22-6267 Toalombo Yanez v. Bondi

In the United States Court of Appeals for the Second Circuit ___________________________

August Term, 2023 Argued: September 18, 2023 Decided: June 13, 2025

Docket No. 22-6267-ag

_________________________

GLADYS EUDOSIA TOALOMBO YANEZ,

Petitioner,

v.

PAMELA BONDI, UNITED STATES ATTORNEY GENERAL,

Respondent. ∗ ___________________________

Before: CALABRESI, LEE, and PÉREZ, Circuit Judges.

In 2017, Gladys Eudosia Toalombo Yanez, a native and citizen of Ecuador, was placed in removal proceedings for entering the United States without inspection. Toalombo Yanez conceded removability and filed an application for cancellation of removal on the basis that her removal would cause “exceptional

∗ Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Pamela Bondi is substituted automatically for former Attorney General Merrick B. Garland as the Respondent. and extremely unusual hardship” to her children, who are United States citizens. The Board of Immigration Appeals (“BIA”) affirmed the decision of an Immigration Judge (“IJ”) denying Toalombo Yanez cancellation of removal. The agency found that Toalombo Yanez did not meet her burden of showing that the hardship that would be experienced by her children as a result of her deportation would be exceptional and extremely unusual. Toalombo Yanez appealed to this Court, arguing that the agency’s hardship determination was not supported by the evidence in the record and that the BIA impermissibly retroactively applied a new legal standard to her case.

The government initially claimed that we lacked jurisdiction over both issues because the hardship determination is an unreviewable discretionary determination and the retroactivity argument is not a colorable issue of law. However, following the Supreme Court’s decision in Wilkinson v. Garland,

(2024), the government concedes that we do in fact have jurisdiction to review the agency’s determination that the evidence of Toalombo Yanez’s children’s hardships did not meet the exceptional and extremely unusual standard. We agree that we have jurisdiction over that claim, and we also conclude that we have jurisdiction to review Toalombo Yanez’s retroactivity claim. In evaluating the hardship determination, we hold that the appropriate standard of review is for clear error. Upon such review, we find that the agency did not err in concluding that Toalombo Yanez failed to demonstrate the hardship required for cancellation of removal. Separately, we review the retroactivity claim de novo and conclude that the agency did not impermissibly retroactively apply any rules. Therefore, we DENY the petition. ___________________________

H. RAYMOND FASANO, Youman, Madeo & Fasano, LLP, New York, NY, for Petitioner.

BRANDON T. CALLAHAN, Trial Attorney, Office of Immigration Litigation (Brian M. Boynton, Principal Deputy Assistant Attorney General; Jennifer R. Khouri, Senior Litigation Counsel, on the brief), U.S. Department of Justice, Washington, DC, for Respondent. ___________________________

2 EUNICE C. LEE, Circuit Judge:

In 2017, Gladys Eudosia Toalombo Yanez, a native and citizen of Ecuador,

was placed in removal proceedings for entering the United States without

inspection. Toalombo Yanez conceded removability and filed an application for

cancellation of removal on the basis that her removal would cause “exceptional

and extremely unusual hardship” to her children, who are United States citizens.

The Board of Immigration Appeals (“BIA”) affirmed the decision of an

Immigration Judge (“IJ”) denying Toalombo Yanez cancellation of removal. The

agency found that Toalombo Yanez did not meet her burden of showing that the

hardship that would be experienced by her children as a result of her deportation

would be exceptional and extremely unusual. Toalombo Yanez appealed to this

Court, arguing that the agency’s hardship determination was not supported by the

evidence in the record and that the BIA impermissibly retroactively applied a new

legal standard to her case.

The government initially claimed that we lacked jurisdiction over both

issues because the hardship determination is an unreviewable discretionary

determination and the retroactivity argument is not a colorable issue of law.

However, following the Supreme Court’s decision in Wilkinson v. Garland,

(2024), the government concedes that we do in fact have jurisdiction to review

3 the agency’s determination that the evidence of Toalombo Yanez’s children’s

hardships did not meet the exceptional and extremely unusual standard. We

agree that we have jurisdiction over that claim, and we also conclude that we have

jurisdiction to review Toalombo Yanez’s retroactivity claim. In evaluating the

hardship determination, we hold that the appropriate standard of review is for

clear error. Upon such review, we find that the agency did not err in concluding

that Toalombo Yanez failed to demonstrate the hardship required for cancellation

of removal. Separately, we review the retroactivity claim de novo and conclude

that the agency did not impermissibly retroactively apply any rules. Therefore,

we DENY the petition.

BACKGROUND

In 1999, Gladys Eudosia Toalombo Yanez, a native and citizen of Ecuador,

entered the United States without inspection. She has remained in the United

States since then. During that time, Toalombo Yanez had three children, in 2000,

2011, and 2016.

In 2015, Toalombo Yanez applied for asylum and withholding of removal.

