finding that courts and agencies consider “the ages, health, and circumstances of qualifying relatives” when evaluating hardship (internal quotations omitted)
How later courts described this case
- finding that courts and agencies consider “the ages, health, and circumstances of qualifying relatives” when evaluating hardship (internal quotations omitted)
- holding that the “exceptional and extremely unusual hardship” determination is a mixed question of law and fact reviewed for substantial evidence.
- noting that “‘exceptional and extremely unusual hardship’ … has long been understood to require a showing ‘substantially beyond the ordinary hardship that would be expected when a close family member leaves this country.’”
- stating that “feeling sad” cannot be characterized as “extremely unusual” hardship
Written by the judges who cited it.
The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-3166
_____________
SITU KAMU WILKINSON,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
_____________
On Petition for Review of a
Decision of the Board of Immigration Appeals
(Agency Case No. A216-647-581)
Immigration Judge: Robert M. Lewandowski
_______________
Submitted Under Third Circuit L.A.R. 34.1(a) on
June 23, 2022
On Remand from the Supreme Court of the United States
on March 19, 2024
Argued after Remand on December 9, 2024
_______________
Before: RESTREPO, BIBAS, and McKEE, Circuit
Judges.
(Opinion filed: March 11, 2025)
Rhonda F. Gelfman
9221 Southern Orchard Road
Davie, FL 33328
Jesse A. Lempel [Argued]
Goodwin Procter
100 Northern Avenue
Boston, MA 02210
Jaime A. Santos
Rohiniyurie Tashima
Goodwin Procter
1900 N Street NW
Washington, DC 20036
Counsel for Petitioner
Corey L. Farrell [Argued]
Jaclyn G. Hagner
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________
2
McKEE, Circuit Judge.
Situ Kamu Wilkinson, who has resided in the United
States for over two decades, mostly without legal status, faces
removal to the Republic of Trinidad and Tobago. He
petitioned this Court to review the Board of Immigration
Appeals’ determination that he is ineligible for cancellation of
removal because he failed to establish one of the statutory
prerequisites to relief: that his removal would cause
“exceptional and extremely unusual hardship” to a qualifying
relative in the United States. For the reasons that follow, we
will deny the petition for review. 1
1
We previously dismissed his petition based upon our
conclusion that we lacked jurisdiction to review the IJ’s
discretionary determination that Wilkinson’s circumstances
did not rise to the level of an “exceptional and extremely
unusual hardship” as required by 8 U.S.C. § 1229b(b)(1)(D).
The Supreme Court reversed, holding that the IJ’s denial of
relief presented a mixed question of law and fact that was
reviewable under 8 U.S.C. § 1252(a)(2)(D), and remanded for
us to review the IJ’s decision under an appropriately deferential
standard. Wilkinson v. Garland, 601 U.S. 209, 225–26 (2024).
The Court did not identify the standard of review that should
govern our analysis. We write precedentially to clarify that
standard. As we explain below, we now hold that the
appropriate standard of review is whether the IJ’s ruling is
supported by substantial evidence. Applying that standard, we
conclude that substantial evidence does support the IJ’s
decision. We must therefore deny the petition for review.
3
I. Factual Background
Wilkinson was born in the Republic of Trinidad and
Tobago and lived there for nearly thirty years. Following an
encounter with Trinidadian police that made him fear for his
safety, he fled his home country. He entered the United States
on a tourist visa on March 15, 2003. Shortly thereafter,
Wilkinson was accused of a crime—he claims, wrongly—and
incarcerated in the United States for four months. Those
charges were ultimately dismissed, but his passport was
purportedly thrown away while he was incarcerated.
Wilkinson claims that this caused him to overstay his visa.
After his release from custody, Wilkinson established a
life in the United States. He fathered a son, M., who is a U.S.
citizen. Initially, Wilkinson and M. lived in Pennsylvania
together with M.’s mother, Kenyetta Watson. When M. was
two, his parents decided that he and Watson should move to
New Jersey, near Watson’s mother, Tracy Collins, to give M.
“a better quality of life.” 2 Wilkinson stayed in Pennsylvania,
where he worked. Nevertheless, he remained very involved
with M., whom he visited every weekend. Despite the
distance, the two maintained a close relationship.
Watson currently has custody of M. Although there is
no court-ordered child-support arrangement, Wilkinson has
historically sent $1,200 per month to Watson and M. Watson
testified before the Immigration Judge that Wilkinson helped
support their son with money, “transportation, clothing, and
2
AR 53.
