Judicial Review of “Exceptional and Extremely Unusual Hardship” After Wilkinson: A Commentary on Ailan Zhu v. Attorney General United States of America

I. Introduction

This commentary examines the Third Circuit’s nonprecedential decision in Ailan Zhu v. Attorney General United States of America (No. 25-1194, Nov. 20, 2025), in which the court dismissed in part and denied in part a petition for review from a denial of cancellation of removal. Although designated as “NOT PRECEDENTIAL” under Internal Operating Procedure 5.7 and therefore not binding, the opinion is instructive in two important respects:

• It applies the Supreme Court’s decision in Wilkinson v. Garland, 601 U.S. 209 (2024), and the Third Circuit’s own decision in Wilkinson v. Attorney General, 131 F.4th 134 (3d Cir. 2025), to clarify the limits of judicial review in cancellation-of-removal hardship determinations.
• It illustrates how the “exceptional and extremely unusual hardship” standard of 8 U.S.C. § 1229b(b)(1)(D) is applied to a family with a U.S.-citizen child with a chronic medical condition, elderly lawful permanent resident parents, and a U.S. citizen spouse, all against the backdrop of substantial family assets and support.

The petitioner, Ailan Zhu, a Chinese national who entered the United States without inspection in 2003, sought cancellation of removal based on hardship to four qualifying relatives: her U.S.-citizen daughter with Hypermobile Ehlers-Danlos Syndrome (HEDS), her U.S.-citizen husband, and her lawful permanent resident parents. An Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) denied relief. Zhu petitioned the Third Circuit for review, challenging primarily the IJ’s factual findings and the hardship analysis.

The Third Circuit concluded that it lacked jurisdiction to review Zhu’s factual challenges, but did have jurisdiction—under 8 U.S.C. § 1252(a)(1) and (2)(D), as construed in Wilkinson—to review the application of the hardship standard to the facts as found by the agency. Applying a “limited and deferential” substantial-evidence standard, the court held that the agency reasonably concluded that the hardships in this case did not rise to the “exceptional and extremely unusual” level.

II. Factual and Procedural Background

A. Zhu’s Immigration History and Family Structure

Zhu, born in China in 1974, entered the United States without inspection in 2003. In 2018, the Department of Homeland Security charged her as inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) as a noncitizen present in the United States without admission or parole. Zhu admitted the factual allegations and conceded removability.

Zhu’s immediate and extended family is well established in the United States, particularly in Philadelphia:

• Daughter (E.C.): U.S.-citizen, 11 years old at the time of the IJ hearing. Diagnosed at age five with Hypermobile Ehlers-Danlos Syndrome (HEDS), a connective tissue disorder resulting in twisted joints and propensity to fall. She has physical activity restrictions and cannot attend gym classes.
• Husband (Xiong Zi Chen): Naturalized U.S. citizen, part-owner of a glass manufacturing company employing seven people. He and Zhu collectively own five houses, valued at over $600,000, one of which they occupy; four are rental properties. He has high cholesterol, high blood pressure, and high blood sugar.
• Parents: Lawful permanent residents living in Philadelphia with one of Zhu’s brothers. Both have chronic health issues (high blood pressure, high cholesterol, kidney stones, osteoporosis).
• Extended family: Zhu has five siblings in the United States, all either U.S. citizens or lawful permanent residents, all residing in Philadelphia and running businesses.

Zhu lives with her daughter, her husband, and her mother-in-law, for whom she provides care due to the mother-in-law’s poor vision and joint issues. Zhu also works part-time at a Chinese restaurant preparing take-out orders and greeting customers.

B. Evidence of Hardship Presented to the IJ

1. Hardship to the U.S.-Citizen Daughter, E.C.

Zhu’s primary hardship argument centered on E.C., focusing on:

• Medical condition (HEDS): E.C. is prone to falls and joint issues, with activity restrictions. However, she does not receive regular specialist care; instead, she sees a doctor only when symptomatic (e.g., after a recent ankle sprain that was “readily treatable”).
• Impact of relocation to China:
  • Zhu testified that if removed, she would take E.C. with her to China so she could supervise her condition.
  • E.C. performs very well in U.S. schools. In China, as a non-Chinese citizen, she would be barred from public school and would need costly private education, ideally at an English-language institution.
  • Zhu fears E.C. would not qualify for Chinese health insurance due to her lack of Chinese citizenship, potentially making her medical care expensive.
  • Language barriers: though Zhu speaks Mandarin and English with E.C., the child herself speaks little Mandarin and cannot read or write Chinese characters.
• Prior residence in China: E.C. lived in China from infanthood until over age four, staying with Zhu’s aunt. Zhu’s husband paid preschool costs; the aunt covered routine healthcare.

