SITU KAMU WILKINSON, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA
No. 21-3166
UNITED STATES COURT
Opinion filed: March 11, 2025
PRECEDENTIAL; Submitted Under Third Circuit L.A.R. 34.1(a) on June 23, 2022; On Remand from the Supreme Court of the United States on March 19, 2024; Argued after Remand on December 9, 2024
Rhonda F. Gelfman
9221 Southern Orchard Road
Davie, FL 33328
Jesse A. Lempel [Argued]
Goodwin Procter
100 Northern Avenue
Boston, MA 02210
Jaime A. Santos
Rohiniyurie Tashima
Goodwin Procter
1900 N Street NW
Washington, DC 20036
Counsel for Petitioner
Corey L. Farrell [Argued]
Jaclyn G. Hagner
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
OPINION OF THE COURT
McKEE, Circuit Judge.
Situ Kamu Wilkinson, who has resided in the United States for over two decades, mostly without legal status, faces removal to the Republic of Trinidad and Tobago. He petitioned this Court to review the Board of Immigration Appeals’ determination that he is ineligible for cancellation of removal because he failed to establish one of the statutory prerequisites to relief: that his removal would cause “exceptional and extremely unusual hardship” to a qualifying relative in the United States. For the reasons that follow, we will deny the petition for review.1
I. Factual Background
Wilkinson was born in the Republic of Trinidad and Tobago and lived there for nearly thirty years. Following an encounter with Trinidadian police that made him fear for his safety, he fled his home country. He entered the United States on a tourist visa on March 15, 2003. Shortly thereafter, Wilkinson was accused of a crime—he claims, wrongly—and incarcerated in the United States for four months. Those charges were ultimately dismissed, but his passport was purportedly thrown away while he was incarcerated. Wilkinson claims that this caused him to overstay his visa.
After his release from custody, Wilkinson established a life in the United States. He fathered a son, M., who is a U.S. citizen. Initially, Wilkinson and M. lived in Pennsylvania together with M.‘s mother, Kenyetta Watson. When M. was two, his parents decided that he and Watson should move to New Jersey, near Watson‘s mother, Tracy Collins, to give M. “a better quality of life.”2 Wilkinson stayed in Pennsylvania, where he worked. Nevertheless, he remained very involved with M., whom he visited every weekend. Despite the distance, the two maintained a close relationship.
Watson currently has custody of M. Although there is no court-ordered child-support arrangement, Wilkinson has historically
M. has severe asthma that requires hospitalizations several times per year. He also has eczema, requiring “parental attention and support with bathing.”4 M. has state-provided health insurance; thus, Wilkinson does not pay for M.‘s medical care. In addition to M.‘s problems, Watson suffers from depression.
In July 2019, police found drugs in a house Wilkinson was repairing. Wilkinson denied involvement with the drugs, and claimed he was simply “in the wrong place at the wrong time.”5 Although charges were withdrawn, the arrest brought Wilkinson to the attention of immigration authorities, who initiated removal proceedings against him.
About a month after Wilkinson‘s arrest and detention, M. began to exhibit troubling behavior. Collins observed that M. “ha[d] been sad, acting out, and breaking things.”6 M.‘s teacher began texting Watson about M.‘s lack of focus at school and suggested M. talk to a counselor. Watson opted not to pursue counseling but agreed that Wilkinson‘s absence was causing her son to suffer. M. subsequently corroborated Watson‘s belief. M. told her that he was sad because he could not see his father and did not want his father to be sent to a different country.
If Wilkinson is removed, M. will remain in the United States. Watson expressed concern that her son does not have other male role models and that he needs his father. In addition, the family would suffer financially. Watson would need to find a job, as well as childcare for M., and would no longer be able to rely on Wilkinson as a second caregiver.
