“From Clear Error to Substantial Evidence” – The Eleventh Circuit Sets the Standard for Reviewing Exceptional-and-Extremely-Unusual-Hardship Findings

Introduction

In Isaac Lopez-Martinez & Martha Martinez-Lara v. U.S. Attorney General, the Eleventh Circuit confronted a recurring yet unresolved doctrinal issue: What level of judicial deference applies when federal courts review the Board of Immigration Appeals’ (BIA) application of the “exceptional and extremely unusual hardship” test for cancellation of removal? Although the Supreme Court in Wilkinson v. Garland recently clarified that such hardship determinations are “mixed questions of law and fact,” it left open the precise standard by which the federal courts must review them.

Judge Newsom, writing for a unanimous panel, fills that gap. Applying an integrated Administrative Procedure Act (APA) and Immigration and Nationality Act (INA) analysis, the court holds that the substantial-evidence standard – not de novo, not clear error, and not arbitrary-and-capricious – governs federal-court review of BIA hardship findings. On the merits, the court upheld the BIA’s denial of relief to a long-time undocumented couple whose U.S.-citizen child has ADHD and special-education needs.

Summary of the Judgment

• Jurisdictional Affirmation: Following Wilkinson, the court confirms that it has jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review “questions of law,” including mixed questions, but not pure factual findings underlying hardship claims.
• Choice-of-Standard Holding: The court formally announces that substantial evidence is the correct standard for reviewing the BIA’s application of the § 1229b(b)(1)(D) hardship requirement.
• Merits Determination: Applying that deferential standard, the panel holds that the administrative record reasonably supports the BIA’s conclusion that removal would not impose an exceptional and extremely unusual hardship on the couple’s U.S.-citizen son.
• Petitions Denied: Both consolidated petitions for review are denied.

Analysis

1. Precedents Cited and Their Influence

• Wilkinson v. Garland, 601 U.S. 209 (2024) – Declared hardship determinations to be reviewable mixed questions, overruling contrary circuit precedent. Provided the jurisdictional foundation for the Eleventh Circuit’s inquiry.
• Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020) – Defined “questions of law” in § 1252(a)(2)(D) to include the application of law to undisputed facts, signaling that mixed questions are reviewable.
• Google LLC v. Oracle America, Inc., 593 U.S. 1 (2021) & U.S. Bank v. Village at Lakeridge, 583 U.S. 387 (2018) – Provided the two-step framework for allocating standards of review to mixed questions: disaggregate where possible; otherwise treat as primarily legal or factual.
• Administrative Procedure Act, 5 U.S.C. § 706 – Supplies de novo, arbitrary-and-capricious, and substantial-evidence standards.
• INA § 1252(b)(4)(B) – Deems agency factfinding “conclusive,” effectively importing substantial-evidence review even into informal immigration proceedings.
• Garland v. Ming Dai, 593 U.S. 357 (2021), Nasrallah v. Barr, 590 U.S. 573 (2020) – Emphasized the symbiosis between the APA’s review scheme and the INA.
• Matter of J-J-G-, 27 I. & N. Dec. 808 (BIA 2020) – Articulated the two-prong medical-hardship test the petitioners relied on.

2. Legal Reasoning of the Eleventh Circuit

1. Cataloguing Possible Standards. The panel canvassed APA § 706 (de novo, arbitrary-and-capricious, substantial evidence) and the INA’s codified substantial-evidence clause, eliminating “clear error” and pure “abuse-of-discretion” as inapposite in the court/agency context.
2. Methodological Borrowing. Adopting the Supreme Court’s Google/U.S. Bank two-step for mixed questions, the court substitutes substantial evidence for clear error when the question is primarily factual.
3. Why Not Arbitrary-and-Capricious? The opinion highlights that arbitrary-and-capricious review is a “catchall” aimed at procedural rationality, whereas substantial evidence squarely addresses factual support. Congress already transplanted substantial-evidence review into immigration cases through § 1252(b)(4)(B).
4. Primarily Factual Character. Citing Wilkinson, the court labels hardship assessments “primarily factual,” thereby slotting them into the substantial-evidence column.
5. Application to the Record. The panel reviewed undisputed evidence of ADHD treatment options and educational services in Mexico, finding the BIA’s skepticism “reasonable, substantial, and probative.”

3. Potential Impact on Immigration Litigation and Administrative Law

• Standard-of-Review Uniformity. The decision aligns the Eleventh Circuit with the Third and Ninth Circuits (Wilkinson II, Gonzalez-Juarez) and is likely to become influential nationwide, promoting the substantial-evidence benchmark as the default approach.
• Predictability for Practitioners. Immigration advocates must now tailor petitions to show that “no reasonable adjudicator” could reach the BIA’s conclusion, rather than urging a court to re-weigh evidence.
• Agency Autonomy. By cementing a deferential standard, the ruling grants the BIA wider decisional breathing room, potentially reducing successful hardship challenges and expediting docket flow.
• Interplay with Post-Chevron Landscape. While Loper Bright curtails Chevron deference for pure questions of law, Lopez-Martinez shows that factual or fact-dominant issues will still receive robust deference under substantial-evidence review.
• Strategic Record Building. Applicants must develop an administrative record rich in uncontested medical, educational, or economic facts – because they will rarely persuade a court to disturb the BIA’s factual synthesis.

Complex Concepts Simplified

• Cancellation of Removal (INA § 1229b) – A discretionary remedy allowing certain long-time, non-resident aliens to avoid deportation if they meet statutory prerequisites, including a high showing of hardship to qualifying U.S. relatives.
• Exceptional and Extremely Unusual Hardship – A demanding threshold exceeding “extreme hardship.” The hardship must be substantially beyond what ordinarily flows from deportation.
• Mixed Question of Law and Fact – An issue that merges fact-finding with applying a legal standard to those facts (e.g., “Do these medical and educational obstacles equal ‘exceptional hardship’?”).
• Substantial Evidence – Evidence that “a reasonable, properly instructed factfinder could accept as adequate” to support the agency’s conclusion. The reviewing court asks whether any reasonable adjudicator could have decided the same way, not whether it would reach the same conclusion itself.
• Arbitrary-and-Capricious Review – A broader APA inquiry focusing on whether the agency’s reasoning process was logical, consistent, and explained; it is cumulative of more specific evidentiary reviews.
• Court/Court vs. Court/Agency Review – Appellate review of trial-court decisions (court/court) uses de novo, clear error, or abuse-of-discretion, whereas review of agency action (court/agency) relies on APA standards (de novo, substantial evidence, arbitrary-and-capricious).

Conclusion

The Eleventh Circuit’s decision in Lopez-Martinez supplies the missing doctrinal puzzle piece left by Wilkinson: how to review the BIA’s hardship findings. By declaring substantial-evidence review the governing standard, the court cements a deferential posture that respects agency expertise while preserving judicial oversight for egregious misapplications of law. Going forward, litigants must recognize that success on hardship appeals will hinge on demonstrating that no reasonable factfinder could agree with the BIA – a formidable task, but one now framed with welcome clarity.