No Country-Conditions Hardship When Children Remain in the U.S.: The Third Circuit’s Post‑Wilkinson Roadmap for Reviewing Cancellation of Removal and Enforcing Exhaustion

Introduction

In Edin Samuel Rivera Rivera v. Attorney General United States of America (3d Cir. Sept. 11, 2025), a non‑precedential opinion authored by Judge McKee, the Third Circuit dismissed in part and denied in part a petition for review challenging the Board of Immigration Appeals’ (BIA) affirmance of the denial of non‑LPR cancellation of removal under 8 U.S.C. § 1229b(b)(1). The case sits at the intersection of two major, recent Supreme Court and Third Circuit developments: the scope of judicial review after Wilkinson v. Garland, 601 U.S. 209 (2024), and the enforcement of issue exhaustion after Santos‑Zacaria v. Garland, 598 U.S. 411 (2023).

The court reiterates three central points:

Appellate jurisdiction in cancellation cases extends to questions of law and mixed questions of law and fact, but not to factual findings or discretionary determinations (8 U.S.C. § 1252(a)(2)(D) and (a)(2)(B)(i)).
Exhaustion is a mandatory claims‑processing rule that will be enforced when the government properly raises it, including for due process claims that assert procedural errors correctable by the BIA.
To satisfy the “exceptional and extremely unusual hardship” standard, the hardship must be assessed in the qualifying relatives’ actual circumstances: where the record shows the children will remain in the United States, foreign country conditions do not supply the hardship.

The petitioner argued that his removal to Guatemala would cause exceptional hardship to his U.S.-citizen children. The Immigration Judge (IJ) and BIA disagreed. On review, the Third Circuit enforced exhaustion against several arguments raised for the first time and upheld the agency’s hardship determination under the substantial evidence standard clarified by the Third Circuit in 2025.

Summary of the Opinion

The Third Circuit:

Dismissed for lack of jurisdiction challenges to the IJ’s factual findings and discretionary determinations, because § 1252(a)(2)(B)(i) bars review of such issues in cancellation cases and the Supreme Court’s Wilkinson preserves only legal/mixed questions for review.
Dismissed for failure to exhaust several arguments not presented to the BIA, including (i) gender/age-specific risks to the daughter in Guatemala, (ii) gang recruitment risks to both children, (iii) the son’s prior therapy needs potentially reemerging, and (iv) claims that the IJ improperly curtailed questioning during the merits hearing.
Denied on the merits the remaining reviewable arguments, holding that substantial evidence supported the agency’s finding that the qualifying children would not face “exceptional and extremely unusual hardship” if the petitioner were removed to Guatemala.

Two aspects of the merits are particularly important:

Because the IJ found no evidence that the children would relocate to Guatemala, conditions there were not a source of hardship.
Even assuming hypothetical relocation, the record showed, at most, diminished educational and economic opportunities—insufficient, standing alone, to meet the “exceptional and extremely unusual hardship” threshold.

