On Feb. 11, U.S. Court of Appeals for the Ninth Circuit issued an unpublished decision in Vilchis-Gomez v. Bondi, denying reconsideration of the appellant’s petition for cancellation of removal.
The petitioner is a Mexican national, with three U.S. citizen children. The court noted that his children did not have “very serious health issues or compelling special needs in school,” and upheld the denial even though the petitioner’s wife suffered from lumbar disc disease, depression and insomnia, finding no evidence these conditions affected her ability to work.
In her dissent, Judge Kim McLane Wardlaw noted that the immigration judge denied cancellation of removal the day before the petitioner’s six-year-old son — who was exhibiting behavioral deterioration, aggression, fear of detention and loss of desire to attend school — was scheduled for his first appointment with a school psychologist.
The Vilchis-Gomez decision was not an outlier. It is part of a trend and the predictable consequence of two binding decisions by the BIA.
In August 2025, U.S. Attorney General Pam Bondi designated the BIA’s decision in Matter of Buri Mora as binding precedent. In that case, the BIA reversed the immigration court’s decision to cancel removal of a father whose three U.S. citizen children had documented medical conditions, and whose wife was employed full time as a surgical coordinator.
In October 2025, the BIA’s decision in Matter of H-A-A-V expanded the authority of immigration judges to pretermit applications for relief without a full evidentiary hearing.
Together, these decisions narrowed what qualifies as an exceptional hardship and empower courts to deny requests for cancellation of removal before respondents have an opportunity to present live testimony.
The Vilchis-Gomez decision demonstrates that documented medical conditions with active treatment plans may not clear the hardship threshold, and cancellation of removal applications filed by the parents of healthy children face a steep climb. This article examines how these recent decisions have accelerated the judicial erosion of nonmedical hardship claims that was already underway, and provides concrete litigation strategies for practitioners.
Medical Hardship Emerging as a De Facto Requirement
Under the Immigration and Nationality Act, Section 240A(b)(1)(D), cancellation of removal for nonpermanent residents requires demonstrating that removal will create “exceptional and extremely unusual hardship” for a qualifying relative. The statute contains no medical hardship requirement.
In the 2002 decision in Matter of Recinas, the BIA granted cancellation to a single mother whose six U.S. citizen children had no medical conditions, centering its analysis on the totality of circumstances: the absence of a support network, economic consequences and developmental effect.
The shift toward requiring medical evidence began with the BIA’s 2020 decision in Matter of J-J-G-, which held that where hardship is based on a medical condition, the respondent must establish its seriousness and the unavailability of adequate care in the country of removal. While J-J-G- was limited to medical claims, immigration judges began to treat the decision as having established medical hardship as the paradigmatic path to relief.
The Buri Mora decision entrenches this trajectory. There, the respondent’s children had documented diagnoses, and his wife was employed full-time. Although the immigration judge granted cancellation of removal, the BIA reversed, finding that because the children’s conditions were managed through individualized education programs and the wife’s family was able to assist with childcare, and that economic detriment was “a common feature of a parent departing the United States,” the hardship threshold was not met.
In my practice across Maryland, Florida, California and Washington, D.C., I am seeing this pattern with troubling consistency: Immigration judges routinely dismiss cancellation applications where the qualifying relative is “healthy and adaptable,” even when the case mirrors the circumstances in Recinas.
Compounding this is the abandonment of the aggregate analysis requirement established in the BIA’s 2001 Matter of Monreal-Aguinaga decision, which directed that hardship factors “should not be considered in isolation.”
In more recent decisions, immigration judges have been dissecting hardship into discrete categories and denying relief without examining their cumulative impact. Buri Mora itself concluded that the combined effect of medical needs, economic detriment and family separation was insufficient to establish sufficient hardship — raising the question of what combination of nonmedical factors could ever satisfy the standard.
The Expanding Pretermission Threat
The H-A-A-V- decision compounded the problem. It overruled Matter of Fefe, a 1989 BIA decision requiring that a respondent be placed under oath before adjudication.
Under H-A-A-V-, immigration judges now have authority to pretermit an application at the master calendar stage based solely on the written record if the allegations, when “viewed in the light most favorable to the respondent” do not establish prima facie eligibility.
Thus, an application to cancel removal that alleges nonmedical hardship now faces a real risk of being pretermitted before the respondent ever presents live testimony.
