Man in U.S. Illegally Given Chance to Show Exclusion Order Should Be Dropped Because BIA Did Not Provide ‘Reasoned Explanation’ Why There Should Not Be Remand for Consideration of Impact on Wife, Sons

Wednesday, July 15, 2026

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Ninth Circuit:

VanDyke Derides Majority’s View of Deportation ‘Hardship’

By a MetNews Staff Writer

The Ninth U.S. Circuit Court of Appeals has held that a man who illegally entered the U.S. from Mexico is entitled to further consideration, in proceedings below, of whether deporting him would cause an undue burden to his wife and one of his sons, drawing a partial dissent from Circuit Judge Lawrence VanDyke who asserted that grounds raised by the alien—such as one of his youngsters having an allergy to dairy products—are frail.

Circuit Judges Ronald M. Gould and Johnnie B. Rawlinson wrote for the majority, in a memorandum opinion. They partially granted a petition by Jose Manuel Huazo-Mairoquin who sought an order vacating a decision by the Board of Immigration Appeals (“BIA”).

Gould and Rawlinson agreed with the board that Huazo-Mairoquin failed to show entitlement to relief under the Convention Against Torture or through his application for asylum, but declared that the BIA failed to provide a “reasoned explanation” as to why there should not be a remand to the immigration judge to consider an order cancelling deportation based on hardships to family members who would be left behind.

Majority’s Holding

The majority said:

“Although the BIA reasoned that a concern about Petitioner’s son did not show ‘exceptional or extremely unusual hardship,’ it is unclear to which son the BIA was referring in this sentence and unclear whether the BIA considered all evidence as to Petitioner’s sons and wife. The BIA abused its discretion by denying the motion to remand on the issue of cancellation of removal without giving a ‘reasoned explanation’ evaluating Petitioner’s prima facie eligibility.”

VanDyke wrote that case law shows that hardship to family members must be of an “exceptional and extremely unusual” nature to justify cancellation of deportation, and commented:

“None of Petitioner’s hardship evidence here conies close to that description.”

Two Hardships Mentioned

The jurist continued:

“Petitioner’s motion spent five sentences on the hardship analysis, referencing only five pages from the record before the Immigration Judge, Ultimately, Petitioner raises two potential hardships: (1) his two sons losing his emotional and financial support, which he argues is particularly necessary because of his younger son’s dairy allergy and resulting inability to process infant formula; and (2) his wife’s temporary deferred-removal status, which he asserts she would have to give up if she visited him in Mexico.”

VanDyke argued: “…Petitioner’s sons would not be left without financial support…: the record indicates that Petitioner’s wife worked before and after the birth of her second son. Given the generality of Petitioner’s evidence, the BIA was not obligated to explicitly list and then rebut all Petitioner’s hardship evidence for each family member.”

The presumption, he said is that the BIA considered all relevant evidence.

Relevancy Has Vanished

He added: “The only relevant detail Petitioner mentions that even arguably could make the emotional and financial distress to his sons ‘out of the ordinary and exceedingly uncommon’ is his younger son’s difficulty processing infant formula. Petitioner’s younger son is now eight years old. Difficulty processing infant formula is no longer relevant. Remanding so that the BIA could further consider that evidence would be ‘an idle and useless formality.’ ”

Gould and Rawlinson were appointed to the Ninth Circuit by then-President Bill Clinton, a Democrat, and VanDyke was placed on the court by Republican President Donald Trump.

The case is Huazo-Marroquin v. Blanche, 20-71227.