2. Hardship to Zhu’s Lawful Permanent Resident Parents

Zhu’s parents, both elderly, suffer from chronic health conditions:

• Father: high blood pressure, high cholesterol, kidney stones.
• Mother: high blood pressure, osteoporosis.

Though they live with a son, Zhu plays a significant caregiving role: transporting them to medical appointments, picking up medications, and assisting with household chores. Zhu argued that her siblings are too busy running their businesses to take on these responsibilities, so her removal would impose serious hardship on her parents.

3. Hardship to Zhu’s Husband

Chen has multiple manageable chronic conditions (high cholesterol, blood pressure, blood sugar). Zhu contended that:

• The emotional stress of worrying about Zhu and E.C. abroad, combined with increased caregiving duties for his elderly mother, would strain his health.
• Losing Zhu’s assistance in caring for his mother and potentially managing family affairs would create significant personal and emotional hardship.

C. The IJ’s Decision

The IJ denied cancellation of removal, finding that Zhu failed to demonstrate “exceptional and extremely unusual hardship” to any qualifying relative.

Key aspects of the IJ’s analysis included:

• Temporary nature of separation: The IJ accepted Zhu’s testimony that she would take E.C. to China, but concluded that the separation from other U.S. relatives would be temporary, because Chen, as a U.S. citizen, could petition for Zhu to return to the United States (presumably through an immigrant visa petition).
• Financial resources: The IJ emphasized that Zhu and Chen’s business, ownership of five houses, and rental income would enable them to:
  • Afford E.C.’s medical care in China, even if costly.
  • Pay for private, possibly English-language, schooling for E.C. in China.
• E.C.’s condition and past living in China:
  • E.C.’s HEDS did not require regular specialized treatment; she saw a doctor only when discomfort arose.
  • The recent ankle sprain was readily treated, suggesting that necessary care was not of an unusually complex nature.
  • E.C. had previously lived and studied in China, albeit at a very young age, which the IJ viewed as relevant to adaptability.
• Care for Zhu’s parents: The IJ found that Zhu’s siblings in Philadelphia, all adults with legal status, could assume Zhu’s caregiving responsibilities towards their parents during Zhu’s absence.

Based on these findings, the IJ concluded that the hardships, while real, did not meet the stringent statutory standard. Zhu was ordered removed to China.

D. The BIA’s Decision

In a brief three-page opinion, the BIA dismissed Zhu’s appeal and affirmed the IJ:

• It agreed that Zhu and Chen’s financial resources were sufficient to cover E.C.’s HEDS-related healthcare and private English-language schooling in China.
• It concurred that Zhu’s siblings could provide care for her parents and help them manage their medical conditions.
• It concluded that Zhu did not show that her parents or husband could not manage their own medical conditions in her absence.

Notably, the BIA did not address the IJ’s finding that Zhu’s separation from her family would be temporary. It proceeded as if Zhu’s removal to China would not be temporary, effectively removing that rationale from the analysis.

E. The Petition for Review

Zhu timely petitioned the Third Circuit for review. The court reviewed both the IJ’s and the BIA’s decisions, as the BIA affirmed the IJ but added its own analysis (see Luziga v. Attorney General, 937 F.3d 244, 251 (3d Cir. 2019)).

