“Between Substantial-Evidence and Clear-Error” – The Seventh Circuit’s Post-Wilkinson Roadmap for Reviewing Hardship Determinations

Introduction

Fidel Santos Mendoza, a long-time resident of Indiana who entered the United States without inspection in 2006, petitioned the Seventh Circuit to review the Board of Immigration Appeals’ (BIA) denial of his application for cancellation of removal. The sole disputed statutory prerequisite was whether his deportation would impose “exceptional and extremely unusual hardship” on his three U.S.-citizen children (8 U.S.C. §1229b(b)(1)(D)).

While the immigration judge (IJ) and the BIA acknowledged profound emotional and financial distress to the family, they concluded that the hardship was insufficient under the heightened statutory standard. Santos Mendoza argued that this conclusion misapplied the law and that the Seventh Circuit should review the BIA’s hardship analysis de novo.

The case presented two overarching questions:

1. Jurisdiction: After the Supreme Court’s 2024 decision in Wilkinson v. Garland, do Courts of Appeals possess jurisdiction to review the BIA’s application of the hardship standard?
2. Standard of Review: If jurisdiction exists, what level of appellate deference applies—substantial-evidence, clear-error, or something else?

Summary of the Judgment

The Seventh Circuit (Judges Hamilton, Lee, and Maldonado) held:

• Jurisdiction Affirmed: Under Wilkinson v. Garland, determining whether proven facts meet the hardship threshold is a mixed question of law and fact, hence reviewable as a “question of law” via 8 U.S.C. §1252(a)(2)(D).
• No Reversible Error: Even scrutinized under the most favorable potentially applicable standard (either substantial-evidence or clear-error), the IJ’s conclusion that hardship was not exceptional and extremely unusual must stand. Accordingly, the petition for review was DENIED.
• Standard of Review Left Open: The court declined to pick a side in the emerging circuit split (Third & Ninth Circuits = substantial-evidence; Second Circuit = clear-error), remarking that the practical difference is slight. The Seventh Circuit signaled, however, that some level of deferential review—short of de novo—is mandatory post-Wilkinson.

Detailed Analysis

Precedents Cited and Their Influence

1. Wilkinson v. Garland, 601 U.S. 209 (2024)
   
   The Supreme Court’s seminal pronouncement that applying the hardship standard is a quintessential mixed question of law and fact. It opened the appellate courthouse doors by categorizing such questions as reviewable “questions of law.” The Seventh Circuit leans heavily on this holding, rejecting the Government’s jurisdictional challenge.
2. Patel v. Garland, 596 U.S. 328 (2022)
   
   Clarified that pure factual disputes in cancellation cases are insulated from review by §1252(a)(2)(B). The panel distinguishes Santos Mendoza’s arguments that apply law to the established facts (reviewable) from impermissible efforts to relitigate the facts themselves.
3. Circuit post-Wilkinson cases:
   • Gonzalez-Juarez v. Bondi, 137 F.4th 996 (9th Cir. 2025)
   • Wilkinson v. Attorney General, 131 F.4th 134 (3d Cir. 2025)
   • Toalombo Yanez v. Bondi, 140 F.4th 35 (2d Cir. 2025)
   These opinions crystallized two camps (substantial-evidence vs. clear-error). The Seventh Circuit canvasses them but—echoing Judge Friendly’s wisdom—declines a “verbal formulation” battle when the outcome is the same here.
4. Seventh Circuit immigration precedents:
   • Cruz-Moyaho v. Holder, 703 F.3d 991 (7th Cir. 2012)
   • Martinez-Baez v. Wilkinson, 986 F.3d 966 (7th Cir. 2021)
   • Arreola-Ochoa v. Garland, 34 F.4th 603 (7th Cir. 2022)
   These earlier cases establish that (a) hardship findings are holistic; (b) the IJ must consider each qualifying relative individually; and (c) economic hardship alone rarely suffices. Judge Hamilton references them to validate the IJ’s framework.

