SITU KAMU WILKINSON, Petitioner, v. MERRICK B. GARLAND, ATTORNEY GENERAL, Respondent
Interviewer(s): Samuel A. Alito, Jr., Elena Kagan, John G. Roberts, Jr., Sonia Sotomayor, Neil Gorsuch, Ketanji Brown Jackson, Brett M. Kavanaugh, Amy Coney Barrett, Clarence Thomas
Interviewee(s): Colleen E. Roh Sinzdak, Jaime A. Santos

John G. Roberts, Jr.: We will hear argument next in Case 22-666, Wilkinson versus Garland. Ms. Santos.

Jaime A. Santos: Mr. Chief Justice, and may it please the Court: Non-citizens who have lived here for 10 years, have good moral character and a clean record, can seek immigration relief if their removal will cause exceptional and extremely unusual hardship to a U.S. family member.

If the agency concludes that the facts don't satisfy that standard, the question here is whether courts have the power to review that decision. They do.

The INA limits review of denials of discretionary relief, but it permits review of questions of law.

And as this Court held in Guerrero-Lasprilla, the statutory term "questions of law" includes the application of legal standards to settled facts.

Even the Board agrees that exceptional and extremely unusual hardship is a legal standard.

So, under Guerrero-Lasprilla, the agency's application of that standard is reviewable. The government argues that Guerrero-Lasprilla's holding applies only to common law standards and offers a different test for statutory standards.

And while jurisdictional tests are supposed to be simple, the government's fashioned an elaborate and amorphous framework that won't provide clear answers. First, courts should see whether the standard has a common law origin.

If so, the government suggests it's probably reviewable but doesn't commit either way. Next, courts should scour current and prior versions of the statute for any hint that Congress wanted the agency to have discretion, even if it later deleted the discretion-conferring language. If that doesn't somehow answer the question, courts should ask whether the standard requires evaluation and fact-weighing.

They should then traipse through any version of the U.S. Code that -- that has ever existed looking for similarly worded standards and see if courts have ever labeled those discretionary. Taking these factors together, courts can then deem the standard a discretionary one -- a reviewable mixed question or an unreviewable discretionary one.

It would be bad enough if the government were urging this test only for cancellation, but courts would have to apply it to dozens of INA standards, including whether a non-citizen has been rehabilitated, subjected to extreme cruelty, or violated the terms of a visa.

I tried making a complete list last week and stopped count at 75.

In other words, the government's test promises a never-ending supply of judicial review cases for this Court's merits docket. I welcome the Court's questions.

Clarence Thomas: We're allowed to certainly review questions of law, and, of course, the Court said that includes mixed questions of law.

But, in -- in some of these cases, if we're looking at fact-finding, I think we agree that's not reviewable.

On the other hand, if we're looking at legal standards, that is reviewable as they're applied to these facts. How does that work in your case? I didn't understand how it was work in some -- worked -- how it would work in some of the earlier cases.

But if you could walk through how it would work here, how we would separate a review of a legal standard from a review of the facts in a case involving mixed questions of fact and law.

Jaime A. Santos: Happy to walk you through that, Your Honor.

So, here, we don't think that the question of whether something is a challenge to a fact finding would really come up because the immigration judge credited all of the testimony and evidence that Mr. Wilkinson provided. But, in a typic -- typical case, what would happen is a court would open up the blue brief, see if there are any challenges to findings of fact made by the IJ, and, if so, the court wouldn't review any of those.

And if the only challenge is to the IJ's or the BIA's ultimate determination that the standard wasn't satisfied, that would be reviewable. So, here, for example, Your Honor, our submission before the Third Circuit on remand would be that while the IJ credited all of the facts and evidence and while the IJ recited the right legal standard in a -- in a boilerplate section of its decision, it then, when applying the standard, disregarded all of the facts and factors that render this case exceptional and extremely unusual. And I would point to, for example, the fact that Mr. Wilkinson's son, M, has a serious medical condition that places him in the hospital with some frequency, that his mother has depression that renders her unable to care for M for days a time, that M has learning and behavioral challenges that have been exacerbated by Mr. Wilkinson's detention, and -- and that Mr. Wilkinson is not only the sole financial provider for M but also has -- is his only male role model and has been a consistent support emotionally and a physical presence in his life.

John G. Roberts, Jr.: And how many --

Jaime A. Santos: And our --

John G. Roberts, Jr.: And -- and can you tell us how many people have a similar list of hardships in the whole group of people who are subject to the same immigration laws as this individual was?

Jaime A. Santos: I cannot, Your Honor.

I think, in the immigration context, as in many contexts, there will be a lot of different facts that will be case-specific.

John G. Roberts, Jr.: Well, but the -- the statutory standard is exceptional and extremely unusual, not burdensome, not difficult, not very unfortunate.

Unusual, which requires a comparative analysis. And I don't see how doing the best you can to determine what that number is and given the size of it, I don't -- maybe it's 3 percent of the whole population, maybe it's 20,000 people -- it seems to me that that -- it's hard to determine whether something's extremely and exceptionally unusual other than -- I mean, it's not a purely factual question. The government talks a lot about discretion in determining what weight should be given the factors you mentioned compared to other determinations.

Maybe somebody has a particular physical impairment and the difficulties that they have encountered are as challenging as the ones here.

But which one do you categorize as -- does that make them both unusual?

Jaime A. Santos: Well, Your Honor, we think that all of the -- the -- the points that you just raised, the fact that IJs see more of these cases, have more experience, all of that would probably cash out in the standard-of- review analysis.

But it -- it just -- those types of practical considerations don't have anything to do with whether they are -- whether the determinations are reviewable at all. And I think that what courts would do when reviewing these types of determinations is something similar to what the -- what the Board does.

It -- it would interpret the language. It might note, for example, that exceptional and extremely unusual hardship is a different standard than extreme hardship, which appears elsewhere in the statute.

So it would look to text, it would look to precedent, it would look to ordinary dictionary definitions.

And that's exactly what the Board did --

John G. Roberts, Jr.: Well --

Jaime A. Santos: -- in Monreal-Aguinaga.

John G. Roberts, Jr.: -- putting that aside, let's say they come up with a particular number.

I mean, what percent of people with the same sort of challenging circumstances that you mentioned or similar -- substantially similar ones are -- are there? Is it 1 percent? Is it 2 percent? And what constitutes extremely and exceptionally unusual? Those are judgments that call for a high degree of discretion on the part of the immigration judges.

Jaime A. Santos: Well, I -- I agree with Your Honor that -- that they require a -- a -- a degree of judgment and experience and common sense.

But the standard does not ask for a quantitative assessment.

The standard, as interpreted in Monreal-Aguinaga, says that you -- the -- the hardship doesn't need to be overwhelming; it has to be substantially greater than is kind of incident to a -- a -- a family member leaving the country. And so -- so those types of judgments might warrant a more deferential review.

But it wouldn't have anything to --

Brett M. Kavanaugh: Are you acknowledging -- keep going, sorry.

Jaime A. Santos: I was just going to say it wouldn't -- it has nothing to do with whether this qualifies as a question of law as the INA uses that term.

Brett M. Kavanaugh: Are you acknowledging that it would be a more deferential standard of review by the court of appeals then?

Jaime A. Santos: I think it likely would. After this Court's decision in Guerrero-Lasprilla, courts have generally reviewed due diligence determinations for abuse of discretion, and so --

Brett M. Kavanaugh: How -- how could it not be a deferential standard of review? I just want to --

Jaime A. Santos: Well, I --

Brett M. Kavanaugh: -- I just want to make sure, because I think you're right, that it would likely be deferential, but what -- what would be the circumstances under which it couldn't be?

Jaime A. Santos: So I am -- I am not going to push back on the fact that I -- I'm virtually certain it would be deferential.

I think that virtually every court on our side of the split has agreed that it would be a -- a deferential standard of review, and I think all of those practical considerations go to that point. But one thing that I think is critically important is that those practical considerations the Court said expressly in Guerrero-Lasprilla may be relevant to standard of review, but they're not relevant to whether there's judicial review at all. And I think the reason for that is important.

That's because standard of review and reviewability have just totally different frameworks.

Reviewability looks at -- it's just purely an exercise in statutory construction. So you're looking at the canons of statutory interpretation. But, when you're looking at standard of review, you use different decision-making criteria.

So you'll look at for one thing is there a long and a consistent history of appellate practice.

And then you'll look at the practical considerations that might warrant giving more deference to one decision-maker or the other.

But that just doesn't enter into the framework for looking at judicial review.

Ketanji Brown Jackson: But don't we have a --

Amy Coney Barrett: Would you concede --

Elena Kagan: But another way to think about the Chief Justice's question is to say that what he was talking about really does go to whether it's a legal question at all, including a mixed question, because, in a typical mixed question, you know, you look at the law and you look at the facts and then you look at the law again and you see how it all matches up. But, in this question, you're not really looking at the law at all.

I mean, you sort of say, okay, it says unusual and exceptional, but the -- the essential project is to look at one factual situation and compare it with many other factual situations. And so, when you think of the essential project as that, it starts looking not like a legal question at all, not just -- so separate out there are lots of legal questions that involve judgment and gray areas and all of that, but this, because of what it tells you to look at, which is compare this factual situation to many others you've seen, you -- you have -- where is the law in that?

Jaime A. Santos: Well, Your Honor, I would make two points to that.

The first point is that I think that that was essentially the government's exact argument in Guerrero-Lasprilla, that due diligence determinations involve essentially no legal work and it's just the application of the standard to facts, and yet this Court still held that constitutes a question of law. And I think it's because -- I think you might be getting caught a little -- caught up a little bit in the kind of colloquial use of the term "question of law." That term is kind of thrown out in -- in different contexts and used in different ways.

But, here, we're talking about the specific statutory term that this Court interpreted to include the application of law to fact or a mixed question. Mixed questions are sometimes reviewed de novo, they're sometimes reviewed for clear error, they're sometimes reviewed for abuse of discretion, but they're still all mixed questions. And I think that comparative analysis that Your Honor points to is very similar to extraordinary circumstances determinations under -- for untimely asylum petitions and due diligence.

