Nonprecedential but Instructive: Rigorous Limits on Appellate Review of “Exceptional and Extremely Unusual Hardship” Findings in Cancellation of Removal

1. Introduction

Case: Zhunio Carchipulla v. Blanche, No. 24-3348 (2d Cir. Apr. 8, 2026).
Parties: Petitioners Flavia Matilde Zhunio Carchipulla and Jose Luciano Suqui Carchipulla (natives and citizens of Ecuador) sought review of a BIA decision affirming an IJ’s denial of their applications for cancellation of removal. The Respondent is the Acting Attorney General, Todd Blanche.
Core issue: Whether the agency erred in concluding that Petitioners failed to prove that removal would cause their three U.S.-citizen children “exceptional and extremely unusual hardship” under 8 U.S.C. § 1229b(b)(1)(D).

Petitioners grounded hardship primarily in (i) two daughters’ eczema (including asserted difficulty obtaining or affording treatment in Ecuador) and (ii) the children’s educational disruption upon relocation. The Second Circuit denied the petition, emphasizing that most of Petitioners’ objections targeted unreviewable factual determinations rather than reviewable legal errors.

2. Summary of the Opinion

The court reviewed the IJ’s decision “as supplemented by the BIA” and held that it lacked jurisdiction to reweigh the agency’s factual findings supporting the hardship determination. It rejected Petitioners’ attempts to repackage factual disagreements as legal error (e.g., claims that the agency “overlooked” evidence), invoking the presumption that IJs consider all evidence absent a compelling indication otherwise.

The court also acknowledged a developing question about the appellate standard of review for certain mixed questions, noting the Second Circuit’s recent approach in Toalombo Yanez v. Bondi and the Supreme Court’s subsequent guidance in Urias-Orellana v. Bondi. The panel ultimately declined to resolve whether Urias-Orellana alters Toalombo Yanez, concluding that Petitioners’ hardship arguments failed under either standard.

