The opinion
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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-10647
Non-Argument Calendar
____________________
RENE ASTUL LOPEZ-PORTILLO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A201-341-454
____________________
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2 Opinion of the Court 24-10647
Before WILSON, ROSENBAUM, and ABUDU, Circuit Judges.
PER CURIAM:
Petitioner Rene Astul Lopez-Portillo petitions for review
from the Board of Immigration Appeals’s (BIA) order denying his
motion to reconsider following our partial remand. He argues that
the BIA continued to engage in impermissible fact-finding in viola-
tion of our prior mandate, and he challenges the BIA’s considera-
tion of the hardship evidence he proffered. After careful review,
we grant his petition and remand to the BIA to reconsider his ap-
plication for cancellation of removal.
I.
In May 2019, the Department of Homeland Security served
Lopez-Portillo, who is a native citizen of El Salvador, with a notice
to appear, alleging that he had entered the United States without
being admitted or paroled at an unknown date and charging him
as removable under 8 U.S.C. § 1182(a)(6)(A)(i). He conceded re-
movability and applied for cancellation of removal, arguing that his
removal would cause a substantial hardship to his children, who
are United States citizens.
At his merits hearing, Lopez-Portillo testified and submitted
evidence to support his application. After considering all the evi-
dence, in an oral decision, the immigration judge (IJ) granted
Lopez-Portillo’s application for cancellation of removal. The IJ
stated that the son’s worsening eczema after Lopez-Portillo was de-
tained reflected the level of hardship the children faced without
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24-10647 Opinion of the Court 3
their father. He also focused on the fact that the son, who spoke
only English, did not speak the same language as their mother. He
found that the evidence was uncontroverted that translation was
needed to communicate with the children. The IJ found that
Lopez-Portillo was the sole breadwinner for the family, that the
family was at risk of losing their house, that removal could result
in the children becoming wards or public charges, and that the fam-
ily would be below the poverty level should removal occur. Thus,
he found that the children would face exceptional and extremely
unusual hardship if Lopez-Portillo were removed. Alternatively,
the IJ found that, if the children were to follow Lopez-Portillo to El
Salvador, they would be living in a country where they would not
understand the language, where they had no ties, and where
Lopez-Portillo’s earnings would be significantly less. The govern-
ment appealed to the BIA.
In March 2020, the BIA sustained the government’s appeal,
vacated the IJ’s grant of cancellation of removal, and ordered
Lopez-Portillo’s removal to El Salvador. As for the language bar-
rier between Lopez-Portillo’s son and his wife, the BIA found that
“any related problems upon removal [we]re a foreseeable event
and [did] not tip the balance of the hardship equation” in
Lopez-Portillo’s favor, and, in any event, Lopez-Portillo’s friend
testified that he primarily spoke with Lopez-Portillo’s son in Span-
ish. The BIA also noted that Lopez-Portillo’s children “ha[d] no
special health or other issues.” It stated that Lopez-Portillo’s
spouse was “a native and citizen of El Salvador, and there [was] no
indication that she could not resume gainful employment there in
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4 Opinion of the Court 24-10647
order to contribute to the support of herself and her children.” It
stated that Lopez-Portillo’s children “are United States citizens
who are under no legal obligation to depart the United States, and
they will be able to visit him in El Salvador and return to the United
States.” Lopez-Portillo did not petition this court for review of the
March 2020 order.
In April 2020, at the BIA, Lopez-Portillo moved to recon-
sider the March 2020 order. He asserted that the BIA engaged in
impermissible factfinding when it discussed the language barrier
that his children faced despite the IJ’s uncontroverted finding that
a translator would be needed to communicate between mother
and child. In August 2020, the BIA denied Lopez-Portillo’s motion
for reconsideration. It rejected Lopez-Portillo’s argument that it
had engaged in impermissible fact-finding. It determined that
Lopez-Portillo had not provided a new legal argument or ground
on which to reconsider its March 2020 order.
