Amicus Curiae Brief — Situ Kamu Wilkinson, Petitioner v. Merrick B. Garland, Attorney General

No. 22-666

IN THE

Supreme Court of the United States

SITU KAMU WILKINSON,

Petitioner,

v.

MERRICK B. GARLAND, ATTORNEY GENERAL,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR FORMER EXECUTIVE OFFICE

FOR IMMIGRATION REVIEW JUDGES

AS AMICI CURIAE IN SUPPORT OF PETITIONER

CLAIRE M. GUEHENNO

WILMER CUTLER PICKERING

HALE AND DORR LLP

7 World Trade Center

250 Greenwich Street

New York, NY 10007

DONNA M. FARAG

WILMER CUTLER PICKERING

HALE AND DORR LLP

2100 Pennsylvania Ave., NW

Washington, DC 20037

THOMAS G. SPRANKLING

Counsel of Record

WILMER CUTLER PICKERING

HALE AND DORR LLP

2600 El Camino Real

Suite 400

Palo Alto, CA 94306

(650) 858-6000

thomas.sprankling

@wilmerhale.com

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......................................... iii

INTEREST OF AMICI CURIAE................................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ................................................................ 2

ARGUMENT ....................................................................... 4

I.

IMMIGRATION COURTS HAVE LONG

UNDERSTOOD THE QUESTION OF WHETHER

A NON-CITIZEN HAS ESTABLISHED

HARDSHIP

FOR

PURPOSES

OF

CANCELLATION OF REMOVAL TO BE A

MIXED QUESTION OF LAW AND FACT ...................... 4

A. Immigration

Courts

Have

Distinguished

Between

Statutory

Eligibility And Discretionary Relief

For Decades ........................................................... 4

B. Whether An Applicant Has Satisfied

The “Exceptional And Extremely

Unusual Hardship” Standard Is A

Statutory Eligibility Issue That Is A

Mixed Question Of Law And Fact ...................... 6

II. ARTICLE III REVIEW OVER NONDISCRETIONARY DETERMINATIONS IS A

CRITICAL CHECK ON INCONSISTENCIES

AND ERRORS THAT CAN OCCUR IN

OVERBURDENED IMMIGRATION COURTS ................ 11

A. Article III Review Can Help Avoid

Inconsistencies In How The Hardship

Standard Is Applied............................................ 12

ii

TABLE OF CONTENTS—Continued

Page

B. Severe Resource Constraints Could

Create Inadvertent Errors Correctable

Via Article III Review ....................................... 14

CONCLUSION ................................................................. 16

APPENDIX: List of Amici Curiae ................................ 1a

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062

(2020) ........................................................... 3, 6-7, 10-11

Hernandez v. Garland, 28 F.4th 917 (8th Cir.

2022) ............................................................................. 11

Holland v. Florida, 560 U.S. 631 (2010)........................... 7

In re Chuyon Yon Hong A.K.A. Chu Hong, 2006

WL 1647474 (BIA May 11, 2006) ................................ 9

In re Loera Lujan, 2004 WL 2374696 (BIA Aug.

9, 2004) ........................................................................... 5

In re Ortega-Mendoza, 2010 WL 2846330 (BIA

June 28, 2010) ........................................................ 3, 6, 9

INS v. St. Cyr, 533 U.S. 289 (2001) ................................... 2

Kucana v. Holder, 558 U.S. 233 (2010)........................... 11

Matter of Andazola, 23 I. & N. Dec. 319 (BIA

2002) ......................................................................6, 8-10

Matter of J-J-G-, 27 I. & N. Dec. 808 (BIA

2020) ......................................................................7-8, 10

Matter of L--, 3 I. & N. Dec. 767 (BIA & A.G.

1949) ............................................................................... 5

Matter of Louie, 10 I. & N. Dec. 223 (BIA 1963)............. 5

Matter of Marin, 16 I. & N. Dec. 581 (BIA

1978) ............................................................................... 5

Matter of Monreal, 23 I. & N. Dec. 56 (BIA

2001) .................................................................. 4-5, 7-10

Matter of Pilch, 21 I. & N. Dec. 627 (BIA 1996) ............. 9

iv

TABLE OF AUTHORITIES—Continued

Page

Mejia-Carrillo v. United States INS, 656 F.2d

520 (9th Cir. 1981)......................................................... 9

Palmer v. INS, 4 F.3d 482 (7th Cir. 1993) ....................... 9

Patel v. Garland, 142 S. Ct. 1614 (2022)........................2-3

Ramirez-Durazo v. INS, 794 F.2d 491 (9th Cir.