Loper Bright Changed Nothing
The U.S. Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo eliminated Chevron deference to agency decision-making. For cancellation cases, this appeared to offer hope that circuit courts would independently scrutinize the BIA’s narrow construction of hardship.
Decisions in 2025 from several circuits demonstrate that this hope has not been realized.
In Gonzalez-Juarez v. Bondi, the Ninth Circuit applied the substantial evidence standard — not the independent judgment standard — acknowledging Loper Bright’s holding but finding “little practical difference” between the two.
In Wilkinson v. Attorney General, the U.S. Court of Appeals for the Third Circuit held that deference to agency factual findings should also govern hardship review.
In Blanco Contreras v. Bondi, the U.S. Court of Appeals for the First Circuit applied deferential review, even when remanding the case for failure to consider a psychological report.
And in Garcia-Pascual v. Bondi, the U.S. Court of Appeals for the Eighth Circuit affirmed a denial of relief from removal where the children’s hardship was deemed no different from what all children of removed parents experience.
Vilchis-Gomez applied this same deferential framework to deny relief to a family whose child was visibly deteriorating.
Practitioners cannot rely on Loper Bright to save cases on appeal. We must build trial-level records that are so comprehensive that potentially even deferential review cannot sustain a denial.
What Practitioners Should Do Now
Challenge Pretermission Motions Aggressively
When the U.S. Department of Homeland Security moves to pretermit a client’s application, practitioners should object immediately and demand that the immigration judge apply H-A-A-V-’s own standard: Factual allegations must be viewed in the light most favorable to the respondent.
If the application alleges sole-caregiver status, extreme poverty in the country of removal and no support network, the respondent will have plausibly alleged exceptional hardship under Recinas.
Practitioners should also demand an on-the-record explanation of why their client’s allegations, accepted as true, are legally insufficient. Where pretermission is granted without this analysis, note on the record that the court failed to apply the H-A-A-V- standard and request reconsideration. This preserves the due process argument for appeal.
Distinguish Buri Mora with Factual Precision
Do not allow Buri Mora to be cited in a vacuum. The family in the Buri Mora case had a substantial safety net: The wife was employed full-time, her extended family was in the U.S. to assist with childcare and the children’s care was being managed through state-funded programs.
The denial of relief rested on the availability of these resources — not on the presence or absence of medical conditions alone.
For sole caregivers without a support network, the distinguishing language should be specific:
“Unlike in Matter of Buri Mora, where the respondent’s wife was employed full-time, and her entire family was available to assist with childcare, the respondent here is the sole caregiver with no family support network.”
Recinas remains the controlling precedent for these cases.
Build Comprehensive Nonmedical Hardship Records
Nonmedical hardship cases require evidence that is as vivid as a medical diagnosis.
For a qualifying child who would accompany the respondent upon removal, submit documentation of the specific school the child would attend, including academic rankings, safety records and available resources as compared to the child’s current school.
Country-conditions evidence should address violence, poverty and lack of opportunity in the specific region where the family would relocate — not generic countrywide statistics.
Expert testimony from child psychologists or educators on the developmental impact of removing a child from their home environment should detail how removal would foreclose specific opportunities.
For a qualifying child who would remain in the U.S., the record should establish the respondent’s role as the sole caregiver and financial provider through testimony from teachers, family friends and community members.
Critically, the record must document the absence of alternative care arrangements — the factor that distinguished Recinasfrom Buri Mora.
Invoke Monreal’s Aggregate Analysis
Practitioners should force adjudicators to address the cumulative effects of the respondent’s potential removal and object if hardship factors are analyzed in isolation.
Consider Administrative Closure
Although increasingly difficult under current conditions, practitioners should continue filing motions for administrative closure where appropriate to preserve procedural options and build the record.
Litigate Aggressively in Federal Court
Frame hardship determinations as questions of statutory interpretation requiring independent review under Loper Bright, and preserve all arguments for appeal and higher review.
Conclusion
The designation of Buri Mora as binding precedent, the expansion of pretermission authority under H-A-A-V- and decisions like Vilchis-Gomez demonstrate a clear shift: “exceptional and extremely unusual hardship” is increasingly being treated as a de facto medical requirement.
Matter of Recinas has not been overruled, but its standard is being buried. Through aggressive litigation strategies, detailed factual records and continued federal advocacy, practitioners can preserve its framework and protect access to relief for families who need it most.
Abdoul Konare is the founder and managing attorney at Konare Law.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its affiliates.
