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SUPREME COURT OF THE UNITED STATES
_________________
No. 22–666
_________________
Situ Kamu Wilkinson, PETITIONER
v.
Merrick B. Garland, Attorney General
on writ of certiorari to the united states
court of appeals for the third circuit
[March 19, 2024]
Justice Sotomayor delivered the opinion of the
Court.
To be eligible for cancellation of removal and
adjustment to lawful permanent resident status, a noncitizen must
meet four statutory criteria. The last requires a showing that the
noncitizen’s removal would result in “exceptional and extremely
unusual hardship” to a U. S.-citizen or permanent-resident
family member. 8 U. S. C. §1229b(b)(1)(D). Petitioner
Situ Kamu Wilkinson argues that his removal would cause exceptional
and extremely unusual hardship to his U. S.-citizen son, who
suffers from a serious medical condition and relies on Wilkinson
for emotional and financial support. An Immigration Judge (IJ) held
that this hardship did not rise to the level required by statute
and the Board of Immigration Appeals (BIA) affirmed. The Third
Circuit dismissed Wilkinson’s petition for review, holding that it
lacked jurisdiction to review the IJ’s hardship determination.
The question in this case is whether the IJ’s
hardship determination is reviewable under §1252(a)(2)(D), which
gives Courts of Appeals jurisdiction to review “questions of law.”
This Court holds that it is. The application of a statutory legal
standard (like the exceptional and extremely unusual hardship
standard) to an established set of facts is a quintessential mixed
question of law and fact.
Guerrero-Lasprilla v.
Barr
held that such questions are reviewable under §1252(a)(2)(D). 589
U.S. 221, 225 (2020). Accordingly, this Court reverses.
I
A
When an IJ finds a noncitizen removable for
violating the immigration laws, Congress provides several avenues
for discretionary relief. Relevant here, an IJ may “cancel removal”
of a noncitizen who meets certain statutory criteria. Immigration
and Nationality Act, 66Stat. 163, as added and amended, 8
U. S. C. §§1229b(a)–(b). Cancellation of removal permits
a noncitizen to remain in the country lawfully. An IJ deciding a
noncitizen’s request for cancellation of removal proceeds in two
steps. First, the IJ must decide whether the noncitizen is eligible
for cancellation under the relevant statutory criteria. Second, an
IJ decides whether to exercise his discretion favorably and grant
the noncitizen relief in the particular case.[
1] A noncitizen bears the burden of proving that
he both “satisfies the applicable eligibility requirements” and
“merits a favorable exercise of discretion.” §1229a(c)(4)(A).
Congress enumerated certain statutory criteria
to govern the first step of an IJ’s cancellation-of-removal
determination. For a noncitizen who never received lawful permanent
residence (
i.
e., a green card), those criteria are
stringent. He is eligible for cancellation of removal only if he
meets four requirements: (1) he “has been physically present in the
United States for a continuous period of not less than 10 years”
before he applies; (2) he “has been a person of good moral
character during such period”; (3) he has not been convicted of
certain criminal offenses; and (4) he “establishes that removal
would result in exceptional and extremely unusual hardship to [his]
spouse, parent, or child,” who is a U. S. citizen or lawful
permanent resident. §§1229b(b)(1)(A)–(D). After determining whether
a noncitizen meets these criteria, an IJ proceeds to step two and
decides whether to exercise discretion to cancel the order of
removal in a particular case.
B
Wilkinson was born in Trinidad and Tobago.
After police officers beat, robbed, and threatened to kill him in
2003, Wilkinson fled to the United States on a tourist visa. He has
remained in this country ever since, beyond the expiration of his
visa. In 2013, Wilkinson had a son, M., with his girlfriend
Kenyatta Watson. Both M. and Watson are U. S. citizens.
Wilkinson lived in Pennsylvania and worked to
support M. and Watson. M. lived with Wilkinson and Watson for the
first two years of his life. Then, because Wilkinson could not take
care of his son and work at the same time, he and Watson decided M.
would have a better quality of life in New Jersey with his mother
and her mother. Wilkinson took the train to visit his son every
weekend and provided almost half his monthly wages ($1,200 per
month) in informal child support. M. suffers from severe asthma,
which requires hospital treatment multiple times a year. Wilkinson
helped M. with his inhaler and medications and knew his regimen
well. Watson suffers from depression and does not work, so she also
relies on Wilkinson’s financial and childcare support.
