The Supreme Court yesterday issued a breakthrough decision on the rights of undocumented immigrants to appeal at the federal circuit courts the denial by the immigration judge (IJ) of applications for residency (42B cancellation of removal) based on exceptional and unusual hardship to US Citizen and legal resident spouses, parents, and children.   

22-666 Wilkinson v. Garland (03/19/2024)

Until this decision, for the past 27 years since the passage of IIRIRA, immigrants facing removal could only appeal 42B denials based on failure to establish requisite hardship no further than the Board of Immigration Appeals (BIA).  In cases where the BIA dismissed these appeals, immigrants had no recourse to petition for review further up to the federal circuit courts. Federal appeals courts may only review immigration decisions where the appellant claimed legal error, and denials based on a failure to establish requisite hardship were, until now, considered denials based strictly on discretion.  

The Supreme Court in Wilkinson determined that review of the hardship question was inextricably linked to questions of law, and therefore, review of such decisions on hardship could properly be brought before the federal courts of appeal.

There are potentially thousands of cases now before the BIA on the question of exceptional and extremely unusual hardship. Given the BIA’s demanding standards in proving this element of relief, the opportunity to petition for review to the federal courts may provide families already burdened by an ill or incapacitated US citizen or legal resident spouse, parent, or child a real chance at remaining legally in the United States.  

For those whose cases have already been denied by the BIA but did not file a petition for review to the federal appeals court, some judicial or legal remedy will need to be fashioned to give real meaning to this clarification of appellate court jurisdiction.  Normally, a petition for review to the federal court of appeals must be filed within 30 days of a final order by the BIA.  However, this is not a jurisdictional rule, and it appears a good argument can be made that the federal appeals courts are not prohibited from reviewing denials on the question of hardship.

Our San Jose immigration lawyers will closely monitor these developments and review these new 9th circuit petitions for review options for our cancellation of removal clients.