Sua Sponte Enforcement of § 1252(d)(1) Issue Exhaustion in Cancellation Hardship Appeals

1. Introduction

In Manuel-Ramirez v. Garland (10th Cir. Mar. 13, 2025), the Tenth Circuit denied a petition for review challenging the Board of Immigration Appeals’ (BIA) affirmance of an Immigration Judge’s (IJ) denial of cancellation of removal. The petitioner, Carlos Manuel-Ramirez, a Mexican national who entered the United States in 2004, sought cancellation under 8 U.S.C. § 1229b(b)(1)(D), which requires proof that removal would cause “exceptional and extremely unusual hardship” to a qualifying U.S.-citizen or lawful-permanent-resident spouse, parent, or child.

The central issues on review were (i) whether the court could and should reject an argument as unexhausted even though the government did not raise exhaustion; (ii) whether the agency properly considered hardship factors cumulatively rather than focusing narrowly on medical evidence; and (iii) whether the BIA engaged in impermissible factfinding by citing In re J-J-G-, 27 I. & N. Dec. 808 (B.I.A. 2020), decided during the pendency of the appeal.

Although the disposition is designated an “Order and Judgment” and “not binding precedent” (except for law of the case, res judicata, and collateral estoppel), it is significant for how it operationalizes post-Santos-Zacaria v. Garland, 598 U.S. 411 (2023) exhaustion doctrine in immigration petitions, and for its strict separation of reviewable hardship applications from unreviewable factfinding.

2. Summary of the Opinion

  • The court exercised jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review, as a mixed question, the application of the hardship standard to the facts (citing Wilkinson v. Garland, 601 U.S. 209 (2024)), while reiterating that underlying factfinding remains unreviewable.
  • The court declined to consider the petitioner’s “mischaracterization of evidence” argument because it was not presented to the BIA. Even though the government did not object on exhaustion grounds, the court enforced exhaustion sua sponte, relying on Miguel-Pena v. Garland, 94 F.4th 1145 (10th Cir. 2024).
  • The court rejected the claim that the agency failed to consider hardship cumulatively, pointing to explicit “cumulative” language in both the IJ and BIA decisions and to the IJ’s discussion of multiple hardship-related circumstances.
  • The court found no impermissible BIA factfinding from the citation to In re J-J-G-, reasoning that the IJ had already found the children’s conditions were routine/controlled and treatable, and that In re J-J-G- did not change the outcome on this record.

3. Analysis

3.1. Precedents Cited

Hardship Standard, Reviewability, and Deference

  • Wilkinson v. Garland, 601 U.S. 209 (2024): The opinion treats application of the “exceptional and extremely unusual hardship” standard as reviewable under 8 U.S.C. § 1252(a)(2)(D), but draws a sharp line: “facts underlying” cancellation determinations remain unreviewable. This framing is decisive in two ways: it (i) authorizes the court to review whether the agency used the correct legal framework (e.g., aggregate consideration), while (ii) foreclosing review of petitioner’s embedded factual disputes about income, the severity of conditions, and practical ability to relocate.
  • Martinez v. Garland, 98 F.4th 1018 (10th Cir. 2024): Cited for the proposition that the Tenth Circuit applies a “deferential standard” to the BIA’s hardship determination, reinforcing that even reviewable mixed questions are not reviewed de novo.
  • In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (B.I.A. 2001): Supplies the BIA’s canonical articulation of the hardship inquiry and the instruction that factors must be considered “in the aggregate.” The court uses Monreal as the benchmark for evaluating petitioner’s “failure to aggregate” argument and to distinguish what kinds of country-conditions/lower-standard-of-living evidence ordinarily will not suffice.
  • In re Andazola-Rivas, 23 I. & N. Dec. 319 (B.I.A. 2002): Supports the agency’s treatment of controlled/chronic medical issues as generally insufficient absent “additional evidence of hardship.” The IJ’s reliance on Andazola is central to the agency’s conclusion that the children’s asthma/allergies/ADHD/respiratory issues, as described in the record, did not reach the heightened cancellation threshold.
  • In re Gonzalez Recinas, 23 I. & N. Dec. 467 (B.I.A. 2002): Invoked by petitioner for financial hardship and “lack of alternative means” considerations. The court does not treat Recinas as creating a mandatory checklist; instead, it emphasizes that the IJ stated he considered the entire record even if every circumstance was not expressly discussed.

