Manuel-Ramirez v. Garland: The Tenth Circuit Will Sua Sponte Enforce Issue Exhaustion in Cancellation Hardship Appeals Despite Government Forfeiture

I. Introduction

In Manuel-Ramirez v. Garland (10th Cir. Mar. 13, 2025), Carlos Manuel-Ramirez, a Mexican national who entered the United States in 2004, petitioned for review of a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge’s (IJ’s) denial of cancellation of removal. The central merits issue was whether his removal would cause “exceptional and extremely unusual hardship” to his qualifying relatives—his U.S.-connected children—under 8 U.S.C. § 1229b(b)(1)(D).

The petition also raised important appellate-administrative questions: (1) whether the court would consider a newly framed argument that the IJ mischaracterized evidence when that specific theory was not presented to the BIA, and (2) whether the BIA engaged in impermissible factfinding by citing In re J-J-G- during the administrative appeal.

II. Summary of the Opinion

The Tenth Circuit denied the petition for review. While recognizing jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review the application of the hardship standard as a mixed question, the court emphasized that underlying factfinding remains unreviewable under Wilkinson v. Garland.

  • The court declined to consider the petitioner’s argument that the IJ mischaracterized evidence because it was not exhausted before the BIA. Even though the government did not invoke exhaustion (and thus forfeited it under Santos-Zacaria v. Garland), the court enforced exhaustion sua sponte relying on Miguel-Pena v. Garland.
  • The court rejected the claim that the IJ failed to consider hardship factors “in the aggregate,” noting that both the IJ and BIA expressly and substantively considered the factors cumulatively.
  • The court rejected the argument that the BIA did impermissible factfinding by citing In re J-J-G-, concluding the citation did not change the outcome and, in any event, the IJ had already found the children’s conditions were routine/controlled and treatable in Mexico.

III. Analysis

A. Precedents Cited

1. Hardship standard and scope of judicial review

  • Wilkinson v. Garland, 601 U.S. 209 (2024): The opinion treats Wilkinson as the controlling framework on two points: (i) the meaning of “exceptional and extremely unusual hardship” (hardship “substantially different from or beyond” ordinary removal-related hardship, but not “unconscionable”), and (ii) the division between reviewable mixed questions and unreviewable factfinding—e.g., the “seriousness” of medical conditions and level of financial support are factual matters beyond the court’s jurisdiction.
  • Martinez v. Garland, 98 F.4th 1018 (10th Cir. 2024): Cited for the proposition that the court applies a deferential standard when reviewing the agency’s hardship determination.

2. BIA hardship precedents applied to cancellation

  • In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (B.I.A. 2001): Provides the core cancellation-hardship factors and the requirement that factors be assessed in the aggregate. It also explains the historical relevance—but limited doctrinal fit—of earlier suspension-of-deportation jurisprudence.
  • In re Andazola-Rivas, 23 I. & N. Dec. 319 (B.I.A. 2002): Supports the agency view that routine, controlled medical issues and common financial pressures typically do not meet the “exceptional and extremely unusual” threshold absent additional, compounding hardship evidence.
  • In re Gonzalez Recinas, 23 I. & N. Dec. 467 (B.I.A. 2002): Cited as part of the standard cancellation-hardship trilogy and raised by the petitioner for factors such as limited alternative immigration options; the court treated the agency as having considered the record cumulatively.
  • In re Anderson, 16 I. & N. Dec. 596 (B.I.A. 1978): The BIA deemed it inapposite because it addressed a different statutory regime (suspension of deportation), a point reinforced by Monreal’s discussion of how earlier factors may be “useful” but not controlling under the higher cancellation standard.
  • In re J-J-G-, 27 I. & N. Dec. 808 (B.I.A. 2020): Used by the BIA to confirm that medical-hardship claims generally require a showing of a serious condition and, when relocation is at issue, evidence that adequate care is not reasonably available in the country of removal. The Tenth Circuit held the BIA’s reference did not amount to impermissible factfinding in this case.

3. Issue exhaustion, waiver/forfeiture, and sua sponte enforcement

  • Garcia-Carbajal v. Holder, 625 F.3d 1233 (10th Cir. 2010), abrogated on other grounds by Santos-Zacaria v. Garland, 598 U.S. 411 (2023): Supplies the Tenth Circuit’s articulation of issue exhaustion: the noncitizen must present the “same specific legal theory” to the BIA.
  • Santos-Zacaria v. Garland, 598 U.S. 411 (2023): Establishes that 8 U.S.C. § 1252(d)(1) exhaustion is mandatory but non-jurisdictional—thus subject to waiver/forfeiture by the government.
  • United States v. Zubia-Torres, 550 F.3d 1202 (10th Cir. 2008): Cited to distinguish waiver (intentional relinquishment) from forfeiture (neglect).
  • Miguel-Pena v. Garland, 94 F.4th 1145 (10th Cir. 2024): The decisive authority for the court’s move here: even though exhaustion is non-jurisdictional and can be forfeited, the court may enforce it sua sponte because it implicates institutional values and nonparty interests— namely, preventing judicial “usurpation” of agency functions.

