Monreal/Recinas Are Not Checklists: First Circuit’s Post-Wilkinson Framework for Reviewing Hardship and the Materiality Requirement for Omitted Factors

Introduction

In Lopez Cano v. Bondi, the First Circuit denied a petition for review of a Board of Immigration Appeals (BIA) decision that rejected three forms of relief sought by a Guatemalan mother of three U.S.-citizen children: cancellation of removal, withholding of removal, and protection under the Convention Against Torture (CAT). The case turns on three pillars:

How federal courts review the “exceptional and extremely unusual hardship” determination for cancellation of removal after the Supreme Court’s decision in Wilkinson v. Garland (2024);
What suffices to prove the required “nexus” between feared harm and a protected ground for withholding of removal; and
Administrative exhaustion and waiver principles governing CAT claims.

The petitioner, Glendy Marleny Lopez Cano, testified that she fled Guatemala after threats tied to extortion demands at her father’s meat shop and after an unrelated knife-point robbery. She also argued that her U.S.-citizen son’s anxiety, and the prospect of family separation or relocation, created qualifying hardship. The immigration judge (IJ) denied all relief; the BIA affirmed. The First Circuit, applying the post-Wilkinson jurisdictional and standard-of-review framework, found no reversible error.

Summary of the Judgment

Cancellation of removal: The court upheld the BIA’s conclusion that petitioner failed to establish “exceptional and extremely unusual hardship” to qualifying relatives. The record showed only limited evidence of a child’s anxiety (manifested as nail-biting), uncertain plans about whether the children would accompany her to Guatemala, and a lack of evidence about the availability of treatment abroad or continuing care in the U.S. The court further held that Monreal and Recinas list permissive, not mandatory, hardship factors; failure to explicitly discuss every factor is not legal error absent an explanation of how the omission would have materially strengthened the hardship case.
Withholding of removal: Substantial evidence supported the BIA’s “no nexus” finding. The record reflected general criminality and extortion for financial gain, not persecution “on account of” family membership or another protected ground. The court assumed without deciding that the “Lopez family” could be a valid particular social group but held petitioner failed to prove family membership was “at least one central reason” for the harm.
CAT protection: The CAT claim was deemed waived at the BIA for lack of a meaningful challenge to the IJ’s denial. The First Circuit declined review on exhaustion grounds and, alternatively, found waiver in the court due to perfunctory briefing.

Analysis

Precedents Cited and Their Influence

Wilkinson v. Garland, 601 U.S. 209 (2024): Establishes that whether proven facts satisfy the hardship standard is a reviewable mixed question of law and fact, subject to deferential review; underlying historical facts remain unreviewable. The First Circuit applied Wilkinson to cabin its review, declining to reweigh evidence while examining legal challenges to the BIA’s framework.
Contreras v. Bondi, 134 F.4th 12 (1st Cir. 2025): Confirms jurisdiction over constitutional claims and questions of law in cancellation of removal. The panel again “declined to flesh out” the precise contours of the deferential standard because the case did not require it, echoing Contreras.
Nolasco v. Bondi, 134 F.4th 677 (1st Cir. 2025): Clarifies that failure to consider relevant hardship factors can be a legal error, but petitioners must show materiality—how consideration of the factor would have strengthened the hardship determination. The court relied on this requirement to reject the petitioner’s “factor-by-factor” challenge.
Leao v. Bondi, 144 F.4th 43 (1st Cir. 2025): Interprets Monreal and Recinas as permissive guides, not mandatory checklists. The Lopez Cano panel leaned on Leao to hold that the agency is not obliged to explicitly analyze every enumerated factor.
In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001), and In re Gonzalez Recinas, 23 I. & N. Dec. 467 (BIA 2002): Foundational hardship precedents. The court reaffirmed that hardship must be “substantially different from, or beyond, that which would normally be expected” from removal and that factors must be considered “in the aggregate,” but not as a rigid test.
Tacuri-Tacuri v. Garland, 998 F.3d 466 (1st Cir. 2021), abrogation on other grounds recognized by Figueroa v. Garland, 119 F.4th 160 (1st Cir. 2024): Cited for the formulation of the hardship standard.
Pandit v. Lynch, 824 F.3d 1 (1st Cir. 2016): Notes that psychological difficulties such as anxiety and depression are common among children of removed parents and do not by themselves compel a finding of “exceptional and extremely unusual hardship.”
Chun Mendez v. Garland, 96 F.4th 58 (1st Cir. 2024); Sanchez-Vasquez v. Garland, 994 F.3d 40 (1st Cir. 2021); Marquez-Paz v. Barr, 983 F.3d 564 (1st Cir. 2020): Frame the withholding “nexus” requirement and the “at least one central reason” standard for protected grounds.
Barnica-Lopez v. Garland, 59 F.4th 520 (1st Cir. 2023); Alvarado-Reyes v. Garland, 118 F.4th 462 (1st Cir. 2024): Reinforce exhaustion and waiver rules when petitioners fail to develop arguments before the BIA or in their court briefs.
Domingo-Mendez v. Garland, 47 F.4th 51 (1st Cir. 2022): Confirms the court reviews only those issues decided by the BIA; here, the court declined to reach the IJ’s separate finding on continuous physical presence because the BIA resolved the case on hardship instead.