Wilkinson worked as a handyman and a laborer in
construction. In 2019, police found drugs in a house where he had
been hired to work on repairs. Despite Wilkinson’s protests that
neither the house nor the drugs were his, the police arrested him.
When Wilkinson appeared in a Pennsylvania courthouse to contest the
charges, he was arrested and detained by federal immigration
officers. The criminal charges were ultimately withdrawn.
M. was seven years old when Immigration and
Customs Enforcement detained his father. Afterwards, M. began to
exhibit behavioral issues. M. became sad, acted out, and broke
things. M.’s teacher texted Watson every day saying that M. was no
longer focused and needed to talk to a counselor. Wilkinson called
his son every other day from immigration detention. When M. hung up
the phone, he cried and said he wanted his father to come home.
C
Wilkinson conceded before the IJ that he was
removable under §1227(a)(1)(B) for overstaying his tourist visa. He
asked for relief from that removal, claiming eligibility for
asylum, withholding of removal, and protection under the Convention
Against Torture. Relevant here, he also applied for cancellation of
removal based on hardship to his U. S.-citizen son, M. The
U. S. Department of Homeland Security (DHS) stipulated that
Wilkinson met the first three statutory criteria for eligibility
(namely, continuous physical presence, good moral character, and
lack of specific criminal bars) but contested the last: exceptional
and extremely unusual hardship to M. Wilkinson, Watson, and M.’s
grandmother all testified in support of Wilkinson’s applications
for relief.
In evaluating Wilkinson’s applications, the IJ
found Wilkinson credible (despite DHS’s attempts to impeach him),
and credited the testimonies of each witness in full. The IJ then
turned to cancellation of removal and recited the standard for
exceptional and extremely unusual hardship adopted by the BIA. To
meet this standard, a noncitizen “must demonstrate that a
qualifying relative would suffer hardship that is substantially
different from or beyond that which would ordinarily be expected to
result from their removal, but need not show that such hardship
would be ‘unconscionable.’ ” App. to Pet. for Cert. 26a
(quoting
In re Monreal-Aguinaga, 23
I. & N. Dec. 56, 62 (BIA 2021)). In evaluating
whether a noncitizen meets this standard, IJs must consider a range
of factors, including the age and health of the qualifying family
member. App. to Pet. for Cert. 26a–27a (citing
In re
Andaloza-Rivas, 23 I. & N. Dec. 319, 323–324 (BIA
2002);
Monreal-Aguinaga, 23 I. & N. Dec., at
63). “[A]ll hardship factors should be considered in the aggregate
to determine whether the qualifying relative will suffer hardship
that rises to the level of ‘exceptional and extremely
unusual.’ ” App. to Pet. for Cert. 27a (quoting
Monreal-Aguinaga, 23 I. & N. Dec., at 64).
The IJ then applied this standard to the
established facts. He found that M.’s asthma was a serious medical
condition and that Wilkinson provided emotional and financial care
to his son. He found that M. had been struggling since Wilkinson’s
detention. Nevertheless, the IJ held that M. did not meet the
statutory standard for exceptional and extremely unusual hardship.
The IJ reasoned that M. received medical insurance from the
government and that he and his family might qualify for other
public assistance if necessary. Although Wilkinson provided
emotional support, the IJ noted that M. had lived without
Wilkinson’s “daily presence” for most of M.’s life. App. to Pet.
for Cert. 28a. The IJ recognized that M. and his mother would
suffer some financial hardship from Wilkinson’s removal. Yet the IJ
reasoned that Wilkinson had not provided evidence that he would be
unable to work and support his family from Trinidad and Tobago. The
IJ also noted that M.’s mother was able to work even though she had
primarily been caring for M. He reasoned that M.’s grandmother, who
had helped care for M. before, could continue to do so.
Based on “the aggregate of the factors” that he
“weighed,” the IJ found that any financial or emotional hardship
was not “beyond that which would normally be expected from the
removal of a parent and provider.”
