Hardship Baseline for Non-LPR Cancellation and the “No New, Material Evidence” Bar to Reopening in the Sixth Circuit (Orta Martinez v. Bondi)

Case: Carlos Orta Martinez v. Pamela J. Bondi, Attorney General
Court: United States Court of Appeals for the Sixth Circuit
Date: 2026-01-27
Disposition: Petitions for review denied (cancellation denial affirmed; motion to reopen denial affirmed). Moore, J., dissenting in part (reopening).

1. Introduction

Carlos Orta Martinez, a Mexican citizen who entered the United States in 2006 and lived in Michigan with his undocumented spouse and two U.S.-citizen children (A.C. and C.G.), sought non-LPR cancellation of removal. He argued his removal would impose “exceptional and extremely unusual hardship” on the children, chiefly through emotional/psychological distress, diminished educational opportunities, language barriers and assimilation difficulties, financial destabilization, and safety concerns in Michoacán, Mexico.

An Immigration Judge denied cancellation for failure to prove the hardship element, while granting voluntary departure. The Board of Immigration Appeals affirmed without opinion. Orta Martinez then filed a motion to reopen, submitting additional psychological evaluations, education-related materials (including scholarships), and country-conditions and research materials. The BIA denied reopening for failure to show prima facie eligibility. Orta Martinez petitioned for review of both BIA orders.

Key issues

• Hardship standard: Whether the IJ/BIA applied an incorrect legal baseline for “exceptional and extremely unusual hardship.”
• Cumulative analysis: Whether the IJ improperly failed to consider hardship cumulatively across both children and all factors.
• Reopening: Whether the BIA abused its discretion by denying reopening despite the new submissions and by not specifically discussing much of the evidence.
• Jurisdictional scope: What aspects of hardship determinations and reopening denials are reviewable after Wilkinson v. Garland and Patel v. Garland.

2. Summary of the Opinion

The Sixth Circuit denied both petitions. On cancellation, it held the IJ applied a permissible hardship standard consistent with the Sixth Circuit’s own interpretation in Moctezuma-Reyes v. Garland and with the BIA’s articulation in In re Monreal-Aguinaga. The court further held the IJ considered hardship in the aggregate and did not err—under any deferential standard of mixed-question review—in finding the asserted hardships (financial, educational, emotional distress, language/assimilation challenges, and general Mexico conditions) insufficient under controlling precedent.

On reopening, the court held the BIA did not abuse its discretion because the proffered evidence was not “previously unavailable material evidence” in the sense required to warrant reopening and did not establish prima facie eligibility for cancellation. Even if some submissions were new, any failure to discuss them was deemed harmless because remand was unlikely to change the result.

Judge Moore dissented in part, arguing the BIA abused its discretion by failing to name or meaningfully address large swaths of relevant new evidence and that the majority impermissibly relied on rationales (such as “previous availability” and harmless error) not articulated by the BIA.

3. Analysis

3.1 Precedents Cited (and how they shaped the decision)

A. Reviewability and jurisdiction: mixed questions vs. facts

• Wilkinson v. Garland, 601 U.S. 209 (2024)
  The court uses Wilkinson to anchor jurisdiction over the application of the hardship legal standard to established facts—i.e., a mixed question reviewable under 8 U.S.C. § 1252(a)(2)(D).
• Patel v. Garland, 596 U.S. 328 (2022)
  Patel limits review: the court lacks jurisdiction over pure factual disputes. This frames the court’s posture as evaluating legal baselines and deferential mixed-question application, not reweighing evidence.
• Galvez-Bravo v. Garland, 119 F.4th 1038 (6th Cir. 2024)
  Cited for the proposition that questions of fact remain outside review and for motion-to-reopen standards in the dissent.

