Immigrants in New York, Connecticut and Vermont who lose a family-hardship claim in immigration court will keep facing the toughest standard of review in federal appeals court, after the U.S. Court of Appeals for the Second Circuit ruled on November 5 that a recent Supreme Court asylum decision did not loosen the test — and denied the petition of a Salvadoran father of three U.S.-citizen children.

Source: Immigration Analytics (citing Diaz v. Blanche, No. 25-2880-ag, 2d Cir. Nov. 5, 2026)

In a per curiam opinion in Diaz v. Blanche, No. 25-2880-ag, a panel made up of Chief Judge Lohier and Judges Parker and Pérez held that the court still reviews the Board of Immigration Appeals' finding of "exceptional and extremely unusual hardship" only for clear error, and that it cannot reweigh the evidence. The panel also upheld the Board's refusal to send the father's case back for new evidence about the mental-health conditions of two of his children.

Cancellation of removal is one of the few forms of relief open to a long-settled undocumented resident who is not a permanent resident. Under the statute, the applicant must show 10 years of continuous presence in the United States, good moral character, and that removal would cause "exceptional and extremely unusual" hardship to a U.S.-citizen or permanent-resident spouse, parent or child. Congress caps grants at 4,000 a year for the whole country — and hardship is where most cases turn, so the standard an appeals court uses to second-guess that finding matters to every attorney filing a petition for review in the Second Circuit.

Why the 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 hardship standard to established facts is a mixed question of law and fact. The Second Circuit then decided in Toalombo Yanez v. Bondi (2025) that its review of those findings would be for clear error — a standard under which the appeals court can reverse only if it is left with a definite and firm conviction that a mistake was made.

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

The Diaz panel settled the question 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." In practice, the label matters less than it sounds — both standards are highly deferential, and 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 — though it does mean one petition raising asylum, torture and cancellation claims can now be reviewed under two differently named tests, a quirk other circuits are likely to confront as they apply Urias-Orellana.

The father's case — and the country question his new evidence never answered

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 October 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 precedent, Monreal-Aguinaga.

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 — a burden circuit precedent calls "heavy." Diaz did not meet it, the panel held, 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.

The wider picture: long odds, and a 20-year-high appeals backlog

The odds were already long before Diaz. 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, according to 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.

For Punjabi and other South Asian families in New York, Connecticut and Vermont — the three states the Second Circuit covers — the ruling has a direct practical meaning: a parent who has lived in the United States for a decade and whose U.S.-citizen children would face serious hardship must win that argument, with full evidence, in front of the immigration judge, because the appeals court in New York will not reweigh it afterwards except for clear error.

What happens next

Diaz can seek rehearing by the full Second Circuit sitting en banc, or petition the U.S. Supreme Court. Unless either steps in, the ruling binds future Second Circuit panels. Courts elsewhere are still reworking how they review torture-protection claims after Urias-Orellana, and if the circuits split on the hardship standard, the Supreme Court could be asked to settle it — as it did for persecution determinations in March.