Subsequently, in 2017, the Department of Homeland Security (“DHS”) issued

Toalombo Yanez a notice to appear for removal hearings, charging her as

removable. At a hearing in 2018, she conceded removability, and she submitted

4 an application for cancellation of removal, which allows the removal of a

noncitizen to be cancelled if it would cause “exceptional and extremely unusual

hardship” to a United States-citizen spouse, parent, or child of the noncitizen. See

8 U.S.C. § 1229b(b)(1)(D). Specifically, Toalombo Yanez argued that her removal

would cause exceptional and extremely unusual hardship to her oldest child, O.

(then seventeen years old), who apparently suffers from depression, and her

youngest child, D. (then one year old), who purportedly has asthma.

After a 2019 merits hearing, the IJ denied Toalombo Yanez’s application for

cancellation of removal, finding that Toalombo Yanez did not meet “her burden

in establishing that the harm to her qualifying relatives rises to the level of

exceptional and extremely unusual.” Certified Admin. Rec. (“CAR”) at 50.

Specifically, the IJ found that D. was diagnosed with reactive airway disease, not

asthma, and that while D. does require medical attention, the medical evidence

presented did “not indicate the severity of the condition.” Id. at 47.

Additionally, the IJ found that while the Ecuadorian health system “is not without

its problems,” the record did not support a finding that D. would not be able to

receive treatment in Ecuador. Id. at 47–48. Regarding O., the IJ found that

Toalombo Yanez’s testimony was inconsistent with the evidence presented in the

record and that the medical evidence did not “show that [O.’s] condition is so

5 severe that it would result in exceptional and extremely unusual hardship.” Id.

at 48.

Toalombo Yanez appealed to the BIA, and in 2022, the BIA dismissed her

appeal. The BIA agreed with the IJ that Toalombo Yanez had failed to meet the

standard of proof establishing that her children would experience the hardship

sufficient to necessitate cancellation of removal. The BIA found that the IJ

“properly and thoroughly considered the aggregate effect of the relevant factors,

including the children’s ages, health, family ties, and the financial impact of the

respondent’s departure from the United States.” Id. at 4. The BIA also noted that

because O. had turned 21 during the pendency of the appeal, she was no longer a

“qualifying relative.” Id. at 4 n.1. Toalombo Yanez appealed to this Court.

During the pendency of the present appeal, the Supreme Court granted

certiorari in Wilkinson v. Garland,

(2024), “to resolve whether the IJ’s

determination that a given set of established facts does not rise to the statutory

standard of exceptional and extremely unusual hardship is a mixed question of

law and fact reviewable under § 1252(a)(2)(D) or whether this determination is a

discretionary judgment call unreviewable under § 1252(a)(2)(B)(i).” Id. at 216–17

(alteration and internal quotation marks omitted). After Wilkinson was decided

6 on March 19, 2024, we asked the parties here to submit supplemental briefing on

its effect on our jurisdiction to hear Toalombo Yanez’s appeal.

DISCUSSION

In reviewing a BIA opinion which affirms an IJ’s judgment and “closely

tracks the IJ’s reasoning,” we consider both the IJ’s and the BIA’s decisions “for

the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec.,

(2d Cir. 2006). A noncitizen, like Toalombo Yanez, who is not a permanent

resident, may have her removal cancelled if, first, she establishes statutory

eligibility, and then second, the IJ makes the discretionary determination to cancel

removal. See 8 U.S.C. § 1229b(b); Wilkinson, 601 U.S. at 212–13. Toalombo Yanez

could meet the statutory eligibility requirements if she:

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of [her] application;

(B) has been a person of good moral character during such period;

(C) has not been convicted of [certain enumerated criminal offenses]; and

(D) establishes that removal would result in exceptional and extremely unusual hardship to [her] spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

8 U.S.C. § 1229b(b)(1)(A)–(D). If an IJ evaluating a cancellation of removal

7 application finds, at step one, that the noncitizen satisfies the four statutory

criteria, the IJ then decides, at step two, “whether to exercise his discretion

favorably and grant the noncitizen relief.” Wilkinson,

. The

burden is on the noncitizen to prove that she “satisfies the applicable eligibility

requirements” and “merits a favorable exercise of discretion.” 8 U.S.C.

§ 1229a(c)(4)(A).

In this case, the IJ found that though Toalombo Yanez had satisfied the

physical presence requirement and had not committed any disqualifying criminal

offenses, she did not meet her burden of demonstrating that her removal would

result in exceptional and extremely unusual hardship to a qualifying relative. 1 To

satisfy the exceptional and extremely unusual hardship requirement, “a

noncitizen must demonstrate that a qualifying relative would suffer hardship that

is substantially different from or beyond that which would ordinarily be expected

to result from their removal.” Wilkinson,

(internal quotation marks

omitted).

On appeal, Toalombo Yanez makes two distinct arguments. First, she

1 In finding that Toalombo Yanez did not satisfy the requirement of showing exceptional and extremely unusual hardship, the IJ did not reach the question of whether Toalombo Yanez had shown good moral character. Similarly, the IJ declined to make any step-two determination of whether she was entitled to relief in the exercise of discretion.