Analysis

Precedents Cited and Their Influence

Wilkinson v. Garland, 601 U.S. 209 (2024). The Supreme Court clarified that courts may review legal and mixed questions underlying cancellation of removal determinations under 8 U.S.C. § 1252(a)(2)(D). This opinion relies on Wilkinson to frame jurisdiction: mixed questions are reviewable; factual and discretionary components are not. The Third Circuit’s opinion thus channels hardship challenges into a narrow, legally focused lane.
8 U.S.C. § 1252(a)(2)(B)(i). The statutory bar to reviewing discretionary decisions remains a central limiting principle. The court cites it, along with Wilkinson, to exclude review of factual findings and discretionary determinations in cancellation cases.
Wilkinson v. Att’y Gen., 131 F.4th 134 (3d Cir. 2025). Building on the Supreme Court’s decision, the Third Circuit held that hardship determinations are reviewed for “substantial evidence.” This opinion applies that deferential standard and cites Wilkinson (3d Cir.) for a key substantive point: when a qualifying child remains in the United States, the availability or quality of care in the country of removal is immaterial to hardship.
Santos‑Zacaria v. Garland, 598 U.S. 411 (2023) and Aguilar v. Att’y Gen., 107 F.4th 164 (3d Cir. 2024). Santos‑Zacaria held that § 1252(d)(1)’s exhaustion requirement is non‑jurisdictional but mandatory. Aguilar explains that the Third Circuit will enforce exhaustion when the government properly invokes it. The court uses these to dismiss unexhausted arguments and to explain why it nevertheless reached one unexhausted claim where the government did not raise exhaustion.
Khan v. Att’y Gen., 448 F.3d 226 (3d Cir. 2006) and Sewak v. INS, 900 F.2d 667 (3d Cir. 1990). These decisions distinguish due process claims that require exhaustion—those resting on procedural errors correctable by the agency. The court applies this to hold that the petitioner’s IJ‑limitation claim had to be presented to the BIA.
Pareja v. Att’y Gen., 615 F.3d 180 (3d Cir. 2010). Cited for the remedy framework: issues over which jurisdiction is lacking are dismissed; issues reached on the merits are granted or denied.
BIA hardship precedents:
- In re Monreal‑Aguinaga, 23 I. & N. Dec. 56 (B.I.A. 2001): Exceptional and extremely unusual hardship requires hardship substantially beyond what is typically expected when a family member departs the U.S.
- In re Andazola‑Rivas, 23 I. & N. Dec. 319 (B.I.A. 2002): Diminished educational opportunity, standing alone, is insufficient.
- In re J‑J‑G‑, 27 I. & N. Dec. 808 (B.I.A. 2020): For health‑based hardship, the applicant must show a serious medical condition and, if departure is contemplated, lack of adequate care in the country of removal.

Legal Reasoning

1) Jurisdictional Gatekeeping After Wilkinson

The court reaffirmed that it has jurisdiction over questions of law and mixed questions of law and fact (8 U.S.C. §§ 1252(a)(1), (a)(2)(D)), but not over purely factual or discretionary determinations (8 U.S.C. § 1252(a)(2)(B)(i)). In the cancellation context, this divides reviewable “hardship” challenges (e.g., misapplication of the legal standard) from unreviewable factual weighing. The court thus dismissed challenges that attempted to re‑litigate factfinding or discretionary weighing by the IJ or BIA.

2) Exhaustion as a Mandatory Claims‑Processing Rule

Relying on Santos‑Zacaria and Aguilar, the court enforced the exhaustion requirement against arguments not raised before the BIA: gender‑specific vulnerability of the daughter, gang recruitment dangers, the son’s prior therapy needs potentially reemerging, and alleged IJ limitations on questioning. Although due process claims can sometimes bypass exhaustion, the court emphasized that a claim alleging an IJ’s procedural limitation is the kind of “procedural error correctable through the administrative process” and must be presented to the BIA first.

Notably, the government did not invoke exhaustion as to a “language barrier” hardship theory, so the court considered it on the merits—illustrating that exhaustion, while mandatory, is waivable or forfeitable if the government does not press it.

3) Substantive Hardship Analysis Under Substantial Evidence Review

Applying substantial evidence review, the court upheld the agency’s determination that the petitioner failed to carry his burden on the “exceptional and extremely unusual hardship” requirement. Key points:

No relocation finding: The IJ found no evidence the U.S.-citizen children would relocate to Guatemala; accordingly, Guatemalan country conditions were not a basis for hardship. This aligns with the Third Circuit’s 2025 Wilkinson decision: if qualifying relatives remain in the U.S., conditions in the country of removal are immaterial.
Even assuming relocation: The record did not show hardships beyond those inherent in moving to a country with a lower standard of living—insufficient under Monreal‑Aguinaga.
Education: Neither child had documented educational challenges; diminished opportunities abroad, standing alone, do not satisfy the standard (Andazola‑Rivas).
Health: The son’s prior therapy ended four to five years earlier. Without a current, serious medical condition or evidence of lack of adequate care abroad, health‑based hardship was not established (J‑J‑G‑).
Language barriers: The record contained no supporting factual findings that either child faced a language barrier.
Financial hardship: The IJ found no evidence the petitioner would be unable to earn income from Guatemala to support the family. A lower standard of living or generalized financial strain does not reach the statutory threshold.

The court also explained why the due process challenge would fail even if not exhausted: the curtailed lines of questioning (education plans, expectations about Guatemalan jobs, support to non‑U.S. relatives) did not bear on the core hardship issue to qualifying relatives, and when the IJ sought a foundation and relevance, counsel elected to “rest on the record.” In short, there was no deprivation of a full and fair hearing on material issues.

