Wilkinson v. Garland: federal courts can review hardship determinations in cancellation of removalWilkinson v. Garland, 601 U.S. 209 (2024)
At a glance
| Item | Details |
|---|---|
| Case name | Wilkinson v. Garland |
| Court | U.S. Supreme Court (on review from the U.S. Court of Appeals for the Third Circuit) |
| Citation / docket no. | 601 U.S. 209 (2024); No. 22-666 |
| Argued | November 28, 2023 |
| Decided | March 19, 2024 |
| Vote | 6-3 in the judgment. Justice Sotomayor wrote the majority opinion, joined by Justices Kagan, Gorsuch, Kavanaugh and Barrett; Justice Jackson concurred only in the judgment; Justice Alito wrote a dissent, joined by Chief Justice Roberts and Justice Thomas, and the Chief Justice also filed a brief separate dissent |
| Provisions | INA 240A(b)(1)(D) (hardship standard); INA 242(a)(2)(B)(i) and 242(a)(2)(D) (8 U.S.C. 1252, limits on and exceptions to judicial review) |
| Topics | Cancellation of removal for non-permanent residents; scope of federal judicial review of immigration decisions |
| Current status | Still good law (as of October 2026). The specific standard of review is being worked out by each circuit, and several circuits apply the "substantial evidence" standard; Urias-Orellana v. Bondi (2026) further explained that the standard of review is governed by 1252(b)(4) |
| Opinion text | Justia, Cornell LII |
Background: can a denial of cancellation of removal be appealed to federal court?
A person without a green card who applies for cancellation of removal in immigration court (EOIR-42B) must show 10 years of continuous physical presence, good moral character, the absence of certain criminal convictions, and that removal would cause "exceptional and extremely unusual hardship" to a U.S. citizen or green card holder spouse, parent or child. Even if every requirement is met, the immigration judge may still decide, in the exercise of discretion, whether to grant relief.
INA 242(a)(2)(B)(i) provides that federal courts lack jurisdiction to review "any judgment" regarding relief such as cancellation of removal; but 242(a)(2)(D) provides that constitutional claims and "questions of law" remain reviewable. In Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020), the Supreme Court held that "mixed questions" applying a legal standard to established facts are reviewable "questions of law"; in Patel v. Garland, 596 U.S. 328 (2022), it held that factual findings in discretionary relief cases are not reviewable. Lower courts disagreed about which category the application of the hardship standard falls into: according to a footnote in the Supreme Court's opinion, the Fourth, Sixth and Seventh Circuits (Illinois is in the Seventh Circuit) held that it is reviewable, while the Third, Fifth, Eighth, Ninth, Tenth and Eleventh Circuits indicated that it is not.
Facts
Situ Kamu Wilkinson is a citizen of Trinidad and Tobago. He said that in 2003 he was beaten, robbed and threatened with death by police in his home country, after which he came to the United States on a tourist visa and remained after it expired. His son M., born in 2013, is a U.S. citizen with severe asthma who needs hospital treatment several times a year; according to the opinion, Wilkinson helps the child use his inhaler and medication, is familiar with his treatment plan, and pays child support regularly.
In 2019, police found drugs in a house he had been hired to renovate, and he was arrested; he was detained by federal immigration officials at the courthouse and placed in removal proceedings, and the criminal charges were later dropped. He applied for cancellation of removal. The immigration judge found his testimony credible and found that the child's asthma was serious and that Wilkinson had caregiving responsibilities, but still concluded that the hardship did not reach the "exceptional and extremely unusual" level, and denied the application. The BIA affirmed without opinion. The U.S. Court of Appeals for the Third Circuit held that the hardship determination was a discretionary judgment it lacked jurisdiction to review, and dismissed that part of the petition for review.
Issues
- Is an immigration judge's determination that established facts do not amount to "exceptional and extremely unusual hardship" an unreviewable discretionary judgment, or a reviewable "question of law" (a mixed question) under 242(a)(2)(D)?
- If it is reviewable, how searching is that review?
What the Court held
The majority held that applying the hardship standard is "a quintessential mixed question of law and fact." Under Guerrero-Lasprilla, mixed questions are "questions of law" preserved by 242(a)(2)(D). The Court concluded:
“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).”