Lopez-Portillo petitioned this court for review of the BIA’s
August 2020 order denying his motion for reconsideration. We
concluded that the BIA erred by failing to consider the new legal
argument—that the BIA had applied the incorrect standard in the
March 2020 order by reviewing the IJ’s factual findings de novo,
leading to impermissible fact-finding by the BIA—which was raised
by Lopez-Portillo in his motion for reconsideration.1 Lopez-Portillo
1 This court issued an opinion dismissing his petition in part and denying it in
part. Lopez-Portillo filed a petition for rehearing, which the panel granted,
vacating its previous opinion.
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24-10647 Opinion of the Court 5
v. U.S. Att’y Gen., No. 20-13389, 2021 WL 3161811, at *4 (11th Cir.
July 27, 2021) (per curiam). The court noted that the BIA disre-
garded Lopez-Portillo’s argument altogether by disagreeing with
his characterization of the decision as engaging in fact-finding. Id.
It concluded that the BIA’s statement, that there were no new legal
arguments, could not allow this court to know whether the BIA
gave this issue reasoned consideration or even considered the legal
question at all. Id. The court granted Lopez-Portillo’s petition to
that extent and remanded for consideration of the new legal ques-
tion. 2 Id.
On remand, Lopez-Portillo argued that the BIA made sev-
eral impermissible findings of fact, and the BIA again denied
Lopez-Portillo’s motion to reconsider. First, it agreed that it en-
gaged in impermissible fact-finding by stating that Lopez-Portillo’s
children had no special health issues. It retracted that statement
and concluded that its impermissible finding was not determinative
to the analysis because the IJ stated that the children’s health con-
ditions did not largely factor into his decision. Next, the BIA re-
tracted its statement that Lopez-Portillo’s friend testified that when
he speaks to Lopez-Portillo’s son, it is primarily in Spanish. It con-
cluded that, even without consideration of this statement, its anal-
ysis did not change the conclusion that Lopez-Portillo had failed to
establish that his children will experience exceptional and
2 The court also dismissed some of Lopez-Portillo’s other claims as jurisdic-
tionally barred and denied his remaining claims. Lopez-Portillo, 2021 WL
3161811, at *5.
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6 Opinion of the Court 24-10647
extremely unusual hardship upon his removal. It emphasized that
it relied on the IJ’s factual findings that the children lacked Spanish
fluency, and their mother lacked English fluency. Finally, it stated
that it considered the IJ’s factual findings about the emotional and
financial hardship of the children, Lopez-Portillo’s and his spouse’s
employment histories, and the potential hardships that the children
would face. Lopez-Portillo timely petitioned for review of the
BIA’s decision to this court. 3
II.
“We review the BIA’s denial of a motion to reconsider for
abuse of discretion.” Ferreira v. U.S. Att’y Gen., 714 F.3d 1240, 1242
(11th Cir. 2013). “The BIA abuses its discretion when it misapplies
the law in reaching its decision.”4 Id.
Under 8 U.S.C. § 1229b(b)(1), a noncitizen’s removal can be
cancelled if the noncitizen: (A) has been physically present in the
3 On appeal, Lopez-Portillo moved for an emergency stay of his removal pro-
ceedings pending the outcome of his petition for review. In a 2-1 order, the
court granted his motion, finding Lopez-Portillo met the requirements for a
stay. The government moved for reconsideration, which was denied in an-
other 2-1 order.
4 As the Supreme Court recently clarified, the BIA’s determination that an ap-
plicant for cancellation of removal failed to establish the requisite hardship to
a qualifying relative is a mixed question of law and fact where the facts are
undisputed or otherwise established. See Wilkinson v. Garland, 601 U.S. 209,
217 (2024). This review is deferential in nature. Id. at 222. But exercising
deferential agency review does not equate to a “rubber stamp” of an agency
determination. Sec. Walls, LLC v. NLRB, 80 F.4th 1277, 1285 (11th Cir. 2023)
(alteration adopted).