Id., at 29a (citing
Monreal-Aguinaga, 23 I. & N. Dec., at 65).
Ultimately, the IJ held that “the evidence of hardship” in the case
did not rise to the level of “exceptional and extremely unusual
hardship.” App. to Pet. for Cert. 29a. Because he held that
Wilkinson was statutorily ineligible for cancellation of removal,
the IJ did “not reach determining whether or not to exercise [his]
discretion to grant the application for cancellation of removal.”
Ibid. The IJ denied Wilkinson’s application. Wilkinson
appealed the IJ’s decision to the BIA. The BIA affirmed without
issuing an opinion.
Wilkinson petitioned the Third Circuit for
review, arguing that the court had jurisdiction to review the BIA’s
hardship determination as a mixed question of law and fact. The
Third Circuit held that because the hardship determination was
“discretionary,” it lacked jurisdiction to review it.
Id.,
at 3a (citing §1252(a)(2)(B)(i);
Patel v.
Garland,
596 U.S. 328 (2022)). It therefore dismissed that part of
Wilkinson’s petition.
Wilkinson asked this Court to grant certiorari
to resolve whether the IJ’s “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 §1252(a)(2)(D)
. . . or whether this determination is a
discretionary judgment call unreviewable under §1252(a)(2)(B)(i).”
Pet. for Cert. i. This Court granted certiorari. 600 U. S. ___
(2023). The Courts of Appeals are split on this question.[
2] This Court now holds that the
application of the exceptional and extremely unusual hardship
standard to a given set of facts is reviewable as a question of law
under §1252(a)(2)(D).
II
Section 1252(a)(2)(D) provides that a court of
appeals may consider final orders of removal via petitions raising
“constitutional claims or questions of law.” In
Guerrero-Lasprilla, this Court held that “the statutory
phrase ‘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. 589 U. S., at 227. 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. This Court therefore holds that it is a
“questio[n] of law” over which §1252(a)(2)(D) provides judicial
review.
The hardship determination in this case was not
discretionary. Because the IJ held that M.’s hardship did not
satisfy the statutory eligibility criteria, he never reached the
second step and exercised his unreviewable discretion to cancel or
decline to cancel Wilkinson’s removal. The Third Circuit therefore
erred in holding that it lacked jurisdiction to review the IJ’s
determination in this case.
A
Section 1252 generally grants federal courts
the power to review final orders of removal. §1252(a)(1). It then
strips courts of jurisdiction for certain categories of removal
order. §1252(a)(2). Finally, it restores jurisdiction to review
“constitutional claims or questions of law.”
§1252(a)(2)(D).[
3]
Relevant here, §1252(a)(2)(B)(i) strips courts
of jurisdiction over “judgment[s] regarding the granting of
[discretionary] relief under section . . . 1229b.”
Section 1229b governs cancellation of removal. Section
1252(a)(2)(B)(i) therefore strips courts of jurisdiction over a
“judgment” on cancellation of removal. The Third Circuit held that
it had no jurisdiction over the part of Wilkinson’s petition
related to the hardship determination on this basis.
That holding ignores §1252(a)(2)(D), which
restores jurisdiction to review “questions of law.” Two clear rules
govern the interaction between §1252(a)(2)(B)(i) (which strips
jurisdiction over judgments regarding discretionary relief )
and §1252(a)(2)(D) (which restores it for legal questions), laid
out in two of this Court’s previous cases:
Guerrero-Lasprilla and
Patel.
Guerrero-Lasprilla held that petitions raising mixed
questions of law and fact are always reviewable as questions of law
under §1252(a)(2)(D). 589 U. S., at 225.
Patel held
that questions of fact underlying denials of discretionary relief
are unreviewable under both §1252(a)(2)(B)(i) and §1252(a)(2)(D).