1986) ............................................................................... 9

Reno v. American-Arab Anti-Discrimination

Committee, 525 U.S. 471 (1999) .................................. 3

Rosario-Mijangos v. Holder 717 F.3d 269 (2d

Cir. 2013) ...................................................................... 11

Saucedo-Arevalo v. Holder, 636 F.3d 532 (9th

Cir. 2011) ...................................................................... 11

Sessions v. Dimaya, 138 S. Ct. 1204 (2018) ................... 11

United States v. Nourse, 34 U.S. (9 Pet.) 8 (1835) ........... 12

Valarezo-Tirado v. Attorney General, 6 F.4th

542 (3d Cir. 2021) ........................................................ 16

Wellness International Network, Ltd. v. Sharif,

575 U.S. 665 (2015) ..................................................... 12

STATUTORY AND RULE PROVISIONS

8 U.S.C.

§ 1252 .................................................................... 3, 6, 13

§ 1229b............................................................................ 2

Pub. L. No. 87-885, 76 Stat. 1247 (1962) ........................... 5

Fed. R. Civ. P. 12 ................................................................. 7

v

TABLE OF AUTHORITIES—Continued

Page

REGULATIONS AND ADMINISTRATIVE MATERIALS

8 C.F.R. § 1003.1 .................................................................. 6

Board of Immigration Appeals: Procedural

Reforms To Improve Case Management,

67 Fed. Reg. 54,878 (Aug. 26, 2002) ....................... 3, 6

H.R. Conf. Rep. No. 109-72 (2005) .................................. 13

OTHER AUTHORITIES

ABA News, Amid “Nightmarish” Case

Backlog, Experts Call for Independent

Immigration Courts (Aug. 9, 2019), https://

tinyurl.com/3uhsffac ................................................... 15

Benson, Lenni B., You Can’t Get There from

Here: Managing Judicial Review of

Immigration Cases, 2007 U. Chi. Legal F.

405 ................................................................................ 13

Cappalli, Richard B., The Common Law’s Case

Against Non-Precedential Opinions, 76 S.

Cal. L. Rev. 755 (2003) ............................................... 13

Edland, Anne & Ola Svenson, Judgment and

Decision Making Under Time Pressure:

Studies and Findings, in Time Pressure

and Stress in Human Judgment and

Decision Making 27 (Ola Svenson & A. John

Maule eds., 1993)......................................................... 15

Federal Judicial Caseload Statistics (2020),

https://www.uscourts.gov/statistics-reports/

federal-judicial-caseload-statistics-2020 ................. 14

vi

TABLE OF AUTHORITIES—Continued

Page

Federal Judicial Caseload Statistics (2022),

https://www.uscourts.gov/judicial-caseloadindicators-federal-judicial-caseload-statistics2022 ............................................................................... 14

FY 2022 Performance Budget, Executive Office

for Immigration Review (May 2021), https://

www.justice.gov/jmd/page/file/1398381/down

load ............................................................................... 14

Gelbach, Jonah B. & David Marcus, Rethinking

Judicial Review of High Volume Agency

Adjudication, 96 Tex. L. Rev. 1097 (2018) ............. 15

Hausman, David, The Failure of Immigration

Appeals, 164 U. Penn. L. Rev. 1177 (2016) ............. 12

Jain, Amit, Bureaucrats in Robes: Immigration

Judges and the Trappings of Courts, 33 Geo.

Immigr. L. .J. 261 (2019) ............................................ 15

Lustig, Stuart L., et al., Inside the Judges’

Chambers: Narrative Responses from the

National Association of Immigration

Judges Stress and Burnout Survey, 23 Geo.

Immigr. L. .J. 57 (2008) .............................................. 15

Sayed, Faiza W., The Immigration Shadow

Docket, 117 Nw. U. L. Rev. 893 (2023) ...............12-13

Straut-Eppsteiner,

Holly,

Congressional

Research Service, Immigration Judge

Hiring and Projected Impact on the

Immigration Courts Backlog (July 28,

2023), https://sgp.fas.org/crs/homesec/R476

37.pdf ............................................................................ 14

vii

TABLE OF AUTHORITIES—Continued

Page

Taylor, Margaret H., Refugee Roulette in an

Administrative Law Context: The Deja vu

of Decisional Disparities in Agency

Adjudication, 28 J. Nat’l Ass’n Admin. L.

Judiciary 158 (2008) .................................................... 12

IN THE

Supreme Court of the United States

No. 22-666

SITU KAMU WILKINSON,

Petitioner,

v.

MERRICK B. GARLAND, ATTORNEY GENERAL,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR FORMER EXECUTIVE OFFICE

FOR IMMIGRATION REVIEW JUDGES

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF AMICI CURIAE

Amici curiae are 32 former immigration judges (IJs)

and members of the Board of Immigration Appeals (BIA

or Board).1 A complete list of signatories can be found

in Appendix A.

1

No counsel for a party authored this brief in whole or in part,

and no entity or person—other than amici curiae and their counsel—

made a monetary contribution intended to fund the preparation or

submission of this brief.

2

Amici have dedicated their careers to the immigration court system and to upholding the immigration laws

of the United States of America. Each is intimately familiar with the immigration court system and its procedures. Together, they have a strong interest in ensuring

that claims duly asserted in immigration cases are afforded the level of Article III appellate review required

by governing law.