B. Defective Notice to Appear and jurisdiction/claims-processing debate

• Hernandez-Perez v. Whitaker, 911 F.3d 305 (6th Cir. 2018) and Santos-Santos v. Barr, 917 F.3d 486 (6th Cir. 2019)
  These cases control the panel’s rejection of Orta Martinez’s footnoted challenge to a Notice to Appear lacking time/date where a later Notice of Hearing supplied the missing information. The panel also notes Hernandez-Perez predates Loper Bright Enters. v. Raimondo but rested on Auer deference, which remains viable in the Sixth Circuit per United States v. Prather.
• Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024) and United States v. Prather, 138 F.4th 963 (6th Cir. 2025)
  Used to explain why Hernandez-Perez remains good law: the Sixth Circuit treats Auer deference as surviving Loper Bright.
• Inter-circuit split noted (not resolved):
  United States v. Bastide-Hernandez; United States v. Cortez; Ortiz-Santiago v. Barr (claims-processing view) versus Banegas Gomez v. Barr; Ali v. Barr (jurisdictional view).

C. The hardship standard: aligning Sixth Circuit and BIA baselines

• In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001)
  This is the BIA’s foundational interpretation of “exceptional and extremely unusual hardship”: qualifying relatives must face hardship “substantially different from, or beyond, that which would normally be expected from the deportation of a[] [noncitizen] with close family members here.” The Sixth Circuit treats this as consistent with its own reading in Moctezuma-Reyes.
• Moctezuma-Reyes v. Garland, 124 F.4th 416 (6th Cir. 2024)
  The court relies heavily on Moctezuma-Reyes to define the baseline: ordinary deportations predictably involve financial loss, separation, and reduced educational opportunity; “little daylight” exists between that and Monreal-Aguinaga. This defeats the petitioner’s argument that the IJ improperly compared his children to other citizen children of removable parents instead of “any removal.”
• In re Andazola-Rivas, 23 I. & N. Dec. 319 (BIA 2002)
  Quoted to show the BIA openly compares asserted hardship to hardship “others might face,” including removal to a “less developed country.” The panel uses this to reinforce that common “return-to-less-developed-country” hardships usually will not be enough by themselves.

D. Cumulative evaluation of hardship

• Guzman Herrera v. Garland, No. 22-3985, 2023 WL 3414447 (6th Cir. May 12, 2023)
  The court analogizes to uphold the IJ’s express statements that it weighed evidence “individually and cumulatively” and its discussion of facts affecting both children.

E. What hardships typically fail under Sixth Circuit precedent

• Tolentino-Hernandez v. Garland, No. 20-4021, 2021 WL 4782689 (6th Cir. Oct. 13, 2021)
  Financial decline and limited educational opportunities in Mexico are treated as within the “realm of expected hardship.”
• Lopez-Soto v. Garland, 857 F. App'x 848 (6th Cir. 2021)
  Trouble assimilating, teenage status, lifelong U.S. residence, and limited Spanish ability—while serious—do not necessarily rise to the statutory threshold. This directly answers the petitioner’s “critical teenage years” framing.

