Post-Wilkinson Limits in the Eleventh Circuit: Credibility Findings in Cancellation Cases Are Unreviewable and No Due Process Right Attaches to Discretionary Relief

Introduction

In Hernandez-Rivera v. U.S. Attorney General (11th Cir. Mar. 31, 2025) (unpublished), the Eleventh Circuit dismissed in part and denied in part a petition for review by a married couple, Graciela Hernandez‑Rivera and Alvaro Trejo Rojo, challenging a Board of Immigration Appeals (BIA) decision that affirmed an Immigration Judge’s (IJ) denial of cancellation of removal and denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The opinion, though unpublished, is a clear and timely application of the Supreme Court’s decision in Wilkinson v. Garland (2024), which defines the scope of judicial review over cancellation-of-removal decisions. In particular, the Eleventh Circuit underscores three key points:

• Post-Wilkinson, immigration courts’ credibility determinations underlying cancellation of removal remain unreviewable factual findings.
• Where the BIA denies cancellation on discretionary grounds, and does not reach statutory eligibility (such as the “exceptional and extremely unusual hardship” requirement), the court of appeals has nothing to review on that element.
• There is no Fifth Amendment due process liberty interest in obtaining discretionary cancellation of removal; and due process claims tied to withholding/CAT fail where the record shows a fair opportunity to be heard and no prejudice.

The case provides practical guidance on preserving issues for judicial review in cancellation proceedings, on the perils of recanting sworn statements in credibility-laden records, and on structuring hearings when multiple forms of relief are pleaded but counsel intends to prioritize cancellation over protection-based claims.

Case Overview

Petitioners are Mexican nationals who entered the United States without inspection as children, later married, and have four U.S.-citizen children. In 2016, the wife filed for asylum/withholding/CAT, with the husband riding on her application. After notices to appear, both pivoted to seek cancellation of removal under 8 U.S.C. § 1229b(b)(1), asserting that removal would cause exceptional and extremely unusual hardship to qualifying relatives—principally their four U.S.-citizen children, one with profound unilateral hearing loss and others with developmental and respiratory conditions. They also submitted country-conditions evidence regarding healthcare and special education in Mexico.

The record contained multiple reports of domestic violence incidents (2008–2014), including a sworn petition for a 2009 protection injunction, a 2011 arrest (charge later dropped), and a 2014 arrest followed by completion of pretrial diversion for simple domestic battery. At the merits hearing, both petitioners attempted to minimize or recant earlier statements, attributing exaggeration to fear, anger, or external pressure. The IJ made adverse credibility findings, found statutory hardship unmet, and—alternatively—denied cancellation as a matter of discretion, citing criminal conduct (including domestic violence and driving without a license) and evasive testimony. The IJ also denied asylum/withholding/CAT because petitioners did not pursue or develop those claims at the hearing. The BIA affirmed, specifically upholding the IJ’s credibility findings and disposing of cancellation on discretionary grounds without reaching hardship. The BIA also rejected due process claims.

Summary of the Opinion

The Eleventh Circuit:

• Dismissed for lack of jurisdiction the challenge to the IJ’s adverse credibility findings in the cancellation context, holding that post-Wilkinson such factual findings are unreviewable.
• Declined to review hardship because the BIA did not reach statutory eligibility (hardship) and instead denied cancellation on discretionary grounds. The court reviews the BIA’s decision, not the IJ’s reasoning on issues the BIA expressly declined to decide.
• Rejected due process claims related to cancellation because there is no liberty interest in purely discretionary relief; and related to withholding/CAT because petitioners had an opportunity to be heard and, in any event, showed no prejudice.
• Approved the BIA’s standard of review—clear error—for IJ credibility determinations under 8 C.F.R. § 1003.1(d)(3)(i).

Disposition: Petition dismissed in part, denied in part.