INTRODUCTION AND SUMMARY OF ARGUMENT

Federal law lays out a two-step process for determining whether to grant discretionary relief from removal. An IJ first makes a threshold determination

whether a non-citizen is statutorily eligible for such relief. Patel v. Garland, 142 S. Ct. 1614, 1619 (2022). For

example, a noncitizen can be eligible for cancellation of

removal if he or she can show—among other things—

that removal would pose an “exceptional and extremely

unusual hardship” to a parent, child, or spouse who is a

United States citizen or lawful permanent resident. 8

U.S.C. § 1229b(b)(1)(D).2 If the noncitizen is eligible for

relief, the IJ makes the discretionary decision whether

to grant relief as “a matter of grace.” Patel, 142 S. Ct. at

1619; accord INS v. St. Cyr, 533 U.S. 289, 307-308 (2001).

In the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), Congress enacted

several provisions that barred Article III courts from

reviewing “the Executive’s discretion” regarding

2

In addition to satisfying the hardship standard, the applicant

must also “ha[ve] been physically present in the United States for a

continuous period of not less than 10 years immediately preceding

the date of such application;” “ha[ve] been a person of good moral

character during such period;” and “ha[ve] not been convicted of”

certain specified offenses. 8 U.S.C. § 1229b(b)(1)(A)-(C).

3

whether to grant relief. Reno v. American-Arab AntiDiscrimination Comm., 525 U.S. 471, 486 (1999). However, “[t]his bar [on review] has an important qualification.” Patel, 142 S. Ct. at 1619. Article III courts retain

jurisdiction to review “questions of law,” a term that this

Court recently held includes mixed questions of fact and

law such as “the application of a legal standard to undisputed or established facts.” Guerrero-Lasprilla v. Barr,

140 S. Ct. 1062, 1068-1069 (2020) (citing 8 U.S.C.

§ 1252(a)(2)(D)).

In amici’s experience, whether the facts of a particular case satisfy the “exceptional and extremely unusual

hardship” eligibility criteria for cancellation is a mixed

question of law and fact. Indeed, the Executive Office of

Immigration Review (“EOIR”) has taken the position

that whether the facts underlying the IJ’s hardship ruling “amount to ‘exceptional and extremely unusual hardship’” under federal law is an issue that “may be reviewed by the Board de novo.” Board of Immigration

Appeals: Procedural Reforms To Improve Case Management, 67 Fed. Reg. 54,878, 54,890 (Aug. 26, 2002); see

also In re Ortega-Mendoza, 2010 WL 2846330, at *1

(BIA June 28, 2010) (applying “de novo review of the application of law to the facts” to affirm IJ’s conclusion that

noncitizen had not satisfied the hardship standard).

That the hardship question is ultimately a legal one is

confirmed by the BIA’s long-standing approach of using

traditional tools of statutory interpretation and relying

on Article III precedent to resolve whether the criterion

has been met.

More broadly, Article III review of hardship determinations both promotes consistency and helps ensure

the immigration adjudication system functions properly.

IJs face a challenging combination of heavy caseloads

and administrative pressures to resolve cases rapidly.

4

In that context, the sober second thought of Article III

review of the hardship determination helps ensure fair,

well-reasoned, and legally sound decisions. Cases like

this one—which required the immigration courts below

to decide whether to separate a twenty-year resident of

the United States from his ailing son based on a few

words of statutory text—underscore the value of Article

III precedential opinions in promoting predictability and

consistency.

ARGUMENT

I.

IMMIGRATION COURTS HAVE LONG UNDERSTOOD THE

QUESTION OF WHETHER A NON-CITIZEN HAS ESTABLISHED HARDSHIP FOR PURPOSES OF CANCELLATION

OF REMOVAL TO BE A MIXED QUESTION OF LAW AND

FACT

A. Immigration Courts Have Distinguished Between Statutory Eligibility And Discretionary

Relief For Decades

IJs typically make two separate, but related, rulings

before granting an application for cancellation of removal. The IJ first determines whether the non-citizen

is statutorily eligible for relief. If the non-citizen is eligible, the IJ decides whether to exercise discretion to

grant cancellation of removal (or, to use the older terminology, suspension of deportation). See Matter of Monreal, 23 I. & N. Dec. 56, 58 (BIA 2001).

This two-prong inquiry predates IIRIRA’s enactment in 1996. Under the statute’s predecessors, noncitizens could apply for suspension of deportation if certain

factors were satisfied, including whether “deportation

would, in the opinion of the Attorney General, result in

extreme hardship to the alien or to his spouse, parent, or

child, who is a citizen of the United States or on alien

5

lawfully admitted for permanent residence.” Pub. L. No.

