Diaz v. Blanche
CourtCourt of Appeals for the Second Circuit
Date FiledNovember 5, 2026
Docket25-2880
StatusPublished
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Full Opinion
25-2880-ag
Diaz v. Blanche
United States Court of Appeals
for the Second Circuit
August Term, 2026
(Argued: October 19, 2026 Decided: November 5, 2026)
Docket No. 25-2880-ag
_____________________________________
ISMAEL D. DIAZ,
Petitioner,
v.
TODD BLANCHE, UNITED STATES ATTORNEY GENERAL,
Respondent.
Before:
LOHIER, Chief Judge, PARKER and PÉREZ, Circuit Judges.
Petitioner Ismael D. Diaz applied for cancellation of removal before an
Immigration Judge (IJ), claiming that his removal would result in exceptional
and extremely unusual hardship to his three children. The IJ denied his
application. Diaz then appealed to the Board of Immigration Appeals (BIA),
which rejected his claim of hardship as well as his motion to remand to the IJ
based on new evidence of his children’s mental health conditions. Before this
Court, Diaz argues that the agency’s hardship determination is clearly erroneous
and that the BIA abused its discretion by denying his motion to remand. Because
we conclude that the BIA’s hardship determination was not clearly erroneous
and that the BIA reasonably determined that Diaz failed to establish prima facie
eligibility for cancellation of removal, we DENY the petition.
H. RAYMOND FASANO, Youman, Madeo & Fasano, LLP,
New York, NY, for Petitioner.
LAURA HALLIDAY HICKEIN, Senior Litigation Counsel,
Office of Immigration Litigation (Brett A. Shumate,
Assistant Attorney General, Shelley R. Goad, Assistant
Director, on the brief), Office of Immigration Litigation,
United States Department of Justice, Washington, DC,
for Respondent.
PER CURIAM:
Petitioner Ismael D. Diaz, a native and citizen of El Salvador, seeks review
of the October 17, 2025 decision of the Board of Immigration Appeals (BIA)
affirming the denial by an Immigration Judge (IJ) of his application for
cancellation of removal and denying his motion to remand. We assume the
parties’ familiarity with the underlying facts and the record of prior proceedings,
to which we refer only as necessary to explain our decision to deny the petition.
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I
We review the IJ’s decision as supplemented by the BIA. See Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Our jurisdiction to review the agency’s
denial of cancellation of removal under 8 U.S.C. § 1229b is limited to
constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(B)(i),
(a)(2)(D); Wilkinson v. Garland, 601 U.S. 209, 212, 217 (2024). In Toalombo Yanez v.
Bondi, 140 F.4th 35, 42 (2d Cir. 2025), this Court held that review of the agency’s
hardship determination in cancellation of removal proceedings under 8 U.S.C.
§ 1229b(b)(1)(D) is for clear error.
After we decided Toalombo Yanez, the Supreme Court issued its decision in
Urias-Orellana v. Bondi, 607 U.S. 537 (2026), which held that when reviewing “the
agency’s persecution determination” as to asylum seekers who may qualify as
refugees under 8 U.S.C. § 1158(b)(1)(A), we “review the entirety of the agency’s
conclusions—both the underlying factual findings and the application of the
[Immigration and Nationality Act] to those findings—for substantial evidence.”
Urias-Orellana, 607 U.S. at 545. Urias-Orellana thus “resolve[d] the proper-
standard question as it relates to the courts of appeals’ review of the agency’s
persecution determination” as to asylum seekers. Id. (emphasis added). Later, in Al
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Saidi v. Blanche, 185 F.4th 286 (2d Cir. 2026), a panel of our Court applied the
substantial-evidence standard to a likelihood of torture determination in a deferral of
removal case under a different regulatory scheme, the U.N. Convention Against
Torture. See id. at 292, 297, 306–07; see also 8 C.F.R. § 1208.17. Both the
persecution determination in Urias-Orellana and the likelihood of torture
determination in Al Saidi involved a mixed question of law and fact.