596 U. S., at 343, 347. Those two rules resolve this case.
In
Guerrero-Lasprilla, §1252(a)(2)(C)
stripped courts of jurisdiction over two noncitizens’ orders of
removal via a different provision targeting certain criminal
convictions. Those noncitizens had sought to reopen their
immigration cases after being removed because a change in the law
regarding their criminal convictions rendered them newly eligible
for discretionary relief. Although the 90-day time limit to reopen
their cases had expired, they argued that the limit should be
“equitably tolled.” 589 U. S., at 225–226. The BIA denied
their request, concluding that each had failed to demonstrate the
requisite due diligence. When the noncitizens petitioned the Fifth
Circuit for review of that decision, the court held that it lacked
jurisdiction to decide the question. The Fifth Circuit reasoned
that whether a noncitizen acted diligently in attempting to reopen
removal proceedings for purposes of equitable tolling was a
question of fact, not a “questio[n] of law” that would restore
jurisdiction under §1252(a)(2)(D).
This Court reversed. The Court held that
“questions of law” in §1252(a)(2)(D) included mixed questions of
law and fact.
Guerrero-Lasprilla, 589 U. S., at 225.
The “application of a legal standard to undisputed or established
facts” is a mixed question.
Ibid. Whether the BIA had
correctly applied the equitable tolling due diligence standard to
the facts was therefore a question of law reviewable by a court of
appeals.
In so doing, this Court rejected the
Government’s primary argument that “questions of law” referred only
to mixed questions that are primarily legal rather than primarily
factual. Such an interpretation, the Court reasoned, would “forbid
review of any [BIA] decision applying a properly stated legal
standard, irrespective of how mistaken that application might be.”
Id., at 236. This Court also rejected the Government’s
alternative argument that “questions of law” should be limited to
“ ‘pure’ ” questions of law based on the statutory
context, history, and relevant precedent.
Id., at 230–234.
Finally, the Court rejected the Government’s argument that
interpreting “questions of law” to cover all mixed questions would
“undercut Congress’ efforts to severely limit and streamline
judicial review.”
Id., at 235. Section 1252(a)(2)(D) had no
effect on the unreviewability of factual determinations which, as
the Court noted, are “an important category in the removal
context.”
Ibid.
The issue of questions of fact came before this
Court in
Patel. There, the noncitizen checked a box in his
application for a state driver’s license indicating that he was a
U. S. citizen when he was not. 596 U. S., at 333. Because
of that misrepresentation, he became statutorily inadmissible to
adjust his status to permanent resident. Later, in removal
proceedings, the noncitizen conceded he was removable but argued
that he mistakenly checked the box and lacked the statutory
mens
rea. The IJ found him not credible, based partly on the fact
that he had a strong incentive to deceive state officials about his
citizenship status to obtain a state driver’s license. The
noncitizen appealed, arguing that the basis for the credibility
determination was clearly wrong: Under state law, he was entitled
to a driver’s license without being a citizen. The BIA determined
that the IJ’s factual findings were not clearly erroneous and
dismissed the appeal. The Eleventh Circuit dismissed the petition
for review, holding that it lacked jurisdiction under
§1252(a)(2)(B)(i), which strips courts of jurisdiction to review
“ ‘any judgment regarding the granting of relief ’ ”
under the adjustment-of-status provision.
Id., at 335. The
court concluded that both whether petitioner had testified credibly
and whether he had subjectively intended to misrepresent himself as
a citizen were factual determinations that fell within
§1252(a)(2)(B)(i)’s jurisdictional bar.
This Court affirmed. The Court held that these
factual findings, which formed the basis for the denial of relief,
fell within §1252(a)(2)(B)(i)’s jurisdiction-stripping provision.
Further, §1252(a)(2)(D) did not restore jurisdiction, because
“questions of fact” are indisputably not “questions of law.”
Ibid. Relying on
Guerrero-Lasprilla, the Court noted
that questions of fact were the “major remaining category” for
which Congress could still strip courts of jurisdiction. 596
U. S., at 339–340.
B
Wilkinson does not dispute that
§1252(a)(2)(B)(i) generally strips courts of jurisdiction to review
cancellation-of-removal decisions. He argues, instead, that
§1252(a)(2)(D) restores jurisdiction in this case because the
threshold question whether a noncitizen is statutorily eligible for
cancellation of removal requires a court to assess whether an IJ
correctly applied the statutory standard to a given set of facts.
