United States Court of Appeals
For the First Circuit
No. 24-1299
LESBIA ASUCENA ALAY,
Petitioner,
v.
PAMELA BONDI, Attorney General,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Barron, Chief Judge,
Howard and Thompson, Circuit Judges.
Randy Olen for petitioner.
Jessica D. Strokus, Trial Attorney, Office of Immigration
Litigation, Civil Division, with whom Brian M. Boynton, Principal
Deputy Assistant Attorney General, Civil Division, and Anthony C.
Payne, Assistant Director, Office of Immigration Litigation, were
on brief, for respondent.
July 16, 2025
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Pamela Bondi is automatically substituted for
former Attorney General Merrick B. Garland as respondent.
BARRON, Chief Judge. Lesbia Asucena Alay petitions for
review of an order from the Board of Immigration Appeals (BIA)
that affirmed the denial of her application for cancellation of
removal. She challenges the BIA's order affirming the ruling by
the Immigration Judge (IJ) that she failed to establish that her
removal would result in "exceptional and extremely unusual
hardship" to her two United States citizen children. 8 U.S.C.
§ 1229b(b)(1)(D). We deny the petition.
I.
In 2013, the U.S. Department of Homeland Security
initiated removal proceedings against Alay, a native and citizen
of Guatemala. Alay conceded her removability. She sought,
however, cancellation of removal.1
"Cancellation of removal permits a noncitizen to remain
in the country lawfully" if she "meets certain statutory criteria."
Wilkinson v. Garland, 601 U.S. 209, 212 (2024). To qualify, the
applicant must, in relevant part: (1) "ha[ve] been physically
present in the United States for a continuous period of not less
than 10 years" before the application; (2) "ha[ve] been a person
of good moral character during such period"; (3) not have been
convicted of certain offenses; and (4) "establish[] that removal
would result in exceptional and extremely unusual hardship to [her]
1 Alay also applied for asylum and withholding of removal but
later withdrew those applications.
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spouse, parent, or child, who is a citizen of the United States
or . . . lawfully admitted for permanent residence." 8 U.S.C.
§ 1229b(b)(1).
The applicant bears the burden of proving to an
immigration judge that she meets these requirements. 8 U.S.C.
§ 1229a(c)(4)(A). "After determining whether [the applicant has]
me[t] these criteria, [the immigration judge] . . . decides
whether to exercise discretion to cancel the order of removal in
[that] particular case." Wilkinson, 601 U.S. at 213.
In December 2019, the IJ assigned to Alay's case denied
her application for cancellation of removal. The IJ concluded
that Alay had not satisfied the fourth statutory criterion -- that
a qualifying relative would suffer "exceptional and extremely
unusual hardship" as a "result" of her removal.2 8 U.S.C.
§ 1229b(b)(1)(D).
The IJ found as follows. Alay has two qualifying
relatives: her sons, A.L. and F.L., both of whom are United States
citizens. Both sons currently attend Catholic school and "have
lived with their mother and father in a secure and stable
environment for the majority of their life." A.L. is "healthy,"
2 The IJ also concluded that Alay had not shown that she
merits a favorable exercise of discretion. The BIA, however, did
not rely on that ground to affirm the IJ's decision. We thus do
not address it.
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wants "to go to the army and college," and includes "engineering"
among his "career goals."
In considering the hardship that A.L. and F.L. would
suffer because of Alay's removal, the IJ credited Alay's testimony
that "there's a lot of sad things" in Guatemala and noted that
this testimony was "certainly corroborated by the country
conditions evidence."3 Based on Alay and A.L.'s testimony,
however, the IJ found that both "children would remain with
[Alay's] husband in the United States." In addition, the IJ
observed that Alay "specifically testified" that her husband
"would be able to care for and support their children here," and
that there was "no evidence to the contrary." The IJ, citing BIA
precedent, "declined to speculate on the likelihood" that Alay's
husband "will be placed in [removal] proceedings, or what will
happen if that occurs" (quoting In re Calderon-Hernandez, 25 I. &
N. Dec. 885, 887 (BIA 2012)).
The IJ recognized that A.L. and F.L. would face hardship
due to the "loss of income from [Alay's] employment." The IJ
explained, however, that "absent truly compelling circumstances,
a child who loses economic and educational opportunities in the
The IJ noted that that evidence detailed "human rights
3
violations ranging from corruption, lack of accountability for
past human rights violations, violence by criminal organizations,
including extortion, and high levels of impunity, including
violence against journalists and violations of . . . women's and
girls' rights."