Scope of Review and Use of IJ Reasoning

  • Neri-Garcia v. Holder, 696 F.3d 1003 (10th Cir. 2012): Provides the methodological rule that when the BIA issues a brief affirmance, the reviewing court may consult the IJ’s fuller explanation to understand the grounds adopted by the BIA. This matters here because the court relies heavily on the IJ’s detailed discussion to reject the “not cumulative” and “over-focused on medical hardship” claims.

Exhaustion: Mandatory, Non-Jurisdictional; Forfeiture; Sua Sponte Enforcement

  • Garcia-Carbajal v. Holder, 625 F.3d 1233 (10th Cir. 2010): Supplies the “same specific legal theory” requirement. The court applies this to conclude that challenging the IJ’s legal framework before the BIA is not the same as later alleging “mischaracterization of evidence” in the court of appeals.
  • Santos-Zacaria v. Garland, 598 U.S. 411 (2023): Establishes that 8 U.S.C. § 1252(d)(1) exhaustion is a mandatory, non-jurisdictional claim-processing rule “subject to waiver and forfeiture.” The Tenth Circuit acknowledges that the government forfeited an exhaustion objection by not raising it.
  • United States v. Zubia-Torres, 550 F.3d 1202 (10th Cir. 2008): Cited to distinguish waiver (intentional relinquishment) from forfeiture (neglect), supporting the court’s characterization of the government’s omission as forfeiture.
  • Miguel-Pena v. Garland, 94 F.4th 1145 (10th Cir. 2024): The key post-Santos-Zacaria tool used here. Miguel-Pena holds the court is “permitted, but not obliged” to enforce non-jurisdictional exhaustion sua sponte, and that § 1252(d)(1) “implicates values beyond the concerns of the parties,” including protecting agency primacy and preventing judicial usurpation. Relying on this rationale, the court sua sponte rejects the unexhausted “mischaracterization” argument.

BIA “New Standard” and Factfinding Claims

  • In re J-J-G-, 27 I. & N. Dec. 808 (B.I.A. 2020): The petitioner argued the BIA’s citation imposed a new medical-hardship test requiring new findings on seriousness and care availability in Mexico. The court reads J-J-G- as requiring (when the claim depends on health and the qualifying relative accompanies the applicant) evidence of a “serious medical condition” and unavailability of adequate care abroad, and concludes (i) the IJ already found no serious condition, and (ii) petitioner did not even premise his claim on the children accompanying him to Mexico.
  • In re Anderson, 16 I. & N. Dec. 596 (B.I.A. 1978): Treated as inapposite because it concerned “suspension of deportation” under a prior statutory regime; the BIA (and the court, through Monreal) acknowledge Anderson’s factors as potentially “useful” historically but not controlling for the heightened cancellation standard.

3.2. Legal Reasoning

(a) Jurisdiction and the Reviewable/Unreviewable Divide

The opinion is anchored in Wilkinson v. Garland: the court may review whether the agency correctly applied the hardship standard, but may not revisit the underlying facts (e.g., the actual severity of a child’s condition, what the wife could earn, or whether relocation is feasible). This distinction drives the court’s treatment of petitioner’s briefing: arguments framed as “legal error” are scrutinized for whether they are actually thinly veiled requests to reweigh evidence, which Wilkinson forbids.

(b) Issue Exhaustion and the Court’s Willingness to Enforce It Sua Sponte

The petitioner’s first appellate contention—“the IJ mischaracterized the evidence”—was not the same theory presented to the BIA. Before the BIA, he primarily argued misapplication of hardship precedents (Monreal/Andazola/Recinas) and failure to apply Anderson-type factors. The court treats “mischaracterization” as a distinct theory that needed to be raised to the agency.

The novel institutional move is procedural rather than substantive: despite acknowledging that the government forfeited an exhaustion objection under Santos-Zacaria v. Garland, the court invokes Miguel-Pena v. Garland to enforce exhaustion on its own initiative, emphasizing nonparty/system values—agency first-instance decision-making and congressional allocation of responsibility to the agency. Thus, the decision signals that in the Tenth Circuit, petitioners cannot assume the government’s silence cures an exhaustion defect.