I think it's also similar to exceptional case determinations under the Patent Act and the Lanham Act.

But that doesn't make it not a mixed question and it doesn't make it not reviewable.

Amy Coney Barrett: Counsel --

Samuel A. Alito, Jr.: Isn't there this difference between the -- the standard in Guerrero-Lasprilla and the -- the situation here? If you ask -- let's say you ask a person who is not a lawyer, an alien did not do -- did not do something within a certain period of time.

Was that -- did that alien exercise due diligence? I mean, the ordinary person who's not a lawyer would say, I can't answer that question because it -- it's a legal question.

It has to do with legal procedures. But, if you ask an ordinary person, you set out a certain set of facts, so let's say I'm complaining about my workplace, it's cold, it's set at 63 degrees, there isn't any coffee machine, the boss is unfriendly, all my coworkers are obnoxious, and -- and you say am I experiencing -- (Laughter.)

Samuel A. Alito, Jr.: No, I'm not -- (Laughter.)

Jaime A. Santos: Okay. (Laughter.)

Samuel A. Alito, Jr.: Any resemblance to any living character is purely -- purely accidental. (Laughter.)

Samuel A. Alito, Jr.: Is that unusual or except -- am I suffering unusual and exceptional hardship? An ordinary person could answer that question and they could say, oh, come on, you know, that's work, suck it up, right? So is that a -- is -- is that a difference between these two situations?

Jaime A. Santos: Well, I think that there is still, Your Honor -- first, that this is still a statutory term that Congress chose, right? So this is the standard that Congress set.

So I think you'd still have to determine what Congress was intending to -- what -- what Congress meant when it -- when it used these specific terms.

So that's still --

Samuel A. Alito, Jr.: It meant what the terms mean.

These are ordinary terms.

You can look them up in the dictionary.

Jaime A. Santos: And that is --

Samuel A. Alito, Jr.: Some people don't even need to look them up in the dictionary.

Jaime A. Santos: And -- and -- and that's essentially what the Court said in -- in other cases involving similar kind of common ordinary meaning terms like "exceptional case determinations" or -- or even "undue hardship" under Title VII, but it's still an exercise -- still a legal exercise to apply that standard to the facts as found by the IJ.

Ketanji Brown Jackson: But is it the type of legal exercise that Congress was intending? I mean, if we accept Justice Kagan's sort of framing of this as the essential project is the comparison of these facts to other facts, I guess my question is, when we look at Congress's intent in this area, you know, it -- it's about the division of labor and to what extent did Congress intend for the court to be the one to make -- make that comparison.

On what basis could the court be making that comparison? And can't we say, given the clear jurisdiction-stripping provisions as later interpreted by Patel, that really Congress wanted the agency to be the one to do that kind of comparison and not the court?

Jaime A. Santos: No, Your Honor, we can't, and I'll -- I'll explain why, and it has to do with the way that the structure of the statute works. So every single determination in the INA that is specified as being discretionary, it all falls within the scope of Section 1252(a)(2)(B).

So that's the jurisdiction-stripping provision. But what subparagraph (D) -- that's the limited review provision -- does is it trumps that designation.

So it says nothing in subparagraph (B) or (C) or any other provision of -- of this chapter shall be construed to preclude judicial review of questions of law.

Ketanji Brown Jackson: I appreciate that. But I understood that the enactment history was such that Congress put that in in response to St. Cyr and the concern that if it did what it wanted to do, which was get the judiciary out of this and give it to the agency, that there might be constitutional problems. And so Congress puts in this additional language that you're talking about but only to the extent that we have a constitutional question or -- and I take your point that it says questions of law, and we, you know, suggested in or held in a subsequent opinion that that includes mixed questions -- but, if we read mixed questions to be so broad that it is essentially, you know, supplanting the agency's decision-making, I find it hard to make the statute make sense.

Jaime A. Santos: Well, I think you can look to what the Court said in both Guerrero-Lasprilla and Patel about what would remain unreviewable after you apply the limited review provision and layer it on top of subparagraph (B). And what the Court said in Guerrero-Lasprilla is that the -- the limited review provision would still forbid appeals of findings of fact.

And in Patel, the Court said the same thing.

If we apply both statutes together, the major remaining category of determinations that are unreviewable are factual findings.

There was just no --

Ketanji Brown Jackson: I understand, but why would the -- why would Congress want it to be that way in the statute? Why would it have a statute that has the agency making the factual determinations and the ultimate cancellation decision, but the court swoops in to just review, you know, the agency's actual function with respect to determining eligibility?

Jaime A. Santos: I think for a few reasons, Your Honor.

Number one is, by doing so, the -- the -- by -- by enacting the limited review provision the way it did, it still cut out any judicial review of findings of fact, which, in many cases, in many cancellation cases, will completely control the -- the conclusion.

You won't always have cases like this one where the IJ credited all of the testimony and evidence that the non-citizen provided. And I think the second reason is that by -- by enacting that provision, it got rid of an entire layer of habeas review.

So district court habeas proceedings are still completely unavailable. But the typical role of an appellate court to -- to review that application of the legal standard to facts, whether under a deferential standard or not, would still be maintained.

Samuel A. Alito, Jr.: Would you agree that --

Amy Coney Barrett: Ms. Santos --

Samuel A. Alito, Jr.: Go ahead.

Amy Coney Barrett: Ms. Santos, let me try to get at the questions that you've been asked in a different way. What if we -- let's say that I theoretically agree with you that under Guerrero-Lasprilla, mixed questions, including of this sort, would be subject to judicial review. Wouldn't you say -- and I guess I'd push back a little bit on your characterization of Wilkinson's claims in particular below as being of that variety because, you know, I looked at the record. His claims, you know, the immigration judge, he claimed that the immigration judge wrongly speculated about the care and support the child would receive if the Petitioner was removed.

They all read like weighing ones. He found, while Wilkinson does provide emotional support, removing him would result in minimal emotional hardship because his son clearly has lived without Wilkinson's daily presence for most of his life because the mother had primary custody. So doesn't it seem like you're just seeking or that your client was seeking a reweighing of those facts and so that under Patel, they really would be not subject to review?

Jaime A. Santos: So all -- the -- the specific factual points that you pointed to, I agree with you.

Those would be unreviewable.

Amy Coney Barrett: Okay.

Jaime A. Santos: But what would be reviewable is the ultimate determination of whether that satisfies the statutory standard. And it -- it is often the case, for example, that -- that -- that, you know, when -- when you're challenging -- potentially challenging the weighing of -- of various factors and facts, an agency or -- or a court of appeals can't just supplant its view of the -- of the evidence for that of the agency.

But, still, the ultimate question of whether those facts satisfy the standard remain a question of law.

Amy Coney Barrett: But it seems to me -- and I've looked at some of these cases and the Sixth Circuit sides with you -- but, when it reviews these cases, it says that a lot of these claims about, well, you just didn't understand the strength of the emotional bond or you didn't accurately predict what life would be like for my child if I were deported or -- or removed or my spouse, what the court says is those kinds of things are factual. And I guess that's where I'm stuck because, even if I accept your argument as flowing from Guerrero-Lasprilla, it's hard for me to see looking at these cases very many that aren't essentially factual challenges.

Jaime A. Santos: Well, Your Honor, I -- I agree with you that all of those things you just pointed to, that you cited from the Sixth Circuit cases, those are unreviewable.

And -- and kind of weeding out unreviewable findings and fact are things that appellate courts do all the time.

They have to do so in every interlocutory appeal of a qualified immunity decision.

Amy Coney Barrett: So would you accept then that there would probably be only a very narrow slice of cases that a ruling in your favor would make judicially reviewable and including potentially even Wilkinson's own?

Jaime A. Santos: I think it depends on what the Board does in any given case.

I agree with Your Honor that if the IJ makes adverse factual findings or if all the non- -- non-citizen is doing is challenging factual findings on appeal, those won't be viable claims.

But what would be reviewable is the -- the ultimate determination of whether -- whether those facts satisfy the standard. And, here, I'll just point out briefly, Your Honor, that I think the Third Circuit clearly understood Mr. Wilkinson's challenge as being one to that mixed question because it said -- and you can see this on page 3a of the petition appendix -- that Mr. Wilkinson argues that the hardship his son faces is indeed exceptional, that's not reviewable because it's discretionary.

The court did not say Mr. Wilkinson is challenging findings of fact, and under Patel, those findings of fact are unreviewable.

Brett M. Kavanaugh: Do you agree that credibility determinations are factual for these purposes and, therefore, unreviewable?

Jaime A. Santos: Yes, Your Honor.

We don't think that credibility determinations present mixed questions of law and fact, and that's because -- and just to kind of make sure we're all on the same page, the -- the statute that the government points to is one that says, considering the totality of the circumstances and all relevant factors, the finder of fact when determining credibility can consider -- and then a non-exhaustive laundry list of factors. That doesn't fall within the definition of a mixed question.

A mixed question involves applying a standard to undisputed or settled facts and -- and determining whether the standard is satisfied.

Sonia Sotomayor: Counsel, here, the BIA doesn't review the IJ's findings on -- on this being an exceptional case with deference. It reviews it de novo.

So the BIA believes there's a legal standard, correct?

Jaime A. Santos: Absolutely, Your Honor. And, in fact, when EOIR promulgated clear error review for the first time in 2002, it actually used exceptional and extremely unusual hardship as an example of something that wouldn't be reviewed for clear error because it's not a factual finding.

Sonia Sotomayor: Is there any question that Justice Jackson has asked you or even Justice Barrett -- Justice Barrett is making the point, which is, unless we can distinguish Guerrero-Lasprilla, and I don't see how you can unless you buy the distinction the government makes between statutory and common law findings, which makes no sense to me -- I think your brief does a good job of that -- these are all arguments that were rejected in Guerrero-Lasprilla, right?

Jaime A. Santos: Yes.

Sonia Sotomayor: If Justice Jackson's unhappy with it, it has to overrule that case. (Laughter.)

Jaime A. Santos: I don't know that I want to get in the middle of that. (Laughter.)

Ketanji Brown Jackson: Well, no, can I -- can I have --

Sonia Sotomayor: Maybe -- maybe you don't want to.

