Wilkinson v. Garland: Cancellation hardship gets judicial review

On March 9, 2024, the U.S. Supreme Court issued its decision in Wilkinson v. Garland, holding that the immigration judge’s hardship determinations in cancellation of removal applications can be reviewed by the courts. This decision gives hope to those denied their chance to stay in the U.S. because the immigration judge finds their family would not suffer sufficiently severe hardship. It also represents an important pushback on the judiciary’s increasingly expansive view of jurisdiction-stripping provisions in the Immigration and Nationality Act (INA).

Case Overview

The noncitizen in this case, Mr. Situ Kamu Wilkinson, is a citizen of Trinidad and Tobago. He was put into removal proceedings for overstaying his visitor’s visa. He applied for cancellation of removal under section 240A(b) of the INA. One of the requirements for a cancellation of removal applicant is that the noncitizen show their removal would result in exceptional and extremely unusual hardship to their spouse, parent, or child who is a U.S. citizen or lawful permanent resident.

In his attempt to meet the hardship requirement, Mr. Wilkinson provided evidence that his 7-year-old U.S. citizen child was experiencing a serious medical condition as well as behavioral issues since Mr. Wilkinson’s detention. The immigration judge denied the application, finding that Mr. Wilkinson had not shown that his son would experience “exceptional and extremely unusual hardship.” The Board of Immigration Appeals dismissed Mr. Wilkinson’s appeal and the Third Circuit Court of Appeals found, relying on 8 U.S.C. §1252(a)(2)(B)(i) (making unreviewable any “judgment[s] regarding the granting of [discretionary] relief”), that it did not have jurisdiction to review the hardship determination.

The Supreme Court reversed, finding that because 8 U.S.C. § 1252(a)(2)(D) restores jurisdiction to questions of law and because the hardship determination was a mixed question of law and fact, the courts have jurisdiction to review.

What it Means

First, this decision overturns existing case law in the Third, Fifth, Eighth, Ninth, Tenth, and Eleventh circuits and makes clear that courts have the ability to review hardship determinations from cancellation of removal applications nationwide. See Gonzalez-Rivas v. Garland, 53 F. 4th 1129, 1132 (CA8 2022); Flores-Alonso v. United States Atty. Gen., 36 F. 4th 1095, 1100 (CA11 2022) (per curiam); Castillo-Gutierrez v. Garland, 43 F. 4th 477, 481 (CA5 2022) (per curiam); Aguilar-Osorio v. Garland, 991 F. 3d 997, 999 (CA9 2021) (per curiam); Hernandez-Morales v. Attorney Gen. U. S., 977 F. 3d 247, 249 (CA3 2020); Galeano-Romero v. Barr, 968 F. 3d 1176, 1183–1184 (CA10 2020).

More broadly, the decision represents a significant Supreme Court pushback on the trend of courts finding that the jurisdiction-stripping provisions in the INA deprive courts of the ability to remedy wrongs in any way related to discretionary applications for relief. The Wilkinson decision may have major implications in cases related to agency delay, wrongful denials, and applications for relief from removal beyond the cancellation of removal at issue in the Wilkinson case.