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
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 ContactRelated 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....
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 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 […]
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
May saw several decisions on effective injunction denials. One of those decisions raised an interesting question about the Supreme Court’s test for when a district court order effective denies a preliminary injunction. In other developments, the Fifth Circuit sat en banc to jettison its rule barring review of waiver-based remands. Other decisions addressed the finality […]
Continue reading....
In Heidi Group, Inc.v. Texas Health and Human Services Commission, the Fifth Circuit reviewed the denial of federal and state immunities but declined to exercise pendent appellate jurisdiction over other issues. In the course of doing so, one judge questioned the collateral-order doctrine’s application to state immunities, and the entire court questioned the doctrine of […]
Continue reading....
The Supreme Court granted cert in GEO Group, Inc. v. Menocal. The case asks if defendants can immediately appeal from the denial of derivative sovereign immunity via the collateral-order doctrine. I wrote about the petition and the underlying circuit split earlier this year. And I wrote about the Tenth Circuit decision from which the petition stems […]
Continue reading....
Injunction appeals have been in the spotlight of late. We’ve seen a few recent decisions on appeals from temporary restraining orders. And this month has already produced three cases involving effective denials of preliminary injunctions. One of these cases raised a question about the test for effective—and thus appealable—injunction denials. Under the Supreme Court’s decision […]
Continue reading....
In Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, the en banc Fifth Circuit held that 28 U.S.C. § 1447(d) does not bar review of waiver-based remands. In so holding, the court overruled its decision in In re Weaver.
Continue reading....