Morales Agustin: Hardship Review Did Not Cure Unraised Arguments

In Morales Agustin v. Bondi, No. 23-2529 (9th Cir. Jan. 9, 2026), the United States Court of Appeals for the Ninth Circuit denied a petition for review by a Guatemalan citizen challenging the Board of Immigration Appeals (BIA) dismissal of his application for cancellation of removal, asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The court confirmed that while federal courts have jurisdiction to review whether an applicant met the "exceptional and extremely unusual hardship" standard as a mixed question of law and fact, they cannot consider specific hardship arguments that the applicant failed to present to the agency during administrative proceedings.

Evaluating Exceptional and Extremely Unusual Hardship

To qualify for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(D), a nonpermanent resident must establish that deportation would result in "exceptional and extremely unusual hardship" to a qualifying relative who is a United States citizen or lawful permanent resident. In Morales Agustin, the petitioner pointed to potential hardship affecting his two U.S. citizen children.

Under Supreme Court authority in Wilkinson v. Garland, 601 U.S. 209 (2024), and Ninth Circuit precedent in Gonzalez-Juarez v. Bondi, 137 F.4th 996 (9th Cir. 2025), federal appellate courts possess jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review the agency's hardship evaluation as a mixed question of law and fact. However, the standard of review remains deferential: the court reviews the agency's hardship determination for substantial evidence and must uphold it unless the record compels a contrary conclusion (Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019)).

The Ninth Circuit held that substantial evidence supported the BIA's decision. The agency found that the petitioner's children would continue receiving their education in the United States, that the petitioner could provide financial assistance from Guatemala, and that his daughter had no current medical conditions and could receive medical care in the United States if needed. Because required hardship must deviate in the extreme from the ordinary consequences of deportation (In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 65 (BIA 2001)), the court found no basis to overturn the agency's factual application.

Unraised Administrative Arguments Are Barred on Appeal

On appeal to the Ninth Circuit, Morales Agustin argued that the agency erred by failing to evaluate how his 2000 re-entry into the United States following a voluntary removal impacted his immigration status. More specifically, he argued that the agency had not discussed his asserted permanent ineligibility for adjustment of status under 8 U.S.C. section 1182(a)(9)(C). The court treated this as an unraised hardship argument; it did not decide the merits of that adjustment-ineligibility contention.

The panel refused to address this contention. Under 8 U.S.C. § 1252(d)(1), a court may review a final order of removal only if the noncitizen has exhausted all administrative remedies available as of right. Citing Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023), the court explained that statutory administrative exhaustion is a mandatory claim-processing rule that the court must enforce when invoked by the government. Because Morales Agustin did not raise the permanent re-entry bar argument before the BIA, the argument was unexhausted and could not be considered for the first time on judicial review.

Timeliness and Briefing Forfeitures for Other Relief Claims

The court rejected the late-asylum challenge and declined meaningful review of the other two claims for different reasons:

Asylum Bar: An asylum application must be filed within one year of arrival unless the applicant establishes changed circumstances materially affecting eligibility or extraordinary circumstances relating to the delay (8 U.S.C. § 1158(a)(2)(D)). Reviewing the Attorney General's extraordinary circumstances finding for substantial evidence (Ruiz v. Bondi, 2025 WL 3704362 (9th Cir. Dec. 22, 2025)), the court agreed that the petitioner's generalized country-conditions evidence did not excuse his late filing.

Withholding of Removal and CAT Forfeiture: The court held that Morales Agustin forfeited review of his withholding of removal and CAT claims. His opening brief failed to meaningfully challenge the agency's underlying findings that any anticipated harm lacked a nexus to a protected ground, that his proposed social group was not cognizable, or that CAT relief was unwarranted. Under Maldonado v. Morales, 556 F.3d 1037, 1048 n.4 (9th Cir. 2009), arguments made in passing or inadequately briefed on appeal are deemed waived.

Lessons for Administrative and Judicial Immigration Practice

This nonprecedential memorandum decision reinforces two critical rules for noncitizens pursuing removal defense:

1. Complete Administrative Record: Broader jurisdictional rules allowing judicial review of hardship mixed questions do not bypass procedural requirements. Here, the court declined to consider a particular hardship argument that Morales had not raised before the agency. Identify where the disputed argument was actually presented rather than assuming that a general hardship claim preserved it.

2. Comprehensive Appellate Briefing: Raising a claim in an application does not preserve it for judicial review. Here, the opening brief did not meaningfully challenge the withholding and CAT denials. A list of requested remedies did not supply the missing arguments.

If you are navigating removal proceedings or evaluating an appeal to the BIA or the federal circuit courts, preserving a complete administrative record is crucial. Our immigration practice team can review your immigration history, evaluate hardship factors, and help ensure all available claims are properly raised and preserved.