4
great parenting.” 3 When the record was created, Watson was
not formally employed.
M. has severe asthma that requires hospitalizations
several times per year. He also has eczema, requiring “parental
attention and support with bathing.” 4 M. has state-provided
health insurance; thus, Wilkinson does not pay for M.’s
medical care. In addition to M.’s problems, Watson suffers
from depression.
In July 2019, police found drugs in a house Wilkinson
was repairing. Wilkinson denied involvement with the drugs,
and claimed he was simply “in the wrong place at the wrong
time.” 5 Although charges were withdrawn, the arrest brought
Wilkinson to the attention of immigration authorities, who
initiated removal proceedings against him.
About a month after Wilkinson’s arrest and detention,
M. began to exhibit troubling behavior. Collins observed that
M. “ha[d] been sad, acting out, and breaking things.” 6 M.’s
teacher began texting Watson about M.’s lack of focus at
school and suggested M. talk to a counselor. Watson opted not
to pursue counseling but agreed that Wilkinson’s absence was
causing her son to suffer. M. subsequently corroborated
Watson’s belief. M. told her that he was sad because he could
not see his father and did not want his father to be sent to a
different country.
3
AR 55.
4
AR 55; see also id. at 244.
5
AR 53.
6
AR 56.
5
If Wilkinson is removed, M. will remain in the United
States. Watson expressed concern that her son does not have
other male role models and that he needs his father. In
addition, the family would suffer financially. Watson would
need to find a job, as well as childcare for M., and would no
longer be able to rely on Wilkinson as a second caregiver.
II. Procedural History
On November 9, 2020, the Department of Homeland
Security charged Wilkinson as removable for overstaying his
visa. Wilkinson conceded his removability under 8 U.S.C. §
1227(a)(1)(B) but sought cancellation of removal, among other
forms of immigration relief. 7 Wilkinson is eligible for
cancellation of removal if he:
(A) has been physically present in
the United States for a continuous
period of not less than 10 years
immediately preceding the date of
[his] application;
(B) has been a person of good
moral character during such
period;
7
Wilkinson also sought asylum, withholding of removal, and
protection under the Convention Against Torture, but failed to
establish that he qualified for that relief. See Wilkinson v. Att’y
Gen., No. 21-3166, 2022 WL 4298337, at *2 (3d Cir. Sept. 19,
2022).
6
(C) has not been convicted of
[certain specified criminal
offenses]; and
(D) establishes that removal would
result in exceptional and extremely
unusual hardship to [his] spouse,
parent, or child, who is a citizen of
the United States or an alien
lawfully admitted for permanent
residence. 8
DHS stipulated that Wilkinson satisfied the first three statutory
criteria, but disputed whether he could show that the removal
would cause “exceptional and extremely unusual” hardship to
M. as required by subsection (D).
The IJ denied Wilkinson’s request for cancellation of
removal. The IJ found that Wilkinson was removable as
charged, that testimony from Wilkinson, Watson, and Collins
was credible, and that Wilkinson satisfied the first three
statutory prongs. But the IJ concluded that the hardship to M.
was not exceptional and extremely unusual as required under
the fourth prong, and therefore that Wilkinson was ineligible
for relief. The BIA affirmed without opinion, leaving the IJ’s
decision as the final agency determination.
8
8 U.S.C. §§ 1229b(b)(1)(A)–(D). Even if Wilkinson satisfies
these statutory criteria, the agency still must decide whether to
grant the relief as a discretionary matter. The number of
individuals granted such relief each fiscal year is limited to
4,000. See 8 U.S.C. § 1229b(e)(1).
7
Wilkinson petitioned this Court for review. As we
noted at the outset, we dismissed the petition with respect to
cancellation of removal based on our understanding that the
IJ’s hardship decision was discretionary and therefore
unreviewable. 9 The Supreme Court reversed, vacated our prior
judgment, and remanded for further proceedings. 10
III. Discussion
We have jurisdiction to review the IJ’s hardship
determination pursuant to 8 U.S.C. § 1252(a)(1) and (2)(D) as
clarified by the Supreme Court’s remand. However, our
jurisdiction is limited to determining whether the established
facts satisfy the statutory standard, and we may not review the
underlying factual findings. 11
A. Standard of Review
The Supreme Court instructed that because the mixed
question before us “is primarily factual,” our review must be
“deferential.” 12 The Court did not, however, specify which
deferential standard applies. Moreover, subsequent decisions
by our sister appellate courts have failed to agree on the
9
Wilkinson, 2022 WL 4298337, at *1. This Court denied the
petition with respect to other sources of immigration relief
because Wilkinson failed to show that he was a member of a
distinct “particular social group.” Id. at *2.
