Narrowing the “Ignored Evidence” Doctrine and Clarifying Post‑Wilkinson Review: First Circuit in Ortiz Trejo v. Bondi on Exceptional Hardship and BIA’s Evidence Review

Introduction

In Ortiz Trejo v. Bondi, the First Circuit denied a petition for review challenging the Board of Immigration Appeals’ (BIA) denial of cancellation of removal under INA § 240A(b)(1) (8 U.S.C. § 1229b(b)(1)). The petitioner, a Mexican national who entered the U.S. without inspection, sought relief based on alleged “exceptional and extremely unusual hardship” to his U.S.-citizen son if the father were removed. The case presented two central issues:

• Whether the BIA legally erred by “ignoring” a psychological evaluation diagnosing the child with an adjustment disorder; and
• Whether the BIA misapplied the statutory hardship standard.

Against the backdrop of recent Supreme Court and First Circuit precedents—especially Wilkinson v. Garland (2024) on judicial review of mixed questions and Contreras v. Bondi (2025) on the BIA’s obligation to address salient evidence—the court affirmed the BIA. It held that the agency did not ignore key evidence and that, on the facts as found by the Immigration Judge (IJ), the statutory hardship threshold was not met.

Summary of the Judgment

The First Circuit (Lipez, J.) denied the petition for review. The court held:

• The BIA did not “ignore” the child’s psychological evaluation. Unlike in Contreras—where the BIA’s conclusion was facially inconsistent with an unaddressed mental-health report—the BIA here acknowledged the evaluation, referenced its contents, and reached a conclusion not inconsistent with it.
• Applying deferential review to the mixed question of hardship post-Wilkinson, and lacking jurisdiction to revisit the IJ’s underlying factual findings under Patel v. Garland (2022), the court upheld the BIA’s determination that the child would not suffer “exceptional and extremely unusual hardship.” Key facts included that the allergies were controllable, the child’s mother could and would continue to provide care, and the child would retain Rhode Island-sponsored health coverage.

The court also noted that, consistent with BIA precedent (In re Calderon-Hernandez), it was proper to assume the child would remain in the United States with the non-removable mother, a premise not challenged on appeal.

Detailed Analysis

1) Precedents Cited and Their Influence

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

Wilkinson clarified that the application of the “exceptional and extremely unusual hardship” standard to established facts is a mixed question of law and fact reviewable under 8 U.S.C. § 1252(a)(2)(D). The Court also emphasized that review is “deferential.” In Ortiz Trejo, this framework allowed the First Circuit to review whether the BIA correctly applied the statutory standard, while respecting the IJ’s fact-finding.

Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020)

Guerrero-Lasprilla recognized mixed questions as “questions of law” for purposes of § 1252(a)(2)(D). It undergirds post-Wilkinson review of hardship decisions. The First Circuit relied on this to assert jurisdiction over the legal application of the hardship standard.

Patel v. Garland, 596 U.S. 328 (2022)

Patel restricts judicial review of factual findings in discretionary-relief proceedings. In Ortiz Trejo, the petitioner’s attack on the IJ’s factual characterizations (for example, that the child’s allergies were “seasonal” and “controllable”) could not be entertained. The court confined itself to reviewing whether, on those facts, the agency correctly applied the hardship standard.

Contreras v. Bondi, 134 F.4th 12 (1st Cir. 2025)

Contreras held that the BIA commits legal error when it overlooks critical evidence—especially where its conclusion is facially inconsistent with an unaddressed report that details ongoing, significant mental health harm. Ortiz Trejo distinguishes and narrows Contreras: there, the BIA’s conclusion (“no mental health treatment”) directly contradicted a detailed, unaddressed report diagnosing major depression and recommending continued therapy; here, the BIA expressly acknowledged the psychological evaluation (diagnosing “Adjustment Disorder, Unspecified”) and its conclusion was not in tension with the evaluation’s content.

Domingo-Mendez v. Garland, 47 F.4th 51 (1st Cir. 2022) and Lin v. Mukasey, 521 F.3d 22 (1st Cir. 2008)

These decisions support a presumption that the agency considers evidence unless its decision is inconsistent with that evidence or suggests unawareness. Ortiz Trejo leans on this principle to reject the “ignored evidence” claim: the BIA’s analysis referenced the evaluation and was not inconsistent with it.