Legal Reasoning

1) Cancellation of Removal: Post-Wilkinson Review and the Non-Mandatory Nature of Monreal/Recinas Factors

The court first set out the governing jurisdiction and standard-of-review rules. Under 8 U.S.C. § 1252(a)(2)(D) and Wilkinson, legal and constitutional questions, as well as mixed questions like whether facts satisfy the hardship standard, are reviewable, though the latter receive deferential review; pure fact-finding remains unreviewable. With that framework:

No reweighing of facts: The panel declined any invitation to reweigh evidence about the children’s circumstances, emphasizing that factual determinations (e.g., the severity of the child’s anxiety) are off-limits.
Permissive factors, not a checklist: Citing Leao and Nolasco, the court held it was not legal error for the BIA to omit explicit discussion of every hardship factor in Monreal/Recinas. The burden rests on the petitioner to explain how considering an omitted factor would materially change the aggregate analysis. Petitioner made no such showing.
Evidence gaps: The BIA reasonably relied on key omissions: uncertainty over whether the children would relocate; lack of evidence on access to or continuity of therapy in Guatemala or remotely; and the absence of documentation that would elevate the child’s anxiety beyond the kind of hardship commonly associated with parental removal. The BIA also noted the other two children were healthy and doing well in school.
Aggregate assessment upheld: The agency considered the children’s circumstances in the aggregate and concluded the hardship was not “substantially beyond” the ordinary consequences of removal. The First Circuit found no legal error in that reasoning.

2) Withholding of Removal: Failure of Nexus

The petitioner alleged persecution by extortionists jealous of her father’s business and feared future targeting by gangs who view deportees as wealthy. The BIA determined the harm was driven by generalized criminal motives (financial gain), not by a protected ground. The First Circuit:

Assumed but did not decide that “Lopez family” could be a cognizable particular social group, focusing instead on nexus.
Applied substantial evidence review and found the record did not compel the conclusion that family membership was “at least one central reason” for the threats. Petitioner’s own testimony about similar threats to other business owners and the wealth-targeting of deportees undercut the family-based nexus claim.

Result: No “clear probability” of persecution on account of a protected ground; withholding denied.

3) CAT Protection: Exhaustion and Waiver

The IJ denied CAT relief, finding no showing that the petitioner would be tortured by, or with the acquiescence of, the Guatemalan government. The BIA deemed the CAT claim waived because the appeal failed to meaningfully challenge the IJ’s ruling. The First Circuit:

Enforced administrative exhaustion and declined to review CAT where arguments were undeveloped before the BIA.
Found an independent waiver in the court due to cursory briefing on CAT.