3. Analysis

A. Precedents Cited (and How They Shaped the Decision)

• Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005)
  Used for the methodological point that the court reviews the IJ’s decision as supplemented by the BIA. This frames the record and reasoning the panel evaluates without expanding the scope of review.
• Patel v. Garland, 596 U.S. 328 (2022)
  Anchors the jurisdictional limitation: denials of discretionary relief like cancellation are largely insulated from review, except for “constitutional claims and questions of law.” The opinion uses Patel to reinforce that hardship disputes often involve factfinding the court cannot revisit.
• Barco-Sandoval v. Gonzales, 516 F.3d 35 (2d Cir. 2008)
  Cited for the proposition that a “question of law” can arise when the agency applies the wrong legal standard. The panel invokes it to distinguish true legal error from disagreements with factfinding or evidentiary weight.
• Mendez v. Holder, 566 F.3d 316 (2d Cir. 2009) (per curiam)
  Provides the key “overlooked evidence” framework: a legal question may exist if the agency “overlook[s]” relevant evidence or “seriously mischaracterize[s]” the record. Critically, the court uses Mendez to reject the idea that imperfect discussion or failure to mention every item is automatically legal error.
• Wilkinson v. Garland, 601 U.S. 209 (2024)
  Performs two functions:
  1. Affirms that applying the hardship standard to established facts can be a reviewable question of law.
  2. Draws a bright line that underlying factual findings (e.g., seriousness of a medical condition) are unreviewable.
  The panel relies on Wilkinson to classify the IJ’s assessment of the eczema evidence as quintessential factfinding.
• Penaranda Arevalo v. Bondi, 130 F.4th 325 (2d Cir. 2025)
  Cited in accord with Wilkinson to reinforce that factual findings underlying hardship are beyond the court’s power to reexamine.
• Paucar v. Garland, 84 F.4th 71 (2d Cir. 2023)
  Supplies the standard of review for reviewable issues: “constitutional claims and questions of law” are reviewed de novo. The court then juxtaposes this with the deference given to factual determinations.
• Toalombo Yanez v. Bondi, 140 F.4th 35 (2d Cir. 2025)
  The panel notes the Second Circuit’s “recent” holding that mixed questions regarding the hardship determination are reviewed for clear error. The court’s discussion signals an unsettled doctrinal area after subsequent Supreme Court authority—but it avoids deciding the point.
• Urias-Orellana v. Bondi, 146 S. Ct. 845 (2026)
  Introduced as potentially relevant Supreme Court guidance on reviewing “application of law to fact” questions (in the asylum persecution context), indicating both factfinding and law-to-fact application are reviewed for substantial evidence. The panel flags possible implications for Toalombo Yanez but holds the petition fails regardless of whether clear error or substantial evidence applies.
• In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (B.I.A. 2001)
  This is the substantive benchmark for “exceptional and extremely unusual hardship.” The panel uses it to:
  • Define the hardship threshold as “substantially beyond” ordinary hardship.
  • Identify relevant hardship factors (age, health, circumstances) and caution that country conditions and lower living standards are generally insufficient alone.
  • Require assessment of hardship “in the aggregate.”
  • Acknowledge that “compelling special needs in school” may qualify—thus framing Petitioners’ education argument as potentially relevant but fact-dependent.
• Xiao Ji Chen v. U.S. Dep't of Just., 471 F.3d 315 (2d Cir. 2006)
  Supplies a powerful evidentiary presumption: absent a compelling indication otherwise, the IJ is presumed to have considered all evidence. The court uses this to reject Petitioners’ “overlooked evidence” narrative, especially where the IJ referenced medical records and country conditions evidence.
• Burger v. Gonzales, 498 F.3d 131 (2d Cir. 2007)
  Used to dispose of the due process claim: Petitioners did not show they were denied a “full and fair opportunity” to present claims or that proceedings lacked fundamental fairness. The court treats the due process argument as a repackaged disagreement with the hardship evaluation.

B. Legal Reasoning

1) Jurisdictional gatekeeping: law vs. fact. The panel begins with the statutory limitation on reviewing cancellation denials (8 U.S.C. § 1252(a)(2)(B)(i), (D)) and then operationalizes it by sorting arguments into:

• Reviewable: application of the hardship standard to established facts (a “question of law” under Wilkinson v. Garland), wrong legal standard (Barco-Sandoval v. Gonzales), or true record-overlooking/serious mischaracterization (Mendez v. Holder).
• Unreviewable: the agency’s underlying factual findings—e.g., how severe a medical condition is and what treatment is required (Wilkinson v. Garland; Penaranda Arevalo v. Bondi).

2) Medical hardship (eczema): treated as factfinding. The IJ found the severity “unclear,” described eczema as “not an uncommon condition,” and concluded there was “insufficient evidence” that medication was especially expensive or unavailable in Ecuador. The Second Circuit characterizes this as quintessential factfinding that it cannot revisit. Attempting to restyle the dispute as “legal error,” Petitioners argued the IJ overlooked evidence. The court rejected that reframing because:

• The IJ explicitly referenced both country conditions evidence and medical records (triggering the Xiao Ji Chen v. U.S. Dep't of Just. presumption).
• The cited materials did not compellingly establish what Petitioners needed them to establish (availability/cost of eczema medication in Ecuador), and the records showed management often with over-the-counter ointments and occasional prescription steroids.
• Under Mendez v. Holder, the agency does not commit legal error merely by failing to explicitly discuss every piece of evidence or by describing it imperfectly.

3) Educational hardship: considered, but found not exceptional. Petitioners argued the agency failed to consider educational impact. The panel pointed to the IJ’s express discussion of cultural, language, and educational-system differences and the IJ’s findings that the children had parental/familial support and no learning or mental health disabilities (despite a psychologist’s letter). Because these are factual determinations, the court found no reviewable legal defect and no basis to overturn the outcome under either clear-error (Toalombo Yanez v. Bondi) or substantial-evidence (Urias-Orellana v. Bondi) framing.

