By Suchita Mathur | December 15, 2023 | Immigration Impact
Families are complicated. Especially during the holidays, that’s something we can all agree on. But most of us can’t – or will never have to – imagine being forcibly separated from our closest relatives because an overworked immigration judge (IJ) misapplied a legal standard in deciding whether someone is entitled to stay in the United States.
For the many noncitizens who do face this very scenario, the opportunity to ask a federal court to weigh in on such life-changing decisions can make the difference between remaining with their families and facing permanent separation.
That’s what is at issue in Wilkinson v. Garland, an immigration case at the Supreme Court that had oral argument last week. It requires the justices to decide whether an agency’s determination that the facts of a noncitizen’s case don’t meet the statutory standard of “exceptional and extremely unusual hardship” for cancellation of removal is a “mixed question of law and fact,” or a purely discretionary judgment. Under the Immigration and Nationality Act (INA), Board of Immigration Appeals (BIA) denials of cancellation of removal can’t be reviewed by federal courts unless the noncitizen raises a “constitutional claim” or “question of law” in their appeal.
While the legal question borders on the hyper-technical, the stakes are remarkably high, both for Situ Wilkinson and thousands of other noncitizens seeking discretionary relief.
Mr. Wilkinson came to the United States on a tourist visa in 2003, fleeing threats from the police in his home country. In the 20 years he has lived here, Mr. Wilkinson has become deeply embedded in his community as a parent, employee, and neighbor. His U.S. citizen son, who is only 10, suffers from multiple health issues and relies entirely on Mr. Wilkinson for financial support.
Nonetheless, U.S. Immigration and Customs Enforcement (ICE) detained Mr. Wilkinson and placed him in removal proceedings in 2020 after a criminal arrest. Although the criminal charges were subsequently dropped and Mr. Wilkinson has no criminal convictions at all, ICE continued to pursue his removal. Astoundingly, Mr. Wilkinson remains detained by ICE today – over three years later. A grant of cancellation would have saved Mr. Wilkinson from a deportation order and enabled him to obtain lawful permanent residence.
In immigration court, it was uncontested that he met all the eligibility criteria for cancellation of removal for non-permanent residents, except for the hardship requirement. Mr. Wilkinson, who believed the IJ misapplied that statutory legal standard to the facts of his case, appealed to the BIA, which affirmed without even writing an opinion; and then to the Third Circuit Court of Appeals, which found it lacked jurisdiction to review that claim as it involved a “discretionary judgment call.”
But courts have split on this issue, with the Fifth and Tenth Circuit courts also finding that the cancellation hardship standard is not a “mixed question of law and fact.” The Fourth, Sixth, and Eleventh Circuits reached the opposite conclusion, holding that such determinations are reviewable because they are not entirely discretionary.
And at oral argument last week, several justices seemed to view this question as already decided by their 2020 opinion in Guerrero-Lasprilla v. Barr. There, the Supreme Court interpreted the same jurisdiction-stripping statutory provision in the INA and held that judicially reviewable “questions of law” include application of a legal standard to undisputed facts – a classic “mixed question of law and fact.” Justice Kavanaugh described the government’s position as “Groundhog Day” given its reprisal of arguments made in Guerrero-Lasprilla; Justice Kagan agreed that “everything [the government attorney] just said is pretty much a re-litigation” of that case.
Nonetheless, the outcome of Wilkinson isn’t a guarantee – the Supreme Court in 2022 limited judicial review of agency determinations under the same statutory provisions at issue in Wilkinson, and several of the justices seemed skeptical of Mr. Wilkinson’s arguments.
Eligibility for cancellation of removal matters because it is often the only form of relief long-time residents of the United States have in removal proceedings. But the implications of this case extend much further: petitioner’s counsel noted at oral argument that at least 75 statutory provisions in the INA contain legal standards that could arguably be deemed unreviewable if the government prevails in Wilkinson, leading to confusion, more litigation, and ultimately a potential decrease in judicial review of noncitizens’ claims as they fight to stay with their families in the United States.
There has long been a presumption of judicial review of agency action. As a friend-of-the-court brief from former IJs and BIA members notes, the immigration courts face “astronomical backlogs” and immense pressure to prioritize speedy decision-making. Mistakes are inevitable. Ensuring that noncitizens can have their day in court when those mistakes happen promotes principles underlying due process and separation of powers. Increasing consistency and fairness in how laws are applied to everyone in the United States benefits all of us.