87-885, § 4, 76 Stat. 1247, 1247-1248 (1962). That

scheme—like the current one imposed by the IIRIRA—

called for immigration courts to make an initial eligibility

determination separate from considering whether to

grant discretionary relief. See, e.g., Matter of Louie, 10

I. & N. Dec. 223, 226 (BIA 1963) (holding that applicant

satisfied statutory requirements of section 244(a)(1) of

the INA before concluding that “th[e] case merits the

exercise of the discretion to suspend deportation”).

In distinguishing between the two steps of the inquiry, immigration courts explained that the discretionary decision whether to grant relief is not governed by

any statutory standard. Indeed, it would be “undesirabl[e] and ‘difficul[t], if not impossib[le] [to] defin[e] any

standard in discretionary matters of this character

which may be applied in a stereotyped manner.” Matter

of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978) (quoting

Matter of L--, 3 I. & N. Dec. 767, 770 (BIA & A.G. 1949)).

Immigration courts have continued this same basic

approach in determining whether to grant cancellation

of removal under IIRIRA—applying the statutory

standards at step one while exercising congressionally

unguided discretion at step two. See Matter of Monreal,

23 I. & N. Dec. at 56. Indeed, in several cases, the BIA

has observed that—had there been no statutory requirement to establish “exceptional and extremely unusual

hardship”—it would have exercised its discretion to

grant relief. E.g., In re Loera Lujan, 2004 WL 2374696,

at *1 (BIA Aug. 9, 2004) (“[I]f the issue before us was

one simply of discretion, we certainly would rule in the

respondent’s behalf. However, we cannot find that the

evidence of record, considered individually and cumulatively, supports a finding of ‘exceptional and extremely

unusual hardship’ to the respondent’s son.”); Matter of

6

Monreal, 23 I. & N. Dec. at 65 (similar). In other words,

immigration courts do not treat the hardship issue as a

formless decision that could permissibly differ from IJ to

IJ—rather, whether hardship exists is determined by

applying the established facts to a fixed legal standard

that itself requires consideration of certain delineated

factors.

B. Whether An Applicant Has Satisfied The “Exceptional And Extremely Unusual Hardship”

Standard Is A Statutory Eligibility Issue That

Is A Mixed Question Of Law And Fact

“[T]he question whether a given set of facts meets a

particular legal standard … present[s] a legal inquiry”

that is reviewable under 8 U.S.C. 1252(a)(2)(D). Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068 (2020). In

amici’s experience, whether an applicant has satisfied

the hardship standard for cancellation of removal is a

classic question of application of law to a set of facts. See,

e.g., In re Ortega-Mendoza, 2010 WL 2846330, at *1 (BIA

June 28, 2010) (applying “de novo review of the application of law to the facts” to affirm IJ’s conclusion that

noncitizen had not satisfied the hardship standard); see

also Matter of Andazola, 23 I. & N. Dec. 319, 323 (BIA

2002) (“[T]he relative level of hardship a person might

suffer … must necessarily be assessed at least in part by

comparing it to the hardship others might face.”). Indeed, the EOIR has explained that while the “facts that

a respondent claims make up ‘exceptional and extremely

unusual hardship’” are reviewed under the “clearly erroneous” standard, “[w]hether those facts … amount to

… ‘hardship’ under the Act may be reviewed by the

Board de novo.” Board of Immigration Appeals: Procedural Reforms To Improve Case Management, 67 Fed.

Reg. 54,878, 54,890 (Aug. 26, 2002); see also 8 C.F.R.

7

§ 1003.1(d)(3)(i)-(ii) (an IJ’s findings of fact are reviewed

for clear error while other issues, including “questions of

law” are reviewed de novo).

Just like the examples given in GuerreroLasprilla—e.g., an FRCP 12(b)(6) ruling, a qualified-immunity decision, see 140 S. Ct. at 1068—the hardship determination requires an immigration court to assess

whether an established set of facts meets a legal standard. Specifically, the immigration court determines

whether the hardship standard has been met “based on

a cumulative consideration of all hardship factors,”

which encompasses the “ages, health, and circumstances”—such as emotional, educational, or economic—

of qualifying relatives. Matter of Monreal, 23 I. & N.

Dec. at 63; Matter of J-J-G-, 27 I. & N. Dec. 808, 811, 814

(BIA 2020).

If anything, the hardship determination more naturally falls on the “legal” side of the line than the question

at issue in Guerrero-Lasprilla—i.e., whether a litigant

was acting diligently for purposes of equitable tolling.

See 140 S. Ct. at 1068-1069. The former requires the interpretation of statutory text; the latter merely requires

the immigration court to determine whether the factual

predicate for a judge-made exception to the statute of

limitations applies. Indeed, this Court has explained

that the equitable tolling doctrine is so “flexibl[e]” that

it permits courts to evade “more absolute legal rules” as

“necessary to correct … particular injustices”—a quintessential scenario where courts are required to exercise

their “judgment,” and if necessary, grant certain litigants “special treatment.” Holland v. Florida, 560 U.S.

