Cancellation of Removal Hardship Ruling From Second Circuit

A federal appeals court in New York refused to loosen its review of the hardship findings that decide most cancellation cases, and it made clear that late-filed evidence about a child’s health must show more than a diagnosis.

Immigrants in New York, Connecticut and Vermont who lose a cancellation of removal hardship claim will keep facing highly deferential review in federal appeals court. In a per curiam opinion issued Nov. 5, 2026, in Diaz v. Blanche, a Second Circuit panel held that it still reviews the agency’s “exceptional and extremely unusual hardship” finding only for clear error, and that a Supreme Court asylum ruling from March did not change that. The panel, Chief Judge Lohier and Judges Parker and Pérez, denied the petition of a Salvadoran father of three U.S. citizen children and upheld the Board of Immigration Appeals’ refusal to send his case back for new mental-health evidence.

Nonpermanent residents seeking cancellation must show 10 years of continuous presence, good moral character and “exceptional and extremely unusual” hardship to a U.S. citizen or permanent resident spouse, parent or child, and Congress caps grants at 4,000 a year. Hardship is where most cases turn, so the standard an appeals court uses to second-guess it matters to every attorney filing a petition for review.

Why the hardship standard was suddenly in doubt

The Supreme Court’s 2024 decision in Wilkinson v. Garland opened hardship findings to judicial review, holding that applying the standard to established facts is a mixed question of law and fact. The Second Circuit then decided in Toalombo Yanez v. Bondi (2025) that the review would be for clear error.

Then, in Urias-Orellana v. Bondi, decided unanimously in March 2026, the Supreme Court held that courts review persecution determinations for substantial evidence. Another Second Circuit panel, in Al Saidi v. Blanche, applied that standard to Convention Against Torture findings and suggested Toalombo Yanez had been abrogated, leaving practitioners unsure which test governed cancellation appeals.

The Diaz panel settled it for now. The broad language in Al Saidi was dicta, it held, because the hardship question was not before that court, so “we therefore remain bound by Toalombo Yanez’s clear-error standard.” The court also repeated that it cannot reweigh the evidence.

The label matters less than it sounds. Both standards are highly deferential; in Dickinson v. Zurko (1999) the Supreme Court described substantial-evidence review as somewhat less strict than clear error. The practical effect of Diaz is consistency, not different outcomes. The quirk is that one petition raising asylum, torture and cancellation claims will be reviewed under two differently named tests, something other circuits are likely to confront as they apply Urias-Orellana. If they split, the Supreme Court could be asked to settle the hardship standard as it did for persecution.

New evidence has to answer the country question

The second holding may matter more day to day. On appeal, Diaz asked the Board to remand his case based on new evidence about the mental-health conditions of his eldest son and a daughter. The Board had already found, in an Oct. 17, 2025, decision, that the hardship to the children, who would move to El Salvador with him and speak Spanish at home, was not “substantially beyond the ordinary hardship that would be expected when a close family member leaves this country,” the test set in the Board’s 2001 Monreal-Aguinaga precedent.

A motion to remand built on new evidence is held to the same requirements as a motion to reopen, the court said, so the applicant must show prima facie eligibility for relief. Diaz did not, because he never showed the children “will be unable to obtain treatment for their mental health in El Salvador,” and he pointed to no evidence in the record that adequate care is unavailable there. The Board did not engage in improper fact-finding, the court added; it only asked whether the new evidence would change the result, a burden circuit precedent calls “heavy.”

The lesson for anyone building a hardship record is that a diagnosis alone rarely moves the needle; what matters is the specific treatment a child needs and whether it exists in the country of removal. The Board applied a similar heavy-burden test this week in a precedent barring a father who missed his voluntary departure date from reopening over new medical records on his children, and recent precedents have tightened other elements, including proof of rehabilitation and unresolved arrests.

The odds were already long. Immigration judges granted some form of relief in 13,899 initial removal-case decisions in fiscal 2026 through late July, about 2 percent of roughly 641,500 such decisions, based on Executive Office for Immigration Review figures generated July 24, 2026. That count covers every type of relief, not only cancellation. With the Board’s appeals backlog at a 20-year high, Diaz leaves the immigration judge’s hearing as the place where these cases are effectively decided.

Diaz can seek rehearing by the full Second Circuit or petition the Supreme Court. Unless either steps in, the ruling binds future panels, even as courts elsewhere keep reworking how they review torture-protection claims.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds an LL.M. from California Western School of Law, San Diego and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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