Issues
Under the Immigration and Nationality Act, can a court review an agency’s ruling that an applicant’s removal “would result in exceptional and extremely unusual hardship,” or is this determination discretionary and unreviewable?
This case asks the Supreme Court to determine whether courts can review an agency’s determination of 8 U.S.C. §1229b(b)(1)(D), which permits a cancellation of removal if an applicant meets the “exceptional and extremely unusual hardship” standard. Wilkinson contends that whether an applicant’s case meets the standard of hardship is a mixed question of fact and law that courts can review. Wilkinson argues that this procedure does not involve finding new facts but instead applies a legal standard to established facts, such as determining whether an applicant’s removal would bring extreme emotional distress to their family. The United States argues that whether an applicant’s case meets the “exceptional and extremely unusual hardship” standard does not involve applying a legal standard and is therefore an agency’s discretionary determination that is unreviewable by courts. The outcome of the case may significantly impact the procedure and available remedies in removal cases. Also, the outcome could influence judicial efficiency and the method courts use to interpret statutes in other areas of law.
Questions as Framed for the Court by the Parties
Whether an agency determination that a given set of established facts does not rise to the statutory standard of “exceptional and extremely unusual hardship” is a mixed question of law and fact reviewable under 8 U.S.C. §1252(a)(2)(D), or whether this determination is a discretionary judgment call unreviewable under Section 1252(a)(2)(B)(i).
Facts
In 2003, Petitioner Situ Wilkinson entered the United States on a valid tourist visa after fleeing his native Trinidad and Tobago due to a violent encounter with local police. Brief for Petitioner, Situ Kamu Wilkinson at 24. Since coming to the United States, Wilkinson has “built a life here.” Wilkinson lived in Pennsylvania with his wife, a United States citizen who suffers from anxiety, and their child, who is physically disabled, before the family moved to New Jersey to be closer to his wife’s mother. Id. at 12-15.
In 2019, Wilkinson, who works in construction, was arrested on drug charges by state officials in Pennsylvania after drugs were found in a house where he was working. Id. at 14. The charges were later withdrawn, as it was discovered that the drugs were only in his possession because he was working on the house and that he did not “own or live in” the house. Id. During his appearance in Pennsylvania state court, Wilkinson was arrested by federal immigration officials for overstaying his tourist visa, and the officials initiated removal proceedings against him. Id. at 14-15.
In immigration removal proceedings, the attorney general retains the right to cancel the removal if an immigrant has met the criteria outlined in the statute, such as an “exceptional and extremely unusual hardship.” Id. at 8. In 2020, the Supreme Court in Guerrero-Laspirilla v. Barr ruled that an appeals court reviewing an immigration “due diligence” decision has jurisdiction for “mixed questions of law and fact,” so long as it only reviews how the law was applied to established facts. Id. at 13. The Court reasoned that reviewing how the previous decisionmaker applied the law to established facts is ultimately a “question of law” that the immigration statute specifically gives federal courts power to review. Id. at 17.
In Wilkinson’s removal proceedings, the immigration judge found the testimony establishing the hardship his family would face if Wilkinson were removed from the United States to be credible. Id. at 16. This hardship included Wilkinson’s wife and child losing their only source of income, and his child suffering from losing not only a parent but a main caretaker for the child’s “significant health issues.” Id. at 15. However, despite finding the testimony to be credible, the immigration judge did not find this hardship to be severe enough to warrant a discretionary suspension of deportation for “exceptional and extremely unusual hardship.” Id. at 16. Wilkinson appealed the immigration judge’s decision to the Board of Immigration Appeals, which affirmed the denial of cancellation of removal without a written opinion. Id.
Wilkinson appealed the decision to the Third Circuit, which affirmed his removal and found the immigration judge’s denial of this hardship exemption to be an unreviewable “discretionary judgment call” that the court did not have jurisdiction to review, rather than a reviewable mixed question of law and fact. Wilkinson v. Attorney General United States, at *1.
Wilkinson filed a petition for writ of certiorari on January 17, 2023, which the Supreme Court granted on June 30, 2023.
Analysis
WHETHER THE HARDSHIP DETERMINATION INCLUDES LEGAL APPLICATION
Wilkinson argues that reviewing an applicant’s hardship under §1252(a)(2)(B)(i) presents a mixed question of both law and fact. Brief for Petitioner at 29-30. He asserts that in practice, the hardship inquiry involves applying a fixed, statutory legal standard to established facts that vary from case-to-case, making it a mixed question whose legal application subjects it to judicial review. Id. at 30. Consequently, Wilkinson contends that the application of the hardship standard contains no subjective or discretionary component that would bar jurisdiction by a reviewing court. Id. at 43. Wilkinson notes that applying the statute is a legal procedure that the Board of Immigration Appeals (the “Board”) uniformly enforces and argues that because the process is uniform, the immigration judge does not exercise subjective judgment. Id. Wilkinson further argues that the hardship standard determination cannot be discretionary because the immigration judge and the Board determine whether the applicant is eligible as a matter of law when deciding whether the applicant is eligible for relief. Id. at 46-47. Wilkinson accordingly contends that the hardship determination includes a legal application that is non-discretionary and therefore reviewable. Id. at 47.