8 argues that on review of the IJ’s decision, the BIA erred when it determined that

the evidence in the record did not sufficiently show that her child, D., would suffer

exceptional and extremely unusual hardship upon her removal from the United

States. 2 Second, she argues that in affirming the IJ’s judgment, the BIA

impermissibly retroactively applied Matter of J-J-G-,

(B.I.A.

2020), to which it cited in its decision. We address both issues in turn.

I. The Agency’s Hardship Determination

Initially, the government argued that we lacked jurisdiction to review the

agency’s exceptional and extremely unusual hardship determination. This was

because, in the context of cancellation of removal, our jurisdiction is limited to

review of “constitutional claims or questions of law,”

(a)(2)(D), and

we lack jurisdiction to review any other aspect, including factual or discretionary

findings, of “any judgment regarding the granting of relief under section . . .

1229b,” § 1252(a)(2)(B)(i). However, in Wilkinson, the Supreme Court held that,

for jurisdictional purposes, “[t]he application of a statutory legal standard (like the

2 Toalombo Yanez does not challenge on appeal the agency’s determination that O. would not suffer exceptional and extremely unusual hardship because of her depression, and that claim is therefore waived. See Ahlers v. Rabinowitz,

(2d Cir. 2012) (explaining that issues not raised in the briefs on appeal are generally considered waived).

9 exceptional and extremely unusual hardship standard) to an established set of

facts is a quintessential mixed question of law and fact” and is therefore

reviewable as a question of law under § 1252(a)(2)(D).

. The Court

reasoned that while application of the exceptional and extremely unusual

hardship standard “concededly requires a close examination of the facts,” this

“does not transform the [hardship determination] question into one of fact”

unreviewable under § 1252(a)(2)(D) because “[w]hen an IJ weighs those found

facts and applies the ‘exceptional and extremely unusual hardship’ standard, . . .

the result is a mixed question of law and fact.” Id. at 222. Accordingly, although

appellate courts are without jurisdiction to review, “[f]or instance, an IJ’s

factfinding on credibility [or] the seriousness of a family member’s medical

condition,” “whether those established facts satisfy the statutory eligibility

standard is [a matter] subject to judicial review.” Id. at 225. Thus, in the wake

of the Supreme Court’s ruling, the government concedes that we do have

jurisdiction to review the agency’s exceptional and extremely unusual hardship

determination.

A.

With the question of jurisdiction settled, we turn next to determine the

applicable standard of review for evaluating the agency’s hardship determination.

10 Notably, the Supreme Court declined to articulate a standard of review in

Wilkinson. But historically, we have held that “[m]ixed questions of law and fact

are reviewed de novo.” Man Ferrostaal, Inc. v. M/V Akili,

(2d Cir.

2012). Even within the immigration context, we have consistently reviewed de

novo questions of law and the application of law to undisputed facts. See Mirzoyan

v. Gonzales,

(2d Cir. 2006) (stating that an IJ’s determination of

whether particular facts “did not meet the legal definition of persecution in the

INA” “is a mixed question of law and fact, which we review de novo”). However,

in supplemental briefing, the government contends that “de novo review is

foreclosed by Wilkinson.” Gov’t Supp. Br. at 8. We agree.

In Wilkinson, the Supreme Court explained that “[m]ixed questions ‘are not

all alike’”—some may be primarily legal, while others are primarily factual. 601

U.S. at 221–22 (quoting U.S. Bank N.A. v. Village at Lakeridge, LLC,

, 395–

96 (2018)). The Court then established that the exceptional and extremely

unusual hardship determination is a “primarily factual” mixed question and

therefore, “review is deferential.” Id. at 225. Thus, considering the Court’s call

for deference, we agree that Wilkinson requires reconsideration of our general

approach to reviewing mixed questions of law and fact with respect to our review

of § 1229b(b)(1)(D) hardship determinations.

11 The government contends that, in keeping with the deference prescribed by

Wilkinson, the fact-intensive hardship determination should be reviewed under

the “substantial evidence” standard. The substantial evidence standard of

review is “highly deferential.” Singh v. BIA,

(2d Cir. 2006). It

necessitates only that the agency’s factual findings be “supported by reasonable,

substantial and probative evidence in the record when considered as a whole.”

Castro v. Holder,

(2d Cir. 2010) (internal quotation marks omitted).

While the government points to Wilkinson in support of its proposition that

“substantial evidence” is the appropriate standard for reviewing the BIA’s

hardship determination, as noted above, Wilkinson did not set a specific standard

of review, but simply advised that appellate review of this particular question

should be “deferential.”

. The Supreme Court did not elaborate

on the nature of this “deferential” standard of review, and none of its other

precedents provide a clear answer to this novel question.