II. Procedural History
On November 9, 2020, the Department of Homeland Security charged Wilkinson as removable for overstaying his visa. Wilkinson conceded his removability under
(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of [his] application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of [certain specified criminal offenses]; and
(D) establishes that removal would result in exceptional and extremely unusual hardship to [his] spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.8
The IJ denied Wilkinson‘s request for cancellation of removal. The IJ found that Wilkinson was removable as charged, that testimony from Wilkinson, Watson, and Collins was credible, and that Wilkinson satisfied the first three statutory prongs. But the IJ concluded that the hardship to M. was not exceptional and extremely unusual as required under the fourth prong, and therefore that Wilkinson was ineligible for relief. The BIA affirmed without opinion, leaving the IJ‘s decision as the final agency determination.
Wilkinson petitioned this Court for review. As we noted at the outset, we dismissed the petition with respect to cancellation of removal based on our understanding that the IJ‘s hardship decision was discretionary and therefore unreviewable.9 The Supreme Court reversed, vacated our prior judgment, and remanded for further proceedings.10
III. Discussion
We have jurisdiction to review the IJ‘s hardship determination pursuant to
A. Standard of Review
The Supreme Court instructed that because the mixed question before us “is primarily factual,” our review must be “deferential.”12 The Court did not, however, specify which deferential standard applies. Moreover, subsequent decisions by our sister appellate courts have failed to agree on the applicable standard. Instead, those courts have applied unspecified deferential review.13 We therefore assess in the first instance whether to review the hardship determination for substantial evidence, as the government urges, or for abuse of discretion, as Wilkinson urges.
Supreme Court precedent suggests that substantial evidence is the appropriate standard. Two provisions of the Immigration
Several years ago, the Supreme Court decided Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020).16 There, it held that the phrase “questions of law” in
[A] court is still without jurisdiction to review a factual question raised in an application for discretionary relief . . . . [T]hat would include the IJ‘s underlying factual determination that Wilkinson was credible, or the finding that M. had a serious medical condition. When an IJ weighs those found facts and applies the “exceptional and extremely unusual hardship” standard, however, the result is a mixed question of law and fact that is reviewable under § 1252(a)(2)(D).19
In other words, we only have jurisdiction because this mixed question encompasses a legal inquiry: what the words in the statute mean and how they apply. As we are prohibited from reviewing the underlying factual findings, one might think we would separate out the purely legal components and review them de novo. However, that cannot be correct. The Supreme Court instructed that our review must be deferential because the question is overwhelmingly factual. That is true even though factual findings remain strictly unreviewable.
To sort through this conundrum, we turn to the roadmap laid out in U.S. Bank National Association v. Village at Lakeridge, LLC, 583 U.S. 387 (2018).20 There, the Supreme Court confronted a “mixed” question that, like the question before us, required determining “whether the historical facts found satisfy the legal test chosen.”21 In such cases, courts must ask “[w]hat is the nature of the mixed question here and which kind of court is better suited to resolve it?”22 Where mixed questions “immerse courts in case-specific factual issues,” as in U.S. Bank, “appellate courts should usually review a decision with deference.”23 To select from among the possible deferential standards, the Court in U.S. Bank imported the same standard that there governed review of the factual findings themselves—clear error.24 The Supreme Court followed the same approach two years later in Monasky v. Taglieri, 589 U.S. 68, 83-84 (2020), concluding that clear-error review governed the
Here, there is no doubt that the factfinder is best suited to evaluate the purely factual question of actual hardship. The factfinder also is best suited to evaluate the “primarily factual” question of whether that hardship is severe enough to be described as exceptional and extremely unusual, as the statute requires.27 Accordingly, the analysis in U.S. Bank convinces us that the deference afforded the agency‘s factual findings should also govern this mixed inquiry. While we cannot review factual findings in cancellation-of-removal proceedings, the INA instructs courts, in addressing other types of immigration relief, to review agency factfinding for substantial evidence.28 Substantial evidence also is the standard that the Administrative Procedure Act prescribes generally for agency factfinding in formal, on-the-record hearings.29
1.
