Tenth Circuit: Hardship Review Is Deferential, and Cancellation Appeals Cannot Recast Fact Disputes as Legal Error

1. Introduction

In Hernandez Hernandez v. Blanche (10th Cir. Sept. 4, 2026) (unpublished Order and Judgment), Julio Cesar Hernandez Hernandez (“Mr. Hernandez”), a Mexican citizen who has lived in the United States since 2000, petitioned for review under 8 U.S.C. § 1252 after the Board of Immigration Appeals (BIA) affirmed—without opinion—an immigration judge’s (IJ’s) denial of his application for cancellation of removal under 8 U.S.C. § 1229b(b).

The central issue was the fourth statutory eligibility element: whether Mr. Hernandez proved that his removal would cause “exceptional and extremely unusual hardship” to his minor U.S.-citizen son. The son, who lived with his mother and stepfamily, had diagnoses of ADHD and anxiety that were described as well-managed with infrequent therapy and a structured school environment. Mr. Hernandez emphasized emotional and financial disruption if removed.

The Tenth Circuit denied the petition, reinforcing a now-familiar appellate boundary in cancellation cases: courts may review legal questions and the application of the hardship standard to established facts, but they may not reweigh evidence or revisit agency fact-finding.

2. Summary of the Opinion

Because the BIA affirmed without opinion, the court treated the IJ’s decision as the final order of removal, citing Uanreroro v. Gonzales and 8 C.F.R. § 1003.1(e)(4)(ii).

Applying the Supreme Court’s framework in Wilkinson v. Garland, the court characterized the hardship determination as a mixed question of law and fact that is “primarily factual”, warranting deferential review. It further emphasized that § 1252(a)(2)’s jurisdiction-stripping rules exclude review of agency fact-finding.

On the facts found by the IJ, the court held the IJ permissibly concluded that the hardship described—financial strain and emotional distress from separation, with continued support from the child’s mother/stepfamily and access to therapy and schooling— did not rise to the “exceptional and extremely unusual” level. The court rejected arguments framed as factual mischaracterizations or omitted evidence, noting it lacked jurisdiction to revisit fact-finding and that the IJ was not required to discuss every piece of evidence in writing.

3. Analysis

3.1. Precedents Cited

Uanreroro v. Gonzales, 443 F.3d 1197 (10th Cir. 2006)

The court relied on Uanreroro to establish the procedural posture: when the BIA issues an affirmance-without-opinion (AWO), the IJ’s decision becomes the operative final agency decision for judicial review. This matters because petitioners must attack the IJ’s reasoning directly, and appellate courts evaluate the IJ’s written rationale as the agency’s final word.

Martinez v. Garland, 98 F.4th 1018 (10th Cir. 2024)

Martinez supplied two key themes the court applied here:

  • Standard of review: constitutional claims and questions of law are reviewed de novo.
  • Substance of hardship doctrine: “economic detriment and diminished educational opportunities” alone are generally insufficient, and the hardship must be substantially beyond what normally follows removal-related separation.

The court also echoed Martinez (quoting Wilkinson) that review of hardship application is “deferential” because it is primarily factual.

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

Wilkinson is the opinion’s structural backbone. The Tenth Circuit used it to:

  • Define cancellation as a two-step inquiry: eligibility under § 1229b(b)(1)(A)-(D), then discretionary relief if eligible.
  • Classify the hardship determination as a mixed question of law and fact.
  • Emphasize that, despite reviewability of applying the standard, underlying facts remain unreviewable due to § 1252(a)(2).

In practice, this narrows appellate review to whether the IJ used the correct legal framework and plausibly applied it to the facts the IJ found—without re-litigating what those facts “really” were.

Matter of Monreal-Aguinaga, 23 I. & N. Dec. 56 (B.I.A. 2001)

The court quoted Matter of Monreal-Aguinaga for the BIA’s interpretive gloss on “exceptional and extremely unusual hardship”: the hardship must be “substantially different from, or beyond,” what is normally expected when a close family member is deported. It also provided the factors to consider (e.g., “ages, health, and circumstances” of qualifying relatives) and the point that serious medical or compelling educational needs may support eligibility.

Matter of Andazola-Rivas, 23 I. & N. Dec. 319 (B.I.A. 2002)

The court used Matter of Andazola-Rivas to reinforce the individualized nature of hardship adjudication (“each case must be considered on its own individual facts”), while still operating within Monreal’s demanding baseline.

