Supreme Court to Review Deportation Hardship Waivers, Double Jeopardy Protections

Supreme Court to Review Deportation Hardship Waivers, Double Jeopardy Protections
Hundreds of illegal immigrants seeking asylum line for Immigration Customs Enforcement appointments outside of the Jacob K. Javits Federal Building in New York City, on June 6, 2023. (David Dee Delgado/Getty Images)
Sam Dorman

The Supreme Court is hearing oral argument on Nov. 28 surrounding double jeopardy and how courts may review the Justice Department’s determination that an illegal immigrant shouldn’t be removed due to “exceptional and extremely unusual hardship.”

That language comes from the Immigration and Nationality Act (INA), which allows the U.S. attorney general to make such a determination blocking removal. The law includes a caveat that allows federal courts to review “constitutional claims or questions of law” related to how the Justice Department decided an immigrant’s case.

It’s unclear, however, what precisely “constitutional claims of questions of law” means in terms of what federal courts can review, and multiple appellate courts have taken conflicting positions.

The Biden administration argues that courts shouldn’t be able to review the DOJ’s hardship determination because that determination “presents unreviewable questions of fact and administrative discretion, not ‘questions of law.’”

Situ Wilkinson, the petitioner in Wilkinson v. Garland, disagrees. Mr. Wilkinson argues that courts should be able to review the DOJ’s decision to reject a hardship determination for him and others.

Mr. Wilkinson is originally from Trinidad and Tobago but overstayed a tourist visa in the United States.

His Supreme Court petition claims he is the sole source of income for his son, who suffers from asthma, and his mother, who suffers from depression. His son is also allegedly experiencing his own hardship due to his father being in immigration detention.

Federal immigration officials had detained him when he appeared at a Pennsylvania courthouse for charges that were ultimately withdrawn, according to his petition to the Supreme Court.

The U.S. Court of Appeals for the Third Circuit declined to review the DOJ’s determination that Mr. Wilkinson encountered the type of extraordinary hardship required to thwart removal under INA.

That decision led to Mr. Wilkinson’s petition, which asks the Supreme Court to rule DOJ’s hardship determination as a mixed question of law and fact rather than merely a question of law, allowing courts like the third circuit to review those determinations.

McElrath v. Georgia, the other case scheduled for oral argument, involves a man who was tried for stabbing and killing his adoptive mother.

The jury in his trial presented a difficult situation for higher courts as they said he was both guilty, but mentally ill, of felony murder and aggravated assault, as well as not guilty of malice murder, or a homicide committed with express or implied malice, by reason of insanity.

The Georgia Supreme Court said it “determined that the jury’s verdicts on the malice murder and felony murder counts were repugnant because they could not logically or legally exist simultaneously.”

It added that “we determined, based on the evidence presented at trial, that it was not legally possible for McElrath to simultaneously be both sane (guilty but mentally ill) and insane (not guilty by reason of insanity) during the single episode of stabbing his mother.”

In that sense, the court said, Mr. McElrath’s situation was more like a mistrial and that “the repugnant verdicts failed to result in an event that terminated jeopardy.” Therefore, the court said Mr. McElrath could be retired on the malice murder charge.

Mr. McElrath argues that the state supreme court’s decision if left in place, “would expand the circumstances under which people in Georgia may face a second trial on criminal charges far beyond what is permissible under [the Supreme Court’s] precedents.”

Sam Dorman is a Washington correspondent covering courts and politics for The Epoch Times. You can follow him on X at @EpochofDorman.