Wednesday, November 29, 2023

Justices Set to Rule in Favor of Judicial Review of Hardship Determination in Cancellation of Removal Cases

As Ingrid Eagly blogged yesterday, the Supreme Court heard oral argument in a cancellation of removal case yesterday.  Kimberly Strawbridge Robinson for Bloomberg thinks that the noncitizen will win on the judicial review issue:

"Immigrants seeking another shot to prove their deportations would cause unusual hardship for their family appear likely to prevail at the US Supreme Court.

At issue in the case heard Tuesday is whether federal courts can review an immigration judge’s decision that an individual isn’t eligible for a “hardship exception” from deportation.

. . . .

The case involves Situ Wilkinson, a citizen of Trinidad and Tobago who overstayed his tourist visa and has been living in the US without authorization since approximately 2003. He claimed his young son, a US citizen, would experience `exceptional and extremely unusual hardship' if he’s deported.

An immigration judge disagreed that deportation would cause unusual hardship . . .

The US Court of Appeals for the Third Circuit said it lacked jurisdiction to hear the case because cancellation of removal based on hardship is left to the discretion of the attorney general, and isn’t a question of law.

Other federal appellate courts have determined that they do have jurisdiction to review hardship decisions.

The justices appeared likely to side with Wilkinson, finding it hard to distinguish his case from a divided 2020 ruling in which the court broadened the scope of judicial review over deportation decisions."

The C-SPAN audio to oral argument in Wilkinson v. Garland is here.  I listened to the argument and thought that the attorney for the Solicitor General's office did not respiond particularly well to the questions from the justices, which included conservatives as well as liberals.

UPDATE (11/30):

 

 

This week, SCOTUSblog introduced a new feature: Videos in which lawyers arguing before the Supreme Court discuss their cases and their argument preparation. The series kicks off with an interview with Jaime Santos of Goodwin Proctor, who argued the case of the noncitizen in Wilkinson v. Garland.

KJ

 

https://lawprofessors.typepad.com/immigration/2023/11/justices-set-to-rule-in-favor-of-judicial-review-of-hardship-determination-in-cancellation-of-remova.html

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