631, 650 (2010). The hardship analysis does not countenance such discretionary wiggle room. See supra pp. 56.

8

More broadly, immigration courts have no difficulty

in distinguishing between the facts underlying the hardship determination and the hardship determination itself. Where, as here, the hardship claim is based on the

health of a qualifying relative, an applicant first needs to

establish facts permitting the immigration court to conclude that the “relative has a serious medical condition

and, if he or she is accompanying the applicant to the

country of removal, that adequate medical care for the

claimed condition is not reasonably available in that

country.” Matter of J-J-G-, 27 I. & N. Dec. at 811. The

immigration court then considers whether those facts

are sufficient to meet the hardship standard. In doing

so, immigration courts look to BIA precedent and precedent issued by pre-IIRIRA Article III courts. For instance, the BIA in Matter of J-J-G- concluded that even

if qualifying family members suffered from serious diseases and would face inferior or cost prohibitive treatment in another country, applying the law to those facts,

precedent made clear that a lower standard of medical

care “‘will be insufficient in [itself] to support a finding

of exceptional and extremely unusual hardship.’” Id. at

813 (alteration in original) (quoting Matter of Monreal,

23 I. & N. Dec. at 63-64).

Immigration courts employ the same approach in assessing other types of hardships. Take Matter of Andazola. There, the BIA accepted the applicant’s factual

contentions and evidence regarding “poor economic conditions in Mexico” and that “deportation would result in

drastic economic consequences to [the applicant] and her

children.” 23 I. & N. Dec. at 323. But under the BIA’s

precedent under the predecessor statute discussed

above—precedent that relied on Article III opinions—

the BIA concluded that “economic detriment alone is insufficient to support even a finding of extreme

9

hardship,” much less “exceptional and extremely unusual hardship.” Id. at 323-324 (citing Matter of Pilch, 21

I. & N. Dec. 627 (BIA 1996), in turn citing Palmer v.

INS, 4 F.3d 482, 488 (7th Cir. 1993) and Mejia-Carrillo

v. United States INS, 656 F.2d 520, 522 (9th Cir. 1981));

see also In re Ortega-Mendoza, 2010 WL 2846330, at *2

(“We have long held that reduced economic and educational opportunities, without more, do not rise to the

level of ‘exceptional and extremely unusual’ hardship.”).

Similarly, in the context of educational hardships,

the BIA has relied on Article III case law to support its

conclusion that “[w]hatever differences there may be between the educational opportunities and lifestyle in the

United States and the respondent’s home country, these

differences, without more, are insufficient to support a

finding of exceptional hardship.” In re Chuyon Yon

Hong A.K.A. Chu Hong, 2006 WL 1647474, at *3 (BIA

May 11, 2006) (per curiam) (citing Ramirez-Durazo v.

INS, 794 F.2d 491, 499 (9th Cir. 1986)).

That the hardship question is—at root—a legal issue

is further confirmed by the BIA’s analysis in the seminal

Matter of Monreal ruling, which helped lay the foundation for all future immigration court decisions on hardship. There, the BIA employed the same tools of statutory construction that an Article III court would use to

interpret a statute to determine whether IIRIRA’s

hardship standard differed from its predecessor. The

BIA examined the text, acknowledging that “the interpretation of statutory language begins with the terms of

the statute itself” and “that the ‘legislative purpose is

presumed to be expressed by the ordinary meaning of

the words used.’” 23 I. & N. Dec. at 58. The BIA relied

on the dictionary definition of the terms “exceptional”

and “extremely unusual.” Id. The BIA also considered

the relevant legislative history in an effort to

10

understand congressional intent. Id. at 59-60. And the

BIA made a legal conclusion regarding the scope of the

hardship provision—i.e., that IIRIRA’s standard imposed a higher bar than the predecessor statute. Id. at

62.

Subsequent immigration court decisions have both

adopted the Matter of Monreal principle and expanded

upon it in determining whether the particular set of facts

in front of the agency satisfied the “‘exceptional and extremely unusual hardship’” standard. E.g., Matter of

Andazola, 23 I. & N. Dec. at 324 (concluding that “the

hardships presented here … are not the types of hardship envisioned by Congress” in IIRIRA); Matter of JJ-G-, 27 I. & N. Dec. at 814-815 (noting that “the application of the exceptional and extremely unusual hardship

standard must be limited to truly exceptional situations”

(internal quotation marks omitted)). That the hardship

determination requires immigration courts “to expound

on the law, particularly by amplifying or elaborating on

a broad legal standard” is a strong indication that it is a

legal question. Guerrero-Lasprilla, 140 S. Ct. at 1069.

Although “[m]ixed questions are not all alike,” with

some being primarily legal and others primarily factual,

id. at 1075 (Thomas, J., dissenting), the BIA’s analysis

parsing the text and statutory history of the cancellation-of-removal provisions reinforces the conclusion that

this inquiry is more legal than factual—and certainly is

more legal than the due diligence inquiry at issue in

Guerrero-Lasprilla.

