Substantial Evidence Standard of Review Applied to Special Rule Cancellation of Removal
The procedural history, facts of record, holding and rationale in Wilberforce Okene v. Blanche, No. 25-60559 (September 4, 2026) are as follows:
Case History
The Department of Homeland Security (“DHS”) charged that the Petitioner is subject to removal.
The Petitioner applied for cancellation of removal for nonpermanent residents.
The Immigration Judge denied the Petitioner’s application for relief.
The Petitioner appealed to the Board of Immigration Appeals (“BIA”).
The BIA summarily affirmed the decision of the Immigration Judge.
The Petitioner filed a petition for review.
Facts
- The Petitioner is a citizen of Nigeria who entered the United States on a business visa in December 2004.
- The Petitioner's business visa expired in March 2005.
- The Petitioner remained in the United States without permission beyond March 2005.
- The DHS charged the Petitioner with being present in the United States as an overstay, presumably under section 237(a)(1) Immigration and Nationality Act, as amended (“the Act”).
- The Petitioner applied for cancellation of removal under sections 240A(b)(1) ("Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents") and 240A(b)(2) of the Act ("Special Rule for Battered Spouse or Child").
- The Immigration Judge denied the Petitioner’s application, finding the Petitioner had not established that his removal would result in exceptional and extremely unusual hardship to his United States citizen spouse or that he had been subjected to battery, extreme cruelty or that his removal would result in extreme hardship to the Petitioner.
- The BIA summarily affirmed the Immigration Judge’s decision.
Held
Petition For Review Denied
Rationale
The Petitioner asserted that The BIA committed error by:
1) summarily affirming the Immigration Judge's order;
2) denying his application for cancellation of removal under section 240A(b)(1) of the Act; and
3) denying his application for special rule cancellation of removal under section 240A(b)(2) of the Act.
The Fifth Circuit Court of Appeal reasoned as follows:
1) The Petitioner failed to identify any language in the BIA decision indicating failure to apply appropriate de novo review. Furthermore, the Petitioner's argument that de novo review and summary affirmance are "inherently contradictory" is incorrect because summary affirmance is merely a declaration that the BIA's conclusions upon review of the record coincide with the conclusions of the Immigration Judge. Matter of Burbano, 29 I & N Dec. 872, 874 (BIA 1994); Soadjede v. Ashcroft, 324 F.3d 830, 832 (5th Cir. 2003).
2) With regard to the standard of appellate review, the United States Supreme Court determined in Urias-Orellana et al. v. Bondi, supra, that mixed questions of law and fact relating to persecution determinations in asylum applications are subject to "substantial evidence" appellate review. Therefore, exceptional and extremely unusual hardship determinations, as well as determinations of battery and extreme cruelty under section 240A(b) of the Act, are subject to "substantial evidence" appellate review as mixed law and fact-intensive findings. See Baltazar Us v. Blanche, 174 F.4th 509, 512 (6th Cir. 2026) explaining that "substantial evidence" review relating to findings based on mixed facts and law underlying persecution determinations is not limited to appellate review of asylum decisions.
3) Applying substantial evidence review to the Petitioner's hardship claim relating to his spouse under section 240A(b)(1) of the Act if he is removed from the United States, "a reasonable adjudicator would not be compelled to conclude" that the Petitioner's spouse would suffer "exceptional and extremely unusual hardship."
4) Likewise, with regard to the Petitioner's claim that he had been battered and subjected to extreme cruelty, "based on the record, a reasonable adjudicator would not be compelled to conclude that Okene was subjected to battery or extreme cruelty."
The Fifth Circuit Court of Appeal reviews administrative decisions using the “substantial evidence” standard. Under the substantial evidence standard, an appellate court will uphold an administrative decision “unless it is clear from the totality of the circumstances” that a “reasonable adjudicator would be compelled to conclude to the contrary.” See section 242(b)(4)(B) of the Immigration and Nationality Act ("the Act"); Morales v. Sessions, 860 F.3d 812, at 817 (5th Cir. 2017). Furthermore, the Fifth Circuit Court of Appeal applies the substantial evidence standard to the overall administrative decision under review that involves mixed questions of law and fact without trying to separate findings of fact from applications of law.
Obviously, this is a heavy burden which seemingly must be carried up-hill from the perspective of any Petitioner. Consequently, practitioners who are managing appellate cases would be prudent to frame a petition for review around alleged errors of law.
At the conclusion of the merits hearing, the Immigration Judge will typically issue an oral decision containing findings of fact and conclusions of law and an order disposing of the respondent’s relief applications. See Matter of S-H-, 23 I&N Dec. 462 (BIA 2002); Matter of Rodriguez-Carrillo, 22 I&N Dec. 1031 (BIA 1999).
The oral decision distinguishes the work of Immigration Judges from their counterparts in other types of administrative and constitutional courts. The oral decision is a legal art form that permits a more efficient adjudication of high volume dockets if it is done well. Experience teaches that if an Immigration Judge regularly reserves decision in favor of issuing a written decision at a later date those reserved decisions will quickly loom in an enormous heap above the judicial chambers (which will provide no sanctuary) and bury that Immigration Judge like a massive avalanche. Once this situation occurs there will be no release, but death. Even an army of law clerks (that doesn’t exist in any immigration court) will not be able to rescue an Immigration Judge who does not learn the art of delivering oral decisions. An attorney with experience in State courts and federal district courts once commented to me that he had never heard a judge give such a thorough oral explanation for the disposition of a case as he had heard in immigration court.That being said, in the pressurized adversarial arena of the immigration courts and the necessary practice of issuing oral decisions, even a slight misstatement of the law or legal standard might be identified in the oral decision for traction as an error of law.