That was a beautiful -- that was a beautiful answer, by the way.

Samuel A. Alito, Jr.: Well, let me take you out --

Ketanji Brown Jackson: Can I just --

Samuel A. Alito, Jr.: -- from the middle of it.

Ketanji Brown Jackson: -- can I -- in my own defense here, can I -- can -- (Laughter.)

Ketanji Brown Jackson: -- can I just ask, though, whether Guerrero-Lasprilla is helping us with a particular nuance that I see happening, right? We've said in other scenarios that not all mixed questions are the same.

So, even if we assume that Guerrero, as I'll call it, says mixed questions count for questions of law, is it possible that there are certain kinds of mixed questions that Congress intended to include here and other kinds that it didn't? So my example is a scenario in which the defendant or the -- the petitioner is challenging the BIA's own rules with respect to how it applies this extreme and unusual hardship.

So you say in your brief the BIA has looked at the statute and it has come up with factors that it says the IJs should be applying when it does this.

If someone makes the claim that the BIA's factors are inconsistent with the statute insofar as they're applying it in this way in this case, I guess you could say that's a mixed question perhaps.

Maybe it's closer to the question -- a pure question of law, but at least you're -- you're challenging the BIA's interpretation of the statute with respect to the factors that it has created. Justice Barrett has come up with a different kind of scenario where we agree on the facts of this case and we agree on the standards, the factors, that everybody's saying, hooray, BA -- BIA, you have it right with respect to what the IJ is supposed to be looking at, but the claim is that the IJ has not weighed these factors appropriately, that it has put more stock in a certain, you know, segment of it than another, and, Court, we really think you should reweigh it differently. Now that might be a mixed question too, but it seems to me that it's of a different variety.

And if we could interpret Guerrera -- Guerrero to be talking about the former and not the latter, maybe it doesn't have to be overruled.

Jaime A. Santos: So I don't think there's any way to principally read Guerrero-Lasprilla that way.

Ketanji Brown Jackson: Mm-hmm.

Jaime A. Santos: And -- and I'll give you two reasons.

Number one is because of the way that the case was litigated.

The government's view -- the government's argument in Guerrero-Lasprilla was that, first, no mixed question should be considered questions of law. May -- may I finish, Mr. Chief Justice?

John G. Roberts, Jr.: Yes.

Jaime A. Santos: And, second, that at the very least, super fact questions shouldn't be considered questions of law, and the Court rejected that, and in doing so, its opinion did not distinguish any particular mixed questions. And it drew from a variety of contexts, including constitutional mixed questions, statutory mixed questions, and common law mixed questions. So I don't think there's any way to read Guerrero-Lasprilla narrowly given the way the Court wrote the opinion.

John G. Roberts, Jr.: Thank you, counsel. Justice Thomas? Justice Alito?

Samuel A. Alito, Jr.: Do you agree that the -- the bottom-line judgment in every decision made by a court or an administrative agency involves a mixed question of law and fact or perhaps a question of law?

Jaime A. Santos: Your Honor, I believe that the -- that the application of any statute -- any legal standard to facts qualifies as a mixed question.

It may sometimes be driven by a particular factual finding, but the application of law to fact, I think, is.

Samuel A. Alito, Jr.: And that's what every judgment does, right? It applies the law to a particular set of facts.

Jaime A. Santos: It -- I guess it depends on the way you -- you -- what you mean by the term "judgment," which I know is a whole issue in Patel, and I don't want to get caught up in that, but -- but, yes, I think that any conclusion about whether a statutory standard is satisfied is the application of law to fact, and that presents a mixed question.

Samuel A. Alito, Jr.: And 1252(a)(2) precludes reviewing judgments, so your argument is that although it precludes reviewing judgments, in fact, every judgment is reviewable because it's a mixed question of law and fact?

Jaime A. Santos: Well, Your Honor, our position is that 1252(a)(2)(B)(i) precludes judicial review over any judgment regarding the granting of relief, but if you look up two lines, it says except as provided in subparagraph (D), and if you look down a couple paragraphs, it says nothing in subparagraph (B) shall be construed as precluding review of questions of law. So, yes, I think that the plain text of subparagraph (D) trumps a designation of -- of a -- of a judgment as discretionary --

Samuel A. Alito, Jr.: It swallows up the exception completely.

Jaime A. Santos: It doesn't, Your Honor, because it still precludes the judicial review of questions of fact, as this Court said in Guerrero-Lasprilla and Patel, and it precludes any -- any first-line habeas review, any habeas review at all, which removed an entire layer of judicial review.

John G. Roberts, Jr.: Justice Sotomayor?

Sonia Sotomayor: Justice Thomas pointed out the very same arguments that Justice Alito has made, and that was one of his criticisms of the majority opinion, wasn't it?

Jaime A. Santos: It was.

It was that the -- the majority opinion was categorical when it could have been narrow.

Sonia Sotomayor: And I think Justice Thomas pointed out what Justice Jackson noted, that there are different kinds of mixed questions of law and fact and that the majority had ruled those -- that out as a reason.

Jaime A. Santos: That's right, Your Honor. I also think even beyond -- I mean, I know that sometimes dissents are written broadly, but I do think that's an accurate categorization or -- or -- or characterization of what the majority decided.

John G. Roberts, Jr.: Justice Kagan? Justice Gorsuch?

Neil Gorsuch: Can we agree that the ultimate discretionary decision rests with the Attorney General and is unreviewable too?

Jaime A. Santos: It's unreviewable as a question of law, absolutely, because it doesn't involve the application of law to fact.

It still would be subject -- subjected to subparagraph (D), so any constitutional claims --

Neil Gorsuch: Sure.

Jaime A. Santos: -- that may exist.

Neil Gorsuch: Sure.

Thank you.

John G. Roberts, Jr.: Justice Kavanaugh?

Brett M. Kavanaugh: In response to Justice Jackson, when you said Guerrero rejected that kind of line-splitting of a mixed question from more factual mixed questions, one of the reasons we did that, I think, is because there would be, as your brief says, a morass trying to do that across the board and it would be years, if not decades, of litigation trying to resolve that question when, if you just do a deferential standard of review, you know, the Board's going to get affirmed most of the time but not always but most of the time and you don't have this collateral litigation.

Jaime A. Santos: Yes, that's right, Your Honor.

And -- and I think that pushing -- pushing this into the merits bucket doesn't mean that -- that we're just kind of repeating the same analysis. I think standard-of-review analysis is actually way simpler than the government's framework.

And, also, waiver rules would apply, and courts can always say something like, under any standard of review, I would still reverse or affirm.

So we think it will be much simpler and more streamlined. And, of course, there will be judicial review, which is really important, particularly in an immigration context, where an error can have disastrous consequences by -- by tearing apart families.

Brett M. Kavanaugh: Because I think we thought about that in Guerrero and decided it's not worth the candle, but, in any event, another question about the limits of your argument, which is -- and this follows Justice Gorsuch's question. If the IJ said or the Board said we're going to assume arguendo eligibility, but as a matter of discretion -- exercising our discretion, we would deny cancellation of removal in any event, that determination would be unreviewable, correct?

Jaime A. Santos: Correct, Your Honor. There -- there -- this Court does have a precedent on point.

It's something like Rumsmanabad, I can't recall, but, yes, there is a specific precedent on point that says exactly that.

Brett M. Kavanaugh: Thank you.

John G. Roberts, Jr.: Justice?

Amy Coney Barrett: I too just have some questions about the limits of your argument. So, in our colloquy earlier, did I understand you correctly to say that even if this is a mixed question, even if -- even if in theory Guerrero-Lasprilla applies here, permitting judicial review of the application of law to facts, that there's still a category of claims that a non-citizen might press on review that really are purely factual?

Jaime A. Santos: I -- I don't think that's what I was intending to say, Your Honor.

Amy Coney Barrett: Oh.

Jaime A. Santos: My -- my -- my argument was that if in a court of appeals a non-citizen presses purely factual, you know, challenges findings of historical fact, those will be unreviewable and a court of appeals can just say we aren't reviewing that, we at scale.

Amy Coney Barrett: Okay.

That was my question.

Jaime A. Santos: Oh, okay.

Yes.

Amy Coney Barrett: So you're -- you're saying --

Jaime A. Santos: Yes.

Amy Coney Barrett: Okay.

Jaime A. Santos: My apologies if I -- if I misunderstood.

Amy Coney Barrett: Okay.

Jaime A. Santos: Definitely unreviewable under Patel.

Amy Coney Barrett: Okay.

But you are saying -- and I think this kind of came out when you were talking to Justice Jackson -- that while that -- the hypothetical that I just posed, you know, like, does your son have a mental illness or not, that's an unreviewable fact?

Jaime A. Santos: Right.

Amy Coney Barrett: But you have said that the weighing of those facts, which one might be more important than others or, listen, I -- I accept that your son needs your emotional support, you know, but I also accept that his grandmother cares for him, say, and so I just don't weigh it that heavily, is that a factual question or is that a mixed question?

Jaime A. Santos: I -- I don't think that is a factual question.

I think it has to go into the overall analysis whether the non-citizen established exceptional and extremely unusual harm.

So I think that that -- that, you know, weighing might be viewed very deferentially because of the proximity of the IJ to the facts and experience, but it wouldn't make it unreviewable. And I think, here, for example, we might -- we would say, Your Honor, that the IJ really erroneously boiled the entire analysis down to economic detriment, which is not the way that you're supposed to apply the statutory provision. But -- but those -- any type of weighing would certainly be viewed deferentially.

I just don't think they'd be unreviewable because, if so --

Amy Coney Barrett: Well, I guess I don't understand that.

I mean, I agree with you if -- if say the IJ said, listen, all that matters is economics, and we'd say, well, that was a miss -- a misunderstanding of what the hardship standard requires.

I mean, I can see why that's a question of law. But, when you're talking about the weighing, I mean, let's say, yeah, I credit your testimony that you have a strong emotional bond with your son and vice versa.

I also have testimony here that I also credit that the grandmother cares for him -- I'm just making this up, I know it's not your case -- but that the -- the grandmother cares for him and there's a strong emotional support there, and so I just think given those two, you know, I -- I just don't think that the emotional support is enough of -- that the father provides is enough of a reason to say hardship. But you're saying that's a legal question, that kind of weighing?