11

II. ARTICLE III REVIEW OVER NON-DISCRETIONARY DETERMINATIONS IS A CRITICAL CHECK ON INCONSISTENCIES AND ERRORS THAT CAN OCCUR IN OVERBURDENED IMMIGRATION COURTS

Judicial review of the hardship determination also

serves an important practical purpose. It ensures that

there will be a judicial double-check on the decision to

deny cancellation of removal, a result that is “often [the

equivalent of] banishment or exile.’” Sessions v. Dimaya, 138 S. Ct. 1204, 1213 (2018) (plurality op.). Indeed, “[p]articularly” in the context of “questions concerning the preservation of federal-court jurisdiction,”

this Court interprets statutes with the presumption that

“‘executive determinations generally are subject to judicial review’” and “assumes that ‘Congress legislates

with knowledge of’ the presumption.” Kucana v.

Holder, 558 U.S. 233, 251-252 (2010); see also GuerreroLasprilla, 140 S. Ct. at 1069 (similar). Any other approach would not only risk error but raise “[s]eparationof-powers concerns” by placing “in executive hands authority to remove cases from the Judiciary’s domain.”

Kucana, 558 U.S. at 237.

The concerns that undergird the presumption of reviewability apply to hardship determinations.3 A rule

that an immigration court’s hardship ruling is unreviewable by an Article III court would preclude the development of uniform precedent on mixed questions of

3

Notably, appellate courts treat other statutory-eligibility criteria for cancellation of removal as questions of law that are reviewable de novo. See, e.g., Rosario-Mijangos v. Holder, 717 F.3d 269,

277 (2d Cir. 2013) (physical presence requirement); Saucedo-Arevalo v. Holder, 636 F.3d 532, 532 (9th Cir. 2011) (per curiam) (same);

Hernandez v. Garland, 28 F.4th 917, 921 (8th Cir. 2022) (good moral

character requirement).

12

immigration law, and deny those facing removal access

to the normal checks that the judiciary places on executive decision-making. Lack of review is particularly

problematic given the gravity of removal (where a

wrong decision could result in unwarranted exile) and

the resource constraints faced by immigration courts

and the BIA. Foreclosing judicial review would leave

individuals aggrieved by an incorrect hardship determination with “no remedy, no appeal to the laws of his

country.” United States v. Nourse, 34 U.S. (9 Pet.) 8, 2829 (1835) (Marshall, C.J.). At the same time, it would remove from Article III courts the “supervisory authority” to check that non-discretionary determinations are

correct. Wellness Int’l Network, Ltd. v. Sharif, 575 U.S.

665, 678 (2015).

A. Article III Review Can Help Avoid Inconsistencies In How The Hardship Standard Is Applied

Currently, “[v]irtually all BIA decisions are nonprecedential.” Sayed, The Immigration Shadow Docket,

117 Nw. U. L. Rev. 893, 908 (2023); see also id. at 926

(“[T]he Board publishes as precedential a mere 0.001%

of its decisions.”). This has “greatly reduced [the BIA’s]

role of promoting uniformity and policy consistency[,]”

and has thus led to greater inconsistencies in IJ decisions. Taylor, Refugee Roulette in an Administrative

Law Context, 28 J. Nat’l Ass’n Admin. L. Judiciary 158,

176 (2008); see also Hausman, The Failure of Immigration Appeals, 164 U. Penn. L. Rev. 1177, 1187 (2016)

(concluding that “[d]isparities across immigration

judges are large and highly statistically significant”).

Development of binding precedent is critical for any

judicial system to sustain and expand its ability to produce efficient and consistent decisions. See generally

13

Cappalli, The Common Law’s Case Against Non-Precedential Opinions, 76 S. Cal. L. Rev. 755 (2003)). Precedent, however, is especially crucial in the context of immigration law due to its confusing statutory language,

reliance on state law, and complex factual situations—all

of which “make[s] immigration law difficult to understand and apply.” Sayed, 117 Nw. U. L. Rev. at 291.

In enacting Section 1252(a)(2)(D), Congress endowed Article III courts with the authority to fill the gap

in the law left behind by the current BIA practice of issuing unpublished decisions. Indeed, a key purpose of

the provision was to “restor[e] uniformity and order to

the law” in the wake of confusion created by the interaction between IIRIRA and the constitutional rights of

noncitizens, as recognized in St. Cyr. See H.R. Conf.

Rep. No. 109-72, at 174 (2005). Just as Section

1252(a)(2)(D) helped eliminate some of the “uncertainty”

surrounding which Article III courts could consider

which issues of immigration law, id. at 174-175, the provision empowers Article III courts to help immigration

courts increase the “predictability of immigration consequences,” Benson, You Can’t Get There from Here, 2007

U. Chi. Legal F. 405, 432. Section 1252(a)(2)(D) also permits Article III courts to assist immigration courts in

“more accurately apply[ing] immigration law and …

avoid[ing] inconsistencies across immigration decisions.” Sayed, The Immigration Shadow Docket, 117

Nw. U. L. Rev. at 960. Such predictability and consistency are particularly vital in the context of a hardship determination like the one at issue in this case,

where the stakes are high (potential exile for petitioner

and health consequences for his son) and the guidance

offered by the statutory text is minimal. Article III

courts are well-equipped to provide needed guidance

14

and amici respectfully submit that this Court should refrain from stripping away their authority to do so.

