Mandatory Individualized Hardship Analysis in Cancellation of Removal

Introduction

Duarte De Martinez v. Bondi, No. 24-1057 (1st Cir. Mar. 19, 2025), addresses the standard for “exceptional and extremely unusual hardship” under the cancellation-of-removal statute (8 U.S.C. § 1229b(b)(1)(D)). Kathya Roxana Duarte De Martinez, a Salvadoran national ordered removed in immigration proceedings, sought cancellation of removal on behalf of her two U.S.-citizen sons. The Board of Immigration Appeals (BIA) affirmed an Immigration Judge’s (IJ) denial, concluding that her removal would not impose the requisite hardship on her younger son, A.M., who suffers from a permanent intellectual and language‐processing disability. On review, the First Circuit granted relief and remanded, holding that the agency failed to conduct the individualized, fact‐specific inquiry required by its own precedents when assessing hardship for a child with special educational needs.

Key issues:

What constitutes “exceptional and extremely unusual hardship” under 8 U.S.C. § 1229b(b)(1)(D)?
Whether the agency erred by treating a language barrier as a “common hardship” without analyzing how that barrier uniquely affects a cognitively impaired child.
Jurisdictional limits on reviewing factual versus legal questions in removal cases.

Parties:

Petitioner: Kathya Roxana Duarte De Martinez
Respondent: Pamela Bondi, Attorney General

Summary of the Judgment

The First Circuit granted Duarte’s petition for review, vacated the BIA’s decision, and remanded for further proceedings. The court held:

The court has jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review legal questions, including whether the agency applied its binding precedents correctly.
Under BIA precedent, “exceptional and extremely unusual hardship” must be assessed on the “particular facts presented,” requiring individualized consideration of the qualifying relative’s age, health, language abilities, and other circumstances (Matter of Gonzalez-Recinas, 23 I. & N. Dec. 467 (BIA 2002)).
The agency committed legal error by labeling a language barrier “common hardship” without analyzing how A.M.’s intellectual and linguistic disabilities would prevent him from obtaining any meaningful education in El Salvador.
The ordinary remand rule applies: vacatur and remand to allow the BIA/IJ to conduct the required individualized hardship analysis in the first instance.

Analysis

1. Precedents Cited

The panel relied primarily on a series of binding BIA decisions that define and interpret the “exceptional and extremely unusual hardship” standard:

Matter of Gonzalez-Recinas, 23 I. & N. Dec. 467 (BIA 2002): Emphasizes that hardship must be assessed on “the particular facts presented” and requires individualized consideration of the qualifying relative’s circumstances.
Matter of Andazola-Rivas, 23 I. & N. Dec. 319 (BIA 2002): Holds that deprivation of “all schooling or of an opportunity to obtain any education” typically satisfies the high hardship standard.
Matter of Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001): Explains that “exceptional and extremely unusual” hardship must be “substantially” beyond the ordinary hardship of relocation and removal.
Matter of J-J-G-, 27 I. & N. Dec. 808 (BIA 2020): Confirms that all hardship factors must be considered cumulatively.
Matter of Garcia, 28 I. & N. Dec. 693 (BIA 2023): Reaffirms that hardship must be “substantially different from, or beyond” the expected hardship of removal.

Relevant Supreme Court decisions on jurisdiction and reviewability were also invoked:

Wilkinson v. Garland, 601 U.S. 209 (2024): Factual findings in cancellation cases are generally unreviewable, but legal questions remain subject to review under § 1252(a)(2)(D).
Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020) & Patel v. Garland, 596 U.S. 328 (2022): Clarify the distinction between reviewable legal questions and nonreviewable factual determinations.
Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985): Establishes the ordinary remand rule when an agency fails to consider relevant factors.

2. Legal Reasoning

The court’s legal analysis proceeded in three steps:

Jurisdiction: The petition did challenge a pure legal error—namely, the agency’s failure to apply its own precedents requiring a fact-specific inquiry. That is reviewable under 8 U.S.C. § 1252(a)(2)(D).
Hardship Standard: Under Matter of Gonzalez-Recinas and related precedents, the agency must assess hardship by examining the qualifying relative’s unique circumstances. The BIA’s characterization of a language barrier as merely “common hardship” without scrutinizing how A.M.’s intellectual and language-processing disabilities would affect his ability to learn in Spanish contravened those binding decisions.
Remedy: Because the agency omitted a required factor (the specialized impact of the language barrier on A.M.), the court applied the ordinary remand rule (Fla. Power & Light Co.) and vacated the BIA’s decision, ordering the agency to reconsider hardship in light of A.M.’s individual circumstances.

3. Impact

This decision clarifies and enforces critical points for future cancellation cases:

Individualized Inquiry Requirement: IJs and the BIA must examine hardship factors with respect to how they affect the qualifying relative in that person’s unique situation (age, health, disability, language ability, etc.).
Common vs. Exceptional Hardship: Even a hardship common to many noncitizens—such as a language barrier—can qualify if an individual’s characteristics make that barrier far more severe (e.g., a child with permanent intellectual impairments).
Guidance for Practitioners: Attorneys should gather detailed evidence on a qualifying relative’s specific needs—tests, expert reports, therapy records—to demonstrate how removal exacerbates those circumstances beyond an ordinary hardship.
Consistency in Agency Practice: The BIA may not rely on generalized adages (e.g., a language barrier is “common”) to short-circuit analysis; it must tie conclusions to the record and the unique facts of each case.

Complex Concepts Simplified

Cancellation of Removal Criteria (8 U.S.C. § 1229b(b)(1))
A noncitizen may apply if they have: (1) 10+ years of continuous presence, (2) good moral character, (3) no disqualifying convictions, and (4) removal would cause exceptional and extremely unusual hardship to a U.S. citizen or lawful permanent resident spouse, parent, or child.

Exceptional and Extremely Unusual Hardship
Hardship must be “substantially different from, or beyond” what normally accompanies removal. Key precedents require:

Cumulative consideration of all factors (Matter of J-J-G-).
Analysis on each qualifying relative’s particular facts (Matter of Gonzalez-Recinas).
Deprivation of all schooling or educational opportunity is typically dispositive (Matter of Andazola-Rivas).

Ordinary Remand Rule
When an agency fails to address a relevant factor or follow its own precedent, the usual remedy is to vacate its decision and remand for reconsideration (Fla. Power & Light Co.).

Conclusion

Duarte De Martinez v. Bondi reaffirms that “exceptional and extremely unusual hardship” requires an individualized, holistic analysis of each qualifying relative’s circumstances. The decision emphasizes that the BIA and IJs cannot rely on generalized statements—such as treating a language barrier as “common hardship”—when a record shows that a particular child’s disabilities amplify that barrier into a life‐altering deprivation of education and social development. By remanding for a proper fact‐specific inquiry, the First Circuit ensures that the hardship standard retains its meaning and that cancellation of removal remains an available avenue for those demonstrating truly extraordinary family hardships.