Wilkinson v. Garland: Implications for Judicial Review of Petitions for Review (Practice Advisory)

NILA, Mar. 28, 2024

"On March 19, 2024, the Supreme Court issued its opinion in Wilkinson v. Garland, No. 22-666, 601 U.S. __, 2024 WL 1160995 (2024). The decision holds that the application of the statutory hardship standard for cancellation of removal, found in 8 U.S.C. § 1229b(b)(1)(D), to established facts presents a mixed question of law and fact which a federal court of appeals has jurisdiction to review under 8 U.S.C. § 1252(a)(2)(D). The decision does not break new ground, but instead applies the Court’s precedent in Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020), to review of the cancellation hardship standard. Significantly, however, the decision abrogates decisions from six courts of appeals. This practice advisory explains the Court’s holding and rationale, discusses its implications for petitions for review raising similar issues in other contexts, and suggests steps that a noncitizen whose case is impacted by the decision may take. Accompanying this advisory in Word format are a template motion to recall the mandate and a template motion to reissue."