By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender

           The family “hardship exception” to cancellation of removal of noncitizens is a mixed question of fact and law which is reviewable by the Court of Appeals, the U.S. Supreme Court held March 19 in Wilkinson v. Garland

           Situ Kamu Wilkinson left Trinadad and Tobago, after police there threatened to kill him. 

           He entered the United States on a tourist visa, and remained after the visa expired. 

           He married a U.S. citizen, and they had a child together. 

           When the U.S. sought to remove Wilkinson for violating immigration laws, he sought cancellation of removal on grounds of “exceptional or extremely unusual hardship” to a U.S. citizen or permanent-resident family member under 8 U.S.C. Sec. 1229b(b)(1)(D).

           That statue allows an Immigration Judge to cancel removal under certain circumstances in a two-step process. 

           First, the judge must decide whether the noncitizen is eligible for cancellation under the statutory criteria.  Second, the judge must decide whether to exercise their discretion favorably to grant cancellation.

           The statute enumerates certain criteria to govern the first step.  One criterion is whether removal would result in “exceptional and extremely unusual hardship” to a noncitizen’s spouse, parent, or child, who is a U.S. citizen or lawful permanent resident.

           If the judge determines that a noncitizen satisfies the first step, then the judge decides whether to exercise discretion to cancel removal.

           Wilkinson claimed he qualified for the family hardship exception because he provided financial and emotional support to his child. 

           But the Immigration Judge disagreed, and – in ruling on the first step — found that his child would qualify for financial assistance from public sources, and also that Wilkinson could support his child from Trinidad and Tobago.

           Because the Immigration Judge found that Wilkinson did not meet the statutory criteria, the judge did not decide the second, discretionary step.

           The Board of Immigration Appeals affirmed the judge’s findings.

           Wilkinson appealed to the Third Circuit.  But the Third Circuit held it lacked jurisdiction to review Wilkinson’s claim because the hardship determination was “discretionary” under Sec. 1252(a)(2)(B)(i).

           The Supreme Court granted cert. to resolve a circuit split on whether hardship determinations are reviewable by the Court of Appeals.


           The Court, in a 5-3 opinion, with one additional Justice concurring, held that hardship determinations are reviewable.

           Sec. 1252(a)(2)(B)(i) strips courts of jurisdiction over judgments granting discretionary relief under the cancellation of removal statute, the Court said.  But Sec. 1252(a)(2)(D) “restores” jurisdiction to review “questions of law.”

           “‘Questions of law’ includes the application of a legal standard to undisputed or established facts, also referred to as mixed questions of law and fact”, the Court said. 

           “The statutory criterion of ‘exceptional and extremely unusual hardship’ is a legal standard that an IJ must, at the first step, apply to a set of established facts”, the Court said.  That is a “question of law” over which 1252(a)(2)(D) provides judicial review.

           “The hardship determination in this case was not discretionary”, the Court said.  Because the Immigration Judge held that hardship did not satisfy the statutory criterion, the judge “never reached the second step and exercised his unreviewable discretion to cancel or decline Wilkinson’s removal.”

           “Mixed questions of law and fact, even when they are primarily factual, fall within the statutory definition of ‘questions of law’ in Sec. 1252(a)(2)(D) and are therefore reviewable”, the Court concluded.

           The Court emphasized that its decision “does not render” the “jurisdiction stripping provisions meaningless.” 

            “The facts underlying any determination on cancellation of removal therefore remain unreviewable”, the Court said.  “For instance, an IJ’s factfinding on credibility, the seriousness of a family member’s medical condition, or the level of financial support a noncitizen currently provides remain unreviewable.”

           “Only the question of whether those established facts satisfy the statutory eligibility standard is subject to judicial review”, the Court said.  “Because this mixed question is primarily factual, that review is deferential.”

           The Court also said that an Immigration Judge’s “step-two discretionary determination on whether or not to grant cancellation of removal in the particular case is not reviewable as a question of law.”

           Justice Alito, Chief Justice Roberts and Justice Thomas dissented.