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United States by virtue of his parents' removal from the United
States does not thereby establish exceptional and extremely
unusual hardship because such losses, while regrettable, are by no
means exceptional and extremely unusual."
The IJ separately found that A.L. and F.L. would
experience hardship from the "loss of [their] companion and
parent." The IJ noted that both sons "have lived with their mother
and father in a secure and stable environment for the majority of
their li[ves]" and observed that Alay's case for cancellation of
removal was "highly sympathetic" and that "potentially
separat[ing]" Alay from her sons "at this stage of their
development seems particularly harsh." The IJ nonetheless
concluded that "such separation is what's normally expected to
result from [the] removal of a parent with close family members
here in the United States," and thus "does not amount to
exceptional and extremely unusual hardship, let alone extreme
hardship."
The IJ concluded the hardship analysis by observing that
A.L. and F.L. would "certainly" suffer "hardship" in the form of
"loss of income, loss of a close family member [who has] been close
their entire life to the qualifying relatives, [and] loss of a
parent potentially for at least 10 years." The IJ nonetheless
concluded that these hardships were not "substantially beyond that
which would be normally expected from removal" -- and that, as a
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result, Alay had not shown that she was statutorily eligible for
cancellation of removal.
The BIA affirmed. It "recognize[d] . . . that [Alay's]
children, who will remain in the United States, will face some
hardship in the event of her removal to Guatemala," including
"hardship in the form of separation from their mother, and the
resulting loss of emotional and economic support." But it noted
that A.L. and F.L. were "healthy and doing well in school"
(footnote omitted). The BIA explained that "[u]nder these
circumstances, the [IJ] properly determined that the hardship
[Alay's] children will experience upon her removal to Guatemala is
consistent with the hardship that would ordinarily result from the
removal of a close family member from the United States." Thus,
the BIA affirmed the IJ's denial of Alay's application for
cancellation of removal.
Alay timely petitioned for our review.
II.
"When, as here, 'the BIA adopts the IJ's opinion and
discusses some of the bases for the IJ's decision, we . . . review
both the IJ's and the BIA's opinions.'" Vallejo Piedrahita v.
Mukasey, 524 F.3d 142, 144 (1st Cir. 2008) (quoting Ouk v.
Gonzales,
464 F.3d 108, 110 (1st Cir. 2006)). "When we analyze
the IJ and BIA's opinions 'as a unit,' we refer to the IJ and BIA
collectively as 'the agency.'" Duarte De Martinez v. Bondi, 132
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F.4th 74, 78 (1st Cir. 2025) (quoting Khalil v. Garland, 97 F.4th
54, 61 (1st Cir. 2024)).
III.
To satisfy the "exceptional and extremely unusual
hardship" standard, an applicant "must demonstrate that [a]
qualifying relative would suffer hardship that is 'substantially
different from, or beyond, that which would normally be expected
from the deportation of an alien with close family members here.'"
In re Garcia, 28 I. & N. Dec. 693, 706 (BIA 2023) (quoting In re
Monreal-Aguinaga,
23 I. & N. Dec. 56, 65 (BIA 2001)). Proper
considerations include the "age[], health, and circumstances" of
the qualifying relative. Monreal-Aguinaga,
23 I. & N. Dec. at 63.
At bottom, each "hardship case ultimately succeeds or fails on its
own merits and on the particular facts presented." In re Gonzalez
Recinas,
23 I. & N. Dec. 467, 470 (BIA 2002).
The "exceptional and extremely unusual hardship"
standard does not require a level of hardship that would be
"unconscionable," Monreal-Aguinaga, 23 I. & N. Dec. at 60-61, but
it "is supposed to be hard to meet," Tacuri-Tacuri v. Garland, 998
F.3d 466, 474 (1st Cir. 2021). This aspect of the standard accords
with the fact that "the hardships typically felt by children whose
parents are removed from the country" represent a type of hardship
that "itself sets a high bar."
Id. (citing Monreal-Aguinaga, 23
I. & N. Dec. at 63; and Gonzalez Recinas, 23 I. & N. at 470).
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A.
We begin with Alay's contention -- insofar as she means
to advance it -- that the agency "overlooked . . . evidence
regarding the factors to be considered in the hardship analysis."
A claim that the agency "fail[ed] . . . to consider significant
record evidence" is a claim of legal error over which we have
jurisdiction. Contreras v. Bondi, 134 F.4th 12, 21 (1st Cir.