Jaime A. Santos: I'm saying that that constitutes a question of law --

Amy Coney Barrett: A mixed question.

Jaime A. Santos: -- as interpreted by the INA or --

Amy Coney Barrett: Oh, okay.

Jaime A. Santos: -- as -- as the INA uses that term and that it would -- all of that would cash out under the standard-of-review analysis.

Amy Coney Barrett: Okay.

And then last question.

You have said in response to Justice Kavanaugh's questions that the standard of review would be deferential, and you initially said abuse of discretion. And so I just want to clarify, is that what your position would be?

Jaime A. Santos: So there are various kind of articulations of deferential review.

We haven't briefed that.

And so I -- I suspect it would be abuse of discretion, but yes.

Amy Coney Barrett: Okay.

But you're not -- you're not making a commitment, you're saying you suspect, but maybe it's clear error?

Jaime A. Santos: It -- it -- it might be. I mean, Your Honor, I -- I would just say that -- that that would I'm sure be briefed and has been briefed in other cases and we just haven't here, but I -- I do believe that it would be a deferential standard of review. It's -- you know, when you kind of layer the standard of review on to the administrative law context, there's lots of ways you could articulate what that standard is, but due diligence has been reviewed for abuse of discretion since Guerrero-Lasprilla.

Amy Coney Barrett: Thank you.

John G. Roberts, Jr.: Justice Jackson?

Ketanji Brown Jackson: So can I just go back to Justice Barrett's last hypothetical where we have a situation in which the IJ has looked at the factors and has said, I don't -- you know, I understand and accept your credibility about the strength of your emotional bond, but I also have testimony about the grandmother caring for your son, and at the end of the day, my conclusion, based on weighing all of these different factors and considering the evidence, is not met, this particular element. You, I think, say that's reviewable. I'd like to know what is the legal standard that I use as the court to review that determination and say yes, you're right, or no, you're wrong.

Am I looking at what?

Jaime A. Santos: Well, assuming that some type -- like abuse of discretion-type review would apply --

Ketanji Brown Jackson: Mm-hmm.

Jaime A. Santos: -- you -- one might reverse if, for example, an IJ ignored particularly salient factors that the law deems relevant to the analysis.

Ketanji Brown Jackson: What law? This is not in the statute.

Jaime A. Santos: The legal standard. Sorry, the -- the legal standard in the statute, exceptional and extremely unusual hardship, that term has been interpreted by the --

Ketanji Brown Jackson: By the?

Jaime A. Santos: -- Board, by the Board --

Ketanji Brown Jackson: Okay.

Jaime A. Santos: -- in the precedential decision, Monreal-Aguinaga, and so courts may look to that precedential decision for --

Ketanji Brown Jackson: Does it matter -- does it matter that this case has come to me through the Board, which presumably knows its own standard and has looked at this situation and said we have a precedent, the one you described.

We don't think that it precludes the IJ's determination, so we're affirming what the IJ has said about applying our own precedent to this circumstance?

Jaime A. Santos: Well, Your Honor, I don't think that the fact that the Board affirmed makes it kind of extra special.

I think especially here --

Ketanji Brown Jackson: No, no, no, I'm just asking what the Court --

Jaime A. Santos: Right.

Ketanji Brown Jackson: -- is supposed to do because we don't have a body of law that is existing outside, I think, of what the BIA has interpreted this to mean.

And so the Court --

Jaime A. Santos: Right.

Ketanji Brown Jackson: -- would have to say, I guess, BIA, you're wrong about your own view of whether your standard applies in this situation?

Jaime A. Santos: Well, so the -- the Court would be first starting with a standard that Congress set, right, and then it could decide whether it agrees with how the Board has interpreted it.

Ketanji Brown Jackson: But that's not the challenge.

Jaime A. Santos: Right.

That's not the challenge.

Ketanji Brown Jackson: I agree with you that if that was the challenge, then I'm in --

Jaime A. Santos: Yes.

Ketanji Brown Jackson: -- a question-of-law world.

We agree that the Board has interpreted correctly.

Jaime A. Santos: Yes.

Ketanji Brown Jackson: The question is, when the Board says our standard equals no extreme hardship in this particular case, what is the courts' basis for saying you're wrong?

Jaime A. Santos: Well, under -- under, for example, abuse-of-discretion review, a court could reverse if it had the definite and firm conviction that an error had been made, if it thought that -- that -- that the IJ and the Board had just really, really missed the mark in evaluating the facts under the -- under the appropriate legal standard. I mean, I think that abuse of discretion -- even deferential review of mixed questions exists to make sure that the agency is staying within the bounds of what Congress said. That's what this Court said in cases like Taylor versus United States, a Sentencing Act case.

Ketanji Brown Jackson: Okay.

Let me ask you one more question.

In terms of the -- Congress's intent -- and it's possible that you -- that -- that this had been handled in Guerrero, I wasn't on the Court at that time, so I just want to be clear.

Jaime A. Santos: Okay.

Ketanji Brown Jackson: I'm interested in the sort of idea that what is left here is precluding questions of fact and habeas review, and it just strikes me as a really convoluted way for Congress in writing this statute to achieve that result. They say several times no court shall have jurisdiction to review judgments in this area.

And if really Congress just wanted to say, you can't review factual determinations of the agency, it seems to me there was a lot simpler way to go about that. So can you just help me with my --

Jaime A. Santos: Sure.

Ketanji Brown Jackson: -- nagging concern that maybe this is not what Congress was intending?

Jaime A. Santos: Happy to do so, Your Honor, and this was specifically addressed both in Guerrero-Lasprilla and Patel.

And I think what the Court said is a couple things.

Number one, that this provision, the limited review provision, applies to a whole bunch of provisions throughout the INA.

So it applies to forms of relief under subsection (B).

It applies to criminal alien final orders of removal under (C).

It says it also applies to the entire rest of the INA. So I think what the Court said is, you know, Congress was trying to loop in a whole bunch of different things and it -- and it -- and it did it this way because it would apply to numerous different statutory provisions.

And, yes, perhaps, it might make more sense in some situations to say we just forbid findings of fact, but then it may have to kind of go provision by provision and explain when that was the case.

Ketanji Brown Jackson: Thank you.

John G. Roberts, Jr.: Thank you, counsel. Ms. Sinzdak?

Colleen E. Roh Sinzdak: Mr. Chief Justice, and may it please the Court: The plain text of Section 1252(a)(2)(B) and (D) requires courts to distinguish between reviewable constitutional claims and questions of law, which includes mixed questions, and any other judgment regarding the denial of non- -- of discretionary relief.

And in Patel, this Court was very clear that "any" meant "any." That included subjective and objective determinations.

That included the quintessentially discretionary determination of -- at the second step as to whether an eligible non-citizen is -- should receive cancellation of removal.

But it also included credibility determinations, which the Court recognized required some objective fact-finding but also some exercise of discretion.

And it included simply finding historical facts.

This non-citizen has been in the country for 11 years and meets the continuous presence requirement. Now, in order to figure out whether any of those statutory determinations -- and all of the examples I just gave you are statutory determinations, they're made pursuant to a statute.

In order to figure out whether those statutory determinations fall within the exception that permits judicial review of questions of law and constitutional claims, the Court has to look at the statute and say: Okay, is this a statute that's asking for a legal conclusion, like fair use, or is this a statute that's saying find a fact like in Pullman-Standard where we had intention to discriminate, pure question of fact, or is it a statute where the terminology is saying make a discretionary decision like in Williamsport Wire Rope, where we had the term "exceptional hardship" and the Court said that's requiring a discretionary decision. And the Court has to figure that out in order to honor the plain text of Section 1252(a)(2)(B).

It can't decide that it would be easier just to say all statutory determinations are reviewable because that's not what the statutory text says. And we think that if you apply the standard tools of statutory interpretation -- that's text, history, and precedent, that's the complicated framework that I think my friend is referring to -- if you apply those tools, you'll figure out that exceptional and extremely unusual hardship, that is a factual determination and that's an exercise of agency discretion.

That is not a legal conclusion. I welcome the Court's questions.

Sonia Sotomayor: So why does -- oh, I'm sorry.

Go ahead.

John G. Roberts, Jr.: No, go ahead.

Sonia Sotomayor: So why does the BIA review it de novo?

Colleen E. Roh Sinzdak: Because the BIA reviews discretionary decisions de novo, so the de novo standard applies to discretionary factual findings.

Sonia Sotomayor: And why do they set a standard at all?

Colleen E. Roh Sinzdak: Pardon?

Sonia Sotomayor: Why don't they just make it discretionary? They set a standard.

They say to the IJs use this standard --

Colleen E. Roh Sinzdak: They did --

Sonia Sotomayor: -- to measure the decision by.

So it is not saying it's purely discretionary.

It's saying we're setting a legal standard.

Colleen E. Roh Sinzdak: No, it's not purely discretionary in that the IJ could just decide based on anything that it wants.

And in part --

Sonia Sotomayor: Like the Attorney General can?

Colleen E. Roh Sinzdak: Pardon?

Sonia Sotomayor: The Attorney General can.

Colleen E. Roh Sinzdak: Well, there's a statutory text and we freely admit that the interpretation of the statutory text is a question of law and that you can challenge that statutory text and say the Board has misunderstood the meaning of these statutory terms.

But, of course, that's not the challenge that we have here. Now that is what the Board has done. It has said this is what we think the statutory text means.

It means make a decision about whether you think this non-citizen's facts are substantially beyond what you would get in an ordinary case.

So the BIA has said make that discretionary judgment, make that predictive and comparative judgment, and -- and that's it. That's -- there's no legal element to that conclusion. So it's just a weighing of evidence. It's sort of -- it really reminds me of the credibility determination and the way that the Court talked about it in -- in Patel recently.

Elena Kagan: Well, Ms. -- Ms. -- Ms. Sinzdak, it strikes me that everything that you just said is -- is pretty much a relitigation of the issue that was raised in Guerrero, that the government came in, basically made the same argument.

The government said, you know, there are mixed questions and then there are mixed questions.

