Wilkinson & Appellate Review of Hardship Determinations

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 board scope of review in immigration appeals.

Appellate Jurisdiction in Immigration Appeals

Jurisdiction in immigration appeals can be complex. A series of provisions strip the courts of appeals of jurisdiction to review certain issues, while another provision says courts retain jurisdiction to address other issues.

Relevant to the present discussion are two subparagraphs of 8 U.S.C. § 1252(a)(2). Subparagraph (B) generally bars appellate review of certain discretionary determinations. But an exception to subsection (B) exists in subparagraph (D), which states that the courts of appeals have jurisdiction to review “constitutional claims or questions of law raised upon a petition for review.”

The Split on Hardship Determinations

Until recently, most courts of appeals held that they lacked jurisdiction to review hardship determinations. The hardship determination is relevant to cancellation of removal, a type of discretionary relief from deportation. To be eligible for cancellation, a petitioner must show (among other things) that removal would result in “exceptional and extremely unusual hardship” to a close family member who is a citizen or lawful permanent resident. If a petitioner can make this showing, the ultimate determination of whether to grant cancellation is discretionary.

This hardship determination involves the application of law to fact. And most courts of appeals thought that applications of law to fact were outside their appellate jurisdiction. But on that latter point, the Supreme Court held otherwise in Guerrero-Lasprilla v. Barr. That case asked if appellate courts could review whether petitioners exercised the diligence necessary to toll a deadline. The Court said that diligence was was a mixed question of law and fact. And subparagraph (D) preserved appellate jurisdiction to review the application of law to facts. So the court of appeals had jurisdiction to address whether the petitioners’ conduct amounted to sufficient diligence.

Shortly after Guerrero-Lasprilla, the courts of appeals split on whether its reasoning also applied to hardship determinations. The Supreme Court granted cert in Wilkinson to resolve that split.

Extending Guerrero-Lasprilla to Hardship Determinations

The majority in Wilkinson saw the case as a straightforward extension of Guerrero-Lasprilla. The Court explained that the “exceptional and extremely unusual hardship” standard” involves a mixed question of law and fact:

[T]he “exceptional and extremely unusual hardship” standard in § 1229b(b)(1)(D) is a legal standard that an IJ applies to facts. The standard may require an IJ to closely examine and weigh a set of established facts, but it is not a factual inquiry. It is, inescapably, a mixed question of law and fact.

To be sure, hardship determinations can require immersion in the facts. But that does not change the question into an unreviewable factual determination. That instead “simply suggests a more deferential standard of review.”

Doubts About Congress’s Intent

Justice Jackson concurred in the judgment. She agreed that Guerrero-Lasprilla compelled the Court’s decision. But she doubted that Congress intended to provide for such expansive review of hardship determinations.

Justice Alito dissented. He thought that it belied common sense to think that Congress intended this level of appellate review. As he saw things, the statutory history and structure suggested a much narrower scope of review for questions like hardship, which “is overwhelmingly a question of fact.”

Given these doubts, it will be interesting to see if Congress responds with amendments to the immigration laws.

Wilkinson v. Garland, 2024 WL 1160995 (Mar. 19, 2024), available at the Supreme Court and Westlaw