2025); see
id. at 20-21. Assuming that Alay's contention is
properly understood to constitute such a claim of legal error, we
conclude that, reviewing de novo,
id. at 20, it provides no basis
for overturning the agency's denial of her application for
cancellation of removal.
Some of the evidence that Alay points to in pressing
this claim of legal error concerns the adverse impact that Alay's
removal would have on either her eldest daughter, her
mother-in-law, or both. But the exceptional and extremely unusual
hardship standard "must be assessed solely with regard to the
qualifying relatives in th[e] case," Gonzalez Recinas, 23 I. & N.
Dec. at 470 (emphasis added), and Alay's daughter and mother-in-law
are not qualifying relatives under 8 U.S.C. § 1229b(b)(1)(D).
Thus, the claimed failure by the agency here provides no basis for
overturning the agency's decision.
Alay also contends that the agency failed to "note the
evidentiary importance of" her "[l]ength of residence in the United
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States." She directs our attention specifically to the fact that
she "has resided continuously [here] since 2000," and thus "well
over half her lifetime."
Again, however, "[f]actors relating to the applicant"
may only be considered as part of that inquiry "insofar as they
may affect the hardship to a qualifying relative."
Monreal-Aguinaga, 23 I. & N. at 63. Because Alay does not explain
how her length of residence would result in hardship to A.L. or
F.L., this aspect of her failure-to-consider-evidence claim also
fails.
This same problem stands in the way of her contention
that the agency committed legal error by failing to consider
evidence that she "suffers from arthritis, . . . anxiety and
depression." Although she contends that the agency did "not
recognize this factor as one deserving meaningful analysis," she
does not attempt to tie these health conditions to the hardship
that A.L. and F.L. would face upon her removal.
True, Alay questions "[h]ow . . . the children [will] be
affected by the knowledge that their mother is now living in an
indisputably dangerous environment." But she does not direct us
to any record evidence that would suggest that such hardship would
result in or contribute to hardship "substantially beyond that
which would ordinarily be expected to result from [a parent's]
departure." Gonzalez Recinas, 23 I. & N. Dec. at 468. We therefore
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cannot say that the agency erred in "overlook[ing]" the evidence
that she "suffers from arthritis, . . . anxiety and depression."
Alay also contends that the agency failed to consider
the evidence showing both her community involvement and her
immigration history. But because she does not explain how these
circumstances would result in hardship to A.L. or F.L., this aspect
of her challenge fails for by now familiar reasons.
In what appears to be the final aspect of her challenge
to the agency's failure to consider certain evidence, Alay contends
that the agency did "not consider[]" that she "has no other means
of adjusting her status . . . beyond the IJ's speculation that her
children could petition for her when they are 21 years old." She
further asserts that "[t]his speculation was devoid of any
contemplation of how [her] removal might affect any attempt to
return."
The agency recognized, however, that A.L. and F.L. would
"certainly" face "hardship" in the form of "the loss of a parent
potentially for at least 10 years or until the children turn 21
and can petition for" Alay (emphasis added). It simply concluded
that such hardship -- even when aggregated with the other
hardships -- would not be "substantially beyond that which would
be normally expected from removal." Thus, we cannot agree that
the agency failed to consider how her inability to adjust her
status would result in hardship to A.L. or F.L.
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B.
Alay's next ground for challenge rests on her assertion
that the agency failed to "meaningfully evaluate[]" the
exceptional and extremely unusual hardship standard "in relation
to the facts and circumstances of [her] individual case." More
specifically, she contends that although each "case must be
considered on its own individual facts," In re Andazola-Rivas, 23
I. & N. Dec. 319, 323 (BIA 2002), the agency failed to conduct an
"individualized assessment" of the hardship that A.L. and F.L.
would suffer in this case.
Here, Alay does not appear to be contending that the
agency failed to consider any specific evidence. Rather, she
appears to contend that, in considering the evidence she put forth,
it failed to make an individualized assessment of the claimed
hardship to her qualifying relatives.
This claim too is one of legal error -- and so one that
we have jurisdiction to address. See Rosa v. Garland, 114 F.4th
1, 14 (1st Cir. 2024) (holding that the agency's failure to follow
its own binding precedent is a claim of legal error which we have
jurisdiction to review). But, reviewing de novo, Arias-Minaya v.
Holder,
779 F.3d 49, 53-54 (1st Cir. 2015), we again discern no
basis for overturning the agency's denial of her application for
cancellation of removal.