At the same time, the Court drew three lines:
- Review is deferential: “Because this mixed question is primarily factual, that review is deferential.”
- The facts themselves are not reviewable: “The facts underlying any determination on cancellation of removal therefore remain unreviewable.” Examples include the immigration judge's credibility findings and findings about how serious a child's medical condition is.
- The discretionary decision is not reviewable: Even when every statutory requirement is met, the immigration judge's final discretionary decision whether to grant cancellation of removal remains outside the scope of review.
The Court reversed the Third Circuit's ruling that it lacked jurisdiction and remanded.
- Justice Jackson (concurring in the judgment only): concluded, based on stare decisis, that Guerrero-Lasprilla should apply, but doubted that Congress intended all mixed questions to be reviewable, and noted that Congress can amend the statute if it disagrees.
- Justice Alito's dissent: argued that reading Guerrero-Lasprilla this broadly would hollow out the limits on review that Congress enacted, and that the hardship question is overwhelmingly factual and should not count as a question of law.
What it means for you
People who are applying or plan to apply for cancellation of removal (EOIR-42B)
- If the immigration judge denies relief on the ground that the hardship is insufficient and the BIA affirms, you can ask a federal court of appeals to review that determination, rather than having it dismissed outright for "lack of jurisdiction," as happened in some circuits in the past.
- But the court of appeals applies a deferential standard and will not find the facts anew. Cases are still won or lost mainly at the immigration court level: whether the evidence is complete, whether witnesses are credible, and whether medical and psychological evaluations are specific determine what the "established facts" are.
- Evidence not presented in immigration court generally cannot be added on appeal. Build a full hardship record when preparing for the individual hearing.
Family members (qualifying relatives)
- The hardship must fall on a U.S. citizen or green card holder spouse, parent, or unmarried child under 21. The family members' medical records, school records, psychological evaluations and testimony are at the core of the hardship determination.
- The more specific the evidence about a child's physical or mental health and dependence on the respondent, and the better supported by professional evidence, the better.
People who have been denied and are appealing
- A petition for review in a federal court of appeals must be filed within 30 days after the final order of removal (usually the BIA's final decision) (INA 242(b)(1)). This deadline is very tight; do not delay.
- Your arguments should focus on "whether the legal standard was applied correctly," not on relitigating the immigration judge's findings of fact or credibility.
Green card holders (EOIR-42A)
- Cancellation of removal for green card holders (EOIR-42A) has no statutory hardship threshold, so this case has limited direct effect; but its framework, under which mixed questions are reviewable while facts and discretion are not, is still useful for understanding the scope of judicial review.
Later developments
- Circuits implementing "deferential review": In Gonzalez-Juarez v. Bondi (No. 21-927, May 20, 2025, published opinion), the U.S. Court of Appeals for the Ninth Circuit decided to review hardship determinations under the "substantial evidence" standard; in Lopez-Martinez v. U.S. Attorney General (Nos. 23-10105, 23-12058, August 6, 2025), the U.S. Court of Appeals for the Eleventh Circuit likewise held that the BIA's hardship determinations are reviewed for substantial evidence. Neither case overturned the BIA's conclusion. The substantial evidence standard sets a high bar for applicants.
- Urias-Orellana v. Bondi (No. 24-777, March 4, 2026, unanimous, opinion by Justice Jackson): In an asylum case, the Supreme Court held that an immigration agency's determination of whether a given set of undisputed facts amounts to "persecution" is reviewed for substantial evidence, meaning it is upheld unless any reasonable adjudicator would be compelled to conclude otherwise; it also explained that Wilkinson and Guerrero-Lasprilla address whether review is available (1252(a)), while the standard of review is set by 1252(b)(4). That case is not a cancellation-of-removal case, but lower courts have already used it to determine the standard of review for hardship determinations.
- Seventh Circuit (the circuit that includes Illinois): In Santos Mendoza v. Bondi, 151 F.4th 900 (7th Cir. 2025), the Seventh Circuit gave hardship determinations a high degree of deference; in Perez-Castillo (No. 25-1988, June 1, 2026), the Seventh Circuit cited Urias-Orellana, reviewed the hardship determination for substantial evidence, and denied the petition for review.
