Date: Mar 12, 2025

Third Circuit Adopts Substantial-Evidence Review for “Exceptional and Extremely Unusual Hardship” Determinations in Cancellation of Removal

1. Introduction

Situ Kamu Wilkinson v. Attorney General United States of America (3d Cir. Mar. 11, 2025) is a precedential Third Circuit decision issued after the Supreme Court’s remand in Wilkinson v. Garland, 601 U.S. 209 (2024). The case arises from removal proceedings against Situ Kamu Wilkinson, a citizen of the Republic of Trinidad and Tobago who entered the United States in 2003 and largely remained without lawful status thereafter.

Wilkinson sought cancellation of removal under 8 U.S.C. § 1229b(b)(1) (non-LPR cancellation), claiming that his removal would cause “exceptional and extremely unusual hardship” to his U.S.-citizen son (a qualifying relative) as required by § 1229b(b)(1)(D). The Immigration Judge (IJ) found Wilkinson and witnesses credible and concluded Wilkinson satisfied the first three statutory prerequisites, but held that the hardship to his son did not meet the heightened statutory threshold. The Board of Immigration Appeals (BIA) affirmed without opinion.

The Third Circuit had initially dismissed for lack of jurisdiction, treating the hardship determination as an unreviewable discretionary judgment. The Supreme Court reversed, holding the hardship determination presents a reviewable mixed question of law and fact under 8 U.S.C. § 1252(a)(2)(D), and remanded for merits review under an “appropriately deferential” standard. On remand, the Third Circuit used this case to resolve a question left open by the Supreme Court: what standard of review governs appellate review of the hardship determination?

2. Summary of the Opinion

The Third Circuit (McKee, J.) holds that the proper standard of review for an IJ’s determination whether established facts satisfy the statutory “exceptional and extremely unusual hardship” requirement in cancellation-of-removal proceedings is substantial-evidence review. Applying that standard, the court concludes substantial evidence supports the IJ’s determination that Wilkinson failed to meet § 1229b(b)(1)(D), and therefore denies the petition for review.

3. Analysis

A. The new precedent: substantial-evidence review governs hardship determinations

The opinion’s central doctrinal contribution is its explicit, precedential holding that substantial evidence is the deferential standard that applies to appellate review of the mixed law-fact question identified by the Supreme Court: whether the facts found by the IJ satisfy the statutory hardship standard. The court rejects petitioner’s proposal to use abuse-of-discretion review.

B. Precedents cited (and how they shaped the decision)

1) The Supreme Court’s jurisdictional re-framing of hardship: Wilkinson v. Garland and Guerrero-Lasprilla v. Barr

The Third Circuit’s analysis begins from the Supreme Court’s remand instructions in Wilkinson v. Garland. There, relying on Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020), the Court held that “questions of law” in § 1252(a)(2)(D) include mixed questions of law and fact. As applied here, “the application of the statutory ‘exceptional and extremely unusual hardship’ standard to a given set of facts presents a mixed question of law and fact,” and therefore is reviewable.

But the Supreme Court also reiterated a sharp boundary: “a court is still without jurisdiction to review a factual question raised in an application for discretionary relief.” This forced the Third Circuit to identify a deferential standard for reviewing the application of the hardship standard without reweighing or revisiting the unreviewable factfinding.

2) Mixed questions and selecting a standard of review: U.S. Bank National Association v. Village at Lakeridge, LLC and Monasky v. Taglieri

To select the appropriate “deferential” standard, the court applies the Supreme Court’s framework in U.S. Bank National Association v. Village at Lakeridge, LLC, 583 U.S. 387 (2018) and Monasky v. Taglieri, 589 U.S. 68 (2020). Those decisions teach that the standard for a mixed question depends on whether resolving it entails primarily legal or factual work, and that when mixed questions “immerse courts in case-specific factual issues,” appellate review “should usually” be deferential.

Importantly, U.S. Bank also illustrates an approach for choosing which deferential standard to use: borrow the standard applicable to the underlying factfinding (there, clear error). Transposing that methodology into immigration adjudication, the Third Circuit reasons that the “primarily factual” hardship inquiry should be reviewed using the agency-factfinding deference most analogous in immigration law: substantial evidence.

3) Why substantial evidence (not abuse of discretion): Nasrallah v. Barr and administrative-law baselines

The court grounds substantial-evidence review in the INA’s general direction regarding agency factfinding in immigration cases and the broader administrative-law template. It cites Nasrallah v. Barr, 590 U.S. 573 (2020), which notes that 8 U.S.C. § 1252(b)(4)(B) “refers to the substantial-evidence standard,” providing: agency findings “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” The opinion also references the Administrative Procedure Act’s substantial-evidence standard for formal adjudication, 5 U.S.C. § 706(2)(E).