By contrast, we disagree with Wilkinson‘s assertion that we review for an abuse of discretion. As Wilkinson notes, that standard is “essentially the same” as arbitrary-and-capricious review.30 These are not typically the standards for reviewing factual findings.31 Accordingly, they are not consistent with the analysis in U.S. Bank. Instead, abuse-of-discretion and arbitrary-and-capricious review train our focus on the decisionmaker‘s process in arriving at a particular outcome, asking whether she considered the appropriate factors and properly justified her decision.32 These standards are a good fit
The statutory hardship determination before us is not such a question. Deference is appropriate here because the IJ actually heard testimony and had to assess credibility. The appeal turns on our application of a legal principle as set forth in a statute. It does not involve case management or judgment calls.
Wilkinson cites historical practice as a reason to review for abuse of discretion. It is true that courts historically applied this standard under a materially different version of the INA. Before 1996, the hardship component of this immigration relief fell entirely to the agency‘s discretion38 and courts reviewed hardship determinations for abuse of discretion.39 This changed when Congress rewrote the cancellation-of-removal provision, eliminating the instruction that hardship be determined “in the opinion of the attorney general.”40 As the Supreme Court made crystal-clear in remanding this case, given that legislative amendment, hardship determinations were no longer discretionary.41 That counsels against adopting the abuse-of-discretion standard. Accordingly, determinations
Wilkinson interprets this statutory history to mean that Congress, by making the hardship determination non-discretionary, intended us to afford the agency less deference. But this history cuts both ways. The 1996 amendments created a two-step inquiry, whereby the IJ first determines whether the applicant satisfies the statutory criteria, including hardship,42 and second, decides whether to exercise its discretion to include the applicant among the 4,000 individuals who may receive relief in any year.43 Whereas these changes rendered the hardship determination non-discretionary at the first step, they added agency discretion at the second step.44 Moreover, the underlying factual findings became entirely unreviewable with the addition of the jurisdiction-stripping provision codified at
We therefore hold that the substantial-evidence standard governs review of a hardship determination in a cancellation-of-removal proceeding.
B. Exceptional and Extremely Unusual Hardship
Having identified the applicable standard, we must now assess whether substantial evidence supports the IJ‘s hardship determination. In doing so we will uphold the IJ‘s determination “unless any reasonable adjudicator would be compelled to conclude to the contrary.”50
1.
The phrase “exceptional and extremely unusual hardship” in
In evaluating the degree of hardship, courts and the agency consider the “ages, health, and circumstances” of qualifying relatives.56 The focus is on hardship to the relative, not to the petitioner.57 The BIA has stated that an applicant with “a qualifying child with very serious health issues, or compelling special needs in school” could have a strong case, while “[a] lower standard of living or adverse country conditions in the country of return . . . generally will be insufficient in themselves to support a finding of exceptional and extremely unusual hardship.”58
2.
The IJ‘s analysis correctly focused on how Wilkinson‘s deportation would impact M., Wilkinson‘s qualifying U.S.-citizen relative. The IJ noted that M. has eczema, as well as asthma, a serious medical condition. While acknowledging that Wilkinson plays an important role in M.‘s life and that his incarceration has caused M. to struggle, the IJ viewed the history of father and son living separately as evidence that M. can live without Wilkinson‘s daily presence. The IJ explained that Watson has been M.‘s primary caretaker for years and that, while “it will be difficult to balance work and being a mother” if Wilkinson is removed, Watson will have the continuing support of her own mother, Tracy Collins.59 While Wilkinson‘s removal likely would diminish his financial support to the family, the IJ noted that Wilkinson could continue to send money if he finds a job in Trinidad and Tobago and that M. would continue to receive medical insurance from the state. The IJ also found that Watson will be “able to work.”60 Accordingly, the IJ ultimately concluded that neither the loss of Wilkinson‘s income nor the loss of his fatherly presence would cause hardship “beyond that which would normally be expected from the removal of a parent and provider.”61