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1.
First up is Alay's contention that the agency failed to
"meaningfully evaluate[]" the hardship that A.L. and F.L. would
face because of the "loss of half of the family's income" that
would result from Alay's removal. The petition asserts that,
rather than "meaningfully consider[ing]" the "serious[]" impact
that this loss will have on A.L. and F.L.'s "future," the agency
"repeatedly invok[ed] platitudes" regarding the economic harms
that ordinarily result from removal and failed to "individual[ly]
assess[]" how the loss of Alay's income would impact A.L. and
F.L.'s educational opportunities and standard of living.
The IJ's analysis, however, detailed A.L. and F.L.'s
economic and educational circumstances. It noted, for example,
that both children attend Catholic school and A.L. aspires to "go
to the army and college" and become an engineer. It then explained
that, against this backdrop, A.L. and F.L. would suffer hardship
from the "loss of income from [Alay's] employment as a car
detailer" -- including "los[s of] economic and educational
opportunities." And the analysis then went on to conclude that
"such losses, while regrettable, are by no means exceptional and
extremely unusual for aliens who have close family members who are
removed" (citing Andazola-Rivas, 23 I. & N. Dec. at 323). We
cannot agree, therefore, that the agency's acknowledgement that
the "los[s of] economic and educational opportunities" that A.L.
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and F.L. face is not "exceptional and extremely unusual for aliens
who have close family members" here reveals that it failed to
consider their individual circumstances. After all, the hardship
inquiry "necessarily" requires "compari[son] . . . to the hardship
others might face." Andazola-Rivas, 23 I. & N. Dec. at 323.
2.
Alay also contends that the agency failed to
"meaningfully evaluate[]" the hardship that A.L. and F.L. would
suffer from being separated from her. In support of this aspect
of the challenge, the petition highlights that A.L. testified that
Alay "is everything" to F.L. and that F.L. "can't live without his
mom." The petition asserts that the agency failed to consider the
hardship that F.L. would endure, given this testimony and F.L.'s
young age. It also asserts, separately, that the agency failed to
"explore the actual effect of the separation from A.L." -- though
Alay identifies no particular circumstances that would enhance the
hardship to A.L.4
The IJ's analysis, however, explicitly considered each
of the circumstances that Alay raises in her petition. Indeed,
the IJ "recognize[d] that the children live and have lived with
4 Alay also highlights that the agency did not consider the
effect that Alay's separation would have on "her husband of many
years." Her husband, however, is not a qualifying relative. And
Alay does not explain how her husband's separation-based hardship
would result in further hardship to A.L. or F.L.
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their mother and father in a secure and stable environment for the
majority of their life," and that "there would be hardship,
including . . . loss of a companion and parent, and separation."
The IJ also acknowledged A.L.'s "conflicted and indeed emotional
[testimony] about the prospect of having to confront [Alay's]
removal and [her] return to Guatemala." And the IJ recognized
that "potentially separat[ing]" the children "at this stage of
their development seems particularly harsh."
To be sure, the agency did conclude that the hardship
that A.L. and F.L. would face due to their separation was not
"exceptional and extremely unusual" because "separation is what's
normally expected to result from removal of a parent with close
family members here." But the agency did so notwithstanding its
recognition of the "highly sympathetic" circumstances of this
case. Thus, we cannot agree that the agency failed to
"meaningfully" consider any separation-based hardship in this case
in relation to the individual circumstances of A.L. and F.L.
3.
Alay's final contention is that the agency failed to
provide an "individualized assessment" of how the country
conditions in Guatemala would result in hardship to A.L. and F.L.
She acknowledges that the agency considered the country conditions
in Guatemala. But she asserts that the agency erred in failing to
consider how A.L. and F.L. "would . . . be affected by the
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knowledge that their mother faces" these conditions, particularly
given "A.L.'s emotional testimony elicit[ing] their concern for
their mother's well-being in Guatemala."
As we have explained, however, the agency explicitly
considered A.L.'s "conflicted and indeed emotional [testimony]
about the prospect of having to confront [Alay's] removal and
return to Guatemala." It also noted Alay's testimony regarding
the conditions in Guatemala and detailed how it was "certainly
corroborated by the country conditions evidence." Thus, we cannot
agree that the agency failed to "meaningfully evaluate" the
hardship that would accrue to A.L. and F.L. in particular, given
their knowledge of the country conditions that their mother would
face.
IV.
For the foregoing reasons, the petition for review is
therefore denied.
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