10
Wilkinson, 601 U.S. at 226.
11
8 U.S.C. § 1252(a)(2)(B)(i); see also Wilkinson, 601 U.S. at
222 (“[A] court is still without jurisdiction to review a factual
question raised in an application for discretionary relief.”).
12
Wilkinson, 601 U.S. at 225.
8
applicable standard. Instead, those courts have applied
unspecified deferential review. 13 We therefore assess in the
first instance whether to review the hardship determination for
substantial evidence, as the government urges, or for abuse of
discretion, as Wilkinson urges.
Supreme Court precedent suggests that substantial
evidence is the appropriate standard. Two provisions of the
Immigration and Nationality Act inform our discussion. First,
the INA “strips courts of jurisdiction to review ‘any judgment
regarding the granting of relief’ under provisions including 8
13
See, e.g., Figueroa v. Garland, 119 F.4th 160, 166 n.7 (1st
Cir. 2024) (“We need not decide here precisely what
deferential standard of review should govern because we reach
the same conclusion regardless.”); Carrera Hernandez v.
Garland, No. 23-6890-ag, 2024 WL 4588492, at *2 (2d Cir.
Oct. 28, 2024) (“Given the ‘more deferential standard of
review’ that applies in this context . . . we find no error in the
agency’s determination.”) (quoting Wilkinson, 601 U.S. at
222). Wilkinson suggests that these decisions form a
consensus around abuse of discretion. This overreads even the
cases he cites, which explicitly “leave to future decisions the
task of sorting out how to apply the standard of review
discussed in Wilkinson” because the outcome would be the
same regardless. Cortes v. Garland, 105 F.4th 124, 134 (4th
Cir. 2024); see also Gonzalez-Rivas v. Garland, 109 F.4th
1010, 1012 (8th Cir. 2024) (noting “we find no error or abuse
of discretion” without determining which standard of review
applies).
9
U.S.C. § 1229b, which governs cancellation of removal.” 14
Second, the INA “restores judicial review for only a subset of
claims—‘constitutional claims or questions of law.’” 15
Several years ago, the Supreme Court decided
Guerrero-Lasprilla v. Barr. 16 There, it held that the phrase
“questions of law” in 8 U.S.C. § 1252(a)(2)(D) extends to
mixed questions of law and fact. 17 Pursuant to Guerrero-
Lasprilla, the Court determined in the underlying appeal here
that “the application of the statutory ‘exceptional and
extremely unusual hardship’ standard to a given set of facts
presents a mixed question of law and fact” and therefore is
reviewable. 18 As the Court explained:
[A] court is still without jurisdiction to review a
factual question raised in an application for
discretionary relief . . . . [T]hat would include the
IJ’s underlying factual determination that
Wilkinson was credible, or the finding that M.
had a serious medical condition. When an IJ
weighs those found facts and applies the
“exceptional and extremely unusual hardship”
standard, however, the result is a mixed question
14
Wilkinson, 601 U.S. at 226 (Jackson, J., concurring in the
judgment).
15
Id. (quoting 8 U.S.C. § 1252(a)(2)(D)).
16
589 U.S. 221 (2020).
17
Id. at 225.
18
Wilkinson, 601 U.S. at 221.
10
of law and fact that is reviewable under §
1252(a)(2)(D). 19
In other words, we only have jurisdiction because this
mixed question encompasses a legal inquiry: what the words
in the statute mean and how they apply. As we are prohibited
from reviewing the underlying factual findings, one might
think we would separate out the purely legal components and
review them de novo. However, that cannot be correct. The
Supreme Court instructed that our review must be deferential
because the question is overwhelmingly factual. That is true
even though factual findings remain strictly unreviewable.
To sort through this conundrum, we turn to the roadmap
laid out in U.S. Bank National Association v. Village at
Lakeridge, LLC. 20 There, the Supreme Court confronted a
“mixed” question that, like the question before us, required
determining “whether the historical facts found satisfy the
legal test chosen.” 21 In such cases, courts must ask “[w]hat is
the nature of the mixed question here and which kind of court
. . . is better suited to resolve it?” 22 Where mixed questions
“immerse courts in case-specific factual issues,” as in U.S.