B. Severe Resource Constraints Could Create Inadvertent Errors Correctable Via Article III

Review

The EOIR has an astronomical backlog of 2 million

cases and rising—more than double the number of pending cases in all federal district courts combined. Compare Straut-Eppsteiner, Cong. Research Serv., Immigration Judge Hiring and Projected Impact on the Immigration Courts Backlog 1-3 (July 28, 2023), https://

sgp.fas.org/crs/homesec/R47637.pdf, with Federal Judicial Caseload Statistics (2022), https://www.uscourts.gov/

judicial-caseload-indicators-federal-judicial-caseload-stat

istics-2022 (finding district courts have 761,028 pending

civil and criminal cases). Assuming that the current administration does not expand the numbers of the roughly

650 IJs in service, the overall backlog could rise to over

3.1 million in ten years. Straut-Eppsteiner, Immigration Judge Hiring 7, 9.

Even under the current system, the 23-member BIA

receives more appeals than all U.S. Courts of Appeals

combined. Compare, e.g., FY 2022 Performance Budget,

Executive Office for Immigration Review 4 (May 2021),

https://www.justice.gov/jmd/page/file/1398381/download

(59,000 appeals), with Federal Judicial Caseload Statistics (2020) https://www.uscourts.gov/statistics-reports/

federal-judicial-caseload-statistics-2020 (50,258 appeals). IJs, for their part, have on average backlogs of

approximately 3,000 cases apiece, even though IJs have

significantly less assistance than Article III judges have.

One IJ described her experience as “nightmarish,” explaining that to address her “pending caseload [of] about

4,000 cases,” she had only “about half a judicial law clerk

15

and less than one full-time legal assistant to help [her].”

ABA News, Amid “Nightmarish” Case Backlog, Experts Call for Independent Immigration Courts (Aug. 9,

2019), https://tinyurl.com/3uhsffac (citing past president

of the National Association of Immigration Judges).

IJs also face significant pressure to prioritize speedy

and efficient case dispositions, sometimes at the cost of

careful scrutiny of cases. Jain, Bureaucrats in Robes, 33

Geo. Immigr. L. J. 261, 304-305 (2019). IJs have reported

the view that their performance is evaluated based primarily or entirely on their ability to resolve cases as

quickly as possible, not on the accuracy of their factual

or legal conclusions. Id. at 300. As a result of this merciless pressure (and the fact that their cases “consist of

one horrific story of human suffering after another”), IJs

report more burnout than prison wardens and physicians in busy hospitals. Lustig et al., Inside the Judges’

Chambers, 23 Geo. Immigr. L. J. 57, 57, 59 (2008).

Without Article III review, these background

stressors increase the risk that errors will be left in

place. Although IJs may know the “overall … landscape” of immigration law better than the courts of appeals, “the time and resource shortfalls that afflict

agency decision-making may make its adjudicators more

error-prone.” Gelbach & Marcus, Rethinking Judicial

Review of High Volume Agency Adjudication, 96 Tex.

L. Rev. 1097, 1111 (2018). It is basic social science that

“[t]he accuracy of human judgments decreases under

time pressure.” Edland & Svenson, Judgment and Decision Making Under Time Pressure, in Time Pressure

and Stress in Human Judgment and Decision Making

27, 36 (Svenson & Maule eds., 1993).

None of this is intended to denigrate the hard work

of—and long hours worked by—immigration courts.

16

But the resource constraints and related pressures on

those courts are very real and the possibility of error

that they create can have dramatic ramifications both

for a noncitizen facing removal and for their family members who are United States citizens and lawful permanent residents. Article III review will help protect

against the prospect that “crowded dockets or a backlog

of cases” will lead immigration courts “to dispense with

an adequate explanation” for their rulings “merely to facilitate or accommodate administrative expediency.”

Valarezo-Tirado v. Attorney Gen., 6 F.4th 542, 549 (3d

Cir. 2021).

CONCLUSION

Amici join petitioner in requesting that the judgment of the Third Circuit be reversed.

Respectfully submitted.