There are mixed questions that are really super factual. And we accepted that distinction when it came to standards of review in Lakeridge, but we specifically did not accept it when it came to this question.

We said, you know what, we don't really care if it's primarily factual.

We don't really care if it involves a lot of judgment calls.

We don't really care if you have to really kind of search for the legal standard in the inquiry.

As long as there is that legal standard and as long as all the fact-finding that you do and all the fact-weighing that you do eventually has to satisfy that legal standard, and the question is whether it does, it's a mixed question and it's reviewable.

That's how I read that decision. You're just, you know, basically saying you don't like it.

Colleen E. Roh Sinzdak: No.

To be clear, we accept the holding of Guerrero-Lasprilla, and we are not up here saying that mixed questions are unreviewable.

So, if -- if we thought that the exceptional and extremely unusual hardship had a legal component, even if it was mixed in with the facts, then it would not be reviewable. But what we are here saying is just because a statute is -- a term is in a statute, that doesn't mean that it -- it establishes a legal standard in the sense that Guerrero-Lasprilla was --

Elena Kagan: Well, here's the -- here was the -- I mean, the question in Guerrero was this equitable tolling question, which is primarily a question of whether extraordinary circumstances prevent a litigant from doing what she should have done. I mean, it's the exact same thing. Are there extraordinary circumstances here? Well, we're going to, you know, think about facts a real lot.

You know, what were those circumstances? And how extraordinary were they when they're compared to other circumstances that make it difficult to -- to do what the legal rules tell you you have to do? I mean, I don't really see any distinction in the nature of the inquiry here.

Colleen E. Roh Sinzdak: I -- I -- I disagree.

I first just want to point out that there was no debate in Guerrero-Lasprilla that the Court was dealing with a mixed question.

So what -- what concerns -- what constituted a mixed question wasn't before the Court. But I'm not here disputing that due diligence is a mixed question, and the reason for that is I think exactly what Justice Alito was speaking about earlier, which is that due diligence is a legal concept.

It's a -- it's a creature of the law.

It's a --

Elena Kagan: I mean, you can say that, but what it asks a -- a -- a fact -- what it asks a decision-maker to do is say how extraordinary were the circumstances that prevented you from following the rules. And that's exactly the nature of the question here.

How extraordinary are the circumstances that -- that -- that -- that -- that -- that were involved in a particular case?

Colleen E. Roh Sinzdak: Now you are correct that there is some overlap and there are some similar things that adjudicators are being asked to do. I have to say what I find a little bit unsatisfying but it's just the facts here is that distinguishing questions of law from questions of fact and discretion is often a matter of history.

So one of the things that the Court repeatedly has done is just said, is this the type of analysis that the courts have done? It is a question of law.

And we see that in Teva.

We see that in Oracle. Is this the sort of thing, question that has been decided by juries or by fact finders? Then it's not going to be considered a question of law. And I really do think that the common law history of the due diligence inquiry that this is something that had -- was a judge-made inquiry that was always decided by judges, elaborated by judges --

Elena Kagan: That sounds very complicated.

I mean, Ms. Santos says there are 75 of these, and we're going to do that analysis as to whether each of them is reviewable or not reviewable? We're going to look into the history, we're going to look into the source of law, we're going to look into, you know, who primarily has prerogative over this issue.

It seems like Guerrero, when it came down to it, this is what Justice Kavanaugh said, is that is not worth the candle. You know, of course, these are going to be reviewed extremely deferentially, but if there's a legal standard at issue, if the conclusion that the Court comes to is in the end do these set of facts as found, as weighed, satisfy this legal standard, then the better course is just to call it a day and say it's reviewable and not have to go any further.

Colleen E. Roh Sinzdak: So I want to make a couple points here.

The first is that you're going to have to perform what you're referring to as a complicated analysis, which I would refer to as simply statutory interpretation and what the Court does every time it decides a standard of review and -- and here's the -- where I'm getting to -- you're going to have to perform this analysis under Petitioner's framework because Petitioner is saying the standard of review is going to turn on whether this is an exercise of discretion.

I think she's saying abuse-of-discretion review.

So it's going to -- to -- to turn on whether it's an exercise of discretion or it's a factual finding or it's a question of law. And what we're saying is, look, that's not the right analysis because the -- the statute says, no, it has to be a question of law for it to be reviewable at all.

Brett M. Kavanaugh: Well --

Colleen E. Roh Sinzdak: But, if you think that, oh, the government's framework is too complicated, I just -- I don't think you're going to avoid it.

You're just going to get these questions --

Brett M. Kavanaugh: Well, but --

Colleen E. Roh Sinzdak: -- in the standard-of-review framework.

Brett M. Kavanaugh: -- on the -- on the standard of review, there are lots of different framings you can put on it.

It's -- there are two main buckets, though, deferential or de novo, and I think what she was saying is it's going to be deferential.

Colleen E. Roh Sinzdak: I -- I'm not sure --

Brett M. Kavanaugh: And so I don't know that, you know, you can frame it a lot of different ways, but, basically, as -- as counsel said, I think correctly, the usual analysis when you're doing these, and we've done a lot of these, is has the agency jumped the rails of reasonableness in how it determined whether a given set of facts constituted something extremely unusual.

Colleen E. Roh Sinzdak: I -- I think the -- the problem here is that questions of law are reviewed de novo.

That's sort of blackletter law.

And, in fact, the Fourth Circuit has reviewed a number of these exceptional and extremely unusual circumstances findings de novo because they've said, well, we know the only --

Brett M. Kavanaugh: Well, that's not -- I mean, that's probably not correct to do it de novo in those circumstances, is what counsel acknowledged and I think correctly, like Judge Murphy said in the Sixth Circuit opinion, I think was, okay, it's reviewable, what changes, perhaps not much in terms of bottom line because it's going to be deferential review, right?

Colleen E. Roh Sinzdak: We -- we think the problem again is that the only thing that Congress made reviewable is a question of law. So, as long as you're talking about --

Brett M. Kavanaugh: Well, can I stop --

Colleen E. Roh Sinzdak: Yeah.

Brett M. Kavanaugh: No, keep going actually. (Laughter.)

Colleen E. Roh Sinzdak: No, and -- but -- so my point is that as soon as you're saying no, we're reviewing something that's not a question of law, so de novo review is obviously not appropriate, I think you're in a little bit of trouble because it seems like actually now we're talking about discretion, we're talking about fact-finding.

Brett M. Kavanaugh: Well, this is now Groundhog Day from Guerrero because we talked about the history of St. Cyr and how the decision there recognized and the subsequent congressional history recognized that applications of law to fact would be considered questions of law even though I'm with you as a first principle, I might not have gone down that road that Congress did, but that was, I think, the clear understanding of what questions of law covered, and we said as much in Guerrero, so that kind of ended that discussion at least as I thought about it.

Colleen E. Roh Sinzdak: No, again, what Guerrero said is that when you have a mixed question, so that assumes that there is a legal component, but what you have to be pointing to is what is the legal question, and there isn't a legal question there.

Brett M. Kavanaugh: So --

Colleen E. Roh Sinzdak: And if I could just --

Brett M. Kavanaugh: So, if you -- if it says the brief's due in 45 days except in unusual circumstances, is the "except in unusual circumstances" a -- does that not have a legal component?

Colleen E. Roh Sinzdak: That's a discretionary determination.

I think that that is something where -- I mean, there's an inter- -- you have to interpret the terms that you would --

Neil Gorsuch: But don't we hold -- don't we hold all the time, courts of appeals, the lower court abused its discretion as a matter of law when it denied -- when it -- when it reaches a wrong judgment? Isn't that exactly what we say?

Colleen E. Roh Sinzdak: I -- I think that sometimes that is colloquially what the -- or -- or less colloquially --

Neil Gorsuch: Colloquially? I mean --

Colleen E. Roh Sinzdak: Yes.

I think what that says is that is an --

Neil Gorsuch: -- I mean, isn't that exactly --

Colleen E. Roh Sinzdak: Pardon me.

No.

I should not have said colloquially.

Neil Gorsuch: If I might just --

Colleen E. Roh Sinzdak: I agree.

Neil Gorsuch: -- if I might just -- if I might just finish.

Yeah.

Okay, you agree.

Colleen E. Roh Sinzdak: No, I shouldn't have said colloquially.

But I will say that what I should have said, which is correct, is that I think that they use that in order to say -- to say this is just a really unreasonable --

Neil Gorsuch: Exact --

Colleen E. Roh Sinzdak: -- exercise of discretion.

Neil Gorsuch: Exactly.

We say as judges all the time that, yes, the district court has ample room of discretion and discovery in undue hardship, in due diligence, in lots of things, but there are boundaries set by law that they cannot exceed.

The guardrails are wide, but they're there. We don't say we disagree with this discretionary decision and we would have done it differently.

We say, when they reached those boundaries, they erred as a matter of law, right?

Colleen E. Roh Sinzdak: I -- yes, but I want to say you have to articulate what that boundary is.

So, if Petitioner was to --

Neil Gorsuch: Well, I just want to make sure I -- I heard the first part of the answer was yes? (Laughter.)

Colleen E. Roh Sinzdak: The first part of the answer is if -- yes, because we have conceded if Petitioner says, as the -- the law says exceptional and unusual circumstances, and exceptional does not mean, for example, unique and, here, the agency has said it means unique. That's an error of law.

That's a misinterpretation of the statute.

And that's a guardrail, you're right, that's a boundary.

An agency cannot do something that the statute doesn't permit it to do.

And if the statute -- if -- if -- if they do and if a non-citizen says you have transgressed the boundaries that the statute sets, then that's a question of law.

Amy Coney Barrett: Well --

Colleen E. Roh Sinzdak: It has to be colorable, of course.

Amy Coney Barrett: But wait, wait, wait, like --

Neil Gorsuch: It seems like they have to get --

Amy Coney Barrett: -- transgress the -- I'm sorry.

Neil Gorsuch: Sorry, no, please.

Amy Coney Barrett: If transgress the boundary -- I mean, you're saying you put the boundary in the wrong place by saying unique. But transgress the boundaries is I think what Justice Gorsuch is getting at, imagine the worst case possible.