Legal Reasoning

The court’s analysis proceeds in four logical steps:

1. Parsing Statutory Review Bars: §1252(a)(2)(B) bars factual/discretionary review, but §1252(a)(2)(D) permits review of questions of law. Post-Wilkinson, the mixed question at issue falls under the latter.
2. Choosing a Deferential Lens: Because determining how bad is bad enough requires contextual judgment, the Seventh Circuit reads Wilkinson to command “close engagement with the facts” and thus deference. Whether labelled “substantial evidence” or “clear error,” the approach is the same: overturn only when any rational adjudicator would have reached the opposite conclusion.
3. Applying Deference to the Record:
   • Emotional Hardship: The children’s recent anxiety diagnoses—without prior therapy, medication, or functional impairment—were deemed unfortunate but not atypical of families facing removals.
   • Economic Hardship: While Santos Mendoza is the primary earner ($3,600/mo. plus insurance), the IJ credited testimony that he could send remittances from Mexico and that Feliciana had demonstrated earning capacity despite lacking formal work authorization.
4. Outcome: Because a “reasonable adjudicator” could view the hardships as qualitatively ordinary, the petition fails under either deferential standard.

Potential Impact of the Decision

• Solidifies Post-Wilkinson Jurisdictional Path: Litigants can confidently raise legal-application challenges to hardship findings in the Seventh Circuit.
• Signals Heightened Deference: By refusing to pick a standard yet emphasizing their similarity, the court implicitly warns practitioners that reversing hardship determinations will remain rare.
• Contributes to Circuit Dialogue: The Seventh Circuit’s pragmatic stance may nudge other circuits toward acknowledging that the “label” debate has limited real-world consequences, possibly paving the way for an eventual consensus or Supreme Court clarification.
• Guidance for Immigration Judges: The opinion underscores the importance of individualized, fact-rich analyses—mere generalities expose decisions to de novo scrutiny for ignoring evidence.

Complex Concepts Simplified

Cancellation of Removal (§1229b(b))

A discretionary benefit allowing certain non-permanent residents to avoid deportation if they meet four statutory criteria, the toughest of which is showing exceptional and extremely unusual hardship to a U.S.-citizen or LPR spouse, parent, or child.

Exceptional and Extremely Unusual Hardship

A very high threshold, demanding hardship substantially beyond what families ordinarily suffer when a loved one is deported. Financial loss and emotional stress, though genuine, are generally insufficient unless accompanied by extraordinary circumstances (severe medical issues, special-needs children, etc.).

Substantial-Evidence Review

An appellate court must uphold the agency’s finding unless any reasonable fact-finder would be compelled to reach the opposite conclusion.

Clear-Error Review

The court may reverse only if it is left with the definite and firm conviction that an error has occurred. Functionally similar to substantial evidence, but traditionally applied to trial-court factual determinations.

Mixed Question of Law and Fact

A legal inquiry in which the fact pattern is settled, but the governing legal standard must be applied to determine the outcome.

Conclusion

The Seventh Circuit’s decision in Fidel Santos Mendoza v. Bondi cements two key propositions in immigration jurisprudence:

1. Post-Wilkinson, appellate courts have jurisdiction to examine whether established facts satisfy the “exceptional and extremely unusual hardship” standard.
2. That examination, however, is highly deferential—whether branded “substantial evidence” or “clear error,” reversal will occur only in extraordinary cases where the agency’s view is irrational.

Practically, applicants should marshal extraordinary evidence—severe medical diagnoses, documented special needs, or other truly atypical circumstances—to prevail on hardship grounds. Advocates must also ensure the IJ expressly addresses each piece of critical evidence; failure to do so provides one of the few viable openings for meaningful appellate review.

In the broader legal mosaic, Santos Mendoza advances the post-Wilkinson dialogue by illustrating that, notwithstanding semantic debates over standards of review, the controlling principle is deference. Only when the agency’s analysis ignores key evidence or defies reason will the Seventh Circuit intervene. This precedent therefore both preserves a judicial safety valve and reinforces Congress’s intent that cancellation of removal remain an “extraordinary discretionary remedy.”