Analysis

Precedents and Authorities Cited

• Wilkinson v. Garland, 601 U.S. 209 (2024): Clarifies that application of the statutory “exceptional and extremely unusual hardship” standard is a reviewable mixed question of law and fact under 8 U.S.C. § 1252(a)(2)(D), but the underlying facts—including IJ credibility determinations—remain unreviewable. Also reiterates that an IJ’s ultimate discretionary decision to grant or deny cancellation is unreviewable.
• Patel v. Garland, 596 U.S. 328 (2022): Emphasizes the breadth of 8 U.S.C. § 1252(a)(2)(B)(i), stripping judicial review of “any judgment regarding the grant of relief” for certain discretionary relief, including cancellation.
• Pereida v. Wilkinson, 592 U.S. 224 (2021): Describes cancellation eligibility criteria and the applicant’s burden.
• Malu v. U.S. Att’y Gen., 764 F.3d 1282 (11th Cir. 2014) (abrogated in part on other grounds by Santos‑Zacaria v. Garland, 598 U.S. 411 (2023)): The court reviews the BIA’s decision, not IJ determinations the BIA did not adopt. Applied here to explain why the hardship issue was not before the court.
• Ponce Flores v. U.S. Att’y Gen., 64 F.4th 1208 (11th Cir. 2023): No constitutionally protected liberty interest in obtaining purely discretionary relief like cancellation of removal; thus no due process claim tied to denial of cancellation.
• Tang v. U.S. Att’y Gen., 578 F.3d 1270 (11th Cir. 2009) and Lapaix v. U.S. Att’y Gen., 605 F.3d 1138 (11th Cir. 2010): Due process in removal proceedings requires notice, an opportunity to be heard, and a showing of prejudice.
• Jathursan v. U.S. Att’y Gen., 17 F.4th 1365 (11th Cir. 2021): “More likely than not” standard for withholding of removal.
• 8 C.F.R. §§ 1208.16(c)(2), 1208.18: CAT standards (“more likely than not” of torture; intent requirement; state action/acquiescence element).
• 8 C.F.R. § 1003.1(d)(3)(i): BIA reviews IJ factfinding, including credibility determinations, for clear error.

Legal Reasoning

1) Jurisdictional limits after Wilkinson and Patel

The court begins with the jurisdictional framework for cancellation of removal under 8 U.S.C. § 1252(a)(2)(B)(i) and (D). It reads Wilkinson to mean that courts may review the legal application of the hardship standard to established facts (a mixed question), but may not second-guess the factual underpinnings—especially credibility determinations. The opinion squarely applies Wilkinson’s caution that “the facts underlying any determination on cancellation of removal [are] unreviewable,” including “factfinding on credibility.”

On this basis, the court dismisses the petitioners’ challenge to the IJ’s adverse credibility findings. Even if petitioners recanted prior statements or explained inconsistencies, those assessments are factual and are insulated from appellate review in the cancellation context.

As to hardship, the IJ found no exceptional and extremely unusual hardship, but the BIA did not adopt or reach that determination; instead, it denied relief on discretionary grounds. Under Eleventh Circuit practice, the court reviews only the BIA’s decision except where it expressly adopts the IJ’s reasoning. Because hardship was not decided by the BIA, the court declined to review that element (Malu).

Finally, to the extent the BIA’s denial in the exercise of discretion might be thought challengeable, Patel and Wilkinson foreclose review of “any judgment regarding the grant of relief,” including the ultimate discretionary balancing that concludes a cancellation case. The panel thus had no foothold to reach the merits of cancellation once credibility was off-limits and hardship was not decided by the BIA.

2) BIA standard of review of credibility

Petitioners also argued that the BIA legally erred by reviewing credibility for clear error. The court rejected the claim, noting that the regulation explicitly provides that the BIA reviews IJ “facts,” including “findings as to the credibility of testimony,” for clear error (8 C.F.R. § 1003.1(d)(3)(i)). Even assuming jurisdiction over this legal contention, there was no error.

3) Due process challenges

The court divided petitioners’ due process claims into two categories:

• Cancellation of removal: There is no constitutionally protected liberty interest in obtaining purely discretionary relief. Therefore, complaints that the IJ consolidated the spouses’ cases, was biased, or otherwise erred in handling cancellation do not state a due process violation (Ponce Flores). The BIA also observed that counsel expressly agreed to proceed jointly, undermining any claim of procedural unfairness.
• Withholding of removal and CAT: Due process in removal proceedings requires a meaningful opportunity to present one’s case and a showing of prejudice. The record showed that (i) counsel strategically focused on cancellation, (ii) neither petitioner offered testimony supporting protected-ground persecution or fear of torture, and (iii) the IJ kept the record open for additional submissions after a two-day hearing—but petitioners filed none. On these facts, there was no deprivation of the right to be heard; and petitioners failed to identify what additional evidence they would have offered or how it could have changed the outcome. Absent prejudice, the due process claim fails (Tang; Lapaix).