Nolasco v. Bondi, 134 F.4th 677 (1st Cir. 2025)

Nolasco notes the “open question” in the First Circuit regarding the precise deference level to BIA hardship determinations but finds the outcome the same under either substantial evidence or abuse-of-discretion review. Ortiz Trejo adopts the same stance: regardless of deference articulation, the BIA’s determination survives review.

Alay v. Bondi, 145 F.4th 1 (1st Cir. 2025)

Alay confirms that failure to consider key evidence is a legal error reviewed de novo. Ortiz Trejo is consistent: it reiterates that the BIA may not turn a blind eye to salient facts, but finds no such omission here.

In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001), and In re Gonzalez Recinas, 23 I. & N. Dec. 467 (BIA 2002)

These BIA precedents define and contextualize the hardship standard. Monreal stresses that hardship must be “substantially different from, or beyond” ordinary consequences of removal; Gonzalez Recinas emphasizes a high—but not impossible—threshold, instructing consideration of age, health, and conditions in the country of return.

In re Calderon-Hernandez, 25 I. & N. Dec. 885 (BIA 2012)

Calderon-Hernandez allows the agency to assume a qualifying child will remain in the U.S. when the other parent remains and is not in removal proceedings. The First Circuit endorsed that assumption here, as the petitioner did not argue otherwise.

2) The Court’s Legal Reasoning

A. The “Ignored Evidence” Claim

The petitioner argued the BIA ignored the child’s psychological evaluation (diagnosing Adjustment Disorder and noting stress related to the father’s immigration case), invoking Contreras. The First Circuit rejected that analogy:

• Awareness and reference: The BIA expressly noted the evaluation and its diagnosis.
• No facial inconsistency: Unlike Contreras, the BIA’s conclusion was not inconsistent with the evaluation’s content. The report did not compel a finding of severe, ongoing psychological harm akin to major depression requiring therapy; rather, it documented stress tied to the proceedings.
• IJ’s handling of the record: The IJ admitted the evaluation as potentially probative but stated it would be given appropriate weight. The BIA could rely on the IJ’s assessment while conducting its own record review. The record signaled measured, not decisive, probative value.
• Petitioner’s own emphasis: The father did not testify to his son’s mental health at the merits hearing, in contrast to Contreras where mental health was central to the narrative and the evidence.

The court reaffirmed that “we do not require the BIA to discuss every piece of evidence.” What crosses into legal error is when the agency’s conclusion contradicts omitted, material evidence or suggests unawareness of key facts. Here, the BIA avoided both pitfalls.

B. The Hardship Determination

The court next addressed whether the BIA misapplied the “exceptional and extremely unusual hardship” standard. Two jurisdictional guardrails shaped the analysis:

• Reviewable legal question: Under Wilkinson and Guerrero-Lasprilla, the court could review the application of the hardship standard to the facts.
• Nonreviewable factual findings: Under Patel, the IJ’s findings—e.g., that the child’s allergies were “seasonal,” “controllable,” and unlikely to require another ER visit, that the mother could provide, and that insurance coverage would continue—were not subject to appellate reweighing.

Applying those facts, the court concluded the statutory threshold was not met. The child’s allergies were controlled with immunotherapy and daily medication; medical coverage through Rhode Island would persist; the mother continued to work and support the household; and anticipated emotional hardship from the father’s removal, while genuine, is a common consequence of family separation and therefore typically insufficient under Monreal and Nolasco. The petitioner’s additional claim about his reduced earning capacity in Mexico carried less weight given the assumption that the child would remain in the United States with the mother.

3) Impact and Significance

A. Refinement of the “Ignored Evidence” Doctrine (Post-Contreras)

Ortiz Trejo narrows the circumstances under which the BIA’s treatment of the record will constitute legal error. It holds that:

• Explicit BIA acknowledgment of the evidence and a conclusion not facially inconsistent with that evidence generally defeat “ignored evidence” claims.
• Routine IJ statements that “all evidence was considered” are not talismans, but when combined with BIA references to the disputed material and an absence of inconsistency, they support the inference of a proper review.