We are sympathetic to the plight of Wilkinson and M., as well as to the hardship that Wilkinson‘s removal will cause M. However, given our limited and deferential standard of review, we must agree that substantial evidence supports the IJ‘s conclusion that Wilkinson‘s removal will not result in the exceptional and extremely unusual hardship required for the relief Wilkinson seeks. M.‘s distress in response to his father‘s detention is, indeed, heart wrenching. But “struggling,” “feeling sad,” and “acting up,” are exactly the responses we would expect when a beloved parent faces deportation. We do not mean to minimize the severity of M.‘s pain, for we have no doubt that his father‘s situation impacts
Wilkinson argues that the testimony about M.‘s behavioral and emotional problems is sufficient because in other unpublished decisions, the BIA has found the standard satisfied by U.S.-citizen children experiencing documented mental-health issues.63 These cases are distinguishable, though, because they rely upon either testimony of a mental-health provider or diagnosis of a mental-health condition to establish both the severity of the condition and its nexus to the parent‘s removal. This distinction matters. It is possible that some of M.‘s behavior—such as “breaking things”64—signals an exceptional psychological vulnerability that may rise to the level of the required “exceptional and extremely unusual” hardship. However, absent the kind of testimony from a mental-health provider or a diagnosis of a mental-health condition that was put on the record in the cases cited by Wilkinson,65 this record simply does not support a finding that M.‘s problems qualify for relief under
Wilkinson protests that he cannot produce such evidence because Watson “refused to allow” M. to obtain “even an initial appointment to be diagnosed.”66 When asked about the possibility of sending M. to counseling, Watson testified that she “didn‘t think that that was a good idea”67 and was choosing instead to “guide” and “support” her son herself.68 Watson is M.‘s custodial parent. We are in no position to second-guess Watson‘s decision about what is best for her child. However, the absence of evidence from an appropriately credentialed professional results in a record that is simply not sufficient to support Wilkinson‘s claim for relief here. We do not foreclose the possibility that future litigants could establish the requisite hardship through other forms of proof. However, the lay testimony from Wilkinson, Watson, and Collins does not provide a sufficient evidentiary basis for concluding that M.‘s problems
We also agree that the financial consequences of Wilkinson‘s removal, while profound, are not exceptional. Deporting a breadwinner inevitably hurts a family financially. But the IJ‘s factual findings support the conclusion that these consequences can be mitigated, particularly since Watson is capable of finding work. M. will not lose his health insurance, and Wilkinson could continue to send money from Trinidad and Tobago after removal.
Wilkinson asks us to overlook the IJ‘s finding that Watson is “able to work,”70 asserting that she suffers from debilitating depression that prevents her from becoming a provider. Without more, we cannot depart from the IJ‘s assessment that Watson‘s ability to work mitigates the financial consequences for M. of Wilkinson‘s removal. Moreover, Wilkinson‘s characterization is not supported by the record.71 Similarly, Wilkinson‘s suggestion that mental-health challenges prevent Watson from caring for M. is inconsistent with the IJ‘s findings that she “is his primary caretaker and has been for the past five years.”72 That finding is consistent with the record. We are not persuaded that Watson‘s choice to occasionally leave M. in his grandmother‘s care means she is “unable to care for him.”73
Nor are Wilkinson‘s remaining arguments persuasive. While the IJ found that M. had a serious medical condition, the record does not establish a connection between Wilkinson‘s presence in the United States and the management of that condition.74 Wilkinson‘s departure will not impact M.‘s medical insurance or his access to care, and Watson‘s testimony suggests she is experienced at managing M.‘s medical conditions. The IJ also adequately aggregated sources of hardship. We agree with Wilkinson that the IJ‘s statement that the case “boils down to” the loss of Wilkinson‘s financial support is troubling.75 It greatly and unjustifiably minimizes and devalues the impact Wilkinson‘s removal will have on his child. However, when that sentence is read in context, it is clear that the IJ considered the totality of the circumstances and did not focus on any one factor in denying Wilkinson‘s claim for relief.
CONCLUSION
Because substantial evidence supports the conclusion that Wilkinson has not satisfied the hardship requirement to qualify for cancellation of removal, we will deny the petition for review.