Impact and Practical Implications

Although unpublished, the decision crisply applies and operationalizes Wilkinson’s allocation of reviewable versus unreviewable issues in cancellation cases. The practical implications are significant:

• Credibility in cancellation is effectively insulated from judicial review: Adverse credibility findings that underpin cancellation of removal cannot be challenged in the court of appeals. This heightens the importance of consistent, corroborated testimony and contemporaneous documentation at the IJ level. Attempts to recant or explain away prior sworn statements—especially in domestic-violence contexts—may invite adverse credibility determinations that appellate courts cannot revisit.
• Preserve a reviewable issue by obtaining a BIA ruling on statutory eligibility: Post-Wilkinson, the application of the hardship standard to established facts is reviewable. But if the BIA denies solely on discretionary grounds (and does not reach hardship), there will be nothing for a court of appeals to review on eligibility. Practitioners who want judicial review of hardship should consider asking the BIA to reach and decide the hardship issue, even when it also affirms on discretion.
• Be cautious about “backup” protection claims: When asylum is dropped or not pursued, and withholding/CAT are only nominally maintained as “backup,” the record may be devoid of the necessary testimony on fear of persecution/torture. Due process challenges to such denials typically fail if the respondent had the opportunity to present evidence and cannot show prejudice. If withholding/CAT are truly sought, counsel must develop those claims with specific testimony and documentation.
• Consent to procedure matters: Agreeing to consolidate spousal cases, to proceed by proffer, or to abbreviated evidentiary presentations can undermine later claims of procedural unfairness or bias. The BIA and courts will hold litigants to the procedural choices they make on the record.
• Discretionary denials are largely unreviewable: Even when statutory eligibility is established, the ultimate discretionary decision to grant or deny cancellation is not reviewable. Building an affirmative discretionary record—rehabilitation after criminal conduct, community ties, candor, and acceptance of responsibility—remains essential.

Complex Concepts Simplified

• Cancellation of removal (8 U.S.C. § 1229b(b)(1)): A discretionary form of relief for certain noncitizens who have been in the U.S. for at least 10 years, maintained good moral character, have no disqualifying convictions, and can show that removal would cause “exceptional and extremely unusual hardship” to a qualifying U.S.-citizen or LPR relative. Even if eligible, the IJ may still deny as a matter of discretion.
• “Exceptional and extremely unusual hardship”: A demanding statutory standard. After Wilkinson, courts can review whether the legal standard was properly applied to established facts, but they cannot second-guess the factfinding itself.
• Jurisdiction-stripping and its exception: 8 U.S.C. § 1252(a)(2)(B)(i) generally bars judicial review of “any judgment regarding the grant of relief” such as cancellation; § 1252(a)(2)(D) restores jurisdiction for constitutional claims or questions of law. Wilkinson explains that “mixed” questions—legal standards applied to settled facts—fall within this exception, but pure facts (like credibility) and pure discretion do not.
• Credibility determinations: The IJ’s evaluation of whether testimony is believable. In cancellation cases, those findings are factual and unreviewable in the court of appeals. On administrative appeal, the BIA reviews them for clear error.
• Withholding of removal: A mandatory protection if the noncitizen shows it is more likely than not that they would be persecuted on account of a protected ground (race, religion, nationality, political opinion, or membership in a particular social group). Unlike cancellation, it is not discretionary, but it requires a specific nexus to a protected ground.
• CAT protection: A mandatory protection if the noncitizen shows it is more likely than not they will be subjected to torture, which must be specifically intended and carried out by, at the instigation of, or with the consent or acquiescence of a public official. No protected-ground nexus is required, but the state-action element is crucial.
• “Rider” on an asylum application: A spouse or child included as a derivative on the principal applicant’s asylum application. Derivative status does not extend to withholding or CAT; those require independent eligibility.

Conclusion

Hernandez-Rivera crystallizes the post-Wilkinson landscape in the Eleventh Circuit: credibility determinations underlying cancellation of removal are factual and unreviewable; the court will not reach hardship absent a BIA ruling on that element; and discretionary denials of cancellation remain outside the judicial purview. The decision also reiterates that there is no due process liberty interest in discretionary cancellation, and that due process challenges to withholding/CAT must show both a genuine deprivation of the opportunity to be heard and actual prejudice—neither of which was present here.

For practitioners, the message is clear. Build a meticulous, consistent factual record at the IJ level; preserve a reviewable legal issue on hardship by asking the BIA to decide it; do not assume “backup” withholding/CAT claims will survive without testimony and evidence tailored to those standards; and recognize that procedural choices at hearing—such as consolidating cases or proceeding by proffer—carry consequences on appeal. The opinion thus serves as a practical roadmap for navigating the constrained avenues of judicial review in cancellation and protection cases in the Eleventh Circuit after Wilkinson and Patel.