Seventh Circuit Construes Exceptional and Extremely Unusual Hardship

The Seventh Circuit has determined that the agency’s definition of exceptional and extremely unusual hardship to qualifying relatives is not entitled to any deference. Further, the Court construed “exceptional and extremely unusual hardship” as requiring hardship sustained by a deported alien’s qualifying relatives that’s significantly different from or greater than the hardship that a deported alien’s family normally experiences.

The full text of Moctezuma-Reyes v. Garland can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0274p-06.pdf

Fifth Circuit Applies no Deference to BIA's Hardship Determination

The Fifth Circuit has affirmed the agency’s hardship finding in a cancellation of removal case, finding that even if it accorded that determination no deference, the applicant had not established that his U.S.-citizen son would suffer exceptional and extremely unusual hardship without him.

The full text of Cuenca-Arroyo v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/23/23-60100.CV0.pdf

Fourth Circuit Remands Cancellation of Removal Application

The Fourth Circuit has reviewed the agency’s hardship determination in a cancellation of removal application and remanded the proceedings because it was not clear that the Immigration Judge had considered a treating therapist’s predication that removal of the applicant would increase the likelihood that her daughter would engage in self harm.

The full text of Garcia Cortes v. Garland can be found here: https://www.ca4.uscourts.gov/opinions/221930.p.pdf

Supreme Court Finds Hardship Determinations are Reviewable in Federal Court

The Supreme Court has determined that the “exceptional and extremely unusual hardship” standard in non-LPR cancellation of removal cases is a mixed question of fact and law, subject to federal court review. “The facts underlying any determination on cancellation of removal therefore remain unreviewable. For instance, an IJ’s factfinding on credibility, the seriousness of a family member’s medical condition, or the level of financial support a noncitizen currently provides remain unreviewable. Only the question whether those established facts satisfy the statutory eligibility standard is subject to judicial review. Because this mixed question is primarily factual, that review is deferential.”

The full text of Wilkinson v. Garland can be found here:

https://www.supremecourt.gov/opinions/23pdf/22-666diff_f2bh.pdf