Let's say the non-citizen has one child who has cancer, there's no other relative in the country, they have no support network, he's the sole breadwinner.

So let's just posit that that's -- that's a heartland case for hardship under the statute. Couldn't it abuse -- couldn't the BIA or the IJ abuse its discretion in a way that transgresses the guardrails by saying no, that's not an exceptional and unusual circumstance?

Colleen E. Roh Sinzdak: No in the sense that we think that when you're asking to reweigh or to redo the discretionary analysis --

Amy Coney Barrett: It's not reweigh. It's not reweigh.

Colleen E. Roh Sinzdak: Well, so I -- I'm not sure that what you're positing is any different than in Patel, where the non-citizen was saying, look, this is an unreasonable determination of the facts.

No reasonable adjudicator could have found that I wasn't credible.

Amy Coney Barrett: No, in Patel, he's saying -- no, no, no, no.

In Patel, he's saying you're wrong, you know, I was credible.

That's different.

That was one fact.

This is saying here are guardrails, I'm entitled for my eligibility determination to say that I'm eligible if I can show hardship required by the statute, and I have shown something that by any measure would be extreme and unusual, and you have said applying that statutory standard to my circumstances, that it's not.

Colleen E. Roh Sinzdak: So I think there, if you're making it a legal question, if you're saying the term "exceptional and extremely unusual circumstances" --

Amy Coney Barrett: No, no, no, no. They correctly did misstate the legal standard. Let's say, you know, states the standard correctly but just says this doesn't count.

Colleen E. Roh Sinzdak: Again, I think then you are talking about something like the Patel situation where you're saying no reasonable -- no reasonable adjudicator who understood the law or who understood that -- that -- what credibility meant could have reached this conclusion. And that is exactly what the petitioner in Patel was saying, and the Court still said no, it's a question of fact and so it's not reviewable. And what we're saying is it's the same for questions of discretion.

When the agency is being asked to make a comparative or a predictive judgment, that is something that was put off limits by --

Neil Gorsuch: Counsel, if I -- if I might interject here, in -- in Patel, it was -- Mr. Patel sought to challenge the BIA's determination that he didn't intentionally deceive state officials, and -- and the IJ found that he had, despite a lot of evidence that he hadn't, okay?

Amy Coney Barrett: Hey now.

Neil Gorsuch: Hey now.

No, but that was --

Amy Coney Barrett: Yes, you're right.

Neil Gorsuch: -- you won.

And -- (Laughter.)

Neil Gorsuch: -- I'm working with it.

I'm working with it, right? And -- and, there, the Court said per my friend next door that -- that that challenge, though -- though Mr. Patel had lots of good facts suggesting he hadn't intentionally deceived state officials, couldn't be heard.

Okay? Here, in the example Justice Barrett just posited, there's no dispute about the facts.

Okay? We have the -- the -- the child who has one potential caregiver in the world, okay, no one's arguing those aren't the facts. We're just arguing about the application of the law to those facts. I think -- tell me where I'm wrong -- where the BIA says, hmm, that's not extraordinary, can't -- can a judge say, as one would with due diligence or undue hardship or many other standards that we use that are equally amorphous, say, yeah, there's large room there, but there are guardrails and that this does or does not exceed those guardrails?

Colleen E. Roh Sinzdak: No.

Neil Gorsuch: Not challenging facts, it's not Patel, it's -- it's this circumstance.

Colleen E. Roh Sinzdak: It's a discretionary determination.

And we think that discretionary determinations are equally unreviewable, and we think that Petitioner concedes as much.

Neil Gorsuch: Well, I thought we just said earlier that they are -- there are guardrails even for discretionary decisions under the law.

Colleen E. Roh Sinzdak: I -- I will never deny that there is -- if it's a question of law, if you're saying you misinterpreted the law, that is reviewable.

But, if it is a question of discretion, you think that the agency didn't exercise its discretion in the way you think was appropriate --

Elena Kagan: Well, let me try it this way.

Suppose that the -- the judge says -- recites the legal standard and then has another sentence and said this means it has to be a one-in-a-billion case. Now you would say that that's reviewable, and we could say no, the judge got it wrong, correct?

Colleen E. Roh Sinzdak: Because that's the wrong -- a misinterpretation of the statutory text, that's correct.

Elena Kagan: Yeah.

So I think what Justice Barrett is suggesting is that the judge is doing the exact same thing.

The judge doesn't say this -- it has to be a one-in-a- billion case, but the judge is acting as though it has to be a one-in-a-billion case. And what Justice Barrett is suggesting is, well, in that case, again, there's been a legal error.

The Court has looked at some set of facts and reached a conclusion that is utterly inconsistent with the legal standard that is supposed to be applied.

Colleen E. Roh Sinzdak: So it's not a legal standard.

It's a --

Elena Kagan: The legal standard --

Colleen E. Roh Sinzdak: -- statutory determination that the --

Elena Kagan: -- the legal standard is unusual and exceptional hardship.

Colleen E. Roh Sinzdak: That is the statutory terminology.

Elena Kagan: That's the legal standard. (Laughter.)

Colleen E. Roh Sinzdak: That's right.

That's the statutory requirement.

Brett M. Kavanaugh: She wants --

Colleen E. Roh Sinzdak: Let me not fight this.

Brett M. Kavanaugh: -- she -- she's not going to say.

Colleen E. Roh Sinzdak: Let me not fight you on this because I actually think --

Amy Coney Barrett: Counsel, can --

Colleen E. Roh Sinzdak: -- I agree with you, and I do think the courts -- the courts who have appropriately recognized that this is a discretionary and factual determination, they say this is about substance; it's not about framing.

So, if there is actually a good argument that there is a legal error, however the Petitioner is -- is writing about it, then, yes, that legal error is reviewable. What is not reviewable is the sort of claim that we have in this case, where the -- the agency articulates the correct interpretation of the statute that the Board has already given it and then it explains all of the evidence, it explains the factual conclusions it's made, it explains its discretionary judgment, so it explains the predictive and comparative analysis --

Elena Kagan: I -- I think what you're -- what you're doing, Ms. Sinzdak, is just basically, you know, trying to get away from the question, because, of course, there are all kinds of reasonable things that immigration judges do every day, and they mostly do them -- you know, it's like, you know, lots of facts and it's a hard question and it's a lot of judgment, and then, when we decide something, then, of course, a judge is going to leave it alone because it seems pretty reasonable. But Justice Barrett was suggesting that there are cases where, when the court looks at a set of facts and says that it does not satisfy what I'm going to insist upon calling the legal standard --

Colleen E. Roh Sinzdak: That's fine.

Elena Kagan: -- which is -- (Laughter.)

Colleen E. Roh Sinzdak: That's fine.

Elena Kagan: -- which is extremely unusual hardship, that that counts as a legal error because it says if the court just gets the standard wrong.

Colleen E. Roh Sinzdak: And I don't want to fight you on that.

You're right, if it's a legal error, then it is reviewable.

Brett M. Kavanaugh: Well, you're not -- you are fighting it.

Colleen E. Roh Sinzdak: It has to be a legal error.

Ketanji Brown Jackson: Counsel, can I just -- can -- can I just -- I think, for me at least, the labels are getting confusing because I kind of don't know what you mean when you say discretion or legal error.

So can I just focus in on Justice Kagan's example to explain what I see as the distinction? And you can tell me if I'm wrong. So, when the court -- the IJ says, I look at this statute, extreme and unusual, and I think that means that this has to be a one-in-a-billion case, the IG has stated a rule of interpretation, it's interpreting that language and it's now applying this rule, I'm looking for a one-in-a-billion case. All right.

You would agree that that's a legal question.

If someone is claiming that that's the wrong rule, that it doesn't have to be a one-in-a-billion case, that we've got a legal dispute, correct?

Colleen E. Roh Sinzdak: Exactly.

Ketanji Brown Jackson: All right.

Is there a difference between that and a situation in which we accept that the IG is correct in his rule.

It has to be a one-in-a-billion case. But the IG in applying that rule looks at this constellation of facts that has been presented, finds the facts, and we all agree on the facts, but the IG says, when I look at these 10 different factors and things, I think this is not a one-in-a-billion case, all right? And then the Petitioner says: I agree with his legal rule, I agree with all the 10 facts that he's found, but I think, Court, this is a one-in-a-billion case.

Decide. Is that second thing the same kind of legal issue, is it presenting a legal issue? I hear you saying it's not.

And so can you explain why not?

Colleen E. Roh Sinzdak: Right.

That's an exercise of discretion.

That's exactly our point.

That is an exercise of discretion.

Like when the -- the IJ says, you know, this non-citizen has satisfied the eligibility factors.

Now I need to look at all of these facts and exercise my discretion to decide whether this is an appropriate case for cancellation of removal. So it's the same thing.

Sonia Sotomayor: So --

Colleen E. Roh Sinzdak: They're looking at --

Sonia Sotomayor: -- counsel, why isn't it an -- a abuse of discretion in concluding that this set of facts doesn't meet the legal standard? I mean, we have three critical facts: child dying of cancer, sole support for, no other family. Are you willing to tell me on that record that that's not a one-in-a-million case? Isn't that an error of applying facts to -- to a legal standard? There's no discretion in that.

Colleen E. Roh Sinzdak: So --

Sonia Sotomayor: Well, it's an abuse.

Colleen E. Roh Sinzdak: -- I agree that if what the Court says is the Board obviously interpreted the statute to require a one-in-a-million case and that is a legal error, that's -- that's reviewable.

What is not reviewable is the Board's application of discretion.

So, when you talk about abuse of discretion, that --

Sonia Sotomayor: But it's still an --

Colleen E. Roh Sinzdak: -- makes me nervous because that's taken off -- off limits.

Ketanji Brown Jackson: Isn't -- isn't the answer to Justice Sotomayor because we don't have a basis in the law to make that determination? So I see, fine, one could say it's an abuse of discretion, but on what basis is the Court able to make that determination? What I think as Justice Jackson looks abusive? What am I pointing to to make that decision?

Colleen E. Roh Sinzdak: Yes.

That's exactly right.

