First Circuit Narrows Judicial Review of “Exceptional and Extremely Unusual Hardship” Findings After Wilkinson v. Garland

Introduction

In Xiquin Xirum v. Bondi, the United States Court of Appeals for the First Circuit examined the denial of cancellation of removal to Jacinto Xiquin Xirum and Bartola Romero Santos—long-time undocumented residents whose two children are United States citizens. The petitioners argued that removing them would cause their children “exceptional and extremely unusual hardship,” the statutory threshold for cancellation under 8 U.S.C. § 1229b(b)(1)(D). After an Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) rejected the claim, the parents sought review in the First Circuit.

The central issues were:

• Jurisdiction: To what extent may courts review hardship determinations after the Supreme Court’s 2024 decision in Wilkinson v. Garland?
• Standard of Review: Is the proper lens “substantial evidence” or “abuse of discretion” when a petitioner claims the BIA misapplied its own precedent to undisputed facts?
• Merits: Did the agency correctly conclude that the children’s prospective hardships fell within the “usual” range for families facing removal?

Summary of the Judgment

The First Circuit dismissed the petition in part for lack of jurisdiction and denied the remainder on the merits.

1. Challenges framed as disputes with the agency’s factual findings—e.g., the likelihood of parental income abroad—were held unreviewable under Wilkinson.
2. Challenges asserting that the agency misapplied the legal standard to an “established set of facts” were reviewable but entitled only to “deferential” scrutiny. Even under the petitioners’ preferred abuse-of-discretion test, the court found no error.
3. Arguments that the BIA ignored evidence or failed to consider factors “in the aggregate” were rejected as either fact-bound, waived, or contradicted by the record.

Analysis

1. Precedents Cited and Their Influence

• Wilkinson v. Garland, 601 U.S. 209 (2024)
  The cornerstone precedent. It holds that hardship determinations involve mixed questions of law and fact: findings of fact are unreviewable, whereas the application of a legal standard to established facts is reviewable but deferentially. The First Circuit explicitly applied this bifurcation, dismissing fact-based challenges and entertaining only legal-application challenges.
• Matter of Monreal-Aguinaga, 23 I.&N. Dec. 56 (BIA 2001)
  Sets the core definition that hardship must be “substantially different from, or beyond” that normally resulting from removal. The First Circuit repeatedly quoted this language, underscoring that economic or educational downgrades alone seldom suffice.
• Matter of Gonzales Recinas, 23 I.&N. Dec. 467 (BIA 2002)
  Requires a “cumulative” or aggregate assessment of all hardship factors. Petitioners accused the agency of ignoring this mandate, but the court found the IJ and BIA expressly performed an aggregate analysis.
• Tacuri-Tacuri v. Garland, 998 F.3d 466 (1st Cir. 2021), abrogation recognized 2024
  Cited for the proposition that the hardship bar is intentionally high.
• Other circuit cases—Escobar v. Garland (2024); Nolasco v. Bondi (2025); Gourdet, Guzman—provided procedural scaffolding on how the First Circuit reviews IJ/BIA decisions.

2. The Court’s Legal Reasoning

The opinion proceeds in discrete analytical steps:

1. Identify Reviewable vs. Unreviewable Grounds.
   Claim-by-claim, the court classified each argument as either (a) contesting historical fact (non-reviewable) or (b) alleging misapplication of law (reviewable). This meticulous sorting reflects Wilkinson’s dictate and forms the decision’s principal doctrinal contribution.
2. Apply “Deferential” Review.
   Without definitively choosing between “substantial evidence” and “abuse of discretion,” the court held that petitioners would lose even under the more generous standard. It stressed the children’s fluency in Spanish, absence of health or learning issues, and the family’s home in Mexico as evidence the agency reasonably found no uncommon hardship.
3. Discard Aggregate-Evidence and Ignored-Evidence Claims.
   The First Circuit pointed to explicit passages where the IJ and BIA addressed country conditions, separation anxiety, and economic prospects, thereby undercutting allegations of oversight. Where petitioners raised arguments only in a conclusory or belated fashion, the court invoked waiver doctrine (Zannino).

3. Impact on Immigration Jurisprudence

• Clarifies Post-Wilkinson Boundaries of Appellate Review.
  This is one of the first circuit decisions to operationalize Wilkinson. By forcefully dismissing fact-based challenges, it signals that appellate courts will guard jurisdictional limits even where petitioners relabel factual disputes as legal ones.
• Reinforces High Bar for Hardship under § 1229b(b)(1)(D).
  The court underscored that commonplace consequences—financial strain, lower-quality schools, emotional separation—rarely satisfy the “exceptional and extremely unusual” threshold.
• Practical Guidance for Practitioners.
  Advocates must: (a) marshal specific evidence linking children’s circumstances to the statutory standard; and (b) on appeal, frame issues strictly as misapplications of law if they hope to avoid jurisdictional dismissal.

Complex Concepts Simplified

• Cancellation of Removal: A discretionary form of relief allowing certain long-term, non-permanent-resident non-citizens to stay in the U.S. if they meet statutory criteria, including the hardship requirement.
• “Exceptional and Extremely Unusual Hardship”: Hardship that goes well beyond the normal emotional and economic disruption families experience when a parent is deported. Think of circumstances like serious medical conditions, special-needs schooling unavailable abroad, or unique caregiving needs—not simply lower income or worse schools.
• Jurisdictional Bar after Wilkinson: Federal courts cannot revisit pure questions of fact underlying hardship decisions. They may review only legal questions—e.g., whether the BIA used the right standard or applied it consistently.
• Abuse of Discretion vs. Substantial Evidence: Both are deferential. “Substantial evidence” asks whether any reasonable adjudicator would be compelled to reach a different conclusion; “abuse of discretion” asks whether the agency acted arbitrarily, ignored factors, or clearly erred. The difference is subtle, and the First Circuit left it unresolved here.
• Aggregate (Cumulative) Analysis: The IJ/BIA must weigh all hardship factors together rather than piecemeal. However, simply invoking “aggregate” is insufficient; the record must show specific, combined impacts.

Conclusion

Xiquin Xirum v. Bondi cements the post-Wilkinson landscape in which appellate courts strictly separate factual from legal components of hardship determinations. By dismissing fact-centric challenges for lack of jurisdiction and denying misapplication claims under a deferential standard, the First Circuit fortifies the already-steep barrier confronting non-citizens seeking cancellation of removal.

For practitioners, the decision is a clarion reminder: develop detailed, child-specific evidence that marks the hardship as genuinely “out of the ordinary,” and craft appellate arguments that target legal missteps, not factual disagreements. For the broader immigration bar, the ruling telegraphs a disciplined approach to judicial review that will likely echo across circuits grappling with Wilkinson’s implications.