In the absence of guidance from the Supreme Court to date, the issue of the

appropriate standard of review remains unsettled, as this Court and many of our

sister circuits have chosen to sidestep the question. See Garcia Carrera v. Garland,

(2d Cir. 2024) (“We need not determine the precise standard of

review . . . .”); see also Nolasco v. Bondi,

(1st Cir. 2025) (“We need

12 not determine the standard of review applicable here, however, because we

conclude that Petitioners’ claim would fail even under the de novo standard that

they urge us to adopt.”); Cortes v. Garland,

(4th Cir. 2024) (“[W]e

leave to future decisions the task of sorting out how to apply the standard of

review discussed in Wilkinson.”); Cuenca-Arroyo v. Garland,

, 784 n.1

(5th Cir. 2024) (noting that the Supreme Court did not “specify the proper standard

of review for this hardship determination” but finding the court did not need to

“determine exactly what degree of deference we owe”); Moctezuma-Reyes v.

Garland,

(6th Cir. 2024) (“Just how deferential should our review

be? Neither the Supreme Court nor our circuit has answered that question

precisely. There’s no need to resolve the question here . . . .”); Gonzalez-Rivas v.

Garland,

(8th Cir. 2024) (“Application of the statutory

exceptional and extremely unusual hardship standard is a mixed question of law

and fact that is primarily factual thus our review is deferential. . . . [W]e find no

error or abuse of discretion in the agency’s determination . . . .”); Herrera-Arellano

v. Bondi,

, at *3 n.3 (10th Cir. May 2, 2025) (“We are bound by

Wilkinson . . . which require[s] ‘deferential’ review, rather than de novo review . . . .

Beyond that, we conclude that this case does not require us to further specify our

standard of review . . . .”); Hernandez-Diaz v. U.S. Att’y Gen.,

, at

13 *3 (11th Cir. Oct. 23, 2024) (stating that “de novo review is incompatible with

Wilkinson’s direction that our review ‘is deferential,’” but finding that the court

“need not determine precisely how much deference is due because [the petitioner]

cannot prevail . . . even if we were to give the agency’s decision minimal

deference” (quoting Wilkinson,

)).

However, in a recent decision, the Third Circuit, on remand from the

Supreme Court, waded into the issue of the appropriate standard of review.

Considering only the two standards suggested by the parties before it—abuse of

discretion or substantial evidence—the court stated that “Supreme Court

precedent suggests that substantial evidence is the appropriate standard.”

Wilkinson v. U.S. Att’y Gen.,

(3d Cir. 2025) (“Wilkinson II”). In

reaching this conclusion, the Third Circuit cited two Supreme Court decisions—

U.S. Bank N.A. v. Village at Lakeridge, LLC,

(2018), and Monasky v.

Taglieri,

(2020)—in which the Court evaluated the proper standard of

review for mixed questions that, like the hardship determination, are primarily

factual. See U.S. Bank, 583 U.S. at 397–99; Monasky,

.

In both U.S. Bank and Monasky, the Supreme Court concluded that the clear-

error standard was the appropriate one to apply in determining the mixed

questions at issue. Specifically, in U.S. Bank, the Supreme Court held that a

14 bankruptcy court’s determination of whether a creditor qualifies as a “non-

statutory insider,” within the meaning of Chapter 11 of the Bankruptcy Code, was

“subject only to review for clear error” because application of the arm’s-length test

at issue presented a mixed question that involves primarily factual work. 583

U.S. at 392–93, 397–99. Then, in Monasky, the Court considered the applicable

standard of review for a district court’s decision regarding a child’s habitual

residence under the Hague Convention. 589 U.S. at 83–84. There, the Court held

that the habitual-residence determination is a fact-bound mixed question “subject

to deferential appellate review for clear error.”

.

Nonetheless, the Third Circuit did not interpret these cases to require clear-

error review of the hardship determination at issue here. Instead, referencing the

fact that the underlying factual determinations in those cases were subject to clear-

error review, the Third Circuit posited that the Supreme Court had “imported the

same standard that there governed review of the factual findings themselves.”

Wilkinson II,

. Accordingly, the Third Circuit reasoned that

because “[t]he factfinder [] is best suited to evaluate the ‘primarily factual’

question of whether [actual] hardship is severe enough to be described as

exceptional and extremely unusual,” the standard of review that generally

governs the BIA’s factual findings should be applied to review of the ultimate

15 hardship determination.

. Thus, because under

(b)(4)(B),

“the INA instructs courts, in addressing other types of immigration relief, to

review agency factfinding for substantial evidence,” the Third Circuit determined

that substantial evidence is the appropriate standard of review for the agency’s

hardship determination.

Even more recently, the Ninth Circuit adopted the

same “substantial evidence” standard, for essentially the same reasons. Gonzalez-

Juarez v. Bondi,

, at *3–5 & n.3 (9th Cir. May 20, 2025).