So the statute entrusts that discretionary determination, that judgment call, that prediction about how much hardship will this particular non-citizen's relative likely face, how does that compare? Those are judgment calls.

Those aren't -- those --

Elena Kagan: See, I just have more --

Colleen E. Roh Sinzdak: -- those questions aren't answered by legal principles.

Elena Kagan: -- confidence in Justice Jackson than maybe Justice Jackson has. (Laughter.)

Elena Kagan: I mean, just think about those facts that Justice Barrett just gave you, and we don't have the capacity as judges to say, you know, that counts as an exception on extremely unusual hardship? Of course, we're not going to do it very much, but on those facts, that a judge doesn't have the ability to say, you know, that immigration judge, we know that they're overworked, we know that they do a great job on 99 percent of the cases, but that judge just got it wrong.

Colleen E. Roh Sinzdak: That's the determination that Congress made in 1996 when it barred review of any decision --

Elena Kagan: The determination that Congress made --

Colleen E. Roh Sinzdak: -- regardless of a denial of discretionary relief.

Elena Kagan: -- was to give legal questions to judges.

And -- and this is a question where -- where the -- the -- the fundamental inquiry is do those facts, as found, as weighed, meet the legal standard? And this judge got it wrong, this judge being in not this case but in Justice Barrett's hypothetical.

Colleen E. Roh Sinzdak: Again, if you can point to a legal error, so if you can say looking at these facts the judge must have misinterpreted the statute, must have said this is a one-in-a-million case, that's a legal error. That's reviewable.

Neil Gorsuch: Okay.

Colleen E. Roh Sinzdak: But when Congress --

Brett M. Kavanaugh: Do you agree --

Neil Gorsuch: Why -- why isn't that exactly Justice Barrett's case? Because the BIA, for example, has said that the standard, high as it is, doesn't require it to be unconscionable.

That's -- that's the BIA's own standard.

It doesn't have to be the one-in-a-billion case.

It's something less than that.

And, here, we have in Justice Barrett's hypothetical basically the one-in-a-billion case, right? Let's assume that, okay? And why couldn't, again, a court say, as Justice Kagan keeps trying to ask, in those circumstances, you have effectively misread the legal standard?

Colleen E. Roh Sinzdak: I think I keep trying to tell Justice Kagan that it -- that that is a legal error that is reviewable.

So I'm not trying to fight you on this.

I think our -- our brief is very clear --

Neil Gorsuch: So --

Colleen E. Roh Sinzdak: -- this is Section (D) -- where we say, if you can point to a legal error which raises a question of law, then review is permissible.

Brett M. Kavanaugh: But --

Neil Gorsuch: So we all agree that a court can say it doesn't have to be a one in a billion, that this is -- this is on the nature of one in a billion, and -- and when the BIA denies relief, it erred.

Colleen E. Roh Sinzdak: I -- I'm a little bit confused.

I'm going to keep saying, if you can look at the decision --

Neil Gorsuch: Well, I don't -- I don't want to be confused, so let me -- let me -- let me try it again. So we have Justice Barrett's case, the -- the very, very unusual case, and the BIA says we think it should be more, more demanding than that.

A court can say no.

The exceptional hardship standard isn't -- isn't anything, one in a billion, this counts.

Colleen E. Roh Sinzdak: Oh, the -- the court can interpret the statutory terms "exceptional and extremely unusual hardship" --

Neil Gorsuch: Yeah.

And say --

Colleen E. Roh Sinzdak: -- and the BIA has done that and no one's questioning the -- the BIA's statutory interpretation.

But, if there was a non-citizen here saying, you know, the -- the Board has consistently said substantially beyond ordinary, but it should be a different interpretation of the statute --

Neil Gorsuch: No, no, no.

Colleen E. Roh Sinzdak: -- that's a legal question, that's reviewable.

Neil Gorsuch: No, no.

No, no.

We -- we have -- we have -- I -- I'm positing we have the precedent we have.

Whether the BIA's precedent's right is another question.

But just that we have this fact pattern, and the BIA denies review because they're busy, they have a lot of cases, and they do do great work.

No one's questioning -- or try to do great work. No one's questioning that.

But they in this particular case deny relief.

Colleen E. Roh Sinzdak: If it's a factual error, it's unreviewable.

If it's a discretionary error, it's unreviewable.

If the court can say yes --

Brett M. Kavanaugh: If it's a --

Colleen E. Roh Sinzdak: -- you're right, you've misinterpreted the statute, then it's reviewable.

Brett M. Kavanaugh: Does "questions of law" in the statute include application of law to fact?

Colleen E. Roh Sinzdak: It includes legal errors.

Brett M. Kavanaugh: Does it include application of law to fact?

Colleen E. Roh Sinzdak: Yes, and I'm explaining to you what that -- what that --

Brett M. Kavanaugh: Okay.

Colleen E. Roh Sinzdak: -- what that includes. It's a mixed question, right? So, if you look actually to where that comes from, it's coming from -- I've just forgotten the name of the case, the habeas corpus case where --

Brett M. Kavanaugh: St. Cyr, yeah.

Colleen E. Roh Sinzdak: And if you look -- in St. Cyr, if you look back at the application of law cases, what those were were exactly sort of what we've been positing here, where it was clear from the facts of the case that the -- the -- the court had misinterpreted the statute. So, in that way, in that -- in those cases, it was actually like a bankruptcy --

Brett M. Kavanaugh: No, but I think what Justice Gorsuch is getting at is -- at least in my administrative law experience, abuse of discretion is probably a distracting term. Let's call it an unreasonable application of law to fact.

That's something we did all the time. Now unreasonable application of law to fact means wide discretion, but deference is not abdication is often said.

And so there should not be abdication.

There should be deference in the review of application of law to fact.

Colleen E. Roh Sinzdak: But Congress was doing something when it said that denials of discretionary relief, judgments involving -- regarding denials of discretion are off limits. And if you're --

Brett M. Kavanaugh: Keep going.

Colleen E. Roh Sinzdak: If you're --

Brett M. Kavanaugh: No, don't keep going. (Laughter.)

Brett M. Kavanaugh: I don't want to get in trouble.

John G. Roberts, Jr.: Why don't you finish your sentence.

Colleen E. Roh Sinzdak: Okay.

What you're saying, I think, is sometimes the -- the -- the -- an agency exercises its discretion in a way that just seems totally inappropriate. But -- but, again, what -- what Congress did was take off the table the review of discretionary determinations.

It just took that wholly off limits.

John G. Roberts, Jr.: Thank you, counsel. Justice Thomas? Justice Alito?

Samuel A. Alito, Jr.: Well, I'm going to restate your argument or restate an argument that could perhaps work in your favor that is not the kind of argument that you as an advocate before the Court in the face of Guerrero-Lasprilla is probably much inclined to make, but one might say, look, all right, here's Guerrero-Lasprilla.

It involved the application of a standard that only a lawyer can understand. And it's not the kind of standard that would be, for example, submitted to a jury without elaborate instructions or perhaps would not be submitted to a jury at all.

And that's one way to read Guerrero-Lasprilla. If you read it for all it's worth, as broadly as some of the questions suggest, it has the effect of making everything reviewable.

And -- and that is a strange way to read a statute that begins by saying that judgments are not reviewable. If -- so the test would be this, and it isn't really all that complicated.

If what is involved in a particular case -- and, you know, you could say abuse of discretion and unreasonable application, but, look, anybody who's litigated cases or has seen what willful judges can do knows that if you allow that little toe in the door, an awful lot can be done with it.

That might be right or wrong.

Judges love judicial review.

Congress was less enamored of it when it enacted this statute.

It says no, no review at all, not abuse of discretion. So the test could be restated as if it is the sort of thing that would be submitted to a jury without special instructions.

Because it involves ordinary terms like "exceptional and unusual hardship," that is not something that falls within the exception.

Colleen E. Roh Sinzdak: Yes.

And I -- I think that actually dovetails very neatly with what the Court already said in Pullman-Standard, where it said, you know, intention to discriminate, right, you can -- that's a statutory requirement.

You might say there could be questions about what that means.

And the Court said it could have, Congress could have been trying to refer to some legal presumption, some legal concept of discrimination or intention to discriminate, but, instead, what it said: No, look, apply statutory construction.

What actually Congress was telling us to do here was just to find out actual motive. And, here, it's the same thing. Congress wasn't making this new legal concept, exceptional and extremely unusual hardship. Congress was saying: Agency, make a judgment call.

Make a predictive and comparative judgment call about how the circumstances of this non-citizen's case compare to those of other non-citizens.

Samuel A. Alito, Jr.: All right.

Thank you.

John G. Roberts, Jr.: Justice Sotomayor?

Sonia Sotomayor: Something new, you're distinguishing Guerrero.

That's what Justice Alito is saying, because that's not what Guerrero said.

Guerrero said every mixed question of law and fact.

And you're saying: No, it's not mixed at all because --

Colleen E. Roh Sinzdak: That's --

Sonia Sotomayor: -- the standard is lawless.

Basically, that's what you're saying, because you can't call a standard a standard, exceptional, due diligence, undue hardship, you can't put words on a piece of paper and call the words meaningless.

They have to set a standard. And once you set a standard, you're going to have to judge whether the facts fit that standard.

Once you do that, Guerrero-Lasprilla said that's a mixed question of law that's reviewable by the Court.

We may not like the number of cases that come up, but I think your other side is right that most of them fail under the abuse of discretion or clear error standard. Justice Barrett points out that the cases are rare, but they still exist, meaning that's why we have judicial review.

It's rare that federal convictions are overturned.

I think it's probably 5 percent or it was a very low number of federal convictions were ever overturned, yet we still permit review of them. We permit review not for the majority of cases.

We permit review for the exceptions. And so I don't know how we get to where you want us to go unless we reject our precedent --

Colleen E. Roh Sinzdak: So I think --

Sonia Sotomayor: -- and we invite all of the complications that that precedent was trying to avoid.

Colleen E. Roh Sinzdak: So I think that Pullman Standard, Williamsport Wire Rope, and Duberstein are all good examples of cases where you had a statute and it required some subsidiary fact-finding and then the adjudicator had to put those subsidiary facts together to make an ultimate determination that was -- that was exactly the statutory text.