4) Rebutting abuse-of-discretion review: case-management analogies rejected

Wilkinson urged abuse-of-discretion review, analogizing to settings where courts review discretionary, process-focused decisions. The Third Circuit explains why that analogy fails, distinguishing “matters of discretion” from “primarily factual” mixed questions. It cites Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 572 U.S. 559 (2014) and Pierce v. Underwood, 487 U.S. 552 (1988) for the traditional tripartite review scheme (de novo for law, clear error for fact, abuse of discretion for discretion). It then notes that abuse-of-discretion review is well-suited to decisions such as attorney-fee awards (Highmark Inc.), subpoenas (McLane Co. v. EEOC, 581 U.S. 72 (2017)), and sanctions (Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990)), where the appellate focus is on the decisionmaker’s process and balancing of factors.

By contrast, the statutory hardship inquiry is framed as applying a legal standard to established facts—not a case-management or equitable balancing determination. The court also invokes United States v. Taylor, 487 U.S. 326 (1988) and Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29 (1983) to illustrate what abuse-of-discretion/arbitrary-and-capricious review typically targets (reasoned decisionmaking and consideration of relevant factors), and concludes that is not the best fit here.

5) Statutory history and pre-1996 “hardship” cases: Amezquita-Soto v. INS and Bueno-Carrillo v. Landon

Wilkinson argued historical practice favored abuse-of-discretion review because courts once reviewed hardship determinations that way. The Third Circuit acknowledges that pre-1996 suspension-of-deportation hardship determinations were reviewed for abuse of discretion, citing Amezquita-Soto v. INS, 708 F.2d 898 (3d Cir. 1983) and Bueno-Carrillo v. Landon, 682 F.2d 143 (7th Cir. 1982). But it explains why those cases do not control: the pre-1996 statute asked whether hardship existed “in the opinion of the Attorney General,” making hardship explicitly discretionary. The 1996 amendments removed that language and reshaped the scheme, and the Supreme Court in Wilkinson v. Garland made “crystal-clear” that hardship is no longer discretionary in that earlier sense.

The court further reasons that the 1996 changes, taken together—including the jurisdiction-stripping provision in 8 U.S.C. § 1252(a)(2)(B)(i) and the post-eligibility discretionary cap structure—suggest Congress intended a “minimal” judicial role (echoing Justice Jackson’s concurrence in Wilkinson v. Garland). It also relies on Monasky v. Taglieri to discount appeals to “historical tradition” where no uniform, reasoned practice exists and the inquiry is evidently fact-heavy.

6) Defining the hardship threshold: In re Monreal-Aguinaga and Pareja v. Att'y Gen.

On the merits of hardship, the court applies the BIA’s long-standing construction of the phrase “exceptional and extremely unusual hardship,” citing In re Monreal-Aguinaga, 23 I&N Dec. 56 (BIA 2001), and notes that the Third Circuit previously upheld this interpretation in Pareja v. Att'y Gen., 615 F.3d 180 (3d Cir. 2010). Under In re Monreal-Aguinaga, hardship must be “substantially beyond the ordinary hardship that would be expected when a close family member leaves this country,” though not necessarily “unconscionable,” and relief is limited to “truly exceptional” situations. The opinion underscores that Congress raised the bar in 1996 by moving from “extreme hardship” to “exceptional and extremely unusual hardship.”

7) Medical-hardship evidentiary nexus: Matter of J-J-G-

The court cites Matter of J-J-G-, 27 I&N Dec. 808 (BIA 2020) to support the principle that a child’s medical condition does not necessarily establish statutory hardship where the child will remain in the United States and continue receiving treatment. This reinforced the Third Circuit’s conclusion that, on this record, Wilkinson failed to show how his presence in the United States was necessary for managing his son’s asthma and eczema given state insurance and the custodial parent’s management role.

8) Unpublished BIA decisions offered by petitioner: professional evidence as a distinguishing feature

Wilkinson relied on several unpublished BIA decisions in which hardship findings were supported by documentation of children’s mental-health diagnoses and treatment needs: In re L-A-B-C-, In re R-M-M-M-, In re J-A-M-A-, In re J-V-P-A-, In re R-L-R-L-, In re A-R-R-, and In re J-M-C-S-. The Third Circuit distinguishes them on evidentiary grounds: those cases involved testimony from mental-health providers, diagnoses (e.g., adjustment disorder, ADD), therapy, medication, panic attacks, and documented clinical opinions connecting the parent’s removal to psychiatric deterioration. Here, by contrast, the record contained only lay testimony describing sadness, acting out, and school focus issues, without professional diagnosis or provider testimony establishing severity and nexus.

9) Post-argument supplemental authorities: Lopez-Portillo v. Attorney General and Calderon-Escobar v. Attorney General (and Mendez v. Holder)

The court addressed two supplemental authorities submitted under Rule 28(j), finding them nonbinding and factually distinguishable. Lopez-Portillo v. Attorney General turned on findings absent here (e.g., lack of shared language with remaining parent, detention exacerbating a child’s medical condition, and poverty-line impact). Calderon-Escobar v. Attorney General involved a child diagnosed with significant psychological conditions requiring hospital follow-up and issues of inadequate care in Mexico; the Third Circuit found those features missing here and emphasized that Wilkinson’s son would remain in the United States. It also noted that an out-of-circuit case Wilkinson cited, Mendez v. Holder, was distinguishable because it involved a child removed to another country where the condition could not be adequately managed.