CLAIRE M. GUEHENNO

WILMER CUTLER PICKERING

HALE AND DORR LLP

7 World Trade Center

250 Greenwich Street

New York, NY 10007

DONNA M. FARAG

WILMER CUTLER PICKERING

HALE AND DORR LLP

2100 Pennsylvania Ave., NW

Washington, DC 20037

SEPTEMBER 2023

THOMAS G. SPRANKLING

Counsel of Record

WILMER CUTLER PICKERING

HALE AND DORR LLP

2600 El Camino Real

Suite 400

Palo Alto, CA 94306

(650) 858-6000

thomas.sprankling

@wilmerhale.com

APPENDIX

APPENDIX

TABLE OF CONTENTS

Page

List of Amici Curiae .......................................................... 1a

1a

APPENDIX

List of Amici Curiae

1.

The Honorable Steven Abrams served as an Immigration Judge at the New York, Varick Street, and

Queens Wackenhut Immigration Courts in New

York, New York, from 1997 until 2013.

2.

The Honorable Esmerelda Cabrera served as an

Immigration Judge in New York, New York, and

Newark and Elizabeth, New Jersey, from 1994 until

2005.

3.

The Honorable Jeffrey S. Chase served as an Immigration Judge in New York, New York, from 1995

until 2007.

4.

The Honorable George T. Chew served as an Immigration Judge in New York, New York, from 1995

until 2017.

5.

The Honorable Joan V. Churchill served as an Immigration Judge in Washington, DC-Arlington, Virginia, from 1980 until 2005, including 5 terms as a

Temporary Member of the Board of Immigration

Appeals.

6.

The Honorable Matthew D’Angelo served as an

Immigration Judge in Boston, Massachusetts, from

2003 until 2018.

7.

The Honorable Lisa Dornell served as an Immigration Judge in Baltimore, Maryland, from 1995 until

2019.

8.

The Honorable Bruce J. Einhorn served as an Immigration Judge in Los Angeles, California, from

1990 until 2007.

2a

9.

The Honorable Cecelia M. Espenoza served as a

Member of the Board of Immigration Appeals from

2000 until 2003.

10. The Honorable Noel Ferris served as an Immigration Judge in New York, New York, from 1994 until

2013.

11. The Honorable Alberto E. Gonzalez served as an

Immigration Judge in San Francisco, California,

from 1995 until 2005.

12. The Honorable John F. Gossart, Jr. served as an

Immigration Judge in Baltimore, Maryland, from

1982 until 2013.

13. The Honorable Paul Grussendorf served as an Immigration Judge in Philadelphia, Pennsylvania, and

San Francisco, California, from 1997 until 2004.

14. The Honorable Miriam Hayward served as an Immigration Judge in San Francisco, California, from

1997 until 2018.

15. The Honorable Charles Honeyman served as an

Immigration Judge in Philadelphia, Pennsylvania,

and New York, New York, from 1995 until 2020.

16. The Honorable Carol King served as an Immigration Judge in San Francisco, California, from 1995

until 2017 and was a temporary Member of the

Board of Immigration Appeals for six months between 2010 and 2011.

17. The Honorable Eliza C. Klein served as an Immigration Judge in Miami, Florida; Boston, Massachusetts; and Chicago, Illinois, from 1994 until 2015 and

as a Senior Immigration Judge in Chicago from 2019

until 2023.

3a

18. The Honorable Dana Leigh Marks served as an Immigration Judge in San Francisco, California, from

1987 until 2021.

19. The Honorable Steven Morley served as an Immigration Judge in Philadelphia, Pennsylvania, from

2010 until 2022.

20. The Honorable Charles Pazar served as an Immigration Judge in Memphis, Tennessee, from 1998 until 2017.

21. The Honorable Laura Ramirez served as an Immigration Judge in San Francisco, California, from

1997 until 2018.

22. The Honorable John W. Richardson served as an

Immigration Judge in Phoenix, Arizona, from 1990

until 2018.

23. The Honorable Susan Roy served as an Immigration Judge in Newark, New Jersey, from 2008 until

2010.

24. The Honorable Paul W. Schmidt served as an Immigration Judge in Arlington, Virginia, from 2003

until 2016. He previously served as Chairman of the

Board of Immigration Appeals from 1995 until 2001

and as a Board of Immigration Appeals Member

from 2001 until 2003.

25. The Honorable Patricia M. Sheppard served as an

Immigration Judge in Boston, Massachusetts, from

1993 until 2006.

26. The Honorable Ilyce S. Shugall served as an Immigration Judge in San Francisco, California, from

2017 until 2019.

4a

27. The Honorable Helen Sichel served as an Immigration Judge in New York, New York, from 1997 until

2020.

28. The Honorable Andrea Hawkins Sloan served as

an Immigration Judge in Portland, Oregon, from

2010 until 2017.

29. The Honorable Tuê Phan-Quang served as an Immigration Judge in San Francisco, California, from

1995 until 2012.

30. The Honorable Gabriel C. Videla served as an Immigration Judge in New York, New York, and Miami, Florida, from 1994 until 2022.

31. The Honorable Robert D. Vinikoor served as an

Immigration Judge in Chicago, Illinois, from 1984

until 2017.

32. The Honorable Polly A. Webber served as an Immigration Judge in San Francisco, California, from

1995 until 2016.