Following Wilkinson, the government urges us to conclude in this case that

substantial evidence is the applicable standard of review for the agency’s hardship

determination. The Third and Ninth Circuits’ approach is, in some respects, a

reasonable one. 3 However, we are not convinced that, in light of the Supreme

Court’s decision in Wilkinson, substantial evidence is the correct standard of

review that should be applied to the hardship determination. But rather, for the

reasons explained below, we conclude that the appropriate standard of review is

clear error.

Our disagreement with the applicability of the substantial evidence

3 Indeed, we agree with the Third Circuit’s rejection of abuse of discretion as the appropriate standard of review given that the Supreme Court held that “[t]he hardship determination . . . [is] not [a] discretionary” matter. Wilkinson,

.

16 standard to the hardship determination is two-fold. First, if, as our sister circuits

reasoned, the Supreme Court has been guided by the principle that, in any given

legal context, the standard that governs review of the factual findings should be

applied to any primarily factual mixed question at issue, then the Supreme Court

could have ruled in Wilkinson that substantial evidence is the applicable standard

of review for the hardship determination. 4 That the Supreme Court did not do so

suggests to us that applicability of the substantial evidence standard to the

hardship determination is not so clear or unambiguous.

Second, what is unique to appellate review of the hardship determination—

and distinct from the more straightforward review of the mixed questions at issue

in U.S. Bank and Monasky—is that, as the Supreme Court recognized in Wilkinson,

Congress has made “[t]he facts underlying any determination on cancellation of

removal . . . unreviewable,” while at the same time vesting the courts with

jurisdiction to review questions of law, including mixed questions.

(emphasis added). We therefore conclude that applying

(b)(4)(B)’s standard of review for findings of fact to the mixed question of

4 Cf. Bufkin v. Collins,

, 737–39, 742 (2025) (holding that a “predominately factual [mixed] question” before the Veterans Court was subject to clear-error review while noting that clear error was the statutorily imposed standard of review for factual findings under

(a)(4)).

17 law and fact at issue—one in which the underlying factual findings are themselves

unreviewable—would result in a kind of circular reasoning that would effectively

strip the hardship determination of any meaningful review. We do not believe

that the Supreme Court, in affirming our authority to review this question,

intended such an outcome.

Instead, we believe that Supreme Court precedent supports applying the

clear-error standard of review to the hardship determination. To reach such a

conclusion, we heed the Supreme Court’s guiding principle that “the standard of

review for a mixed question all depends [] on whether answering it entails

primarily legal or factual work,” which turns on “the nature of the mixed question

[at issue] and which kind of [adjudicatory body] . . . is better suited to resolve it.”

U.S. Bank, 583 U.S. at 395–96 (emphasis added).

Wilkinson provides that the hardship determination is a “primarily factual”

mixed question that “requires a court to immerse itself in facts.”

. “As interpreted by the BIA, the application of the ‘exceptional and extremely

unusual hardship’ standard requires an IJ to evaluate a number of factors in

determining whether any hardship to a [qualifying] family member is

‘substantially different from, or beyond, that which would normally be expected

from the deportation’ of a ‘close family membe[r].’”

(alteration in

18 original) (quoting In re Monreal-Aguinaga,

(B.I.A. 2001)).

“[T]hat analysis requires the assessment of hardship factors in their totality, often

termed a ‘cumulative’ analysis.” In re Gonzalez Recinas,

(B.I.A. 2002). Under this analysis, beyond making findings of “basic or historical

fact,” U.S. Bank,

(internal quotation marks omitted), the IJ must

consider hardship factors—such as the ages, health, and living circumstances of

the qualifying relative—present in a particular case and whether they, in the

aggregate, rise to the level of exceptional and extremely unusual hardship, see In

re Monreal-Aguinaga, 23 I. & N. Dec. at 63–64. Thus, the nature of the mixed

question at issue is one that not only “requires a close examination of the facts”

but also the weighing of a multitude of factors under what can generally be

understood as a totality-of-the-circumstances analysis. See Wilkinson, 601 U.S at

222, 225.

The Supreme Court similarly engaged with a consideration of the totality of

the circumstances in applying a clear-error standard to the mixed questions in U.S.

Bank and Monasky. In U.S. Bank, the Supreme Court explained that to determine

whether a transaction was at arm’s length, a bankruptcy court “takes a raft of case-

specific historical facts, considers them as a whole, [and] balances them one against

another.”

(footnote omitted). Likewise, in Monasky, the Supreme

19 Court held that a district court’s determination of a child’s habitual residence must

be governed by a “totality-of-the-circumstances standard” that requires close

consideration of “the particular circumstances of the case.”

. In

other words, like the hardship determination here, the nature of the mixed

questions in U.S. Bank and Monasky involved fact-intensive inquires that turned

on a totality-of-the-circumstances analysis. We interpret these cases as providing

that the “primarily factual” work at play in assessing certain fact-intensive mixed

questions is not just the act of fact finding, but also the act of conducting an

aggregate assessment of the established facts to determine whether the applicable

legal standard has been met. The Supreme Court held that such circumstances

warranted application of clear-error review to the mixed questions at issue.