4) Aggregate-hardship and due process: conclusory claims rejected. The panel disposed of Petitioners’ “aggregate” argument by noting they did not identify additional overlooked factors beyond those already discussed, and the IJ’s reasoning indicated an overall/combined assessment. It similarly rejected the due process claim under Burger v. Gonzales because Petitioners did not show denial of a full and fair opportunity or fundamental unfairness.

C. Impact

Although nonprecedential, the order is practically significant for cancellation-of-removal litigation in the Second Circuit in three ways:

• It underscores what “reviewability” requires. Petitioners must do more than argue the IJ “should have weighed” medical or educational evidence differently. To invoke jurisdiction, they must identify a genuine legal defect: wrong standard, failure to consider hardship in the aggregate in any meaningful sense, or a compellingly demonstrable overlooking/serious mischaracterization of evidence.
• It highlights evidentiary specificity for medical-hardship claims. General country conditions evidence, without a direct link to the child’s diagnosis and the availability/cost of the needed medication/treatment, is unlikely to transform hardship factfinding into a reviewable legal issue.
• It signals (without resolving) an evolving standard-of-review question. By juxtaposing Toalombo Yanez v. Bondi (clear error for mixed hardship questions) with Urias-Orellana v. Bondi (substantial evidence for law-to-fact application in asylum persecution), the panel flags doctrinal instability. Future litigants may press whether hardship “application” questions should align with substantial-evidence review.

4. Complex Concepts Simplified

• Cancellation of removal (non-LPR) and hardship. Under 8 U.S.C. § 1229b(b)(1)(D), an applicant must show removal would cause a qualifying relative (here, U.S.-citizen children) “exceptional and extremely unusual hardship”—a demanding standard, “substantially beyond” ordinary family-separation hardships (In re Monreal-Aguinaga).
• “Question of law” vs. “fact.” Appellate courts can review legal standards and certain legal-characterization errors (e.g., applying the wrong test), but typically cannot re-decide whether a child’s eczema is “severe” or whether evidence proves medication is unavailable—those are factual determinations.
• “Overlooked evidence” as legal error. Under Mendez v. Holder, an “overlooked evidence” claim becomes reviewable only when the omission is serious—i.e., the agency truly ignored material evidence or gravely mischaracterized the record. Under Xiao Ji Chen v. U.S. Dep't of Just., courts presume the IJ considered all evidence unless the record compellingly suggests otherwise.
• Clear error vs. substantial evidence.
  • Clear error (as described in Toalombo Yanez v. Bondi) is highly deferential; reversal requires a “definite and firm conviction” a mistake occurred.
  • Substantial evidence (as stated in Urias-Orellana v. Bondi) is also deferential; reversal requires that any reasonable adjudicator would be compelled to reach the opposite conclusion.
  The panel’s key move was to say Petitioners lose under either.
• Due process in removal proceedings. Under Burger v. Gonzales, a due process claim requires showing denial of a full and fair opportunity to present the case or fundamental unfairness—not merely that the IJ ruled against the applicant.

5. Conclusion

The Second Circuit denied review because Petitioners’ hardship arguments largely challenged unreviewable factual findings about medical severity, treatment availability, and educational adaptation. The court found no legal error: the IJ referenced the relevant categories of evidence, did not overlook or seriously mischaracterize the record, and evaluated the claimed hardships in a way consistent with In re Monreal-Aguinaga. The panel also treated the due process claim as an unsupported reframing of the merits dispute.

The decision’s broader significance lies in its disciplined policing of the law–fact boundary in cancellation hardship litigation and its subtle acknowledgment that the proper standard for reviewing mixed law-to-fact questions may be in flux after Urias-Orellana v. Bondi, even though the outcome here did not require resolving that doctrinal question.