Supreme Court Lets Courts Review Hardship Denials in Cancellation of Removal (Wilkinson v. Garland)
In Wilkinson v. Garland (No. 22-666, decided March 19, 2024), the U.S. Supreme Court held that a federal appeals court can review an immigration judge's decision that a noncitizen failed to show "exceptional and extremely unusual hardship" — a key requirement for cancellation of removal. That kind of decision is a mixed question of law and fact, the Court said, and is not the unreviewable "discretionary" call that some lower courts had treated it as.
This is general information about a court decision, not legal advice. If you are in removal (deportation) proceedings or considering cancellation of removal, talk with an immigration attorney about your specific case. You can read the full opinion (PDF).
What cancellation of removal requires
Cancellation of removal is a form of relief that lets certain noncitizens who are in removal proceedings stay in the United States and become lawful permanent residents, rather than being deported. Congress gives immigration judges the power to grant it (8 U.S.C. § 1229b).
For a non–lawful-permanent-resident, one of the statutory requirements is the hardship test: the person must "establish that removal would result in exceptional and extremely unusual hardship to [the noncitizen's] spouse, parent, or child" who is a U.S. citizen or lawful permanent resident (8 U.S.C. § 1229b(b)(1)(D)). It is a demanding standard, and the immigration judge weighs many factors together.
How the case arose
The petitioner, Situ Kamu Wilkinson, was arrested and detained for remaining in the United States after his tourist visa expired. He applied for cancellation of removal based in part on the hardship to his 7-year-old, U.S.-born son, who has a serious medical condition and relies on Wilkinson for emotional and financial support.
Considering all of the hardship factors together, the immigration judge concluded that the son's situation did not meet the "exceptional and extremely unusual" standard and denied the application. The Board of Immigration Appeals affirmed. When Wilkinson asked a federal court to review that hardship decision, the Third Circuit held that it lacked jurisdiction — reasoning that the determination was a discretionary judgment Congress had shielded from court review.
What the Supreme Court decided
The Supreme Court reversed the Third Circuit, holding that it erred in concluding it had no jurisdiction to review the immigration judge's determination.
The decision turns on two provisions of the immigration law that point in different directions. One provision (8 U.S.C. § 1252(a)(2)(B)(i)) makes certain discretionary decisions about cancellation of removal unreviewable. But another provision (§ 1252(a)(2)(D)) restores a court's ability to review "questions of law." The Court explained that, under its earlier decisions in Guerrero-Lasprilla v. Barr and Patel v. Garland, the phrase "questions of law" includes mixed questions of law and fact — that is, questions about whether a settled legal standard was correctly applied to an established set of facts.
Applying that framework, the Court held that whether a given set of facts meets the "exceptional and extremely unusual hardship" standard is a mixed question of law and fact. Even though answering it requires a close look at the facts, that does not turn it into a purely factual question beyond a court's reach. So a federal court does have jurisdiction to review it.
Why this matters in deportation cases
For people fighting removal, this decision is meaningful. Cancellation of removal is one of the most important defenses available to long-term residents with close U.S.-citizen or permanent-resident family members — and the hardship requirement is often the hardest part to prove.
Before this ruling, several courts treated a hardship denial as essentially the end of the road, holding they could not even review it. Wilkinson confirms that an applicant who believes the immigration judge misapplied the hardship standard can ask a federal appeals court to take a look. That is not a guarantee of winning — the court reviews how the standard was applied, not simply whether it would have decided differently — but it restores a meaningful avenue of review that some courts had closed off.
Because these cases are fact-intensive and the hardship standard is demanding, strong preparation matters enormously: documenting a qualifying relative's medical, financial, educational, and country-conditions hardships thoroughly, and presenting them clearly to the immigration judge from the start.
Frequently Asked Questions
What did Wilkinson v. Garland decide?
The Supreme Court held that a federal court can review an immigration judge's determination that a noncitizen did not show "exceptional and extremely unusual hardship" in a cancellation-of-removal case. That determination is a mixed question of law and fact, which courts have jurisdiction to review under 8 U.S.C. § 1252(a)(2)(D).
What is "exceptional and extremely unusual hardship"?
It is a statutory requirement for cancellation of removal for non–permanent residents. The applicant must show that their removal would cause exceptional and extremely unusual hardship to a U.S.-citizen or lawful-permanent-resident spouse, parent, or child (8 U.S.C. § 1229b(b)(1)(D)). It is a high standard that considers many factors together.
Does this mean a court will reverse a hardship denial?
Not necessarily. The ruling means a court has jurisdiction to review how the immigration judge applied the hardship standard — it does not guarantee a different result. The court examines whether the legal standard was correctly applied, not whether it would have weighed the facts differently.
I am in removal proceedings and worried about hardship to my family. What should I do?
Speak with an immigration attorney about whether cancellation of removal or another defense fits your case, and how to document hardship effectively. Carlos Maury Law is a national firm of former U.S. Immigration Judges and can be reached at (213) 769-0050.