Under the deferential clear-error standard of review, “[a] finding is ‘clearly

erroneous’ when although there is evidence to support it, the reviewing court on

the entire evidence is left with the definite and firm conviction that a mistake has

been committed.” United States v. U.S. Gypsum Co.,

(1948).

“Clear error” review generally has been recognized as being less deferential to the

factfinder than “substantial evidence” review, and though the difference between

the two standards is, on the surface, “subtle,” “[t]raditionally,” clear error review

“has been considered somewhat stricter (i.e., allowing somewhat closer judicial

20 review) than” the substantial evidence standard. Dickinson v. Zurko,

, 162–63 (1999). 5

When we consider the unique nature of the hardship determination, and the

parallels between its governing test and the legal tests at issue in U.S. Bank and

Monasky, we are convinced that review of this mixed question requires “somewhat

closer judicial review” than that provided by the substantial evidence standard.

. Although we lack the authority to review the IJ’s findings of fact, we

must exercise “judicial review” of “whether those established facts satisfy the

statutory eligibility standard.” Wilkinson,

. Because the governing

test for assessing hardship involves an aggregate assessment of various factors

5 In explaining the distinction between the two standards of review within the context of review of factual findings in immigration cases, our case law has been ambiguous. We have suggested before that, when “reviewing the agency’s factual findings,” the substantial evidence standard is actually “equal to, or stricter than, the clear error standard for reviewing a district court’s factual findings.” Vanegas-Ramirez v. Holder,

(2d Cir. 2014) (citing Mei Chai Ye v. U.S. Dep’t of Justice,

, 523 n.4 (2d Cir. 2007)). We have also suggested that the level of deference afforded under both standards of review may be equivalent, stating that the two standards “bespeak no lesser deference to an IJ than to a district judge when each draws inferences from the evidence as a finder of fact.” Siewe v. Gonzales,

(2d Cir. 2007). Because we lack jurisdiction to review factual findings underlying hardship determinations in the cancellation of removal context, we express no view in this case on the relationship between the substantial evidence and clear-error standards as applied to factual findings. But in the context of a primarily factual mixed question of law and fact like this one, where the underlying factual findings are completely unreviewable, we are concerned that the substantial evidence standard would have the effect of crippling the judicial review we are mandated to perform, and therefore the clear-error standard is required to provide for meaningful review even where “there is evidence to support” the agency’s decision. U.S. Gypsum,

.

21 through a cumulative analysis, we interpret Wilkinson as providing us with the

authority to consider whether, in light of the totality of the circumstances, the

agency’s hardship determination is clearly erroneous. 6

B.

With a clearer understanding of the proper standard of review, we consider

the merits of the present appeal. Toalombo Yanez argues on appeal that the

agency erred in its analysis of the record evidence in making the hardship

determination in two specific ways. First, she argues that the evidence relating

to D.’s asthma condition did in fact indicate the severity of his condition and that

the evidence also showed that he would not have access to the healthcare he needs

in Ecuador. Second, she argues that the agency disregarded the evidence of

insecurity and danger in Ecuador, and the evidence presented did rise to a level

sufficient to show “exceptional and extremely unusual hardship.” We disagree

and find that the IJ and BIA did not clearly err in determining that Toalombo

6 As a final observation on this issue, we note that the Supreme Court has made it a point to clarify that even when considering a primarily factual mixed question, appellate courts “must correct any legal error infecting” the factfinder’s decision and “should apply de novo review” when addressing such legal matters. See U.S. Bank,

n.7. Thus, in the process of reviewing the agency’s hardship determination, to the extent that we must address any legal error—such as Toalombo Yanez’s contention that the BIA retroactively, and impermissibly, applied a legal standard for determining the seriousness of her child’s health issues, which we discuss below—we shall continue to review such legal matters de novo.

22 Yanez failed to meet her burden of establishing that her removal would result in

exceptional and unusual hardship to a qualifying relative.

In denying relief, the IJ outlined the correct applicable legal standards, citing

In re Monreal-Aguinaga, 23 I. & N. Dec. at 59, for the proposition that the hardship

suffered must be “substantially beyond that which would ordinarily result from

an applicant’s removal,” CAR at 45, and In re Andazola-Rivas,

,

323–24 (B.I.A. 2002), for the proposition that a generally lower standard of living

in the country of removal is insufficient “to support a finding of exceptional and

extremely unusual hardship,” CAR at 46.

The IJ considered Toalombo Yanez’s testimony regarding D.’s condition,

specifically noting that he had a medical condition that required attention. The IJ

also took note of the doctor’s letter indicating that D. suffers from “hyperactive

airway disease,” which is related to, but not the same as, asthma.

at 46–47.

