Introduction

This commentary examines the Sixth Circuit’s unpublished decision in Elva Trinidad-Contreras v. Pamela Bondi, No. 22-3352 (6th Cir. Sept. 25, 2025), addressing the denial of cancellation of removal under 8 U.S.C. § 1229b(b)(1). Petitioner, a Mexican national who entered the United States without admission in 2003, sought relief based on the alleged “exceptional and extremely unusual hardship” her removal would cause to her two U.S.-citizen sons (then ages eight and five). The Immigration Judge (IJ) denied relief after a hearing; the Board of Immigration Appeals (BIA) affirmed; and the petitioner sought review in the Sixth Circuit.

The appeal centered on two key issues:

• The scope of appellate jurisdiction and the standard of review after the Supreme Court’s decision in Wilkinson v. Garland (2024), which held that application of the statutory hardship standard is a reviewable mixed question but insisted on a deferential posture and preserved the bar on reviewing underlying factual findings.
• Whether, on this record, the agency legally erred in concluding that the petitioner’s removal would not cause “exceptional and extremely unusual hardship” to her qualifying relatives, including arguments about economic, educational, cultural, and medical impacts, and whether factors such as the number of children and the petitioner’s choice not to seek voluntary departure could be considered.

Writing for a panel that included Judges Thapar, Readler, and Hermandorfer, Judge Hermandorfer dismissed the petition to the extent it raised factual challenges and otherwise denied it, finding no legal error in the agency’s analysis.

Summary of the Opinion

• Jurisdiction and standard of review: The court reiterated that it has jurisdiction to review questions of law and constitutional claims, including mixed questions (like the application of the hardship standard), but not underlying factual findings (including credibility, medical severity, or the level and likelihood of financial support). The court noted inter-circuit debate about the exact degree of deference post-Wilkinson but declined to decide, concluding that petitioner loses under any deferential standard.
• Totality-of-circumstances: The IJ and BIA properly considered all relevant hardship factors, including economic prospects in Mexico, the father’s history of financial support, family ties in Mexico, the children’s Spanish language ability, educational considerations, and routine medical needs. The court held it was permissible to consider the number of qualifying children as part of the totality, and that the agency did not overweigh this factor.
• “Future impact” was addressed: The court rejected the argument that the agency ignored future effects on the children, emphasizing the record’s detailed treatment of financial, educational, and medical issues over time. To the extent petitioner disagreed with the agency’s predictive factual assessments, those disputes were unreviewable.
• Voluntary departure cannot be used to manufacture future hardship: The petitioner declined voluntary departure despite the IJ and the government being amenable. The court held she cannot “bootstrap” the self-created 10-year reentry bar into a future-hardship argument.
• Outcome: Petition dismissed in part (unreviewable factual contentions) and denied in part (no legal error in the application of the hardship standard).

Analysis

Precedents Cited and Their Role

The decision is grounded in a now-familiar post-Wilkinson framework that distinguishes between legal questions (reviewable) and factual findings (not reviewable) in cancellation-of-removal hardship determinations:

• Wilkinson v. Garland, 601 U.S. 209 (2024): The Supreme Court clarified that applying the “exceptional and extremely unusual hardship” standard to established facts is a reviewable mixed question of law and fact, but emphasized deference and drew a sharp boundary around unreviewable factual findings (including credibility and predictive judgments). The Sixth Circuit leans on Wilkinson to dismiss factual challenges concerning the father’s likely continued support and the gravity of the children’s medical needs.
• Singh v. Rosen, 984 F.3d 1142 (6th Cir. 2021): The court cites Singh for both jurisdictional limits (“factual disputes cloaked as legal questions” are not reviewable) and the requirement that IJs consider relevant hardship factors in totality. The opinion also references Singh’s observation that deprivation of education must be extreme (such as complete denial), not merely diminished quality.
• Moctezuma-Reyes v. Garland, 124 F.4th 416 (6th Cir. 2024): This Sixth Circuit decision supplies two key principles: (1) hardship in cancellation cases must be significantly greater than the baseline hardships that invariably accompany removal; and (2) “differences in degree can be differences in kind,” validating the IJ’s use of number of children as a real-world factor in assessing severity under the totality framework.
• Harmon v. Holder, 758 F.3d 728 (6th Cir. 2014) and Diaz-Roblero v. Garland, 2024 WL 3596873 (6th Cir. 2024): These cases support the practice of reviewing both the BIA and IJ decisions where the BIA adopts or substantially echoes the IJ’s reasoning.
• Galvez-Bravo v. Garland, 119 F.4th 1038 (6th Cir. 2024): Reinforces the statute’s jurisdictional limits; the court cannot review the agency’s factual determinations under 8 U.S.C. § 1252(a)(2)(D).
• In re Recinas, 23 I. & N. Dec. 467 (BIA 2002): A leading BIA grant of cancellation often cited by applicants. Here, Recinas serves as a comparator that the IJ distinguished based on multiple factors: fewer children, an available family home in Mexico, ongoing financial support from the father, and the petitioner’s employability.
• Araujo-Padilla v. Garland, 854 F. App’x 646 (6th Cir. 2021): Cited for the proposition that an alien’s litigation choices (such as declining voluntary departure) cannot later be repackaged as grounds for future hardship.
• Rodriguez-Salas v. Garland, 849 F. App’x 582 (6th Cir. 2021) and Tolentino-Hernandez v. Garland, 2021 WL 4782689 (6th Cir. 2021): Unpublished Sixth Circuit decisions illustrating how employability and available housing in the country of removal cut against claims of exceptional hardship, and how language proficiency reduces the weight of cultural-transition arguments.
• Pinales-Salas v. Garland, 2024 WL 1510662 (6th Cir. 2024): Confirms that medical hardship must involve very serious conditions or unavailable necessary treatments; routine conditions and accessible care do not typically meet the elevated threshold.
• Inter-circuit standards of review after Wilkinson: The opinion surveys an evolving split—Third, Ninth, and Eleventh Circuits apply substantial evidence; the Second applies clear error; the Sixth (and some others) have not yet committed (citing Ceniceros v. Bondi, 2025 WL 1012712 (6th Cir. 2025)). The court sidesteps choosing by holding the outcome is the same under any deferential standard.