F. Motions to reopen: standards, rational-explanation requirement, and harmless error

• Haddad v. Gonzales, 437 F.3d 515 (6th Cir. 2006), Lopez v. Garland, 990 F.3d 1000 (6th Cir. 2021), Thompson v. Lynch, 788 F.3d 638 (6th Cir. 2015), Elgebaly v. Garland, 109 F.4th 426 (6th Cir. 2024)
  These provide the abuse-of-discretion framework and the strong finality interest making reopening “generally disfavored.”
• Sunarto v. Mukasey, 306 F. App'x 957 (6th Cir. 2009) and INS v. Abudu, 485 U.S. 94 (1988)
  The majority deploys these for the “previously unavailable material evidence” principle: reopening is properly denied when the motion does not introduce such evidence.
• Japarkulova v. Holder, 615 F.3d 696 (6th Cir. 2010) and Shkabari v. Gonzales, 427 F.3d324 (6th Cir. 2005)
  These support affirmance on harmless error where remand would not plausibly change the result, even if the agency’s reasoning is imperfect.
• Ishac v. Barr, 775 F. App'x 782 (6th Cir. 2019) and Marqus v. Barr, 968 F.3d 583 (6th Cir. 2020)
  The majority distinguishes these remand cases: there, the BIA’s analysis was cursory/erroneous and the new evidence appeared potentially outcome-significant. Here, the court finds no similar “new and material” showing.
• Dissent’s procedural line (rational explanation / must address new evidence):
  Yousif v. Garland, 53 F.4th 928 (6th Cir. 2022); Akrawi v. Garland, No. 19-3896, 2022 WL 3681260 (6th Cir. Aug. 25, 2022); Trujillo Diaz v. Sessions, 880 F.3d 244 (6th Cir. 2018); Zhang v. Mukasey, 543 F.3d 851 (6th Cir. 2008); Daneshvar v. Ashcroft, 355 F.3d 615 (6th Cir. 2004).
  These authorities frame the dissent’s objection: appellate review must focus on the BIA’s stated ground; courts should not supply alternative grounds not articulated; and the BIA must at least name and explain why relevant new evidence fails.
• Dissent’s “previously available” timing rule:
  Abdulahad v. Garland, 99 F.4th 275 (6th Cir. 2024) and Hernandez-Perez v. Whitaker, 911 F.3d 305 (6th Cir. 2018) are cited for the proposition that “previously available” is measured against the IJ hearing record—not the later BIA appeal window—contrary to the majority’s suggestion that pre-BIA-decision materials may be treated as previously available.

3.2 Legal Reasoning

A. The court’s articulation of the hardship baseline

The opinion’s central interpretive move is to collapse the petitioner’s baseline challenge by equating:

• In re Monreal-Aguinaga’s “substantially different from, or beyond, that which would normally be expected” with
• Moctezuma-Reyes’s “significantly different from or greater than the hardship that a deported [noncitizen’s] family normally experiences,” where ordinary deportation hardships are predictable and widespread.

The court reads Monreal-Aguinaga not as a comparison to a narrower cohort of “citizen children of removable parents,” but as a directive to assess inherent removal hardships and then ask whether the case exceeds that norm. The opinion underscores that BIA factors—family ties, residence, ages, health, and circumstances—permit consideration of lifelong U.S. residence and removal to a non-English-speaking, less-developed country, but still within a stringent statutory threshold.

B. Cumulative consideration

The petitioner’s “cumulative hardship” argument fails primarily because the IJ explicitly stated it weighed evidence “individually and cumulatively” and addressed multi-factor harms (education, language, emotional distress, care arrangements, finances) across both children. The Sixth Circuit treats such language and discussion as sufficient to demonstrate aggregation under Guzman Herrera v. Garland.

C. Why the asserted hardships remained “ordinary” under binding caselaw

The court frames the children’s likely harms as falling within categories repeatedly held insufficient: financial decline (Tolentino-Hernandez v. Garland), reduced educational opportunity (Tolentino-Hernandez v. Garland), emotional difficulty from removal (Moctezuma-Reyes v. Garland), and assimilation/language challenges even for U.S.-born teenagers (Lopez-Soto v. Garland). These precedents function as “outer-bound” constraints: unless additional, case-specific features push the hardship well beyond those common patterns, cancellation remains unavailable.

D. The motion to reopen: “not new, not material, not prima facie”

On reopening, the majority treats the new psychological reports, scholarship information, and country-condition materials as either (i) not meaningfully different from what had already been argued (psychological distress; educational disruption; dangerous conditions), or (ii) insufficient to demonstrate a heightened level of hardship beyond the ordinary. The BIA’s reference to “progress” in therapy and the petitioner’s “considerable assets and transferrable skills” is credited as a rational explanation supporting the conclusion that the new submissions do not establish prima facie eligibility.

The crucial doctrinal move is the majority’s fallback to harmless error: even if the BIA did not discuss every submission, remand is unnecessary if there is “no reasonable prospect” of a different result (Japarkulova v. Holder; Shkabari v. Gonzales).