10) Sister-circuit uncertainty after the Supreme Court remand

To situate its precedential holding, the Third Circuit noted that other circuits had not converged on a specific standard post-remand, instead applying unspecified “deferential” review. It cites Figueroa v. Garland, Carrera Hernandez v. Garland, Cortes v. Garland, and Gonzalez-Rivas v. Garland as examples of courts declining to decide the precise standard because outcomes did not turn on it. This opinion fills that gap within the Third Circuit by squarely selecting substantial-evidence review.

C. Legal reasoning

Jurisdictional posture: Following Wilkinson v. Garland, the court confirms it has jurisdiction under § 1252(a)(1) and § 1252(a)(2)(D) to review the hardship mixed question, while remaining barred from reviewing “underlying factual findings.”
Characterizing the mixed question: The court accepts the Supreme Court’s direction that the inquiry is “primarily factual,” requiring “deferential” review.
Choosing the deferential standard: Using U.S. Bank and Monasky, the court reasons that when the mixed question is fact-intensive, the reviewing court should borrow from the standard governing the underlying factfinding. In immigration, that analogue is the substantial-evidence framework expressed in § 1252(b)(4)(B) and commonly used across agency adjudication.
Rejecting abuse of discretion: Abuse-of-discretion/arbitrary-and-capricious review scrutinizes the decisionmaker’s process and factor-balancing in discretionary contexts (fees, sanctions, subpoenas), which does not match the statutory hardship inquiry’s nature as application of a legal standard to found facts.
Applying substantial evidence to the record: The court asks whether “any reasonable adjudicator would be compelled to conclude to the contrary.” It holds the IJ could reasonably find that: (a) the child’s emotional distress, while real and severe, resembled expected responses to a parent’s deportation (sadness, acting out, school focus issues); (b) no professional evidence established exceptional psychological vulnerability or a diagnosable condition linked to removal; (c) financial hardship, though significant, was not shown to be “exceptional,” given evidence the custodial parent could work and the child’s medical insurance would continue; and (d) medical hardship lacked a demonstrated nexus to the father’s continued presence because the child would remain in the United States with coverage and access to treatment.

D. Impact

This decision is likely to have three principal effects in Third Circuit cancellation-of-removal litigation:

Standard-of-review clarity: It resolves a post-Wilkinson v. Garland uncertainty by anchoring hardship review to substantial evidence, providing predictable appellate framing for future petitions.
Practical elevation of evidentiary expectations: While the court does not impose a categorical rule requiring expert testimony, its distinction between lay accounts and records containing diagnoses/provider testimony signals that applicants alleging child mental-health hardship will often need professional documentation to show severity and causation sufficient to be “substantially beyond” ordinary deportation hardship.
Constraining appellate reversals: Substantial-evidence review—combined with the statutory bar on reviewing “underlying factual findings”—makes reversals on hardship comparatively difficult, because the petitioner must show the record compels the opposite conclusion, not merely that another factfinder could reasonably find exceptional hardship.

4. Complex Concepts Simplified

Cancellation of removal (non-LPR): A discretionary form of relief allowing certain non-permanent residents to remain in the U.S. if they satisfy statutory prerequisites (including hardship to a U.S.-citizen/LPR qualifying relative) and if the agency then grants relief as a matter of discretion.
“Exceptional and extremely unusual hardship”: A heightened statutory standard that requires hardship to the qualifying relative that is substantially beyond the ordinary pain, disruption, and financial strain typically associated with a parent’s removal. It is higher than “extreme hardship.”
Mixed question of law and fact: A question asking whether established historical facts satisfy a legal standard. Here, the facts about the child’s health, emotions, and finances are “historical facts”; whether they amount to “exceptional and extremely unusual hardship” is the mixed question.
Substantial-evidence review: A highly deferential standard. The appellate court upholds the agency unless the evidence is such that “any reasonable adjudicator would be compelled to conclude to the contrary.” It is not a re-do of the factfinding or a reweighing of testimony.
Abuse of discretion / arbitrary and capricious: Standards typically used when a decisionmaker has broad discretion and must balance factors or manage litigation. The reviewing court focuses on whether the decisionmaker used the right framework and gave a rational explanation—not on whether the facts compel a different result.

5. Conclusion

The Third Circuit’s precedential contribution in Situ Kamu Wilkinson v. Attorney General United States of America is its holding that substantial-evidence review governs appellate review of the “exceptional and extremely unusual hardship” determination in cancellation-of-removal proceedings. Applying that deferential framework, the court held the record did not compel a finding that Wilkinson’s U.S.-citizen son would face hardship “substantially beyond” what ordinarily follows a parent’s removal—particularly given the absence of professional mental-health evidence, the child’s continued residence in the United States with medical coverage, and evidence the custodial parent could work. The petition for review was therefore denied.