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24-10647 Opinion of the Court 7
United States for a continuous period of at least ten years immedi-
ately preceding the date of his application; (B) has been a person of
good moral character during such period; (C) has not been con-
victed of an offense under 8 U.S.C. §§ 1182(a)(2), 1227(a)(2), or
1227(a)(3); and (D) establishes that removal would result in excep-
tional and extremely unusual hardship to the noncitizen’s spouse,
parent, or child, who is a citizen of the United States or noncitizen
lawfully admitted for permanent residence. The parties only dis-
pute the last element under 8 U.S.C. § 1229b(b)(1)—that removal
would result in exceptional and extremely unusual hardship to the
noncitizen’s family member. “The exceptional and extremely un-
usual hardship for cancellation of removal is based on a cumulative
consideration of all hardship factors.” Matter of J-J-G-, 27 I. & N.
Dec. 808, 810–15 (BIA 2020).
First, the BIA specifically noted that none of the IJ’s factual
findings were clearly erroneous. Those findings include: (1) nei-
ther child speaking the same language as their mother; (2) the
worsening of the son’s eczema’s reflecting the emotional hardship
suffered by the children in their father’s absence; (3) Lopez-Portillo
functioning as the sole breadwinner; and (4) in the case of Lopez-
Portillo’s removal, the children subsisting below poverty level
based on the mother’s employment history and possibly becoming
wards of the state or public charges. The IJ further prospectively
found that the children would suffer emotionally if they were
moved to El Salvador with their parents, where they do not speak
the language and only two other relatives live (Lopez-Portillo’s
mother and stepfather).
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8 Opinion of the Court 24-10647
As the BIA has noted, “the exceptional and extremely unu-
sual hardship standard for cancellation of removal applicants con-
stitutes a high threshold that is in keeping with Congress’ intent to
substantially narrow the class of aliens who would qualify for relief.
Matter of Gonzalez Recinas, 23 I. & N. Dec. 467, 470 (B.I.A. 2001); see
also Matter of Andazola, I. & N. Dec. 319, 324 (B.I.A. 2002); Matter of
Monreal, 23 I. & N. Dec. 56, 59–60 (B.I.A. 2001). But “the hardship
standard is not so restrictive that only a handful of applicants, such
as those who have a qualifying relative with a serious medical con-
dition, will qualify for relief.” Matter of Gonzalez Recinas, 23 I. & N.
Dec. at 470. We consider this case to be on the outer limit of the
narrow range of cases in which the exceptional and extremely un-
usual hardship standard is met. 5
Lopez-Portillo’s case is much like that of the noncitizen the
BIA considered in Gonzalez Recinas. In that case, the BIA affirmed
a grant of cancellation of removal to the noncitizen from Mexico
who was the sole provider for her four U.S. citizen children. 23 I.
& N. Dec. at 469–470, 471. Her U.S. citizen children had spent their
whole lives in the United States and did not speak, write, or read
Spanish. Id. at 470. The BIA also noted that removal of the noncit-
izen would prevent her from continuing “to provide a safe and sup-
portive home for her children.” Id. at 471.
In Lopez-Portillo’s case, his children depend on him to pro-
vide housing. The IJ noted that, should Lopez-Portillo be
5 But we find that the BIA did not engage in impermissible fact-finding in vio-
lation of our prior mandate or BIA procedures.
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24-10647 Opinion of the Court 9
removed, the children likely would be forced to live on public as-
sistance and face eviction from the only house they had ever
known because of his wife’s inability to pay the mortgage. Alt-
hough Lopez-Portillo is married, his wife does not work, and
Lopez-Portillo provides the only income for the family. His wife
also does not speak the same language as the children. If the chil-
dren were to stay with their mother in the United States, it would
be forcing the children to live with a caregiver with whom they can-
not communicate, below the poverty line, and during documented
emotional turmoil. And if Lopez-Portillo and his wife were to
move the family to El Salvador, his children would be living in a
country where they do not speak the language and where they
have little family, removing them from a safe and supportive envi-
ronment here. We therefore find that Lopez-Portillo has made a
showing that his U.S. citizen children would suffer “exceptional
and extremely unusual hardship” if he were removed.
As there is no dispute that Lopez-Portillo met the other cri-
teria for cancellation of removal, his petition is GRANTED and
REMANDED.