New Cert Petition on Reviewing Hardship Determinations in Immigration Appeals


February 7, 2023
By Bryan Lammon

Immigration law generally strips the courts of appeals of jurisdiction to review a variety of factual and discretionary issues. But a savings clause preserves jurisdiction to review legal and constitutional issues. And in 2020’s Guerrero-Lasprilla v. Barr, the Supreme Court held that appellate jurisdiction exists to review mixed questions of law and fact—i.e., the 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. Guerrero-Lasprilla sparked some re-examination of the issue, and a circuit split quickly developed.

A new cert petition gives the Supreme Court the chance to resolve this split. The case is Wilkinson v. Garland, and the government’s response is due February 21, 2023.

Appellate Jurisdiction in Immigration Appeals

Appellate jurisdiction in immigration cases can get complicated. 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 a variety of statutes as well as almost every other discretionary decision. But under § 1252(a)(2)(D), the courts of appeals retain jurisdiction to review “constitutional claims or questions of law raised upon a petition for review.”

Among the statutes listed in § 1252(a)(2)(B) is 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.

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 in Guerrero-Lasprilla, the Supreme Court held that courts of appeals can review the application of law to facts when hearing immigration appeals.

The Split on Hardship Determinations

Several appellate courts have re-examined their approach to hardship determinations in light of Guerrero-Lasprilla. And a few changed their tune. The Fourth and Sixth Circuits now hold that they can review the application of the hardship standard to settled facts. The Seventh and Eleventh Circuits have suggested the same. But the Third, Fifth, and Tenth Circuits disagree.

Hopefully the Supreme Court will grant cert in Wilkinson to resolve this split.

Petition for a Writ of Certiorari, Wilkinson v. Garland, No. 22-666, available at Westlaw.

Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.

Learn More Contact

Related Posts


In Shaiban v. Jaddou, the Fourth Circuit held that it lacked jurisdiction to review the denial of an immigrant’s application for permanent residence under 8 U.S.C. § 1159(b). Under 18 U.S.C. § 1252(a)(2)(B)(ii), courts lack jurisdiction to review certain discretionary decisions in the immigration context. And the government has discretion when it comes to adjusting an asylee’s […]

Continue reading....

In Wilkinson v. Garland, the Supreme Court held that courts of appeals could review whether an immigration petitioner had shown the hardship necessary to be eligible for cancellation of removal. The majority thought that this holding was a straightforward extension of 2020’s Guerrero-Lasprilla v. Barr. But several justices doubted that Congress intended for such a […]

Continue reading....

Since the Supreme Court’s 2020 decision in Guerrero-Lasprilla v. Barr, several courts of appeals have reexamined the scope of their jurisdiction in immigration appeals. Last week produced another example. In Hernandez v. Garland, the Sixth Circuit held that it could review “good moral character” determinations in immigration appeals, as those determinations involve a mixed question […]

Continue reading....

Immigration law generally strips the courts of appeals of jurisdiction to review a variety of decisions made in immigration proceedings. A savings clause adds that they retain jurisdiction to review legal and constitutional issues. Until recently, most (if not all) courts of appeals broadly read the jurisdiction-stripping provisions to bar appellate review in a variety […]

Continue reading....

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 […]

Continue reading....

Recent Posts


In two appeals—Clark v. Louisville-Jefferson County Metro Government and Salter v. City of Detroit, the Sixth Circuit spoke at length about its jurisdiction to review certain Brady issues as part of qualified-immunity appeals. The cases produced a total of six opinions, several of which dove into this jurisdictional issue.

Continue reading....

In Rossy v. City of Buffalo, the Second Circuit appeared to both dismiss a qualified-immunity appeal for a lack of jurisdiction and exercise pendent appellate jurisdiction over a plaintiff’s cross-appeal. This is odd. Pendent appellate jurisdiction allows normally non-appealable issues to tag along with appealable ones. But if the denial of qualified immunity was not […]

Continue reading....

I’ve frequently written about the problem of fact-based qualified-immunity appeals both on this website and in my research. I recently decided to collect some new data on how much needless delay these appeals add to civil-rights litigation. I had done something similar a few years ago when writing about the need to sanction defendants for […]

Continue reading....

Yesterday, I filed an amicus brief in support of the petitioner in Parrish v. United States, which is currently pending before the Supreme Court. The case asks if an appellant must file a new notice of appeal after the district court reopens the time to appeal under Federal Rule of Appellate Procedure 4(a)(6). Both the […]

Continue reading....

Last month saw another rejection of pure Bivens appeals, an analysis of Perlman appeals in the grand-jury context, and a ruling on mandatory stays during a remand appeal. Plus an odd sovereign-immunity appeal, appeals without the express resolution of all claims, and much more.

Continue reading....