III. Summary of the Court’s Opinion

The Third Circuit’s disposition had two principal components:

1. Partial Dismissal for Lack of Jurisdiction: The court held that it was “strictly prohibited” from reviewing the IJ’s factual findings in the cancellation context, citing Wilkinson v. Attorney General, 131 F.4th at 139, and Wilkinson v. Garland, 601 U.S. at 222. To the extent Zhu’s brief challenged the factual underpinnings of the IJ’s decision (for example, disputing the assessment of E.C.’s medical needs or the siblings’ ability to care for Zhu’s parents), the petition was dismissed.
2. Denial of the Petition on the Legal Question: The court retained jurisdiction under 8 U.S.C. § 1252(a)(1) and (2)(D) to review the legal question of whether the established facts satisfied the “exceptional and extremely unusual hardship” standard of § 1229b(b)(1)(D). Applying the substantial-evidence standard, the court concluded that a reasonable adjudicator could agree with the agency that the hardships, while significant, were not “substantially beyond the ordinary hardship that would be expected when a close family member leaves this country.” The petition was therefore denied in all remaining respects.

IV. Detailed Legal Analysis

A. Jurisdiction and Standard of Review

1. Statutory Framework

The court grounded its jurisdictional analysis in 8 U.S.C. § 1252:

• § 1252(a)(1) provides jurisdiction over “final order[s] of removal.”
• § 1252(a)(2)(D) restores jurisdiction to review “constitutional claims or questions of law” even where other subsections restrict review of discretionary decisions, such as cancellation of removal.

Under these provisions, and as interpreted in Wilkinson v. Garland and Wilkinson v. Attorney General, the Third Circuit can review:

• The legal standard applied by the agency.
• Whether, on the established facts, the agency correctly applied that legal standard — a mixed question treated here as reviewable as a “question of law.”

But the court cannot review:

• The underlying factual findings.
• The weighing of evidence or credibility determinations.

As the panel stated, its jurisdiction is “limited to whether the established facts satisfy the statutory standard; we may not review the underlying factual findings.”

2. The Impact of Wilkinson Decisions

The panel relies heavily on two decisions:

• Wilkinson v. Garland, 601 U.S. 209 (2024): The Supreme Court emphasized that courts lack jurisdiction to review factual questions in applications for discretionary relief. In this opinion, the Court is quoted as holding that “a court is . . . without jurisdiction to review a factual question raised in an application for discretionary relief.”
• Wilkinson v. Attorney General, 131 F.4th 134 (3d Cir. 2025): The Third Circuit held that it does have jurisdiction to review “a determination of whether a noncitizen has demonstrated the requisite hardship to qualify for cancellation of removal,” but that its review is confined to assessing whether the found facts satisfy the statutory hardship standard. It reiterated that “factual findings remain strictly unreviewable.”

Together, these cases create a two-step judicial review structure in cancellation cases:

1. The agency’s factual findings (e.g., about medical severity, family finances, or availability of caregiving support) are final and unreviewable.
2. Given those fixed facts, the court may decide whether the agency correctly classified the hardship as meeting or not meeting the “exceptional and extremely unusual” threshold.

3. Substantial Evidence Standard

The court explicitly applies a substantial evidence standard to the hardship determination:

“Under that ‘limited and deferential standard of review,’ we will not disturb the agency’s determination ‘unless any reasonable adjudicator would be compelled to conclude to the contrary.’” (quoting Nasrallah v. Barr, 590 U.S. 573, 584 (2020)).

This has several implications:

• Even if the panel might have weighed the facts differently, it must uphold the BIA’s decision if those facts reasonably support the conclusion reached.
• The question is not whether the hardship could be viewed as “exceptional and extremely unusual,” but whether the record compels that conclusion such that no reasonable adjudicator could find otherwise.

B. The “Exceptional and Extremely Unusual Hardship” Standard

Cancellation of removal for nonpermanent residents under 8 U.S.C. § 1229b(b)(1) requires, among other things, that:

“the alien establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” (§ 1229b(b)(1)(D)).

The opinion adopts the BIA’s longstanding interpretation from In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001), quoted via Wilkinson:

“To establish ‘exceptional and extremely unusual hardship,’ an applicant must make a showing ‘substantially beyond the ordinary hardship that would be expected when a close family member leaves this country.’”

This standard is deliberately stringent. It does not deny that family members will suffer hardship when a close relative is removed; instead, it demands that the hardship be markedly beyond what is typical in such circumstances.