The United States counters that reviewing the applicant’s hardship based on 1252(a)(2)(B)(i) does not pose a mixed question of law and fact because the decision involves factfinding and an exercise of discretion rather than mechanically applying a legal standard. Brief for the Respondent, United States at 13, 23-24. The United States argues that in mixed questions, courts should flesh out the factfinding from legal application and should only review determinations that exclusively involve applying a legal standard to established facts. Id. at 17-19. The United States explains that inquiries such as the hardship determination that involve analyses other than applying a legal standard to established facts are not reviewable. Id. The United States elaborates that by first determining whether mixed questions are more factual or legal, the reviewing court can then apply a different standard of review based off that determination. Id. at 18. The United States contends that factual or discretionary decisions involve the agency weighing the evidence or rendering a judgment based on previous experiences. Id at 21-22. The United States argues that because the Board determines whether an applicant meets the hardship standard mainly by evaluating the evidence presented in the case, the hardship determination is factual and discretionary and thus unreviewable. Id. at 29.
WHETHER GUERRERO-LASPRILLA APPLIES
Wilkinson argues that because the Supreme Court recently held that courts can review a “due diligence” standard in Guerrero-Lasprilla v. Barr, it should similarly find that courts can review the hardship determination even if it is discretionary. See Brief for Petitioner at 35-36. Although Wilkinson acknowledges that the hardship determination may be more fact-intensive than the due-diligence inquiry at issue in Guerrero-Lasprilla, he argues that the Supreme Court should not draw a line between the two standards based on how discretionary a certain standard is, as that would be unworkable. Id. at 36-38. Instead, Wilkinson argues that the Supreme Court should favor judicial clarity and build upon the holding of Guerrero-Lasprilla, which states that courts can review agency determinations that apply the law to a set of established facts. Id. at 42. Wilkinson contends that Guerrero-Lasprilla’s precedent establishes that courts can review any decision outside of fact-finding, making the “discretionary” nature of a determination irrelevant. Id. at 36-37. Accordingly, Wilkinson argues that the hardship determination is reviewable even if it is discretionary because the determination applies a legal standard to established facts, which is reviewable under Guerrero-Lasprilla. Id. at 43.
The United States counters that the Guerrero-Lasprilla precedent does not apply because the “due diligence” standard in that case involved a legal application, which the United States claims is not the case for hardship determinations. Brief for the Respondent at 35. The United States contends that for hardship determinations, a subjective, discretionary, and unreviewable standard exists separately from the legal standard presented in Guerrero-Lasprilla. Id. at 37, 43. The United States argues that courts have frequently categorized certain standards as requiring subjective agency judgement and should do the same here by finding the hardship determination to be discretionary. Id. at 43-44, 47. The United States notes that the presiding immigration judges regularly give different decisions in hardship determinations, indicating a lack of an objective standard and a factual rather than legal question. Id at 41. The United States further contends that even if the hardship determination is not discretionary, it is still factual, as it involves the agency making evaluations and judgments, and Guerrero-Lasprilla still does not apply. Id. at 44-45. The United States asserts that under this encompassing definition, the hardship determination is unreviewable because it involves a subjective judgment call rather than an objective decision. Id at 32, 44-45.
STATUTORY CONSTRUCTION
Wilkinson argues that traditional rules of statutory interpretation enable courts to review the hardship determination. Brief for Petitioner at 21. First, he argues that the strong presumption of judicial review should enable the courts to review the hardship standard. Id. at 21, 36. Wilkinson argues that Congress rarely constructs a statute to completely bar judicial review because that would leave the applicant no means of recourse in wrong agency decisions. Id. at 21. He further contends the government bears a “heavy burden” to prove that Congress meant otherwise, which it fails to do so here. Id. at 21-22, 36. Second, Wilkinson argues that the canons of statutory interpretation favor clarity over divisive interpretations. Id. at 40. Because determining the reviewability of separate standards can draw confusion, he contends that courts should draw a clear line that courts can review questions of facts and law. Id. at 23, 36-38. Finally, Wilkinson contends that the statutory history shows that the hardship standard of 8 U.S.C. §1229b(b)(1) has departed from being discretionary. Id. at 50. Wilkinson clarifies that when Congress amended the statute in 1996, it deleted language that hardship would be determined by “the opinion of the Attorney General,” indicating that the determination is no longer discretionary—if it ever was. Id. at 50-51.
