferential. This ruling will shape future cancellation petitions by signaling to practitioners and adjudicators alike the necessity of comprehensive, fact-specific proof and the relevance of relocation considerations in assessing hardship.