While Toalombo Yanez argues that the IJ mischaracterized D.’s condition as not

serious, the IJ simply, and correctly, noted that the doctor’s letter did not “indicate

the severity of the condition.” Id. at 47. The IJ then noted that despite Toalombo

Yanez’s testimony that D. would not be able to receive medical care in Ecuador,

the record evidence showed that while Ecuador’s health system “is not without its

problems,” the country “has a public health system as well as private healthcare,”

23 and “the record does not suggest that [D.] would be unable to receive treatment.”

Id. at 47–48. Despite Toalombo Yanez’s argument to the contrary, the BIA

similarly did not ignore evidence presented to the IJ indicating problems with the

Ecuadorian healthcare system, but rather found that this evidence did not show

D. would be unable to receive care in Ecuador, thus undermining the hardship

claim. Id. at 5.

Toalombo Yanez also argues that the IJ “totally overlooked any and all facts

and evidence related to insecurity in Ecuador.” Toalombo Yanez Br. at 15.

However, “we presume that an IJ has taken into account all of the evidence before

him, unless the record compellingly suggests otherwise.” Xiao Ji Chen v. U.S.

Dep’t of Just.,

, 336–37 n.17 (2d Cir. 2006). The record here does not

suggest otherwise. Toalombo Yanez argues that the IJ did not take into account

a 2018 Crime and Safety Report from the Department of State “label[ing] Ecuador

a critical-threat location for crime.” Toalombo Yanez Br. at 16 (internal quotation

marks omitted). But that report did not concern Ecuador as a whole, but rather a

specific city in Ecuador—Guayaquil—which is not the location to which Toalombo

Yanez testified she would return. Additionally, although Toalombo Yanez

testified in 2019 that “there’s a lot of crime[] right now” in Ecuador, CAR at 94, as

the IJ found, the claim that this will impart exceptional and extremely unusual

24 hardship upon her children is undercut by the fact that Toalombo Yanez sent her

daughter O. to visit Ecuador in 2018, where she remained for three weeks.

We are sympathetic to the fact that Ecuador may be more dangerous than

the United States and that the standard of living for Toalombo Yanez and her

children may be lower there. However, “the hardships [Toalombo Yanez] has

outlined are simply not substantially different from those that would normally be

expected upon removal to a less developed country.” In re Andazola-Rivas, 23 I.

& N. Dec. at 324. Thus, we can find no error in the agency’s determination that

the established facts did not demonstrate that Toalombo Yanez’s removal would

constitute “exceptional and extremely unusual hardship,” 8 U.S.C.

§ 1229b(b)(1)(D), to her children, citizens of the United States.

II. Retroactive Application of Matter of J-J-G-

Toalombo Yanez also argues that the BIA impermissibly retroactively

applied its 2020 decision, Matter of J-J-G-, when affirming the IJ’s denial of her

application for cancellation of removal. In its review of the 2019 IJ decision, the

BIA stated the following:

We find no clear error of fact or error of law in the manner in which the Immigration Judge weighed the evidence of record and affirm his finding that the respondent has not shown that her son’s breathing problems would go untreated in Ecuador. See Matter of J-J-G-,

(B.I.A. 2020) (discussing health issues of a qualifying

25 relative in a hardship claim and the burden of establishing that adequate care for a serious medical condition is not reasonably available in the country of removal).

CAR at 5 (citation omitted). Toalombo Yanez argues that Matter of J-J-G-, which

was decided after her hearing before the IJ, was the first time that the agency

required a showing of a “serious medical condition” to satisfy the hardship

standard. Toalombo Yanez Br. at 11 (quoting Matter of J-J-G-, 27 I. & N. at 811).

The previous standard, she argues, required an applicant to show only that she

had a child with “very serious health issues.”

(quoting In re Monreal-Aguinaga,

23 I. & N. Dec. at 63). While we do have jurisdiction over this claim, we reject

Toalombo Yanez’s argument.

A.

In its opening brief, the government argued that we do not have jurisdiction

to review this question of retroactivity because “Toalombo Yanez’s argument is

not a colorable question of law.” Gov’t Br. at 14. We disagree.

As noted earlier, under

(a)(2)(D), we have jurisdiction to

review “constitutional claims or questions of law raised upon a petition for

review.” However, just because a party can fashion their argument into one of

law does not mean that we automatically can claim jurisdiction. With creative

lawyering, any argument can be twisted into one of “law,” and we have thus

26 recognized that “we lack jurisdiction to review any legal argument that is so

insubstantial and frivolous as to be inadequate to invoke federal-question

jurisdiction.” Barco-Sandoval v. Gonzales,

(2d Cir. 2007). The

question then becomes: how do we determine if a question of law is “colorable”?

A question of law can arise when a “discretionary decision was based on a

legally erroneous standard.”

(internal quotation marks omitted). In Khan v.

Gonzales, we affirmed that if “a petitioner argues that the agency applied an

erroneous legal standard . . . , the petitioner raises a question of law, which we

have jurisdiction to review.”

(2d Cir. 2007). This holds true even

if the petitioner’s claim “is without merit,” because “[o]ur analysis of whether a

petition presents reviewable claims focuses on the nature of the claims raised and

not the merits of those claims.”