Legal Reasoning

The Sixth Circuit’s reasoning proceeds in three layers: jurisdictional gatekeeping, evaluation of alleged legal errors, and confirmation that the agency’s application of the law to the facts withstands deferential review.

1. Jurisdiction and deference
   • Under 8 U.S.C. § 1252(a)(2)(D), the court may review constitutional claims and questions of law, including mixed questions. Wilkinson confirms that applying the hardship standard is a mixed question, but emphasizes deference to the agency’s application and preserves the bar on reviewing factual findings. The court identifies several of petitioner’s arguments as factual—e.g., whether the father would continue financial support, the magnitude of economic dislocation, and the seriousness of the sons’ medical needs—and dismisses them for lack of jurisdiction.
   • Although the exact deferential standard remains undecided in the Sixth Circuit post-Wilkinson, the court underscores that petitioner cannot prevail even under the least deferential of the options currently used by sister circuits.
2. Totality-of-circumstances and proper factors
   • Number of children: The court rejects the claim that the IJ legally erred by noting that petitioner had fewer children than the successful applicant in Recinas. Because the statutory analysis requires consideration of “all relevant factors in their totality,” the number of dependents is relevant to how burdens fall on a family. The court cites Moctezuma-Reyes for the proposition that differences in degree can matter.
   • “Failure to discuss” future impacts: The court finds the agency did engage with the forward-looking implications for the children, including financial, educational, and medical needs over time. To the extent petitioner’s complaint is that the agency reached the wrong factual conclusions about those future impacts, those are non-reviewable factual disputes.
   • Voluntary departure and future hardship: The IJ and the government offered voluntary departure, which petitioner declined. The court reasons that she cannot convert the resulting 10-year reentry bar into a hardship feature—this would allow a self-created impediment to manufacture statutory hardship. The court also notes the BIA’s conclusion that other grounds independently supported denial, regardless of this point.
3. Application of the hardship standard to this record
   • Economic hardship: The IJ emphasized petitioner’s work history (agriculture and housekeeping) and transferable skills, the immediate availability of housing with her mother in Cuernavaca, and a long, consistent history of voluntary support from the children’s father ($400/week “almost since they were born”). These considerations suggested financial downturns would be real but typical of removal, not exceptional. Challenges to the predictive finding that the father would continue support are factual and unreviewable; the IJ’s doubts about petitioner’s candor on this point were likewise credibility determinations outside appellate review.
   • Educational hardship: The court reiterates that reduced educational opportunities are common consequences of removal and, without evidence of deprivation of schooling or extraordinary educational needs, do not meet the “exceptional and extremely unusual” threshold. The boys’ U.S. citizenship also preserves future access to U.S. education.
   • Cultural/linguistic hardship: While an adjustment period is expected, both children’s Spanish proficiency (confirmed by the older child testifying in Spanish) mitigates cultural-transition burdens. Such difficulties are typical and not unusually severe.
   • Medical hardship: The children’s vision issues—correctable with glasses, with access to periodic optometry care in Mexico (even if requiring travel)—are routine and do not reflect the kind of serious or untreatable conditions that can elevate hardship.