- The BIA's hardship standard itself was not changed by this case: Immigration judges and the BIA still assess hardship under precedents such as Matter of Monreal-Aguinaga, 23 I&N Dec. 56 (BIA 2001), which require hardship to the qualifying relative substantially beyond what would ordinarily be expected when a person is removed.
As of October 2026, the circuits may phrase the specific standard of review differently; check the latest case law in the circuit where your case is pending.
Practical steps: what to do now
- Focus your effort on the hearing before the immigration judge: The facts found by the immigration judge will essentially not change on appeal. Medical records, expert opinions, school and psychological evaluations, and materials on medical and educational conditions in the home country should all be submitted before the individual hearing.
- Get the findings into the record: Favorable facts such as witness credibility, the seriousness of a medical condition and the degree of dependence should be presented clearly at the hearing, so the judge can make explicit findings.
- Frame the issues clearly in a BIA appeal: The deadline to appeal to the BIA is currently generally 30 days after the immigration judge's decision (the BIA must receive the notice of appeal within that period). In 2026 the Department of Justice issued an interim final rule that would have sharply shortened this deadline; that part was vacated by a federal court, but the rules may change again, so verify the current rules before filing and file as early as possible. Your appeal should identify specifically where the hardship standard was misapplied, to preserve the issue for later federal court review (see also Santos-Zacaria v. Garland on exhaustion of administrative remedies).
- Consider other relief: Whether you also qualify for asylum (I-589), withholding of removal or other relief should be considered at the same time.
Frequently asked questions
Does Wilkinson mean the hardship standard has been lowered?
No. This case addresses only whether federal courts can review the determination; it did not change the hardship standard itself. The high standard in BIA precedent, requiring hardship substantially beyond the ordinary hardship of family separation, still applies.
Will the court of appeals hear testimony from me and my family again?
No. A federal court of appeals reviews only the administrative record; it does not hold a new hearing or make new findings of fact or credibility. It reviews whether, on the established facts, the hardship standard was applied correctly, and it does so deferentially.
What if the judge found that I was eligible but denied relief as a matter of discretion?
The final discretionary decision is still not reviewable by federal courts. Only questions of law, constitutional questions and mixed questions such as the application of the hardship standard are reviewable.
After the BIA rules against me, how long do I have to file a petition for review in federal court?
By statute, the petition for review must be filed in the appropriate federal court of appeals within 30 days after the BIA's final decision. Consult an attorney immediately so you do not miss the deadline.
Is a child's asthma or other illness enough to establish "exceptional and extremely unusual hardship"?
There is no single answer. It depends on the severity of the condition, the treatment needed, whether treatment is available in the home country, how dependent the child is on you, and the cumulative effect of other factors. Wilkinson itself centered on a child's severe asthma, but the Supreme Court did not decide whether the standard was met; it remanded the case.
Opinion and sources
- U.S. Supreme Court docket No. 22-666
- Cornell LII: full text of Wilkinson v. Garland
- Justia: Wilkinson v. Garland, 601 U.S. 209 (2024)
- Ninth Circuit: Gonzalez-Juarez v. Bondi (No. 21-927)
- Eleventh Circuit: Lopez-Martinez v. U.S. Attorney General (No. 23-10105)
- Cornell LII: Urias-Orellana v. Bondi (No. 24-777)
- Seventh Circuit website (opinion search)
- EOIR: BIA and Attorney General precedent decisions
Related reading
- Form EOIR-42B guide: cancellation of removal for non-permanent residents
- Patel v. Garland: factual findings in discretionary relief are not reviewable
- Santos-Zacaria v. Garland: exhaustion of administrative remedies is not jurisdictional
- Form EOIR-42A guide: cancellation of removal for green card holders
- Form I-589 guide: asylum and withholding of removal
The hardship determination in cancellation of removal depends almost entirely on the evidence and findings at the immigration court stage. Whether you are preparing to file EOIR-42B or have been denied and are considering an appeal, you can book an attorney assessment. We will first review your record and family circumstances, and then explain the available options and deadlines.
This page is a general introduction to a court decision and is not legal advice. The law and case law change, and outcomes depend on the specific facts. To evaluate your situation, consult an attorney.