The Fifth Circuit has affirmed the agency’s hardship finding in a cancellation of removal case. Discussing the complexities of Cancellation Of Removal / by Attorney Brian D. Lerner, the court found that the applicant, Carlos Pineda, had not established that his U.S. citizen son would suffer “exceptional and extremely unusual hardship”. The Fifth Circuit hardship determination review highlights the intricate nature of these legal decisions. In the case of
Pineda v. Garland, the court denied the petition for review and upheld the Board of Immigration Appeals’ (BIA) decision.
The petitioner, Carlos Pineda, is a citizen of Honduras who entered the U.S. in 2003.
Factual Background
Pineda argued that his deportation would negatively impact his son’s medical treatment and education. He contended that he was the son’s primary caregiver. Pineda also argued that his son would be forced to live in poverty and face threats of gang violence in Honduras. An Immigration Judge (IJ) denied his application. The IJ found that while the son would experience hardship, it was not at the required statutory level. The BIA affirmed the IJ’s decision, which led to Pineda’s appeal to the Fifth Circuit.
The Court’s Reasoning on Hardship
The Fifth Circuit reviewed the case. It assumed for the sake of argument that the hardship finding was a question of law. This would make it subject to de novo review, a less deferential standard. Even under this standard, the court concluded that the BIA did not err. The court found that the hardship to Pineda’s son, while significant, was not “exceptional and extremely unusual”. The court noted that the hardship would be similar to what many children of deported parents face. This includes a likely decline in the family’s financial situation. It also includes having to adapt to a new country and language. The court also found no evidence that his son’s medical or educational needs could not be met in Honduras. Thus, the court affirmed the BIA’s conclusion that Pineda had not met the statutory requirements for Cancellation of Removal.
No deference to BIA on “exceptional and extremely unusual hardship” — what changed and why it matters
The Fifth Circuit recently clarified that when an appeal raises the question whether an established set of facts meets the legal standard of “exceptional and extremely unusual hardship” for cancellation of removal, courts may review that legal question rather than simply deferring to the BIA/IJ. This follows and applies the Supreme Court’s teaching in Wilkinson v. Garland.
Key holding
The court distinguished between (1) subsidiary factual findings about what happened (largely unreviewable), and (2) the legal question whether those facts satisfy the statutory hardship standard. On that mixed question of law and fact, the Fifth Circuit will not automatically defer to the Board’s legal judgment.
Practical effect for cancellation cases
- Keep a meticulous record at the IJ level — medical, educational, and financial evidence must be explicit and linked to legal elements.
- Frame appellate briefing to isolate legal questions (does the record, as established, meet the statutory standard?), since that is the reviewable issue post-Wilkinson.
- Consider appellate review where the BIA’s opinion demonstrates a legal misapplication of the hardship standard, not merely a credibility call.
Evidence checklist
- Medical declarations & records; physician treatment plans.
- Financial exhibits and household budgeting showing substantial loss of support.
- School records, IEPs, and expert education affidavits.
- Country-condition or country-specific expert testimony where relevant.