(c) “Cumulative” Consideration: Deference to Express Agency Statements Plus Record Confirmation

The court rejects the claim that the IJ/BIA improperly focused on medical evidence by pointing to two features: (i) explicit statements in both decisions that hardship factors were considered “cumulatively,” and (ii) record support showing the IJ evaluated financial, medical, family-location, language, employability, and other circumstances. The court also accepts the IJ’s boilerplate assurance that he reviewed the entire record even if not every item was expressly discussed, treating it as sufficient absent a concrete indication that a material factor was ignored.

(d) No Impermissible Factfinding from BIA’s Citation to In re J-J-G-

The petitioner attempted to convert a citation into reversible procedural error: if J-J-G- adds elements (serious condition; care unavailable abroad), then, he argued, the BIA must have found those elements without IJ factfinding. The court’s response is essentially:

  • The IJ already found the children’s issues were routine/controlled and treatable (a factual finding the court cannot revisit under Wilkinson).
  • J-J-G- is triggered in a meaningful way when the hardship claim depends on a serious medical condition and the relative accompanies the applicant; petitioner did not show a serious condition and did not premise his claim on the children accompanying him.
  • Even assuming arguendo J-J-G- changed doctrine, any reliance was harmless on these facts.

3.3. Impact

  • Stronger practical exhaustion requirement in the Tenth Circuit: After Santos-Zacaria v. Garland, some litigants may expect forfeiture to allow unexhausted arguments through. This decision, following Miguel-Pena v. Garland, underscores that the court may still police exhaustion sua sponte, incentivizing precise issue presentation to the BIA and discouraging theory-shifting in petitions for review.
  • Reinforcement of Wilkinson’s fact/law boundary: The opinion exemplifies how hardship challenges often fail on review because they are factual at their core. Petitioners must frame reviewable issues as legal application errors (e.g., failure to aggregate, wrong legal test), not as disputes about the weight or characterization of evidence.
  • Comfort for the BIA when citing intervening precedent: The court’s treatment of In re J-J-G- suggests that citing clarifying decisions issued during appeal will not, without more, be deemed impermissible factfinding—especially where the IJ’s findings already resolve the predicate factual questions.
  • Signals on “cumulative consideration” arguments: Where the IJ and BIA expressly state they considered factors cumulatively and the IJ decision addresses multiple domains of hardship, the Tenth Circuit is unlikely to find reversible error absent a clear, material omission.

4. Complex Concepts Simplified

  • Cancellation of removal (non-LPR): A discretionary form of relief that, among other requirements, demands proof that removal would cause “exceptional and extremely unusual hardship” to certain close family members with U.S. citizenship or permanent residency.
  • “Exceptional and extremely unusual hardship”: A heightened hardship threshold—more than the ordinary disruption, financial strain, or emotional harm that typically follows removal, but not necessarily “unconscionable.” The agency must assess all relevant hardship factors together.
  • Mixed question of law and fact: Applying a legal standard (hardship) to a set of facts can be reviewable even when the underlying historical facts are not. Here, the court may review whether the agency applied the correct hardship framework, but not re-decide disputed facts.
  • Issue exhaustion under 8 U.S.C. § 1252(d)(1): Before asking a federal court to consider a specific legal theory, a noncitizen generally must have presented that same theory to the BIA.
  • Claim-processing rule (non-jurisdictional) vs. jurisdictional rule: After Santos-Zacaria v. Garland, exhaustion is mandatory but not jurisdictional—meaning the government can forfeit it. Even so, the Tenth Circuit may enforce it on its own under Miguel-Pena v. Garland.
  • Impermissible factfinding by the BIA: The BIA generally may not make new factual determinations on appeal; it reviews the IJ’s findings. A citation to a precedent is not factfinding if the IJ’s existing findings already resolve the necessary factual predicates.

5. Conclusion

Manuel-Ramirez v. Garland denies cancellation relief on a tightly constrained appellate record and, more importantly, clarifies appellate process in cancellation-hardship litigation. The decision’s principal doctrinal takeaway is procedural: even though 8 U.S.C. § 1252(d)(1) exhaustion is non-jurisdictional after Santos-Zacaria v. Garland, the Tenth Circuit may still enforce exhaustion sua sponte (per Miguel-Pena v. Garland) to protect the agency’s primary role. Substantively, the case reaffirms the deference accorded to cumulative hardship determinations and the strict bar on revisiting underlying factual findings under Wilkinson v. Garland, while rejecting the notion that a BIA citation to In re J-J-G- necessarily entails improper factfinding.