Impact

A. Cancellation of Removal Practice After Lopez Cano

Monreal/Recinas are guides, not mandates: Practitioners cannot secure remand merely by tallying omitted factors. To establish legal error, they must show materiality—how the missing factor would have altered the aggregate hardship calculus.
Develop the record on treatment and relocation: When child health or educational needs are central, produce specific, updated, and corroborated evidence on:
- Whether the child will relocate and why;
- Availability, accessibility, and affordability of comparable treatment in the destination country;
- Feasibility of continuity of care (telehealth, medication continuity, language/cultural compatibility); and
- Consequences if the child remains in the U.S. (who will care for the child, continuity with current providers, financial arrangements).
Psychological hardship must be elevated and documented: Generalized anxiety or common adjustment issues, standing alone, rarely clear the “exceptional and extremely unusual” bar. Provide clinical diagnoses, treatment history, expert opinions on prognosis, and why removal will exacerbate the condition beyond typical effects.
Aggregate presentation still matters: Carefully tie all factors together—health, education, special needs, language acquisition, special education services, and country conditions—to demonstrate hardship “substantially beyond” ordinary consequences.

B. Withholding of Removal: Distinguishing Extortion from Protected-Ground Persecution

Financial motives undermine nexus: Where record evidence points to generalized extortion or criminal targeting for money (including stereotypes about deportees’ wealth), the nexus to a protected ground (like family membership) is difficult to prove.
Build nexus with specific proof: If relying on family-based particular social group:
- Document threats referencing the family identity as such, not just the business or perceived wealth;
- Show differential treatment of family members compared with non-family business owners;
- Corroborate with police reports, affidavits, and country reports showing a pattern of family-targeted persecution in similar circumstances.

C. CAT Claims: Preserve, Develop, and Brief

Exhaustion is mandatory: Petitioners must meaningfully challenge IJ CAT findings at the BIA. A passing reference won’t suffice.
On petition for review, brief fully: Provide developed argument on the likelihood of torture and on government acquiescence, including evidence of official awareness, willful blindness, or systemic inability/unwillingness to protect.

D. Appellate Standards and Scope

Post-Wilkinson, know the lanes: Mixed questions (e.g., whether proven facts meet the hardship standard) are reviewable but deferentially; underlying historical facts are not reviewable.
Only what the BIA decided is reviewable: If the BIA rests on hardship alone, issues like continuous presence are beyond the court’s purview unless the BIA addressed them.
Open question remains: The First Circuit “once again” declined to specify the exact degree of deference for mixed questions in the hardship context, signaling continued case-by-case development.

Complex Concepts Simplified

Exceptional and Extremely Unusual Hardship: A demanding standard for cancellation of removal requiring proof that hardship to a qualifying relative goes well beyond what ordinarily follows a parent’s removal. It is assessed in the aggregate across relevant factors.
Mixed Question vs. Fact: A mixed question asks whether established facts satisfy a legal standard (reviewable, deferentially). Pure facts (what happened, how severe a condition is) are not reviewable by the court of appeals in cancellation cases.
Nexus: For withholding, the petitioner must show the feared harm is “on account of” a protected ground—i.e., that the protected ground is at least one central reason for the persecution.
Particular Social Group (PSG): A category protected under the asylum/withholding statutes. Family can be a PSG, but the petitioner must still prove nexus—being targeted because of family membership, not merely because of money or property.
CAT and Government Acquiescence: Relief requires showing it is more likely than not the petitioner will be tortured by, or with the consent, acquiescence, or willful blindness of, public officials.
Exhaustion and Waiver: Arguments must be meaningfully raised to the BIA to be preserved for court review. Even then, arguments can be waived in the court if they are not adequately briefed.

Conclusion

Lopez Cano v. Bondi is a careful application of the evolving post-Wilkinson landscape: the First Circuit reaffirms that hardship determinations are reviewable mixed questions but with deferential scrutiny and that the BIA’s Monreal/Recinas factors are permissive, not mandatory checklists. Petitioners must make a materiality showing to transform an omitted factor into reversible legal error. On withholding, the decision underscores that generalized extortion and wealth-based targeting rarely satisfy the “on account of” requirement, even when family is advanced as a PSG. Finally, the case is a forceful reminder that CAT claims rise and fall on preservation and briefing discipline.

The key takeaway for practitioners is evidentiary and procedural: build a record that squarely addresses relocation realities, continuity and comparability of care, and tie every asserted hardship to concrete, corroborated facts; articulate how each factor materially affects the aggregate analysis; and preserve every theory at the BIA with fully developed argumentation. Substantively, the decision harmonizes First Circuit precedent on hardship review with Wilkinson, emphasizing the limits of appellate intervention and the central role of a well-developed administrative record.