C. Application of the Hardship Standard to Zhu’s Case

1. Hardship to the U.S.-Citizen Daughter with HEDS

The panel acknowledged that E.C. would experience hardship from her mother’s removal and accompanying relocation to China. However, it agreed with the agency that the hardship was not “substantially beyond” what is ordinarily expected. Several points are key:

• Nature of medical condition: E.C.’s HEDS, while serious, did not require continuous or specialized care according to the record. She saw doctors only when she experienced discomfort, and recent treatment (e.g., for a sprain) was straightforward. This undermined an argument that her medical needs were so complex that relocation would be exceptionally harmful.
• Access to care and schooling in China:
  • The IJ and BIA accepted that E.C. might lack access to public schooling and public health insurance in China, but concluded that:
    • Private schools, including English-language schools, were a “viable option” given the family’s financial resources.
    • Private medical care, though costly, was similarly manageable due to family wealth.
  • The Third Circuit, bound by the unreviewable factual findings regarding financial capacity, had to accept that Zhu and Chen’s economic position would mitigate these hardships substantially.
• Language and cultural adjustment: E.C. speaks little Mandarin and cannot read or write Chinese. Nonetheless:
  • She had prior experience living and being educated in China (albeit as a very young child).
  • The presence of private schools with English-language instruction (as found by the IJ) diminished the severity of language-related hardship.

Regardless of whether another factfinder might have reached a different conclusion on borderline facts, the Third Circuit focused on whether the BIA’s conclusion was reasonable. It found that the combination of manageable medical needs and substantial financial means meant a reasonable adjudicator could view this as typical, though serious, hardship attendant to international relocation, not hardship “substantially beyond” the norm.

2. Hardship to Zhu’s Parents

Zhu’s parents have serious but common chronic conditions associated with age. The key question, in the court’s view, was whether Zhu’s removal would create an unmanageable or extraordinary situation for them.

The agency found—and the court was bound to accept—that:

• Zhu’s five siblings, all with legal status, living in Philadelphia, and running businesses, could assume responsibility for their parents’ care.
• Zhu’s assistance, though helpful, was not irreplaceable or indispensable.

The court emphasized that the availability of other adult children to provide care meant that Zhu’s removal would not leave her parents without support. As a matter of law, this kept their hardship within the realm of “ordinary”—indeed, difficult but not “exceptional and extremely unusual”—family hardship due to removal.

3. Hardship to Zhu’s Husband

Zhu did not substantively challenge the agency’s hardship findings regarding her husband in her brief, and the Third Circuit notes this. Nonetheless, the panel briefly affirmed that substantial evidence supported the agency’s view:

• Chen’s conditions (high cholesterol, blood pressure, blood sugar) are common, treatable ailments, not conditions that render him unusually dependent on Zhu’s care.
• Zhu submitted no evidence that Chen required her assistance to manage his own medical conditions.
• The emotional strain of worrying about his wife and child abroad and caring for his mother is acknowledged as real hardship, but the court found it to be within the range of what typically occurs when a spouse or close family member must leave the country.

Thus, even aggregating the husband’s emotional and caregiving burdens, the agency could reasonably find that they did not meet the heightened statutory threshold.

D. The Role of Financial Resources and Extended Family Support

A striking aspect of this opinion is the central role played by Zhu and Chen’s financial and social capital in undermining the hardship claim:

• Substantial assets: Ownership of five houses (four income-producing), a business interest, and rental income suggested that Zhu and Chen were economically secure enough to absorb costs associated with private schooling and medical care abroad.
• Extended family network: Numerous adult siblings with legal status in the same city provided an alternative support system for Zhu’s parents and, by implication, for other family needs.

In effect, the more resources and relatives a family has, the more difficult it can be to establish that hardship is exceptional or extremely unusual. This case underscores a pattern: strong financial and extended-family support, while beneficial in daily life, can be fatal to claims that removal would be catastrophic or beyond ordinary hardship.

E. IJ–BIA Interaction and the “Temporary Removal” Issue

One subtle but important feature appears in the contrast between the IJ’s and BIA’s reasoning:

• The IJ treated Zhu’s separation from most of her U.S.-based family as temporary, reasoning that Chen could file a petition for her readmission.
• The BIA did not adopt this finding and instead analyzed the hardship “as if her removal to China would not be temporary.”