Bank, “appellate courts should usually review a decision with
deference.” 23 To select from among the possible deferential
standards, the Court in U.S. Bank imported the same standard
that there governed review of the factual findings
19
Id. at 222.
20
583 U.S. 387 (2018).
21
Id. at 394.
22
Id. at 395.
23
Id. at 396.
11
themselves—clear error. 24 The Supreme Court followed the
same approach two years later in Monasky v. Taglieri,
concluding that clear-error review governed the mixed—but
primarily factual—determination of a person’s habitual
residence. 25 The Court explained that when a court of appeals
reviews a trial court’s determinations, “[g]enerally, questions
of law are reviewed de novo and questions of fact, for clear
error, while the appropriate standard of appellate review for a
mixed question ‘depends . . . on whether answering it entails
primarily legal or factual work.’” 26
Here, there is no doubt that the factfinder is best suited
to evaluate the purely factual question of actual hardship. The
factfinder also is best suited to evaluate the “primarily factual”
question of whether that hardship is severe enough to be
described as exceptional and extremely unusual, as the statute
requires. 27 Accordingly, the analysis in U.S. Bank convinces
us that the deference afforded the agency’s factual findings
should also govern this mixed inquiry. While we cannot
review factual findings in cancellation-of-removal
proceedings, the INA instructs courts, in addressing other types
of immigration relief, to review agency factfinding for
substantial evidence. 28 Substantial evidence also is the
24
Id. at 399.
25
589 U.S. 68, 83–84 (2020).
26
Id. (quoting U.S. Bank, 583 U.S. at 396).
27
Wilkinson, 601 U.S. at 225.
28
See 8 U.S.C. § 1252(b)(4)(B) (providing that agency
“findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary”);
12
standard that the Administrative Procedure Act prescribes
generally for agency factfinding in formal, on-the-record
hearings. 29
1.
By contrast, we disagree with Wilkinson’s assertion that
we review for an abuse of discretion. As Wilkinson notes, that
standard is “essentially the same” as arbitrary-and-capricious
review. 30 These are not typically the standards for reviewing
factual findings. 31 Accordingly, they are not consistent with
Nasrallah v. Barr, 590 U.S. 573, 584 (2020) (noting that 8
U.S.C. § 1252(b)(4)(B) refers to the substantial-evidence
standard). Wilkinson’s contention that the INA “limits” the
substantial-evidence standard “to ‘findings of fact’” lacks
textual support. Pet’r Suppl. Br. 15. The statute does not say
this standard is so limited. But even if this were accurate, it
would not matter because under U.S. Bank, we identify a
standard for the mixed question by drawing from the standard
applicable to factual findings. See U.S. Bank, 583 U.S. at 399.
29
5 U.S.C. § 706(2)(E).
30
Pet’r Suppl. Br. 14.
31
See Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 572
U.S. 559, 563 (2014) (“Traditionally, decisions [by a district
court] on ‘questions of law’ are ‘reviewable de novo,’
decisions on ‘questions of fact’ are ‘reviewable for clear error,’
and decisions on ‘matters of discretion’ are ‘reviewable for
abuse of discretion.’”) (quoting Pierce v. Underwood, 487 U.S.
552, 558 (1988)); Arkansas v. Oklahoma, 503 U.S. 91, 113
(1992) (“A court reviewing an agency’s adjudicative action
should accept the agency’s factual findings if those findings
are supported by substantial evidence on the record as a
13
the analysis in U.S. Bank. Instead, abuse-of-discretion and
arbitrary-and-capricious review train our focus on the
decisionmaker’s process in arriving at a particular outcome,
asking whether she considered the appropriate factors and
properly justified her decision. 32 These standards are a good
fit “where a decisionmaker has ‘a wide range of choice as to
what [s/]he decides,’” as well as where the factfinder’s
decision “is given ‘an unusual amount of insulation from
appellate revision’ for functional reasons.” 33 Accordingly, it is
appropriate to apply abuse-of-discretion review to mixed
questions that involve litigation-management considerations
such as whether to award attorney fees, 34 enforce a subpoena, 35
whole.”); 5 U.S.C. § 706(2)(E) (providing for substantial-
evidence review of agency findings made in on-the-record
hearings).
32
See United States v. Taylor, 487 U.S. 326, 336 (1988)
(explaining that the abuse-of-discretion standard requires a
district court to “carefully consider those factors” that
Congress has declared govern a decision “and, whatever its
decision, clearly articulate their effect”); Motor Vehicle Mfrs.
Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S.
29, 43 (1983) (explaining that the arbitrary-and-capricious
standard means “the agency must examine the relevant data
and articulate a satisfactory explanation for its action”).
33
McLane Co. v. EEOC, 581 U.S. 72, 83 (2017) (quoting
Maurice Rosenberg, Judicial Discretion of the Trial Court,
Viewed From Above, 22 Syracuse L. Rev. 635, 637 (1971)).
34
See Highmark Inc., 572 U.S. at 563–64; Pierce, 487 U.S. at
558–63.
35
See McLane Co., 581 U.S. at 79–82.
14
or impose Rule 11 sanctions, 36 as Wilkinson argues. Such
determinations require a court to weigh the equities and make
judgment calls in addition to involving careful consideration of
the facts. 37
The statutory hardship determination before us is not
such a question. Deference is appropriate here because the IJ
actually heard testimony and had to assess credibility. The
appeal turns on our application of a legal principle as set forth
in a statute. It does not involve case management or judgment
calls.
Wilkinson cites historical practice as a reason to review
for abuse of discretion. It is true that courts historically applied
this standard under a materially different version of the INA.
Before 1996, the hardship component of this immigration relief
fell entirely to the agency’s discretion 38 and courts reviewed
36
See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 399–
405 (1990).
37
See id. at 404 (explaining that a district judge must determine
“when a sanction is warranted to serve Rule 11’s goal of
specific and general deterrence”); McLane Co., 581 U.S. at 81
(noting that “whether a subpoena is overly burdensome” is a
“fact-intensive, close call[]”) (quoting Cooter & Gell, 496 U.S.
at 404); Highmark Inc., 572 U.S. at 564 (explaining that the
attorney-fee determination draws on the district court’s
experience of having “live[d] with the case over a prolonged
period of time”).
38
See 8 U.S.C. § 1254(a)(1) (1995) (amended 1996) (providing
for suspension of deportation where, among other
15
hardship determinations for abuse of discretion. 39 This
changed when Congress rewrote the cancellation-of-removal
provision, eliminating the instruction that hardship be
determined “in the opinion of the attorney general.” 40 As the
Supreme Court made crystal-clear in remanding this case,
given that legislative amendment, hardship determinations
were no longer discretionary. 41 That counsels against adopting
the abuse-of-discretion standard. Accordingly, determinations
made before 1996 do not advance our inquiry.
Wilkinson interprets this statutory history to mean that
Congress, by making the hardship determination non-
discretionary, intended us to afford the agency less deference.
But this history cuts both ways. The 1996 amendments created
a two-step inquiry, whereby the IJ first determines whether the
applicant satisfies the statutory criteria, including hardship, 42
and second, decides whether to exercise its discretion to
include the applicant among the 4,000 individuals who may
requirements, “in the opinion of the Attorney General,”
deportation would “result in extreme hardship to the alien or to
his spouse, parent, or child” lawfully residing in the United
States).
39
See Amezquita-Soto v. INS, 708 F.2d 898, 902–03 (3d Cir.
1983); Bueno-Carrillo v. Landon, 682 F.2d 143, 145–47 (7th
Cir. 1982).
40
See Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No. 104-208, §
240A(b)(1)(D), 110 Stat. 3009-546, 594 (codified at 8 U.S.C.
§ 1229b).
41
Wilkinson, 601 U.S. at 224.
42
U.S.C. §§ 1229b(1)(A)–(D).
16
receive relief in any year. 43 Whereas these changes rendered
the hardship determination non-discretionary at the first step,
they added agency discretion at the second step. 44 Moreover,
the underlying factual findings became entirely unreviewable
with the addition of the jurisdiction-stripping provision
codified at 8 U.S.C. § 1252(a)(2)(B)(i). 45 If anything, those
revisions collectively suggest that Congress envisioned a
“minimal” supervisory role for courts. 46 At bottom, as in
Monasky v. Taglieri, historical practice has no role to play here
because “there has been no uniform, reasoned practice” 47
sufficient to establish “a historical tradition,” 48 and
“[m]oreover, when a mixed question has a factual foundation
as evident as the . . . inquiry here does, there is scant cause to
default to historical practice.” 49
We therefore hold that the substantial-evidence
standard governs review of a hardship determination in a
cancellation-of-removal proceeding.
43
8 U.S.C. § 1229b(e).
44
See Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 § 240A(e).
45
See id. § 242(2)(B).