Although Al Saidi identified Toalombo Yanez as among the precedents
implicated by its general discussion of substantial-evidence review and
suggested that Urias-Orellana had abrogated Toalombo Yanez, see 185 F.4th at 297
& n.2, Al Saidi’s discussion of Toalombo Yanez was clearly unnecessary to the
disposition of that case. Neither Al Saidi nor, for that matter, Urias-Orellana
involved the question presented in Toalombo Yanez—that is, the standard of
review of the agency’s hardship determination in cancellation of removal proceedings
under 8 U.S.C. § 1229b(b)(1)(D). Al Saidi’s broad assertion that Urias-Orellana
requires that we review mixed questions of law and fact for substantial evidence
in all cases, regardless of the statutory or regulatory source, is, therefore, clearly
dicta. See Baraket v. Holder, 632 F.3d 56, 59 (2d Cir. 2011) (“[I]t is not substantive
discussion of a question or lack thereof that distinguishes holding from dictum,
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but rather whether resolution of the question is necessary for the decision of the
case.”); Jimenez v. Walker, 458 F.3d 130, 142–43 (2d Cir. 2006). We therefore
remain bound by Toalombo Yanez’s clear-error standard of review of the agency’s
hardship determination under § 1229b(b)(1)(D).
II
A
Diaz first challenges the BIA’s determination that he is ineligible for
cancellation of removal because he failed to show “exceptional and extremely
unusual hardship” to his three children, who are United States citizens. 8 U.S.C.
§ 1229b(b)(1)(D). Diaz argues that he demonstrated that his children would
suffer financial and emotional hardship if he were removed to El Salvador and
that the agency failed to consider the cumulative impact of relocating his
children, including the disruption to their schooling and relationships. But the
agency appears to have “cumulatively” considered Diaz’s testimony about his
children and their relocation, Certified Administrative Record (“CAR”) at 4,
including the children’s “ages, health, and circumstances,” In re Monreal-
Aguinaga, 23 I. & N. Dec. 56, 63, 65 (B.I.A. 2001). The BIA then determined that
the hardship the children would experience was not “substantially beyond the
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ordinary hardship that would be expected when a close family member leaves
this country.” Id. at 62 (quotation marks omitted). The BIA also observed that
Diaz’s children would relocate to El Salvador with Diaz if he were removed and
that they speak Spanish at home.
Because the BIA’s hardship determination was not clearly erroneous, we
reject Diaz’s argument. See Toalombo Yanez, 140 F.4th at 42. And insofar as Diaz
challenges the BIA’s weighing of the evidence, we lack jurisdiction to review that
challenge. See Penaranda Arevalo v. Bondi, 130 F.4th 325, 340 (2d Cir. 2025).
B
We likewise reject Diaz’s argument that the BIA abused its discretion in
denying his motion to remand. “A motion to remand that relies on newly
available evidence is held to the substantive requirements of a motion to
reopen.” Li Yong Cao v. U.S. Dep’t of Just., 421 F.3d 149, 156 (2d Cir. 2005). A
movant must establish prima facie eligibility for the relief sought. Id.
Diaz says that he established prima facie eligibility for cancellation of
removal based on new evidence of his children’s mental health conditions. But
the BIA considered that evidence, including evidence relating to Diaz’s eldest
son and daughter, and nevertheless concluded that the evidence did not establish
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prima facie eligibility because Diaz failed to show that his “children will be unable
to obtain treatment for their mental health in El Salvador.” CAR 5. Nor has Diaz
identified record evidence that adequate mental health treatment is unavailable
in El Salvador. Diaz further suggests that the BIA engaged in impermissible fact
finding, but we disagree. In evaluating Diaz’s motion to remand, the BIA
assessed Diaz’s new evidence to determine whether he “met the heavy burden of
demonstrating a likelihood that the new evidence presented would alter the
result in the case.” Li Yong Cao, 421 F.3d at 156 (quotation marks omitted). We
thus conclude that the BIA did not abuse its discretion in denying Diaz’s motion
to remand.
III
We have considered Diaz’s remaining arguments and conclude that they
are without merit. For the foregoing reasons, the petition for review is DENIED.
All pending motions and applications are DENIED and stays VACATED.
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