Garland v. Ming Dai, 593 U.S. 357 (2021)

The court invoked Garland v. Ming Dai to rebut a common appellate move: equating a credibility finding with meeting the burden of proof. Even if testimony is credited, the agency may find it insufficient to carry the statutory burden—particularly under a high threshold like “exceptional and extremely unusual hardship.”

Hadjimehdigholi v. I.N.S., 49 F.3d 642 (10th Cir. 1995) and Xiao Ji Chen v. U.S. Dep't of Just., 471 F.3d 315 (2d Cir. 2006)

These cases supported the court’s response to “the IJ overlooked evidence” arguments:

  • Hadjimehdigholi: the agency need not discuss every piece of evidence, so long as the decision permits meaningful review.
  • Xiao Ji Chen: reviewing courts generally presume the IJ considered all evidence unless the record compellingly indicates otherwise.

Together, they make it harder for petitioners to obtain remand based solely on the IJ’s failure to explicitly mention particular items of evidence.

3.2. Legal Reasoning

The court’s reasoning proceeds in a tight sequence:

  1. Identify the operative decision: the BIA’s AWO means the IJ’s decision is reviewed as final.
  2. Set the review boundaries: de novo review for legal questions; deferential review for applying hardship to facts; no jurisdiction to revisit agency fact-finding.
  3. Apply Monreal/Andazola-Rivas hardship framework: consider factors in the aggregate, but measure them against the “normally expected” hardships of removal-related separation.
  4. Assess the IJ’s stated mitigation findings: the child remains with mother/stepfamily; therapy access continues via mother’s insurance; school structure helps; financial impact may limit some activities, but resembles common consequences.
  5. Reject petitioner’s reframing: claims of “mischaracterized facts,” conflicts with the record, and unaddressed evidence are treated as factual disputes or requests for reweighing—barred by the jurisdictional limits and the deferential lens mandated by Wilkinson.

Notably, the panel did not say emotional harm, ADHD, anxiety, or reduced extracurricular opportunities are irrelevant; rather, it accepted that these hardships are real and sympathetic but held that the IJ could permissibly find them not sufficiently beyond the ordinary baseline contemplated by Monreal.

3.3. Impact

Although the disposition is nonprecedential, it is instructive in three ways:

  • Appellate framing matters more than ever post-Wilkinson: petitions that primarily contest how the IJ read the record will likely fail as unreviewable fact disputes. Successful petitions must identify genuine legal error—misstating the standard, refusing to aggregate factors, applying an impermissible categorical rule, or violating due process.
  • “Omitted evidence” arguments face a high bar: absent a clear indication the IJ ignored a key category of hardship evidence, courts will presume consideration and will not require item-by-item discussion.
  • Credibility is not sufficiency: even fully credited testimony may not meet the “exceptional and extremely unusual” threshold, particularly where the qualifying relative has alternative caretakers and ongoing access to services.

Practically, the opinion encourages practitioners to (i) build a record that demonstrates severity and uniqueness (e.g., documented treatment needs, functional impairment, specialized educational plans, unavailability of alternatives), and (ii) preserve legal arguments about aggregation, standard articulation, and analytic omissions rather than attacking fact-findings directly.

4. Complex Concepts Simplified

  • Cancellation of removal (non-LPR): a form of relief that, if granted, allows certain nonpermanent residents to stay. It requires meeting statutory eligibility criteria and then persuading the IJ to grant relief as a matter of discretion.
  • “Exceptional and extremely unusual hardship”: a very high standard. It is not enough to show that removal will be painful, disruptive, or financially harmful—those are common consequences. The hardship must be meaningfully beyond the ordinary.
  • Mixed question of law and fact: applying a legal standard (hardship threshold) to a set of facts. Courts can review this application, but when it is “primarily factual,” they do so deferentially.
  • Jurisdiction-stripping / unreviewable fact-finding: Congress limited courts’ ability to revisit immigration fact determinations in certain discretionary-relief contexts. Courts can review legal questions, but not re-decide what the facts are.
  • Affirmance without opinion (AWO): the BIA can summarily affirm an IJ. In that event, the IJ’s opinion is treated as the final agency reasoning for appellate review.

5. Conclusion

Hernandez Hernandez v. Blanche reinforces a restrained model of judicial review in cancellation-of-removal hardship cases: the “exceptional and extremely unusual hardship” inquiry is reviewed deferentially as a primarily factual mixed question, and petitioners cannot obtain reversal by repackaging disagreements with the IJ’s factual assessment as legal error. The opinion also underscores two practical lessons: credibility does not equal eligibility, and written decisions need not catalog every piece of evidence so long as the reasoning shows the agency considered the case and applied the correct hardship framework in the aggregate.