Wilkinson v Garland

What Counts as “Hardship” in Immigration Appeals? Wilkinson v. Garland

In the upcoming term, the Supreme Court will hear arguments in Wilkinson v. Garland, a case examining the scope of judicial review for immigration appeals. The Court’s ruling will have significant implications for non-citizens seeking relief from removal orders.

This case arose when Situ Kamu Wilkinson, an immigrant from Trinidad and Tobago, applied for cancellation of removal under a provision allowing the Attorney General to cancel removal for nonpermanent residents who can demonstrate “exceptional and extremely unusual hardship” if deported. After considering his medical conditions, family ties in the U.S., and other factors, an immigration judge denied the application. 

On appeal, the Board of Immigration Appeals affirmed, finding Wilkinson did not meet the high hardship standard. Wilkinson then appealed to the Third Circuit Court of Appeals, arguing the agency erred in its hardship determination. However, the Third Circuit ruled it lacked jurisdiction to review the discretionary hardship decision under 8 U.S.C. §1252(a)(2)(B), which bars judicial review of certain immigration orders.

In his petition to the Supreme Court, Wilkinson contends the lower court has authority to review whether the agency properly applied the hardship standard to the facts of his case under 8 U.S.C. §1252(a)(2)(D). This provision permits judicial review of constitutional claims and questions of law in immigration cases. Several circuits have taken this view, finding the application of a legal standard to established facts is a reviewable ‘mixed question.’ 

However, other circuits, including the Third, have held that hardship determinations are discretionary judgment calls, not legal decisions subject to review. The federal government’s brief argues that §1252(a)(2)(B)(i) forecloses review of these inherently discretionary hardship assessments, maintaining that Congress intended to limit courts from second-guessing these decisions.

Beyond the narrow legal question, the case has broader implications for defining the scope of judicial authority over inherently subjective or discretionary standards in immigration law and other areas. The “exceptional and extremely unusual hardship” threshold for cancellation of removal is a deliberately vague standard giving immigration officials considerable flexibility.

A ruling for Wilkinson may allow courts to more rigorously examine how immigration agencies apply this nebulous hardship test. This could provide an important check on potential arbitrary or inconsistent hardship determinations. However, the government argues Congress wanted to entrust these difficult judgment calls to agency expertise. 

More broadly, this case may shape how courts evaluate standards involving subjective assessments in other regulatory contexts like environmental law or disability benefits programs. A judgment for Wilkinson could signal a shift toward more judicial scrutiny of discretionary decisions, while a win for the government, may reinforce agencies’ latitude in making subjective calls under hazy statutory directives.

Advocates argue meaningful judicial review is essential for protecting non-citizens’ due process rights and ensuring the immigration system applies humanitarian relief standards fairly. Several amicus briefs emphasize that assessing hardship inherently involves some legal analysis, not just pure discretion. They contend precedent supports court scrutiny of how agencies apply statutory standards to case facts.

However, the government and supporting amici counter that Congress explicitly wanted to limit judicial second-guessing of hardship conclusions, preserving immigration authorities’ flexibility. They argue courts should defer to the expertise of agencies like the BIA in making case-by-case hardship determinations under the subjective statutory test.

Ultimately, the Supreme Court’s ruling will shape thousands of non-citizens’ ability to challenge potentially erroneous hardship rulings when fighting removal. The justices must balance the courts’ role in protecting due process against encroaching into agencies’ discretionary authority. Their decision will likely also influence how the judiciary reviews subjective or ambiguous standards across many other regulatory contexts.

The case offers the Supreme Court an opportunity to clarify the judiciary’s role in reviewing indeterminate standards that rely heavily on the decision-maker’s judgment and discretion. The Court’s approach may have far-reaching implications as similar vague or subjective tests feature prominently across many areas of federal law and policy.

Oral arguments in Wilkinson v. Garland are scheduled for Nov. 28, 2023. The case’s outcome will likely hinge on the justices’ interpretation of the complex jurisdictional limits on judicial review in immigration law.


Joshua Midha is from Princeton, NJ and is studying Statistics and Political Science.

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