4. Reviewing the BIA while consulting the IJ

  • Neri-Garcia v. Holder, 696 F.3d 1003 (10th Cir. 2012): Used to justify consulting the IJ’s fuller reasoning when the BIA affirms in a brief order, without treating the IJ decision as independently controlling.

B. Legal Reasoning

1. Jurisdictional framing: mixed questions are reviewable; facts are not

The court began by anchoring its review in 8 U.S.C. § 1252(a)(2)(D) and Wilkinson v. Garland. It characterized the hardship determination as a mixed question (reviewable) while reiterating that underlying facts—such as how serious a medical condition is or the degree of financial support— remain unreviewable. This framing narrowed what the petitioner could realistically win on: legal misapplications and reasoning errors, not reweighing evidence.

2. Issue exhaustion enforced sua sponte despite government forfeiture

The petitioner’s lead appellate contention—“the IJ mischaracterized the evidence”—was treated as a new legal theory not presented to the BIA. Although the government did not raise exhaustion (and thus forfeited the defense under Santos-Zacaria v. Garland), the panel invoked Miguel-Pena v. Garland to enforce exhaustion on its own initiative.

The court’s reasoning is institutional: exhaustion is not merely for the benefit of the litigants. It ensures the agency has the first opportunity to address specific arguments, develop the record, and explain its reasoning—avoiding courts “entering the domain” reserved to the agency.

3. Aggregate-hardship requirement satisfied

On the merits, the petitioner argued the IJ wrongly focused on medical hardship and failed to consider all hardship factors cumulatively. The court rejected this primarily on record-based grounds: both the IJ and BIA explicitly stated they considered the factors “cumulatively,” and the IJ’s decision in fact canvassed multiple categories of evidence (financial, medical, family ties, language, employability, and treatment availability). Any factors not expressly discussed were covered by the IJ’s statement that he reviewed the entire record.

4. No impermissible factfinding from the BIA’s citation to In re J-J-G-

The petitioner claimed the BIA imposed a “new standard” from In re J-J-G- that required factual findings not made by the IJ, implying the BIA must have found facts on appeal. The court found this argument failed for two independent reasons:

  • The IJ had already found the children’s conditions were common, controlled, and treatable in Mexico—findings the court could not revisit as factual matters under Wilkinson v. Garland.
  • The court deemed any reliance on J-J-G- effectively harmless in context because the petitioner did not establish a qualifying relative had a “serious medical condition,” and the record did not turn on a relocation-without-care scenario that would trigger J-J-G-’s medical-care availability focus.

C. Impact

  • Practical appellate rule in the Tenth Circuit: Noncitizens must present each specific appellate theory to the BIA (not merely adjacent arguments). Even after Santos-Zacaria v. Garland made exhaustion non-jurisdictional and thus forfeitable, this decision—following Miguel-Pena v. Garland—signals that the Tenth Circuit may still enforce exhaustion sua sponte.
  • Hardship litigation remains constrained: The court’s reliance on Wilkinson v. Garland underscores that many disputes commonly framed as “errors” (e.g., seriousness of conditions, income capacity, cost-of-living choices) will be treated as unreviewable fact disputes.
  • Medical hardship claims: While not expanding the law, the court’s treatment of In re J-J-G- reinforces a common agency expectation: medical-based hardship arguments need objective evidence of seriousness and, where relevant, evidence about treatment availability in the country of removal.

IV. Complex Concepts Simplified

  • Cancellation of removal (8 U.S.C. § 1229b(b)(1)): A discretionary form of relief for certain nonpermanent residents who meet statutory requirements, including showing that removal would cause “exceptional and extremely unusual hardship” to a qualifying U.S. citizen or LPR spouse/parent/child.
  • “Exceptional and extremely unusual hardship”: Hardship markedly beyond what is normally expected from removal (financial strain, separation, adjustment challenges), but not necessarily “unconscionable.” Courts and the agency assess all factors together (“in the aggregate”).
  • Issue exhaustion (8 U.S.C. § 1252(d)(1)): Before going to federal court, the noncitizen must first present the specific argument to the BIA, giving the agency a chance to address it.
  • Non-jurisdictional claim-processing rule: A rule that must be followed but can be waived or forfeited by the opposing party. After Santos-Zacaria v. Garland, exhaustion is in this category.
  • Sua sponte enforcement: The court can raise and apply certain rules on its own initiative. Here, following Miguel-Pena v. Garland, the court enforced exhaustion even though the government did not.
  • Mixed questions vs. factfinding: Applying a legal standard to established facts can be reviewable; disputes about what the facts are (or how serious a medical condition is) are often unreviewable in cancellation cases under Wilkinson v. Garland.

V. Conclusion

Manuel-Ramirez v. Garland is most significant for its procedural lesson: in the Tenth Circuit, failure to present a specific legal theory to the BIA can be fatal on judicial review, and the court may enforce that requirement sua sponte even if the government fails to invoke it. On the merits, the decision reinforces the deferential posture toward agency hardship determinations, the aggregate-consideration requirement drawn from In re Monreal-Aguinaga, and the limited room for appellate relief where the dispute is, in substance, about unreviewable factfinding.