WILKINSON v. GARLAND

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors.

SUPREME COURT OF THE UNITED STATES

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No. 22–666

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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

 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, 66 Stat. 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 po lice 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), 66 Stat. 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.