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Justices asked to weigh in again on “mixed” questions in immigration appeals

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The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

When a noncitizen receives a final deportation order from immigration officials, they can appeal their case to federal court – but only under narrow circumstances. This week, we highlight cert petitions that ask the court to consider, among other things, whether courts can review a claim that a person’s deportation would devastate family they would be forced to leave behind.

Congress created two narrow pathways that govern a form of deportation relief known as “cancellation of removal.” To seek it a person must meet four conditions, one of which is showing that their deportation would inflict “exceptional and extremely unusual hardship” upon an immediate family member who is a U.S. citizen or green-card holder. If immigration officials deny cancellation of removal, federal courts can review that decision only for legal or constitutional questions.

Nearly three years ago, the Supreme Court held that this power to hear legal questions includes the ability to investigate “mixed questions of law and fact.” As long as a court accepts the facts relied on by immigration officials in denying cancellation of removal, the justices ruled, it can review whether those officials properly applied the correct legal standard to those facts.

Situ Wilkinson fled government persecution in his native Trinidad and Tobago for the United States in 2003. Wilkinson overstayed his tourist visa and eventually had a son, who is a U.S. citizen and is regularly hospitalized due to severe asthma attacks. Because the boy’s mother suffers from depression, Wilkinson is the family’s sole breadwinner.

An acquitted drug charge in 2019 brought Wilkinson to the attention of Immigration and Customs Enforcement, which sent agents to detain him at a Pennsylvania courthouse. When the government moved to deport him, Wilkinson asked for cancellation of removal, arguing that his son and the son’s mother would be left unable to cope medically or financially without his support.

The immigration judge denied the request, ruling that Wilkinson’s circumstances did not rise to the level of “exceptional and extremely unusual hardship” outlined by Congress. Wilkinson appealed that decision to the U.S. Court of Appeals for the 3rd Circuit. The appeals court held that it lacked jurisdiction to hear the case because a hardship determination is purely discretionary, and not the type of mixed question of law and fact that courts can review.

In Wilkinson v. Garland, Wilkinson asks the justices to clarify that the severity of the suffering his family would endure if he were deported is exactly the type of question they held that federal courts can review three years ago. Since that decision, Wilkinson argues, the courts of appeals have divided on whether hardship determinations are mixed questions. He contends that most cancellation-of-removal decisions rise or fall with the hardship issue, and that this important form of relief will remain in disarray without the justices’ input.

A list of this week’s featured petitions is below:

May v. Shinn
Issue: Whether a judgment rendered after a habeas petitioner has been unconditionally released with no collateral consequences – and where the state does not dispute that the petitioner was no longer “in custody” pursuant to 28 U.S.C. § 2254 – is void for lack of subject-matter jurisdiction.

Wilkinson v. Garland
Issue: Whether an agency 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 8 U.S.C. § 1252(a)(2)(D), or whether this determination is a discretionary judgment call unreviewable under Section 1252(a)(2)(B)(i).

Novartis Pharmaceuticals Corp. v. HEC Pharm Co., Ltd.
Issues: (1) Whether 28 U.S.C. § 46 and principles of sound judicial administration preclude a court of appeals from adding a new judge to form a new panel and redecide a case after an original three-judge panel has already decided the case and entered its judgment; and (2) whether 35 U.S.C. § 112 should be interpreted consistent with its plain text as requiring that a patent specification contain a “written description of the invention” in a form that need only be understandable to “any person skilled in the art,” or whether the court of appeals properly read in a heightened requirement that allows it to deem the specification inadequate on de novo review and displaces the perspective of a person skilled in the art.

Campos-Chaves v. Garland
Issue: Whether the government provides notice “required under” and “in accordance with paragraph (1) or (2) of” 8 U.S.C. § 1229(a) when it serves an initial notice document that does not include the “time and place” of proceedings followed by an additional document containing that information, such that an immigration court must enter a removal order in absentia and deny a noncitizen’s request to rescind that order.

Recommended Citation: Kalvis Golde, Justices asked to weigh in again on “mixed” questions in immigration appeals, SCOTUSblog (Feb. 10, 2023, 2:58 PM),