The United States counters that a preference for making judicial review available cannot overturn the plain meaning of the statute. Brief for the Respondent at 45-46. First, the United States contends the language barring judicial review set in §1252(a)(2)(B)(i) should control here because the language is express. Id. at 46. Second, the United States argues that favoring clarity cannot overcome a statute’s express language limiting judicial review. Id. at 46-47. Finally, the United States argues that the statute’s history reflects deference to agencies, because it indicates that agencies have better expertise than the courts to judge whether an applicant’s hardship meets the standard. Id. at 25. The United States argues that because courts cannot “second guess” what the Attorney General’s opinion would have been in a particular case, Congress meant to delegate the authority to decide such determinations to agencies, which act as a branch of the Attorney General. Id. The United States further counters that Congress removed the language pointing to the Attorney General's opinion simply because it enacted 8 U.S.C. §1252(a)(2)(B)(i), making the language redundant, not to take away agency discretion. Id. at 45.
Discussion
IMPACT ON IMMIGRATION JUDGES
Former Executive Office for Immigration Review Judges (“Former Judges”), in support of Petitioner, argue that barring judicial review of hardship determination decisions would be more difficult for the agencies to adopt than allowing judicial review. Brief of Former Executive Office for Immigration Review Judges (“Former Judges”), in support of Petitioner at 4. The Former Judges clarify that immigration judges and the Board of Immigration Appeals (the “Board”) have all made decisions with the understanding that determinations with a basis in statute, such as the hardship determination, would be subject to judicial review and are separate from non-statutory, discretional forms of relief. Id. at 4-5. The Former Judges submit that categorizing the hardship determination as a legal question would be consistent with immigration judges’ current understanding as well as the guidelines promulgated by the Executive Office of Immigration Review (“EOIR”) and would prevent confusion in the minds of the judges. Id. at 5-6. The Former Judges further contend that barring judicial review of hardship determinations would blur the line between statutory and discretionary relief in immigration cases by allowing room for subjectivity in such determinations that have previously been made objectively, resulting in confusion for the immigration judges. Id. at 4-6.
The United States counters that labeling the hardship determination as discretionary, and therefore barred from the judicial review of legal questions, is the classification that is consistent with past precedent and current agency and immigration judge understanding. Brief for the Respondent, the United States, at 43. The United States explains that suddenly categorizing hardship determinations as legal, rather than factual and discretionary, would be inconsistent with the current understanding and would therefore lead to confusion for the Board and the immigration judges, as the line between discretionary and non-discretionary would be further blurred. Id. The United States further contends that adopting an understanding of hardship determinations as legal and reviewable would add further confusion to the agency’s exercise of discretionary power, given that hardship determinations are not listed among the enumerated discretionary powers in the Administrative Procedure Act, because the boundaries of the discretionary decisions would be unclear to immigration judges and the Board. Id. at 43-44.
ACCURACY OF HARDSHIP DETERMINATIONS
American Immigration Lawyers, in support of Petitioner, assert that barring judicial review of hardship determinations would ultimately decrease the accuracy of immigration decisions. Brief of Amicus Curiae American Immigration Lawyers, in Support of Petitioner at 8. American Immigration Lawyers explain that allowing for review by appellate courts for questions such as the hardship determination would promote uniformity in how administrative agencies apply the law, as it allows for courts to correct the overburdened Board when it incorrectly applies the law or precedent. Id. at 8-9. American Immigration Lawyers also posit that categorizing the hardship determination as unreviewable and discretionary would leave immigrants with no legal recourse for correcting potential legal errors made by immigration judges or the Board. Id. at 21. Similarly, the Former Judges argue that allowing judicial review of such determinations would increase the accuracy of decisions because immigration judges are primarily concerned with resolving cases, rather than making accurate decisions, due to an ever-expanding docket and limited judicial resources. Former Judges at 15.
The United States counters that allowing courts to overturn agency decisions, such as hardship determinations, would decrease the accuracy of decisions because appellate judges lack agency expertise. Brief for the Respondent at 26. The United States elaborates that immigration judges and Board officials have years of experience with immigration law and topics, and have presided over cases from varying factual backgrounds, which grants them a valuable expertise that the appellate judges, who have broad, but not specific, knowledge, lack. Id. The United States further argues that not only do immigration judges have the most experience with immigration cases, but they also have access to more detailed information, including live testimony, than appellate judges do, because on appeal the evidence is limited to the written record. Id. at 26-27. The United States elaborates that because the basis for a hardship determination is fact, rather than the law, that courts are ill-suited to decide such issues, and they should not have the power to overturn the decisions of agency experts. Id. at 31.
Conclusion
Acknowledgments
Additional Resources
- Emily Garcia, Deportation Hardship Waiver Case Gets Supreme Court Review, Bloomberg Law (June 30, 2023).
- Kit Johnson, Opinion analysis: Court sides with immigrants on availability of judicial review of removal orders, SCOTUSblog (Mar. 23, 2020).