This Court agrees that the application of the statutory
“exceptional and extremely unusual hardship” standard to a given
set of facts presents a mixed question of law and fact.
Guerrero-Lasprilla compels this conclusion.
Guerrero-Lasprilla held that “the
statutory term ‘questions of law’ ” in §1252(a)(2)(D)
“includes the application of a legal standard to established
facts.” 589 U. S., at 234. That term included the application
of the due diligence standard for equitable tolling to a given set
of facts. Similarly, the “exceptional and extremely unusual
hardship” standard in §1229b(b)(1)(D) is a legal standard that an
IJ applies to facts. The standard may require an IJ to closely
examine and weigh a set of established facts, but it is not a
factual inquiry. It is, inescapably, a mixed question of law and
fact.
Mixed questions “are not all alike.”
U. S. Bank N. A. v.
Village at Lakeridge,
LLC, 583 U.S. 387, 395–396 (2018). A mixed question may require
“primarily legal or factual work.”
Id., at 396. It may
“require courts to expound on the law . . . by amplifying
or elaborating on a broad legal standard.”
Ibid. Or it may
“immerse courts in case-specific factual issues—compelling them to
marshal and weigh evidence.”
Ibid. That a mixed question
requires a court to immerse itself in facts does not transform the
question into one of fact. It simply suggests a more deferential
standard of review.
As interpreted by the BIA, the application of
the “exceptional and extremely unusual hardship” standard requires
an IJ to evaluate a number of factors in determining whether any
hardship to a U. S.-citizen or permanent-resident family
member is “substantially different from, or beyond, that which
would normally be expected from the deportation” of a “close family
membe[r ].”
Monreal-Aguinaga, 23 I. & N.
Dec., at 65. That application concededly requires a close
examination of the facts. Yet that was also true of the due
diligence standard in
Guerrero-Lasprilla, which required a
court to evaluate whether a noncitizen was adequately conscientious
in his pursuit of a filing deadline. A mixed question that requires
close engagement with the facts is still a mixed question, and it
is therefore a “questio[n] of law” that is reviewable under
§1252(a)(2)(D).
Under
Patel, of course, a court is still
without jurisdiction to review a factual question raised in an
application for discretionary relief. As in
Patel, that
would include the IJ’s underlying factual determination that
Wilkinson was credible, or the finding that M. had a serious
medical condition. When an IJ weighs those found facts and applies
the “exceptional and extremely unusual hardship” standard, however,
the result is a mixed question of law and fact that is reviewable
under §1252(a)(2)(D).
C
The Government’s counterarguments largely seek
to re-litigate
Guerrero-Lasprilla. This Court is
unpersuaded.
First, the Government argues that the statutory
standard is not a legal standard at all. It asks this Court to
limit
Guerrero-Lasprilla solely to judicially created
standards like the “due diligence” standard for equitable tolling.
Nothing in
Guerrero-Lasprilla or this Court’s other
precedents supports such a distinction. This Court has frequently
observed that the application of a “statutory standard” presents a
mixed question of law and fact. See,
e.
g.,
Pullman-Standard v.
Swint,
456
U.S. 273, 289, n. 19 (1982) (defining a mixed question as
asking whether “the historical facts . . . satisfy the
statutory standard”);
Ornelas v.
United States,
517 U.S.
690, 696–697 (1996) (same);
U. S. Bank, 583
U. S., at 394 (same).
Guerrero-Lasprilla itself
reflected this understanding. See 589 U. S., at 232 (reasoning
that §1252(a)(2)(D) was intended to preserve the kind of review
traditionally available in a habeas proceeding, including review of
the “erroneous application or interpretation of statutes” (emphasis
deleted; internal quotation marks omitted)). This Court sees no
reason to treat the statutory hardship standard here any
differently from a judicially created “due diligence” standard.
Second, the Government argues that a 1928 case,
Williamsport Wire Rope Co. v.
United States,
277 U.S.
551, and the statutory history of the hardship requirement
preclude review. In
Williamsport, the Court evaluated a
wartime tax-relief provision that was in effect from 1919 to 1921.