Impact

Although marked “not recommended for publication,” the decision is instructive and consistent with the Sixth Circuit’s published framework (e.g., Moctezuma-Reyes) and the Supreme Court’s guidance in Wilkinson. Key impacts include:

• Reaffirmed jurisdictional boundary: Practitioners should expect the Sixth Circuit to dismiss arguments that contest credibility, the weight of evidence, or predictive findings (e.g., whether support will continue) as unreviewable facts, even when couched as “failure to consider” claims. The safer terrain for review remains legal misapplications—misstating the standard, ignoring required factors, or applying impermissible considerations.
• Number of qualifying relatives matters: This opinion confirms that the IJ may consider the number of children in the totality analysis without committing legal error or “over-counting,” especially when used in concert with other factors (support from the other parent, employability, and available housing in the destination country).
• Voluntary departure strategy: Where available, voluntary departure can be a critical strategic choice. Declining it may foreclose future pathways and, per this decision, cannot later be invoked to bolster “future hardship.” Counsel should advise clients about the downstream legal consequences of declining voluntary departure.
• Building a record of extraordinary hardship: To surmount the very high hardship threshold, petitioners must provide evidence of truly exceptional circumstances, such as:
  • Medical conditions of unusual severity backed by medical records and proof of unavailability of comparable treatment post-removal.
  • Educational needs that are compelling and individualized (e.g., special education services that are unavailable in the destination country), supported by expert reports and school documentation.
  • Documented inability of the other parent to provide support, rather than uncertainty about immigration status; corroboration is critical.
  • Concrete evidence of lack of housing, absence of family support, or non-transferability of employment skills, supported by country-conditions evidence and expert declarations.
• Standard-of-review watch: The Sixth Circuit again declines to pick between substantial evidence and clear error for mixed questions post-Wilkinson, noting a split among sister circuits. Litigants should preserve arguments under both formulations and be prepared to satisfy a highly deferential review in practice.

Complex Concepts Simplified

• Cancellation of removal (nonpermanent residents): A discretionary form of relief for certain noncitizens who have been in the U.S. for at least ten years, have good moral character, lack disqualifying convictions, and can prove that removing them would cause “exceptional and extremely unusual hardship” to a qualifying U.S.-citizen or LPR relative (spouse, parent, or child). The hardship standard is deliberately rigorous; ordinary hardships of family separation or economic disruption usually do not suffice.
• “Exceptional and extremely unusual hardship”: Not defined in detail by statute, but courts and the BIA consistently require hardship far above the baseline consequences of removal. Think of it as a “rare” safety valve reserved for uniquely dire circumstances.
• Mixed question versus fact question: A “mixed question” asks whether the established facts meet a legal standard (reviewable with deference); a pure “fact question” concerns what actually happened or what is likely to happen (unreviewable here). Post-Wilkinson, applying the hardship standard is a mixed question, but embedded factual determinations remain off-limits.
• Standards of review in play: “Substantial evidence” asks whether a reasonable factfinder could reach the agency’s conclusion; “clear error” asks whether the finding is left with a firm conviction of mistake. The Sixth Circuit currently says the review is deferential either way and has not chosen between these labels for mixed questions after Wilkinson.
• Voluntary departure: A form of relief allowing a noncitizen to leave the U.S. at their own expense within a set period. It can avoid certain bars or penalties associated with a removal order. Declining voluntary departure may intensify future immigration hurdles, and, per this case, those consequences cannot be leveraged later to prove “future hardship.”
• Unpublished decisions: Labeled “not recommended for publication,” such opinions are typically nonprecedential in the Sixth Circuit but can be persuasive, particularly when they harmonize with published circuit and Supreme Court authority.

Conclusion

Elva Trinidad-Contreras v. Bondi reinforces the post-Wilkinson architecture governing cancellation-of-removal appeals in the Sixth Circuit. The court:

• Polices the jurisdictional line between reviewable mixed questions and unreviewable factual findings, dismissing attempts to repackage factual disagreements as legal error.
• Affirms that in a totality-of-circumstances analysis, the number of children can legitimately bear on whether hardships surpass the statutory threshold, especially alongside other real-world factors like employability, existing family support, and language ability.
• Reminds petitioners that voluntary departure decisions have legal ramifications that cannot later be used to manufacture hardship.

While unpublished, the decision is of practical significance: it signals continuity in the Sixth Circuit’s demanding approach to “exceptional and extremely unusual hardship,” and it offers clear guidance on how to frame reviewable legal issues. For future litigants, success will depend on developing robust, corroborated records demonstrating extraordinary, individualized hardships that are meaningfully different from those that accompany most removals.