The courts of appeals have recently split on whether they have jurisdiction to review hardship determinations in cancellation-of-removal cases.
January 12, 2021
The appellate-jurisdiction provisions of immigration law can get complicated. The law generally strips the courts of appeals of jurisdiction to review a variety of issues. But a savings clause adds that they retain jurisdiction to review legal and constitutional issues. And in last year’s Guerrero-Lasprilla v. Barr, the Supreme Court held that appellate jurisdiction exists to review mixed questions—i.e., application of the law to the facts.
Before Guerrero-Lasprilla, most (if not all) courts of appeals held that they lacked jurisdiction to review whether an immigration petitioner had shown the “exceptional and extremely unusual hardship” necessary for cancellation of removal. Since Guerrero-Lasprilla, the courts have split on this issue. Last week, the Sixth Circuit became the second court to hold that it has jurisdiction to review hardship determinations. In doing so, the Sixth Circuit joined the Eleventh Circuit but split with the Third and Tenth.
The Petition in Singh & Hardship Determinations
Simplifying a bit, the petitioner in Singh was a native and citizen of India who came to the United States in 1991. He overstayed his work visa, and he never obtained permission to remain in the country.
Almost 20 years later, the government sought to deport him. The petitioner admitted that he was removable. But he sought “cancellation of removal” under 8 U.S.C. § 1229b(b)(1). That provision authorizes the attorney general to cancel the removal of a petitioner who meets several criteria. Among those criteria, the petitioner must show that removal “would result in exceptional and extremely unusual hardship” to the petitioner’s family members who are citizens or lawful permanent residents. The petitioner in Singh argued that his removal would impose this sort of hardship on his mother and children.
The immigration courts (to which the attorney general has delegated the authority to cancel removal) denied the petitioner’s request. They determined that the family members would not suffer sufficient hardship. The petitioner then sought review in the Sixth Circuit.
Appellate Jurisdiction in Immigration Appeals
Appellate jurisdiction in immigration cases can get intricate. That’s because a series of provisions strip the courts of appeals of jurisdiction to review certain issues while stating that they retain jurisdiction to address others. More specifically, 8 U.S.C. § 1252(a)(2)(B) says (among other things) that appellate courts lack jurisdiction to review the denial of relief under § 1229b (the cancellation-of-removal statute) as well as almost every other discretionary decision. But under § 1252(a)(2)(D), the courts of appeals have jurisdiction to review “constitutional claims or questions of law raised upon a petition for review.”
Until recently, most courts of appeals read § 1252(a)(2)(B)’s jurisdiction-stripping provisions to apply to hardship determinations. That is, they held that they lacked jurisdiction to review whether an immigration petitioner had shown sufficient hardship to be eligible for cancellation of removal. But last year, in Guerrero-Lasprilla, the Supreme Court held that courts of appeals can review the application of law to facts when hearing immigration appeals. Guerrero-Lasprilla has now required appellate courts to reexamine their approach to hardship determinations. Two courts—the Third Circuit and the Tenth Circuit—have adhered to the pre-Guerrero-Lasprilla view that they lack jurisdiction. But in an analogous context, the Eleventh Circuit has recently held that determinations of sufficient hardship are not discretionary and thus are within the court’s appellate jurisdiction.
The Sixth Circuit Weighs In
In Singh, the Sixth Circuit sided with the Eleventh Circuit. The court gave several reasons for its holding.
First, § 1229b’s text does not suggest that the immigration authorities have discretion to decide whether hardship exists. Although the ultimate granting of cancellation of removal is discretionary, the eligibility determination is not.
Second, none of § 1229b’s other requirements for cancellation of removal—such as continual presence in the United States for 10 years—is discretionary.
Third, a prior version of § 1229b included language that made the hardship determination discretionary. That language was eliminated in 1996, though no one seemed to notice. And the new language suggests a different—and non-discretionary—meaning.
Finally, the Sixth Circuit’s prior cases did not foreclose treating the hardship determination as a mixed question of law and fact. Before Guerrero-Lasprilla, the Sixth Circuit had held that it lacked jurisdiction over mixed questions, too.
The Sixth Circuit accordingly held that it had jurisdiction to review whether the petitioner in Singh had shown sufficient hardship to be eligible for cancellation of removal under § 1229b. And on that point, the court affirmed the immigration courts.
Singh v. Rosen, 2021 WL 56151 (6th Cir. Jan. 7, 2021), available at the Sixth Circuit and Westlaw.