46
See Wilkinson, 601 U.S. at 226 (Jackson, J., concurring in
the judgment) (discussing statutory history and opining,
“Congress made clear that courts should play a minimal role in
the discretionary-relief process”).
47
589 U.S. at 84.
48
Id. (quoting Pierce, 487 U.S. at 558).
49
Id.
17
B. Exceptional and Extremely Unusual
Hardship
Having identified the applicable standard, we must now
assess whether substantial evidence supports the IJ’s hardship
determination. In doing so we will uphold the IJ’s
determination “unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 50
1.
The phrase “exceptional and extremely unusual
hardship” in 8 U.S.C. § 1229b(b)(1)(D) has long been
understood to require a showing “substantially beyond the
ordinary hardship that would be expected when a close family
member leaves this country.” 51 While this does not mean that
the consequences of deportation must be “unconscionable,” 52
it does limit relief to “truly exceptional” situations. 53 This
makes sense. Whereas the pre-1996 version of the statute
permitted relief if removal simply “result[ed] in extreme
hardship,” 54 Congress added qualifying language to require
that the hardship be more than “extreme.” It required instead
50
Nasrallah, 590 U.S. at 584 (quoting 8 U.S.C. §
1252(b)(4)(B)).
51
In re Monreal-Aguinaga, 23 I&N Dec. 56, 62 (BIA 2001)
(internal quotation marks omitted); see also Pareja v. Att’y
Gen., 615 F.3d 180, 193–95 (3d Cir. 2010) (upholding the
interpretation of § 1229b(b)(1)(D) set forth in In re Monreal-
Aguinaga).
52
In re Monreal-Aguinaga, 23 I&N Dec. at 61.
53
Id. at 62 (quoting H.R. Conf. Rep. No. 104–828, at 213–14
(1996)).
54
8 U.S.C. § 1254(a)(1) (1995) (amended 1996).
18
that it be “exceptional and extremely unusual.” 55 This plainly
raises the bar and permits relief only where the hardship goes
beyond that which is inherent in forced deportation.
In evaluating the degree of hardship, courts and the
agency consider the “ages, health, and circumstances” of
qualifying relatives. 56 The focus is on hardship to the relative,
not to the petitioner. 57 The BIA has stated that an applicant
with “a qualifying child with very serious health issues, or
compelling special needs in school” could have a strong case,
while “[a] lower standard of living or adverse country
conditions in the country of return . . . generally will be
insufficient in themselves to support a finding of exceptional
and extremely unusual hardship.” 58
2.
The IJ’s analysis correctly focused on how Wilkinson’s
deportation would impact M., Wilkinson’s qualifying U.S.-
citizen relative. The IJ noted that M. has eczema, as well as
asthma, a serious medical condition. While acknowledging
that Wilkinson plays an important role in M.’s life and that his
incarceration has caused M. to struggle, the IJ viewed the
history of father and son living separately as evidence that M.
can live without Wilkinson’s daily presence. The IJ explained
that Watson has been M.’s primary caretaker for years and that,
while “it will be difficult to balance work and being a mother”
if Wilkinson is removed, Watson will have the continuing
55
8 U.S.C. § 1229b(b)(1)(D).
56
In re Monreal-Aguinaga, 23 I&N Dec. at 63.
57
Id. at 58.
58
Id. at 63–64.
19
support of her own mother, Tracy Collins. 59 While
Wilkinson’s removal likely would diminish his financial
support to the family, the IJ noted that Wilkinson could
continue to send money if he finds a job in Trinidad and
Tobago and that M. would continue to receive medical
insurance from the state. The IJ also found that Watson will
be “able to work.” 60 Accordingly, the IJ ultimately concluded
that neither the loss of Wilkinson’s income nor the loss of his
fatherly presence would cause hardship “beyond that which
would normally be expected from the removal of a parent and
provider.” 61
We are sympathetic to the plight of Wilkinson and M.,
as well as to the hardship that Wilkinson’s removal will cause
M. However, given our limited and deferential standard of
review, we must agree that substantial evidence supports the
IJ’s conclusion that Wilkinson’s removal will not result in the
exceptional and extremely unusual hardship required for the
relief Wilkinson seeks. M.’s distress in response to his father’s
detention is, indeed, heart wrenching. But “struggling,”
“feeling sad,” and “acting up,” 62 are exactly the responses we
would expect when a beloved parent faces deportation. We do
not mean to minimize the severity of M.’s pain, for we have no
doubt that his father’s situation impacts him severely. But we
cannot characterize it as “extremely unusual.”