This decision will likely make Contreras-style remands rarer. Petitioners alleging “ignored evidence” must now show not merely scant discussion, but true inconsistency or a clear indication the BIA overlooked critical, outcome-altering material.

B. Practical Consequences for Cancellation of Removal Litigation

• Build the record at the IJ level: Because Patel forecloses appellate reweighing of facts, the decisive battleground remains the IJ hearing. Detailed, corroborated medical and mental-health evidence—tied to unique, severe, and ongoing harms—is essential.
• Integrate testimony with reports: If mental health is central, the respondent and witnesses should testify to it explicitly. Merely submitting a report, particularly with less severe diagnoses like “Adjustment Disorder, Unspecified,” may not carry the day without narrative integration and clinical detail (e.g., treatment history, functional impairment, prognosis, unavailability of services).
• Address the Calderon-Hernandez assumption: If a parent intends to take a qualifying child abroad, that should be clearly and credibly developed in evidence and briefing, with supporting country-conditions and medical-access proof; otherwise, the child’s continued presence in the U.S. will be assumed and will frame the hardship analysis.
• Medical control matters: Evidence of effective disease control (e.g., immunotherapy success, stable medication regimen, continued insurance) will weigh against exceptional hardship. Conversely, documented instability, systemic barriers to care, or a history of frequent crises can be determinative.
• Economic hardship usually insufficient: The routine financial and emotional disruptions of removal—even when acute—rarely meet the “exceptional and extremely unusual” threshold without additional, case-specific exacerbating factors.

C. Ongoing Deference Question

The First Circuit again flagged, but declined to resolve, the precise level of deference owed to BIA hardship determinations post-Wilkinson (abuse of discretion vs. substantial evidence for mixed questions). For practitioners, the immediate message is pragmatic: hardship denials will often be affirmed under either standard unless there is a clear legal misstep or a record inconsistency of the Contreras variety.

Complex Concepts Simplified

• Cancellation of Removal (INA § 240A(b)(1)): A discretionary form of relief allowing certain nonpermanent residents to remain in the U.S. if they meet statutory criteria, including showing their removal would cause “exceptional and extremely unusual hardship” to a qualifying relative (U.S.-citizen or LPR spouse, parent, or child).
• Exceptional and Extremely Unusual Hardship: A high threshold requiring hardship substantially beyond what is ordinarily expected from removal. Factors include the relative’s age, health, educational needs, country conditions, and access to care.
• Mixed Question of Law and Fact: An issue involving applying a legal standard to established facts. Post-Wilkinson, courts can review the application of the hardship standard, but they cannot re-find the facts (Patel).
• BIA’s Standard of Review: The BIA reviews IJ factual findings for “clear error” but applies legal standards (including hardship) de novo. Federal courts review the BIA’s legal application deferentially, and cannot revisit factual findings.
• “Ignored Evidence” Error: A legal error occurs if the BIA overlooks critical evidence or issues a conclusion that is facially inconsistent with unaddressed material. Mere brevity or lack of itemized discussion is not enough if the decision references the evidence and is consistent with it.
• Calderon-Hernandez Assumption: When one parent remains in the U.S. and is not in removal proceedings, the agency can assume a qualifying child will remain in the U.S., shaping the hardship analysis toward U.S.-based care and support.
• Voluntary Departure: An alternative form of relief allowing a noncitizen to depart at their own expense in lieu of a removal order, often with certain statutory prerequisites met.

Conclusion

Ortiz Trejo v. Bondi meaningfully refines two core aspects of cancellation-of-removal litigation. First, it narrows Contreras by emphasizing that the BIA does not “ignore” evidence when it acknowledges a report, references its contents, and issues a conclusion not facially inconsistent with it. Second, it reinforces the high bar for “exceptional and extremely unusual hardship,” particularly where medical conditions are controlled, access to care continues in the U.S., and the remaining parent provides support. Post-Wilkinson, appellate courts will examine the legal application of the hardship standard but will not revisit the IJ’s factual findings. For future cases, the decision underscores the importance of building a robust, clinically grounded record at the IJ level and of clearly aligning testimony with documentary evidence—especially on mental health—if the extraordinary hardship threshold is to be met.