Judicial Review: The Supreme Court issued an important victory for noncitizens seeking cancellation of removal and the principle of judicial review of agency action on March 19. And despite the current court’s tenuous regard for stare decisis – the idea that “today’s Court should stand by yesterday’s decisions” – in Wilkinson v. Garland, the Supreme Court reaffirmed the importance of that fundamental principle in judicial decision-making.
In a 6-3 ruling in favour of immigrant Situ Wilkinson, Justice Sonia Sotomayor wrote for the majority, holding that federal courts can review the application of the “exceptional and extremely unusual hardship” standard to a given set of facts. Such findings by an immigration judge (IJ) are not precluded from judicial review under the Immigration and Nationality Act (INA). The Court arrived at this outcome through a straightforward application of its recent precedents.
Crucial to the Court’s decision is the finding that the specific hardship requirement listed in the cancellation of removal statute is, in fact, a “legal standard,” not a “discretionary” determination. The majority rejected the argument that a standard that requires an IJ to “closely examine and weigh a set of facts” must be classified as an unreviewable factual inquiry. Instead, it found that the Court’s 2020 opinion in Guerrero-Lasprilla v. Barr indicates that such an application of a legal standard to facts is “inescapably, a mixed question of law and fact.”
And under Guerrero-Lasprilla, mixed questions of law and facts qualify as “questions of law” that are judicially reviewable under the INA.
Notably, six circuit courts of appeal had previously come to the opposite conclusion. Several appeals courts had found that the Supreme Court’s 2022 decision in Patel v. Garland prevented federal courts from reviewing fact-heavy determinations by IJs, like those called for by cancellation’s hardship standard. But in Wilkinson, the majority clarified that Patel believes only pure questions of fact underlying denials of discretionary relief are unreviewable.
Justice Ketanji Brown Jackson wrote separately to emphasize that Guerrero-Lasprilla dictated the result in Wilkinson. While she noted her scepticism that Congress intended “questions of law” to cover such a wide range of IJ determinations, she issued an important reminder: that the principle of stare decisis carries even greater weight when courts interpret statutes, because Congress can always amend a statute if it disagrees with the Court’s interpretation.
The Court’s decision in Wilkinson will undoubtedly come as a relief to the many noncitizens in removal proceedings who apply for cancellation of removal and are denied based on legally erroneous eligibility determinations. The requirements to qualify for cancellation are incredibly stringent, and only 4,000 noncitizens may be granted the relief each year. Whether Mr Wilkinson, who built a life, family and community in the United States over the past two decades before being detained by Immigration and Customs Enforcement, will be granted cancellation relief is an open question.
Notably, Wilkinson may also help the many other noncitizens seeking relief under statutory provisions that should now be deemed reviewable legal standards instead of unreviewable discretionary decisions. At oral argument, counsel for Mr. Wilkinson stated that she counted at least 75 statutory provisions in the INA that could be impacted by the Court’s ruling.
And yet, the path to correcting flawed IJ decisions will not be easy. As the Court recognized, not all “mixed questions are . . . alike.” It cited prior precedent on the relevant standard of review and noted that mixed questions of law and fact that are primarily factual require a “more deferential standard.”
Noncitizens seeking to overturn agency determinations often face an uphill battle. But at the very least, Wilkinson narrows the scope of the Patel decision and gives applicants for immigration relief a chance to be heard in federal court. For now, noncitizens and their attorneys can celebrate the opening of that door.