59
AR 59.
60
AR 59.
61
AR 60.
62
AR 59.
20
Wilkinson argues that the testimony about M.’s
behavioral and emotional problems is sufficient because in
other unpublished decisions, the BIA has found the standard
satisfied by U.S.-citizen children experiencing documented
mental-health issues. 63 These cases are distinguishable,
though, because they rely upon either testimony of a mental-
health provider or diagnosis of a mental-health condition to
establish both the severity of the condition and its nexus to the
parent’s removal. This distinction matters. It is possible that
some of M.’s behavior—such as “breaking things” 64—signals
an exceptional psychological vulnerability that may rise to the
level of the required “exceptional and extremely unusual”
hardship. However, absent the kind of testimony from a
mental-health provider or a diagnosis of a mental-health
condition that was put on the record in the cases cited by
Wilkinson, 65 this record simply does not support a finding that
M.’s problems qualify for relief under 8 U.S.C. § 1229b.
63
See Pet’r Suppl. Br. Addendum (submitting seven
unpublished BIA decisions).
64
AR 59.
65
See In re L-A-B-C-, No. A208-442-797, at 1–2 (BIA Jan. 19,
2018) (10-year-old son “diagnosed with adjustment disorder
with mixed anxiety and depression,” requiring therapy and
Zoloft, as well as asthma, would suffer mental-health
consequences if father were removed); In re R-M-M-M-, No.
AXXX-XXX-256, at 1 (BIA May 12, 2016) (son was
diagnosed with ADD, needed an Individualized Education
Plan at school, and had become “visibly shaken” under
questioning about his father’s immigration situation); In re J-
A-M-A-, No. AXXX-XXX-716, at 2 (BIA May 18, 2021)
21
Wilkinson protests that he cannot produce such
evidence because Watson “refused to allow” M. to obtain
“even an initial appointment to be diagnosed.” 66 When asked
about the possibility of sending M. to counseling, Watson
testified that she “didn’t think that that was a good idea” 67 and
was choosing instead to “guide” and “support” her son
herself. 68 Watson is M.’s custodial parent. We are in no
position to second-guess Watson’s decision about what is best
(licensed therapist submitted report that daughter suffered from
anxiety disorder “resulting in maladaptive behaviors directly
caused by separation from her father”); In re J-V-P-A-, No.
AXXX-XXX-460, at 2 (BIA Jan. 30, 2017) (therapist testified
that daughter “was having daily panic attacks” and that
“already fragile emotional state would be adversely impacted”
by father’s removal); In re R-L-R-L-, No. AXXX-XXX-540, at
2 (BIA Nov. 2, 2018) (clinical psychologist opined about son’s
“antisocial behaviors,” which “severe stressors” could
exacerbate to the point of “significant mental deterioration”);
In re A-R-R-, No. AXXX-XXX-004, at 1–2 (BIA Feb. 26,
2018) (in a “close case,” daughter “seeking therapy for
depression and/or anxiety that stems, in large part, from her
father’s immigration situation” was a contributing factor in
establishing hardship); In re J-M-C-S-, No. AXXX-XXX-184,
at 1 (BIA June 29, 2015) (step-son received “therapy and
medication for his psychiatric conditions” and record included
“professional opinions that the child’s psychiatric conditions
could regress and worsen without the respondent’s presence”).
66
Pet’r Jan. 16, 2025 Ltr. to P. Dodszuweit at 1.
67
AR 248:24.
68
AR 249:13–14.
22
for her child. However, the absence of evidence from an
appropriately credentialed professional results in a record that
is simply not sufficient to support Wilkinson’s claim for relief
here. We do not foreclose the possibility that future litigants
could establish the requisite hardship through other forms of
proof. However, the lay testimony from Wilkinson, Watson,
and Collins does not provide a sufficient evidentiary basis for
concluding that M.’s problems go “substantially beyond the
ordinary hardship that would be expected when a close family
member leaves this country.” 69
We also agree that the financial consequences of
Wilkinson’s removal, while profound, are not exceptional.
Deporting a breadwinner inevitably hurts a family financially.
But the IJ’s factual findings support the conclusion that these
consequences can be mitigated, particularly since Watson is
capable of finding work. M. will not lose his health insurance,
and Wilkinson could continue to send money from Trinidad
and Tobago after removal.