That provision allowed the Internal Revenue Service Commissioner to
use a “ ‘special method’ ” for determining a company’s
tax burden if computation under the regular scheme would work
“ ‘an exceptional hardship.’ ”
Id., at 558. The
statute granted the Commissioner power to act, for the most part,
without any justification. The Commissioner did not have to make
findings of fact, and had to create a “meagre record” only if he
ordered a special assessment.
Id., at 559. This Court
therefore concluded that the IRS’s “exceptional hardship”
determination was a question of administrative discretion not
subject to judicial review.
Ibid.
Williamsport has no relevance to the
question presented here. The Government provides no basis for why
this Court should port the interpretation of “exceptional hardship”
from a 1919 tax-relief provision to a 1996 immigration-relief
provision. An IJ applying the “exceptional and extremely unusual
hardship” standard must create an extensive record of his
decisionmaking, including detailed fact-finding and the application
of BIA precedent. Additionally,
Williamsport did not
evaluate the term “exceptional hardship” against the background of
a jurisdiction-restoring provision like §1252(a)(2)(D), enacted in
2005.
The Government’s argument from the statutory
history of the “hardship requirement” is no more persuasive. Brief
for Respondent 26. The precursor to cancellation of removal was
suspension of deportation. That relief was available only to a
“person whose deportation would,
in the opinion of the Attorney
General, result in exceptional and extremely unusual hardship”
to the noncitizen himself or a qualifying relative.
§§244(a)(1)–(5), 66Stat. 214–216 (emphasis added). The Government
argues that this Court should read that discretion back into the
current version of the statute.
The Government’s request to reinstate statutory
language removed by Congress is particularly unavailing because
Congress chose to retain similar language in provisions governing
other forms of discretionary relief subject to §1252(a)(2)(B)’s bar
on judicial review. See,
e.
g., §1182(h)(1)(B)
(allowing relief “if it is established to the satisfaction of the
Attorney General that the [noncitizen’s] denial of admission would
result in extreme hardship to the United States citizen”);
§1182(i)(1) (allowing relief “if it is established to the
satisfaction of the Attorney General that the refusal of admission
. . . of such [noncitizen] would result in extreme
hardship to the citizen . . . spouse or parent”);
§1255(
l)(1) (allowing relief if “in the opinion of the
Secretary of [DHS], in consultation with the Attorney General, as
appropriate . . . the [noncitizen] would suffer extreme
hardship involving unusual and severe harm upon removal”). Congress
could have, but did not, do the same with the hardship requirement
in §1229b(b)(1).
The Government’s final argument is one this
Court already rejected in
Guerrero-Lasprilla: that a
primarily factual mixed question is a question of fact. Such a rule
would require a court of appeals evaluating its jurisdiction to
determine in every instance whether a particular legal standard
presented a primarily factual or primarily legal inquiry. Nothing
in §1252(a)(2)(D) or its statutory context suggests that “questions
of law” is so limited. See 589 U. S., at 227–228. This Court
declined to require the courts of appeals to engage in that complex
line-drawing exercise in
Guerrero-Lasprilla, and it declines
to do so here.
* * *
Today’s decision announces nothing more
remarkable than the fact that this Court meant what it said in
Guerrero-Lasprilla: Mixed questions of law and fact, even
when they are primarily factual, fall within the statutory
definition of “questions of law” in §1252(a)(2)(D) and are
therefore reviewable. That holding does not render §1252(a)(2)’s
jurisdiction-stripping provisions meaningless. As this Court said
in
Guerrero-Lasprilla and reiterated in
Patel, those
provisions still operate to exclude “agency fact-finding from
review.”
Guerrero-Lasprilla, 589 U. S., at 234–235;
Patel, 596 U. S., at 339 (“[J]udicial review of
factfinding is unavailable”). The facts underlying any
determination on cancellation of removal therefore remain
unreviewable. 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 whether those established facts
satisfy the statutory eligibility standard is subject to judicial
review.[
4] Because this mixed
question is primarily factual, that review is deferential.
For these reasons, the Court reverses the Third
Circuit’s “jurisdictional” decision, vacates its judgment, and
remands the case for further proceedings consistent with this
opinion.
It is so ordered.