In Khan, we held that we had jurisdiction to

review the petitioner’s claim that the IJ improperly imposed a “heightened legal

standard” to Khan’s claims.

We noted that although the IJ did not in fact

impose a heightened legal standard, and in fact articulated and applied the correct

standard, Khan’s argument still “raise[d] a ‘question of law’” that “we ha[d]

jurisdiction to review.”

Here, Toalombo Yanez similarly contends that the BIA incorrectly required

her to show that her child has a “serious medical condition”—an allegedly new and

27 heightened standard she argues was created by Matter of J-J-G-, which was decided

after her hearing in front of the IJ. Toalombo Yanez Br. at 11 (quoting Matter of J-

J-G-,

). In order to evaluate this claim, we must consider (1)

whether the BIA actually relied on any new standard articulated in Matter of J-J-G-

in dismissing Toalombo Yanez’s appeal; and (2) if it did, whether the Board’s

reliance on that standard was impermissibly retroactive. See Lugo v. Holder,

(2d Cir. 2015) (explaining the factors that courts apply when

considering if an agency decision “may permissibly be applied retroactively”). In

other words, the nature of Toalombo Yanez’s claim requires us to engage in legal

work—primarily, consideration of the BIA’s legal analysis—thus raising a

question of law. Accordingly, even if Toalombo Yanez’s claim lacks merit,

concluding that a legal argument is meritless after engaging in legal analysis is not

the same as concluding that the argument was not “colorable” or was

“insubstantial and frivolous.” Barco-Sandoval,

. Therefore, we hold

that Yanez’s claim that the BIA improperly applied Matter of J-J-G- to her case is a

question of law which we have jurisdiction to review.

B.

We now move to the merits of Toalombo Yanez’s claim. Because Toalombo

Yanez’s claim regarding the improper application of Matter of J-J-G- is a question

28 of law, we review it de novo. See Yanquin Weng v. Holder,

(2d Cir.

2009). To reiterate, Toalombo Yanez argues that the BIA’s citation to Matter of J-

J-G- indicates it held her to a higher standard of proof—one that imposed a

“seriousness requirement”—than the previous standard used to evaluate hardship

arguments based on a child’s medical issues. See Toalombo Yanez Br. at 11.

Because Toalombo Yanez’s hearing before the IJ was held prior to Matter of J-J-G-

being decided, she argues that the BIA impermissibly retroactively applied it to

her case.

A law has an impermissible retroactive effect if it “takes away or impairs

vested rights acquired under existing laws, or creates a new obligation, imposes a

new duty, or attaches a new disability, in respect to transactions or considerations

already past.” Landgraf v. USI Film Products,

(1994) (quoting

Soc’y for the Propagation of the Gospel v. Wheeler,

(C.C.D.N.H. 1814)

(No. 13,156)). No such retroactive effect was given to Matter of J-J-G- in this case.

First, because Matter of J-J-G- was decided after the IJ decided this case, the

IJ certainly did not rely on it. As outlined above, the IJ correctly relied on In re

Monreal-Aguinaga and In re Andazola-Rivas in proclaiming his decision. The IJ also

never implied that a “serious medical condition” was necessary to show

exceptional and extremely unusual hardship. Rather, the IJ simply stated that the

29 medical evidence “does not indicate the severity of the condition” and that “the

record does not suggest that [D.] would be unable to receive treatment for his

condition in Ecuador.” CAR at 47–48.

Second, in affirming the IJ’s decision, the BIA did not cite to Matter of J-J-G-

for any proposition regarding the required degree of severity of the medical issue.

Instead, the BIA relied upon the case to support its determination that there was

no clear error in the IJ’s assessment of the evidence in “finding that the respondent

has not shown that her son’s breathing problems would go untreated in Ecuador.”

CAR at 5. It is clear to this Court that the BIA merely cited to Matter of J-J-G- in

finding that there was no error in the IJ’s factual findings and that the burden of

proof rested on Toalombo Yanez—a standard that had been well-articulated for

over a decade. See In re Monreal-Aguinaga, 23 I. & N. Dec. at 65 n.6 (confirming in

2001 that in the case of an exceptional and extremely unusual hardship claim, “the

burden of proof and persuasion rests” on the individual petitioning to cancel their

removal).

Perhaps the BIA was less than clear when it used the language “serious

medical condition” in the parenthetical explaining the relevance of Matter of J-J-G-.

CAR at 5. However, from our de novo review of the BIA decision, there is no

indication that it held the evaluation of Toalombo Yanez’s son to this allegedly

30 higher standard rather than the “very serious health issues” standard, as outlined

in In re Monreal-Aguinaga, 23 I. & N. Dec. at 63. Thus, the BIA did not use Matter

of J-J-G- to “impose[] a new duty” on Toalombo Yanez, Landgraf,

,

and the case was not impermissibly retroactively applied.

CONCLUSION

For the reasons stated above, the petition for review is DENIED.

31