Wilkinson asks us to overlook the IJ’s finding that
Watson is “able to work,” 70 asserting that she suffers from
debilitating depression that prevents her from becoming a
provider. Without more, we cannot depart from the IJ’s
assessment that Watson’s ability to work mitigates the
financial consequences for M. of Wilkinson’s removal.
Moreover, Wilkinson’s characterization is not supported by the
69
In re Monreal-Aguinaga, 23 I&N Dec. at 62 (internal
quotation marks omitted).
70
AR 59.
23
record. 71 Similarly, Wilkinson’s suggestion that mental-health
challenges prevent Watson from caring for M. is inconsistent
with the IJ’s findings that she “is his primary caretaker and has
been for the past five years.” 72 That finding is consistent with
the record. We are not persuaded that Watson’s choice to
occasionally leave M. in his grandmother’s care means she is
“unable to care for him.” 73
Nor are Wilkinson’s remaining arguments persuasive.
While the IJ found that M. had a serious medical condition, the
record does not establish a connection between Wilkinson’s
presence in the United States and the management of that
condition. 74 Wilkinson’s departure will not impact M.’s
71
Watson’s credited testimony was that if Wilkinson were
removed, she “would have to find a job,” AR 253:25, despite
not having done so “in a couple of years,” AR 253:24, because
she was “comfortable with [Wilkinson] taking care of [her],”
AR 254:6–7. She referred to her intention to “provide” for M.
should Wilkinson be removed, AR 252:22, and her belief that
M. would be better off with her in New Jersey than in Trinidad
and Tobago, AR 252:20–23. She also revealed that while not
formally employed, she “do[es] hair under the table” and
“make[s] a lot of money doing hair.” AR 274:7.
72
AR 59.
73
Pet’r Suppl. Reply 1.
74
See, e.g., Matter of J-J-G-, 27 I&N Dec. 808, 812 (BIA
2020) (finding daughter’s medical condition did not establish
exceptional and extremely unusual hardship because she would
continue to receive treatment in the United States if her father
were removed). The out-of-circuit case that Wilkinson sites,
24
medical insurance or his access to care, and Watson’s
testimony suggests she is experienced at managing M.’s
medical conditions. The IJ also adequately aggregated sources
of hardship. We agree with Wilkinson that the IJ’s statement
that the case “boils down to” the loss of Wilkinson’s financial
support is troubling. 75 It greatly and unjustifiably minimizes
and devalues the impact Wilkinson’s removal will have on his
child. However, when that sentence is read in context, it is
clear that the IJ considered the totality of the circumstances and
did not focus on any one factor in denying Wilkinson’s claim
for relief.
Finally, we note that Wilkinson submitted two
supplemental authorities after argument. 76 However, neither is
binding nor sufficiently analogous to be persuasive. Lopez-
Portillo v. Attorney General turned on critical factual findings
that are absent here, including that the children would be left
in the care of a remaining parent with whom they lacked a
common language, that the father’s detention directly
exacerbated a child’s medical condition, and that the father’s
Mendez v. Holder, is distinguishable because it involved a
child who would be removed with his father to another country,
where the condition could not be adequately managed. 566
F.3d 316, 318–19 (2d Cir. 2009) (per curiam). Here, again, M.
will remain in the United States in Watson’s care, where his
medical insurance is covered by the state.
75
AR 60.
76
After this case was argued, Wilkinson’s counsel submitted
two letters pursuant to Rule 28(j) of the Federal Rules of
Appellate Procedure. See Pet’r Dec. 31, 2024 Ltr. to P.
Dodszuweit; Pet’r Jan. 16, 2025 Ltr. to P. Dodszuweit.
25
removal would drive the family below the poverty line. 77
Calderon-Escobar v. Attorney General involved a child who
was diagnosed with a range of psychological conditions
requiring follow-up treatment in a hospital, and for which
adequate care was not available in Mexico, the country to
which the father would have been removed. 78 As we have
already noted, this record lacks that kind of professional or
medical evidence. Further, M. would remain in the United
States, so the availability of care in the country to which the
parent would be deported is not material. Neither case changes
the outcome here.
CONCLUSION
Because substantial evidence supports the conclusion
that Wilkinson has not satisfied the hardship requirement to
qualify for cancellation of removal, we will deny the petition
for review.
77
No. 24-10647, 2024 WL 5220909, at *1, *4 (11th Cir. Dec.
26, 2024) (per curiam).
78
No. 23-2164, 2025 WL 66347, at *2 (3d Cir. Jan. 10, 2025).
26