Decisions · 601 U.S. 209 (2024)

Wilkinson v. Garland

Wilkinson v. Garland (2024) says a federal appeals court may review whether established facts meet the exceptional and extremely unusual hardship standard for cancellation of removal. The door is narrow. The facts and the judge's final discretionary choice stay out of reach, and both the Ninth and Eleventh Circuits apply a deferential test, so the record you build at the hearing decides most cases.

Published: Event / decision date:

General information, not legal advice. See the notice at the end of this page.

What did the Court decide?

Most people seeking cancellation of removal without a green card must show their removal would cause exceptional and extremely unusual hardship to a citizen or resident spouse, parent or child. The judge first decides whether you meet the legal requirements, then whether to grant relief as a matter of discretion. Mr. Wilkinson overstayed a tourist visa and relied on his 7-year-old son, who had a serious medical condition. The judge said the hardship fell short, and the Third Circuit said no court could review that. The Supreme Court disagreed. Applying a legal standard to established facts is a mixed question, which counts as a question of law under § 1252(a)(2)(D). Next step: if you lost on hardship, do not assume federal review is closed, but read the limits below before filing.

What can the court still not touch?

Two things. The first is the facts. The Court said findings such as whether the applicant was credible, or whether the child had a serious medical condition, stay unreviewable under Patel v. Garland. If the judge found your child's illness less serious than you say, you start from that finding. The second is the final step. Even someone who meets every requirement can be refused as a matter of discretion, and the Court noted that this step matters because of the statutory cap of 4,000 grants a year. Courts cannot review that choice. So a petition should accept the facts as found and argue that those facts meet the standard, or point to another legal error. Next step: read the decision and mark each reason as a fact finding, a hardship ruling or discretion; only the hardship ruling and other legal errors can go to the court.

What test do California and Florida courts use?

Wilkinson said review is deferential but gave no exact test. Both circuits have now filled the gap, and neither helps much. In Gonzalez-Juarez v. Bondi (2025), the Ninth Circuit adopted substantial-evidence review: the agency stands unless any reasonable adjudicator would be compelled to conclude otherwise. In Lopez-Martinez v. U.S. Attorney General (2025), the Eleventh Circuit, a binding decision for Florida, held the same. Both courts denied the petitions before them. The Eleventh Circuit accepted the Board's finding that an alternative medication and education were available in Mexico, even for a family here more than two decades. In March 2026, Urias-Orellana v. Bondi applied the same deferential test to persecution findings. Next step: expect an uphill case, and treat a petition as a chance to correct real legal error, not to reargue sympathy.

What evidence should go in before the hearing ends?

Because the court sees only the record, the proof must be filed at the individual hearing. In Matter of Pelagio Mendoza (2026), the Board said testimony about a medical or mental health condition generally fails where expert reports or medical evidence could reasonably have been produced. Matter of Buri Mora (2025) found economic loss and family separation insufficient, particularly where relatives stay here and treatment continues. In Matter of Arevalo-Vargas (2026), children who passed 21 no longer counted. So obtain diagnoses, treatment plans, school plans and evidence on whether the needed care is reasonably available in the country of return, because that is the test the Eleventh Circuit upheld. Next step: read our page on cancellation under INA § 240A, and check each qualifying relative's birthday today.

How do I use this after a loss?

Appeal first, on Form EOIR-26. It must reach the Board, not just be mailed, within 30 days of the judge's decision. A 10-day rule shown in some copies of the regulation was vacated in March 2026 (EOIR memo PM 26-02); a final rule may change this. The fee is $1,060 unless the Board waives it on Form EOIR-26A. If the Board also rules against you, a petition for review under INA § 242 is due within 30 days, in the circuit where the judge finished the case, and the docket fee is $600. A petition does not stop removal, so ask for a stay. If you hold a grant of voluntary departure, filing a petition ends that grant automatically. A court win usually means the case goes back to the Board, not that you receive a green card. To have your hardship record read for legal error in time, see our removal defense page. Next step: gather the decision, any transcript and all hardship evidence the day the order arrives.

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Frequently asked questions

Can a federal court review a hardship denial in a cancellation of removal case?

Yes, narrowly. Under Wilkinson v. Garland (2024), a federal appeals court may review whether established facts meet the exceptional and extremely unusual hardship standard. The facts themselves and the final discretionary choice stay out of reach. The Ninth and Eleventh Circuits apply substantial-evidence review, so the agency stands unless any reasonable adjudicator would be compelled to conclude otherwise.

Is my testimony enough to prove my child's medical condition for cancellation of removal?

Generally no. In Matter of Pelagio Mendoza (2026), the Board said testimony about a medical or mental health condition generally fails where expert reports or medical evidence could reasonably have been produced. Because a court after Wilkinson v. Garland sees only the record, obtain diagnoses and treatment plans and file them at the individual hearing.

Is family separation or lost income enough to show hardship for cancellation of removal?

Often not by themselves. Matter of Buri Mora (2025) found economic loss and family separation insufficient, particularly where relatives stay here and treatment continues. The standard is exceptional and extremely unusual hardship to a citizen or resident spouse, parent or child, so also file evidence on whether needed care is reasonably available in the country of return.

My child is turning 21. Does that affect my cancellation of removal case?

It can. In Matter of Arevalo-Vargas (2026), children who passed 21 no longer counted in a cancellation of removal case, where hardship must fall on a citizen or resident spouse, parent or child. Check each qualifying relative's birthday today so you know whose hardship your evidence can rest on.

How many cancellation of removal grants are allowed each year?

The statutory cap is 4,000 grants a year. In Wilkinson v. Garland (2024), the Supreme Court noted that this cap is why the final discretionary step matters. Even someone who meets every requirement can be refused as a matter of discretion, and courts cannot review that choice.

Does a petition for review end my voluntary departure?

Yes. If you hold a grant of voluntary departure, filing a petition for review under INA § 242 after a hardship loss under Wilkinson v. Garland ends that grant automatically. The petition also does not stop removal, so ask for a stay. A court win usually sends the case back to the Board rather than giving you a green card.

What is Wilkinson v. Garland?

Wilkinson v. Garland (2024) says a federal appeals court may review whether established facts meet the exceptional and extremely unusual hardship standard for cancellation of removal. The door is narrow. The facts and the judge's final discretionary choice stay out of reach, and both the Ninth and Eleventh Circuits apply a deferential test, so the record you build at the hearing decides most cases.

What should I check before relying on this information?

Appeal first, on [[eoir-26|Form EOIR-26]]. It must reach the Board, not just be mailed, within 30 days of the judge's decision. A 10-day rule shown in some copies of the regulation was vacated in March 2026 (EOIR memo PM 26-02); a final rule may change this. The fee is $1,060 unless the Board waives it on Form EOIR-26A. If the Board also rules against you, a petition for review under [[ina-242|INA § 242]] is due within 30 days, in the circuit where the judge finished the case, and the docket fee is $600. A petition does not stop removal, so ask for a stay. If you hold a grant of voluntary departure, filing a petition ends that grant automatically. A court win usually means the case goes back to the Board, not that you receive a green card. To have your hardship record read for legal error in time, see our [[/services/removal-defense|removal defense page]]. Next step: gather the decision, any transcript and all hardship evidence the day the order arrives.

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