Impact

Although non‑precedential, the opinion is instructive in several respects and reflects the Third Circuit’s post‑Wilkinson trajectory:

Hardship must track actual circumstances. If the record shows the qualifying children will remain in the United States, advocates should focus on U.S.‑based consequences (e.g., caregiving disruptions, special education needs, medical continuity, psychological impact supported by expert evidence, loss of essential support) rather than country‑conditions evidence from the country of removal.
Exhaustion is policed. Practitioners must present all material hardship theories to the IJ and BIA, including specific risks (gender‑based violence, gang recruitment), medical/psychological evidence, and procedural objections. The government’s strategic invocation of exhaustion can—and often will—foreclose new arguments on petition for review.
Substantial evidence review is deferential. Given the Third Circuit’s adoption of substantial evidence as the standard for reviewing the ultimate hardship determination, petitioners face an uphill battle unless the record clearly compels the opposite result.
Procedural claims require preservation. Alleged IJ errors that could be corrected administratively (e.g., limitations on questioning) should be contemporaneously explained with offers of proof and then raised to the BIA. Counsel’s decision to “rest on the record” here proved fatal both to preservation and to any later claim of prejudice.
Financial and educational impacts need more. Standing alone, evidence of lower economic conditions or inferior schooling abroad rarely suffices. The best‑supported cases marshal individualized, corroborated impacts that rise well above generalized consequences of removal.

Complex Concepts Simplified

Cancellation of removal (non‑LPR): A discretionary form of relief allowing certain non‑permanent residents to avoid removal if they meet statutory requirements, including 10 years’ continuous presence, good moral character, lack of disqualifying offenses, and—most demanding—showing that removal would cause “exceptional and extremely unusual hardship” to a qualifying U.S. relative (spouse, parent, or child).
Exceptional and extremely unusual hardship: A high bar set by the BIA, requiring hardship substantially beyond the ordinary effects of family separation or relocation. General economic decline or typical educational disadvantages are not enough.
Mixed question of law and fact: An issue requiring application of a legal standard to established facts. After Wilkinson (2024), courts may review these in cancellation cases under § 1252(a)(2)(D).
Substantial evidence review: A deferential standard asking whether a reasonable factfinder could have reached the agency’s conclusion on the record; the court does not reweigh evidence or substitute its judgment for the agency’s.
Exhaustion (8 U.S.C. § 1252(d)(1)): Petitioners must present their arguments to the BIA before seeking judicial review. This rule is mandatory but non‑jurisdictional; courts enforce it when the government raises it. Even some due process claims must be exhausted if the alleged error could be corrected by the agency.
Non‑precedential opinion: Under Third Circuit I.O.P. 5.7, the decision does not bind future panels. Nonetheless, it signals how the court applies recent Supreme Court and circuit authority in routine cancellation disputes.

Practice Pointers

Build the record on relocation: Clarify whether qualifying relatives will remain in the U.S. or relocate. If they will remain, focus evidence on U.S.‑based hardships; if relocation is likely, document the specific, individualized harms abroad, including access to care, safety, and schooling.
Corroborate health and education claims: Use current diagnoses, treatment notes, expert evaluations, individualized educational plans (IEPs), and concrete evidence of service availability (or lack thereof).
Financial hardship needs specificity: Go beyond general cost‑of‑living differences. Show indispensability of the petitioner’s income or caregiving, unique financial obligations, or proof of inability to earn from abroad.
Preserve procedural issues: If questioning is limited, articulate relevance, make an offer of proof, and request to supplement the record. Raise the issue in the BIA appeal.
Exhaust every material theory: Present all hardship dimensions (gender‑based risks, gang threats, language barriers, mental health) to the BIA. Do not assume the court will overlook forfeiture.

Conclusion

Rivera Rivera reinforces the post‑Wilkinson architecture of appellate review in cancellation cases: courts may police application of the legal standard, but not reweigh facts or revisit discretion; exhaustion is strictly enforced when asserted by the government; and hardship must be proven in the qualifying relatives’ actual circumstances—country‑conditions evidence is irrelevant if the children will remain in the United States. The opinion further illustrates the enduring rigor of the BIA’s hardship precedents: generalized economic and educational disadvantages, without more, will not suffice. For practitioners, the case underscores a familiar but vital lesson—build a meticulous, individualized, and fully exhausted record, or expect the substantial evidence standard to carry the day for the agency.