The courts of appeals have split over whether they can review hardship determinations in immigration appeals. A new cert petition would let the Supreme Court weigh in.
February 7, 2023
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.