3.3 Impact

A. Substantive impact: reinforcing a stringent hardship threshold

Although unpublished, the opinion consolidates the Sixth Circuit’s post-Moctezuma-Reyes posture: common deportation consequences—even severe ones—often remain “expected” and therefore insufficient. Practically, this signals that:

• Education and language barriers (even for U.S.-born teens) require additional aggravating features (e.g., specialized educational needs, unique vulnerabilities, documented unavailability of necessary services) to plausibly clear the threshold.
• Country conditions must be tied to individualized risk or concrete, child-specific impacts rather than generalized insecurity.
• Psychological hardship must show more than distress and treatment—courts may treat evidence of improvement or manageability as undermining the “exceptional” claim.

B. Procedural impact: reopening practice and the reasons-giving debate

The majority’s approach—affirming despite limited BIA discussion by invoking harmless error—pushes toward outcome-focused review where the underlying hardship claim appears weak under circuit precedent. The dissent, by contrast, would require fuller engagement with post-hearing evidence and stricter adherence to reviewing only the BIA’s stated rationale. The tension matters for practitioners:

• In the Sixth Circuit, reopening motions should be drafted as if they must survive both (i) a “new and material” evidentiary test and (ii) a “why this changes the legal outcome under circuit hardship precedent” test.
• The dissent’s cited line of cases provides a roadmap for challenging BIA denials that do not meaningfully address key new submissions—particularly where evidence is post-IJ-hearing and directly tied to hardship.

C. Administrative-law implications: Auer after Loper Bright (as applied here)

The footnote discussion signals the Sixth Circuit’s view that Loper Bright Enters. v. Raimondo does not unsettle earlier Sixth Circuit holdings resting on Auer deference, reaffirmed by United States v. Prather. For immigration litigants, this suggests that arguments premised on Loper Bright will not automatically destabilize regulation-interpretation precedents where Auer (rather than Chevron) was doing the work.

4. Complex Concepts Simplified

• “Cancellation of removal” (non-LPR): A discretionary form of relief allowing some noncitizens without lawful permanent residence to avoid removal if they meet statutory requirements—including proving that removal would cause “exceptional and extremely unusual hardship” to a qualifying U.S.-citizen or LPR family member.
• “Exceptional and extremely unusual hardship”: Not “very hard” or “life will be worse,” but hardship meaningfully beyond what families typically experience when a close family member is removed. Ordinary consequences (reduced income, educational disruption, emotional pain, relocation stress) are often treated as insufficient without more.
• “Baseline” hardship comparison: The reference point the decision-maker uses to judge whether the hardship is “exceptional.” This opinion emphasizes that the baseline is the hardship commonly associated with removals generally, not the petitioner’s own subjective expectations.
• “Mixed question of law and fact”: Applying a legal standard (like “exceptional hardship”) to established facts. Under Wilkinson v. Garland, courts can review that application; under Patel v. Garland, they generally cannot re-decide disputed facts.
• “Motion to reopen”: A request to restart immigration proceedings based on new developments. Typically requires new, previously unavailable, material evidence and a prima facie showing the applicant would be eligible for relief if the case were reopened.
• “Harmless error”: Even if the agency’s explanation is imperfect, a court may affirm if the mistake could not realistically have changed the outcome.

5. Conclusion

Orta Martinez v. Bondi reinforces two themes in Sixth Circuit cancellation jurisprudence: (1) the hardship inquiry uses a demanding baseline grounded in the ordinary consequences of removal, consistent with In re Monreal-Aguinaga and Moctezuma-Reyes v. Garland, and (2) reopening will be denied absent genuinely new, material evidence that plausibly changes the prima facie hardship calculus under binding precedent—while the panel majority is willing to treat omissions in the BIA’s discussion as harmless where the hardship claim remains legally weak. Judge Moore’s partial dissent highlights an ongoing intra-circuit pressure point: how much explanation and evidentiary engagement the BIA must provide to permit meaningful appellate review, and how readily courts should apply harmless error in the reopening context.