Summary
The Second Circuit reviews an immigration judge's and BIA's denial of cancellation of removal based on a lack of "exceptional and extremely unusual hardship" to the petitioner's U.S. citizen children. Following the Supreme Court's decision in Wilkinson v. Garland, the court holds it has jurisdiction to review the hardship determination and applies a clear-error standard of review rather than de novo or substantial evidence. The court finds no clear error in the agency's conclusion that the petitioner failed to meet the statutory burden and denies the petition.
Topics
Practice areas
Questions Presented
- Whether the Second Circuit had jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review whether the established facts satisfied the exceptional-and-extremely-unusual-hardship standard for cancellation of removal.
- What standard of review applies to the agency's determination that established facts do not satisfy the exceptional-and-extremely-unusual-hardship standard.
- Whether the agency clearly erred in determining that Toalombo Yanez failed to establish exceptional and extremely unusual hardship to a qualifying relative.
- Whether the Board of Immigration Appeals impermissibly applied Matter of J-J-G- retroactively by referring to it in affirming the denial of cancellation of removal.
Holdings
- The court has jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review whether established facts satisfy the statutory exceptional-and-extremely-unusual-hardship standard because that determination is a reviewable mixed question of law and fact.
- The appropriate standard of review for the agency's exceptional-and-extremely-unusual-hardship determination is clear error.
- The agency did not clearly err in determining that Toalombo Yanez failed to establish that removal would cause exceptional and extremely unusual hardship to a qualifying relative.
- The court had jurisdiction to review Toalombo Yanez's colorable claim that the BIA applied an erroneous legal standard, but the BIA did not impermissibly apply Matter of J-J-G- retroactively.
Key quotations
“The application of a statutory legal standard (like the exceptional and extremely unusual hardship standard) to an established set of facts is a quintessential mixed question of law and fact” (140 F.4th at 39)
“The Court then established that the exceptional and extremely unusual hardship determination is a “primarily factual” mixed question and therefore, “review is deferential.”” (140 F.4th at 40)
“Because the governing test for assessing hardship involves an aggregate assessment of various factors through a cumulative analysis, we interpret Wilkinson as providing us with the authority to consider whether, in light of the totality of the circumstances, the agency’s hardship determination is clearly erroneous.” (140 F.4th at 46)
“A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (140 F.4th at 47)
“Thus, we can find no error in the agency’s determination that the established facts did not demonstrate that Toalombo Yanez’s removal would constitute “exceptional and extremely unusual hardship,” 8 U.S.C. § 1229b(b)(1)(D), to her children, citizens of the United States.” (140 F.4th at 51)
Factual background
Gladys Eudosia Toalombo Yanez, a citizen of Ecuador, entered the United States without inspection in 1999 and remained there, having three children who were United States citizens. She conceded removability and sought cancellation of removal based principally on alleged depression affecting her oldest child and reactive airway disease affecting her youngest child. The Immigration Judge found that the medical evidence did not establish the severity of the youngest child's condition or inability to obtain treatment in Ecuador, and that the evidence concerning the older child and conditions in Ecuador did not establish exceptional and extremely unusual hardship.
Procedural history
Toalombo Yanez conceded removability and applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1), asserting that removal would cause exceptional and extremely unusual hardship to her United States-citizen children. The Immigration Judge denied relief, finding that she had not established the required hardship. The Board of Immigration Appeals dismissed her appeal, and she petitioned the Second Circuit for review, challenging the agency's hardship determination and alleged retroactive application of Matter of J-J-G-.