The Third Circuit notes this divergence but does not rest its decision on the “temporary” removal rationale; instead, it reviews the BIA’s decision (and the IJ’s where consistent) under Luziga. Because the BIA’s more demanding premise—that removal is not presumed temporary—still did not yield a finding of exceptional hardship, the omission of the IJ’s temporary-removal reasoning arguably worked in Zhu’s favor and did not require remand.

V. Precedents and Authorities Cited

A. In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001)

The BIA in Monreal-Aguinaga was the first to provide a sustained interpretation of the “exceptional and extremely unusual hardship” standard. It held that:

• The standard is higher than the “extreme hardship” standard used in earlier statutory regimes.
• Hardship must be “substantially beyond the ordinary hardship that would be expected when a close family member leaves this country.”
• The inquiry is cumulative, looking at all relevant factors (health, age, financial impact, educational disruption, etc.), but the cumulative effect must still exceed a very high threshold.

Monreal-Aguinaga thus anchors the interpretation of § 1229b(b)(1)(D), and the Third Circuit’s opinion in Zhu applies that benchmark through the lens of Wilkinson’s jurisdictional constraints.

B. Wilkinson v. Garland, 601 U.S. 209 (2024)

Although this opinion cites only brief excerpts, Wilkinson v. Garland is central. As quoted:

“[A] court is . . . without jurisdiction to review a factual question raised in an application for discretionary relief.”

In other words, while § 1252(a)(2)(D) preserves judicial review of “questions of law,” it does not reopen the door to review of factual determinations in discretionary-relief cases. This is the authority that compels the Third Circuit to dismiss the fact-based portions of Zhu’s petition.

C. Wilkinson v. Attorney General, 131 F.4th 134 (3d Cir. 2025)

The Third Circuit’s own Wilkinson decision translates the Supreme Court’s holding into the specific context of cancellation of removal. It establishes that:

• The court has jurisdiction to review whether “a noncitizen has demonstrated the requisite hardship” for cancellation of removal.
• But the court may only assess whether the established facts satisfy the statutory standard; it may not revisit or supplement those facts.

Zhu’s case is a direct application of that framework.

D. Nasrallah v. Barr, 590 U.S. 573 (2020)

The panel quotes Nasrallah for the “any reasonable adjudicator” formulation of substantial evidence review, reinforcing the highly deferential nature of its task.

E. Luziga v. Attorney General, 937 F.3d 244 (3d Cir. 2019)

Luziga provides the rule that when the BIA affirms an IJ’s decision but adds its own analysis, the court of appeals reviews both decisions, looking to the BIA’s rationale primarily but consulting the IJ’s reasoning where adopted or relevant. Zhu’s case follows that mode of review.

VI. Complex Concepts Simplified

A. Cancellation of Removal

Cancellation of removal is a discretionary form of relief that allows certain non–lawful permanent residents to avoid removal and obtain permanent resident status. To qualify under § 1229b(b)(1), an applicant generally must show:

• At least 10 years of continuous physical presence in the U.S.
• Good moral character during that period.
• No disqualifying criminal convictions.
• That removal would cause “exceptional and extremely unusual hardship” to a U.S.-citizen or LPR spouse, parent, or child.

The government is not required to grant cancellation even if all elements are met; it remains discretionary.

B. Inadmissibility for Presence Without Admission: 8 U.S.C. § 1182(a)(6)(A)(i)

This provision renders a noncitizen “inadmissible” if they are present in the United States without being lawfully admitted or paroled. It is one of the most common charges in removal proceedings for individuals who entered without inspection.

C. “Exceptional and Extremely Unusual Hardship”

This phrase sets a very high bar. It means more than:

• Economic hardship.
• Emotional distress.
• Disruption of schooling or family life.

All of these may be serious and real, but they are also common when a family member is deported. The statute demands something substantially beyond the ordinary consequences of removal. Typically, this is shown by:

• Severe or unusual medical conditions with inadequate treatment options abroad.
• Extreme educational or developmental harm (e.g., for disabled children).
• Lack of any family or social network abroad, combined with vulnerability of the qualifying relatives.

D. “Substantial Evidence” Review

Under substantial evidence review, the court must uphold the agency’s determination if it is supported by “such relevant evidence as a reasonable mind might accept” as adequate. The court may not reweigh the evidence or substitute its own judgment. It can interfere only if:

“any reasonable adjudicator would be compelled to conclude to the contrary.”

In Zhu’s case, this meant the Third Circuit could not overturn the hardship finding unless the record forced the conclusion that hardship was “exceptional and extremely unusual.”

E. Jurisdiction-Stripping and “Questions of Law”

Congress has significantly limited judicial review of discretionary immigration decisions (like cancellation of removal), but § 1252(a)(2)(D) preserves review of:

• Constitutional claims (due process, equal protection, etc.).
• “Questions of law” (interpretation of statutes, application of legal standards to established facts).

Factual disputes—such as whether a medical condition is as severe as claimed or whether a sibling can realistically provide care—are not reviewable in this context post-Wilkinson. Petitioners must therefore frame arguments as legal errors (e.g., misapplying the hardship standard to the accepted facts), rather than as factual disagreements.

VII. Potential Impact and Practical Lessons

A. Nonprecedential but Indicative of Post-Wilkinson Trends

While this decision is not binding precedent, it is a practical example of how the Third Circuit is applying Wilkinson in the cancellation-of-removal context:

• The court will vigorously enforce the bar on reviewing factual challenges, summarily dismissing them for lack of jurisdiction.
• The court will treat the ultimate hardship determination as reviewable but employ a highly deferential standard that makes reversals rare.

B. Lessons for Practitioners and Applicants

Zhu’s case yields several practical lessons:

1. Build the Record Carefully at the IJ Level:
   • Because factual findings are final and unreviewable, the IJ hearing is effectively the only forum for establishing the full extent of medical, financial, educational, and emotional hardship.
   • Detailed medical documentation, expert testimony, and evidence of lack of adequate treatment abroad are especially important when arguing hardship based on health.
2. Anticipate How Assets and Family Support Will Be Viewed:
   • Substantial financial resources and extensive family networks, while generally positive, are likely to be used by IJs, the BIA, and reviewing courts to conclude that hardship is less than exceptional because the family can purchase services or rely on relatives for help.
   • If such resources are limited or illusory (e.g., heavily mortgaged properties, failing businesses, estranged siblings), that must be clearly documented in the record.
3. Frame Appellate Arguments as Legal, Not Factual:
   • Post-Wilkinson, appellate counsel must focus on misapplication of the legal standard to accepted facts—e.g., “even crediting the IJ’s findings, these facts are legally sufficient to constitute exceptional and extremely unusual hardship.”
   • Arguments that an IJ should have weighed evidence differently or found medical conditions more serious are now jurisdictionally barred.
4. Emphasize Truly Extraordinary Factors:
   • The combination of chronic but manageable medical conditions, availability of private medical care and schooling, and presence of extended family will almost always be deemed insufficient.
   • Claims are more likely to succeed where there is:
     • Proof of unavailability or inaccessibility of necessary treatment abroad.
     • Severe disability or special needs without realistic support in the destination country.
     • Complete absence of family or community support for especially vulnerable qualifying relatives.

VIII. Conclusion

Ailan Zhu v. Attorney General underscores the demanding nature of the “exceptional and extremely unusual hardship” standard and the severely constrained scope of judicial review in cancellation-of-removal cases after Wilkinson. The Third Circuit:

• Reaffirmed that factual findings in discretionary-relief applications are strictly unreviewable.
• Confirmed that courts retain only a narrow role in assessing whether established facts satisfy statutory hardship standards, applying substantial-evidence review.
• Illustrated how family assets, business income, and the availability of extended family caregiving can significantly weaken claims that removal would cause hardship beyond the ordinary.

Although this disposition is not binding precedent, it provides a clear and contemporary roadmap of how the Third Circuit approaches hardship analyses in the wake of Wilkinson v. Garland and its own Wilkinson v. Attorney General decision. For noncitizens and practitioners, the opinion serves as a cautionary example: only truly extraordinary and well-documented hardship—carefully framed within the legal standard and presented fully at the IJ level—is likely to satisfy the stringent requirements of § 1229b(b)(1)(D).