And in each of those, it was not deemed a mixed question. So, in each of those, it was deemed discretionary or factual.

So I'm not asking the Court to make new law.

Sonia Sotomayor: But it was still reviewable.

Colleen E. Roh Sinzdak: Pardon?

Sonia Sotomayor: It was still reviewable.

Colleen E. Roh Sinzdak: Well --

Sonia Sotomayor: It was still reviewable for whether it was unreasonable.

Colleen E. Roh Sinzdak: So, to be clear, in Williamsport Wire Rope, it was not reviewable. And, there, it just depends on --

Sonia Sotomayor: Well --

Colleen E. Roh Sinzdak: -- whether there is a statutory review bar.

And let me just address this.

I agree that normally discretionary determinations are reviewed for abuse of discretion. What I'm saying is that Section 1252(a)(2)(B) took that off the table because it said discretionary determinations, they are unreviewable.

Any judgment regarding the denial of discretionary relief is unreviewable unless it involves a legal question. But, when it doesn't, when it's an exercise of discretion, as the Court said in Williamsport Wire Rope, which is also this Court's precedent, that exceptional hardship, that was a discretionary question, and discretionary questions we know under Patel, we know under the plain text are unreviewable.

John G. Roberts, Jr.: Justice Kagan? Justice Gorsuch? Justice Kavanaugh?

Brett M. Kavanaugh: I do have a few questions.

If the Court concludes that the BIA or the IJ misapplied Board precedent that existed, what's -- is that reviewable or not?

Colleen E. Roh Sinzdak: So the IJ is bound to follow Board precedent, so if the IJ has discarded Board precedent, that's a legal error.

Brett M. Kavanaugh: Okay.

And then I agree with a lot of what Justice Alito said about going back to the beginning, but I think St. Cyr talked about what was available in habeas and said specifically that it's not only legal questions but the erroneous application of statutes or interpretation.

It distinguished those two things. Then Guerrero picks up on that and says English cases consistently demonstrate, consistent with St. Cyr, that the erroneous application of statutes includes the misapplication of a legal standard to the facts of a particular case and then says that Congress took up that suggestion and then, when it put questions of law in, included erroneous application of law to the facts of a particular case. Do you disagree with any of that?

Colleen E. Roh Sinzdak: No.

Again, when there's been a legal error and that all of the cases we are talking about involve legal errors, then, yes, it's reviewable. But, unless you're saying that the argument that someone was a -- the -- about whether someone was continuously present for 10 years, that the determination that he was in the country for nine years rather than 10 --

Brett M. Kavanaugh: Right.

Colleen E. Roh Sinzdak: -- is -- well, that's an application of law to fact.

Brett M. Kavanaugh: No, I agree with you on that.

Colleen E. Roh Sinzdak: So then we know -- then --

Brett M. Kavanaugh: But I think you disagree what -- what -- I'm not going do belabor this part, but what a legal standard is. You're -- you're saying this is not a legal standard.

Colleen E. Roh Sinzdak: I -- I'm saying the statutory determination, just because it's a statutory determination, doesn't mean that its application presents a question of law.

And I think that that's what this Court's precedents say. Now I think that -- that that means that a legal standard is not synonymous with a -- with a statute.

And I don't think Petitioner has explained to you how you can tell, once you have a statutory determination, which statutory determinations only require fact-finding, only require discretion, only require a mix of those two, and which present legal conclusions.

Brett M. Kavanaugh: Then --

Colleen E. Roh Sinzdak: It can't just be every statutory determination is reviewable.

Brett M. Kavanaugh: Right.

And then last one, you've emphasized repeatedly, I think correctly, that the statute's about discretion ultimately.

And I agree with that, but that discretion is at the -- as I've understood it, is at the second step.

So, after you determine whether someone's eligible for cancellation of removal, then the Board has complete discretion to say, you know what, you're eligible or I'll assume you're eligible, but you're not getting it.

You're not getting it.

And that is totally unreviewable.

So that -- there's where -- that's a huge amount of discretion for the Board.

That's where the discretion is, not in doing the 10 years, extremely unusual.

Those parts are the eligibility requirements.

That's not as discretionary.

Colleen E. Roh Sinzdak: So, in Jong -- Jong Ha Wang --

Brett M. Kavanaugh: Yeah.

Colleen E. Roh Sinzdak: -- this Court said that when a court of appeals usurped the Board's right to determine what was an extreme hardship in that case -- that was before this change -- that that deprived the Board of a good portion of the discretion that had been vested in it. So I think this Court has already recognized that exceptional or extreme hardship, now exceptional and extremely unusual hardship, that's discretionary. And I would also point to -- to Octane, which recognizes that "exceptional" is a term that itself conveys discretion. So I think just because there's discretion at the second step doesn't mean there's not also discretion at the first step.

Brett M. Kavanaugh: Thank you.

John G. Roberts, Jr.: Justice Barrett?

Amy Coney Barrett: So let's posit that you lose.

Sorry.

Colleen E. Roh Sinzdak: That's okay.

Amy Coney Barrett: Just -- just hypothetically.

It seems to me in looking at cases in the circuits that side with Petitioner that most of the challenges that come up really are to facts or, you know, challenges where the petitioner says, you know, he made -- the -- the BIA, the IJ was wrong to conclude that there would not be significant hardship -- economic hardship down the road, for example.

And the courts of appeals have said, well, that's speculation and, you know, that was within the IJ's authority to find that fact. So, if you lost and if we said under Guerrero that mixed questions are reviewable and so the application of law to fact in the kind of hypothetical I gave would not be subject to the jurisdictional bar, do you agree that a lot of the questions will still be -- a lot of the cases will still be unreviewable on appeal because they will still essentially be factual challenges barred under Patel?

Colleen E. Roh Sinzdak: Absolutely.

And to be clear, I think the government is -- is fine with a ruling that says where there is a legal error that is -- that is revealed through the Board's determination, that's reviewable. What's not reviewable is -- I mean, you can call it fact-finding, you can call it discretion.

I think, as we make this -- this point at, I believe, page 42 of our brief, that a lot of times in the administrative context, what counts as a fact is -- can look pretty discretionary, like a credibility determination, highly subjective. If the Court makes clear that those -- those types of rulings are off limits, but legal errors are on -- on, we think that's a faithful application of the facts --

Amy Coney Barrett: Well, I mean, no, no, no.

I'm saying like -- I'm saying application of law to fact if, in fact, under Guerrero, that is not subject to the jurisdictional bar and so the claim is -- I think Justice Kagan was the one who said earlier we stipulate all of the facts are true, but you have misapplied the legal standard to this set of facts, thereby exceeding the guardrails, you've abused your discretion, say, let's say that that kind of a claim is reviewable.

But claims that are purely factual challenges, like you did not appreciate the depth of my emotional bond, you know, with my son, that those kinds of things -- do you agree that a lot of the challenges really are of that nature? And I'm asking the question because, in arguing all of this is discretionary, all of this is discretionary, and all of it is outside the bar, that raises the question of whether, if you lose, does that mean that your position would lead to the conclusion that a lot of this stuff actually is reviewable?

Colleen E. Roh Sinzdak: I -- I agree, and I think this is a really important point.

I think, if the Court is going to say facts are unreviewable, but there's some legal component, I think it's going to be very important for the Court to spell out what are the facts.

And I'm -- I'm not sure, to be honest.

I think the Court is saying that -- or I -- I hear Your Honor to be saying that if it's a prediction about the future, that might be -- be included. It has long been concluded as a fact, again, like forecasts about lost earning potential. That's a classic fact. So I think the Court's going to need to say, like, a prediction.

I think the Court should look at cases like Williamsport Wire Rope and say a comparison where you're looking at, you know, is this non-citizen more likely than another to experience hardship, I think those are going to be facts. But I do think that the Court is going to need to be very careful to give the Court the -- the Board the guidance that it needs to say what is a fact.

And I do think that we've given you sort of a framework of how the Court in the past has looked at that law/facts divide, and we admit the Court has said there's not one principle, right? It's a framework.

You've got to look at the history.

You've got to look at different things. But, yes, I mean, if the Court wants to say just apply that law -- that -- that law/facts divide and put all of the things like predictions, like comparisons on the fact side, we'd be very happy.

We do think that the -- the -- the Court needs to give that kind of guidance.

Amy Coney Barrett: Thank you.

John G. Roberts, Jr.: Justice Jackson?

Ketanji Brown Jackson: Can you just say a little bit more about why your way of handling this isn't administratively terrible? Because there is -- (Laughter.)

Ketanji Brown Jackson: No.

So there -- there -- there was some back and forth with your friend on the other side suggesting that you've -- you're going to open up a can of worms and theirs is better.

So can you just speak to that?

Colleen E. Roh Sinzdak: So, first of all, I think this is the way that most courts are already handling a lot of these things.

So it's not going to open up a can of worms in that regard. The other thing that I'd say is this is just a matter of statutory construction, so you just need to look at whether we're dealing with a question of law.

And I actually think courts are pretty experienced in knowing what questions of law look like.

This is, again, the standard-of-review analysis.

Every time they have to say am I dealing with a question of law, am I dealing with a mixed question, or am I dealing with, you know, something discretionary or factual? And I don't think that's a --

Ketanji Brown Jackson: So they're going to -- you're saying they're going to have to answer that question anyway, even under --

Colleen E. Roh Sinzdak: Absolutely.

Exactly.

Ketanji Brown Jackson: -- the other side's test?

Colleen E. Roh Sinzdak: So that's -- that's the second point.

And I'd also note that we've -- we -- sort of talking to our lawyers who litigate these cases, exceptional and extremely unusual hardship, that's the big one.

That's what comes up again and again.

But, beyond this, they've pointed to maybe four or five things that are getting -- that are getting litigated. So I -- I think that maybe Petitioner has kind of gone through the law books and said what might I possibly make some kind of argument that this is a little bit mixy, mixed, a little bit legal.

But that's not what's happening on the ground.

We're talking about maybe like a few other -- other things, and I think, if this Court provides enough guidance as to how you distinguish between law and facts, how you distinguish between a mixed question and a question regarding discretion or fact, I think that's going to clear up any confusion that's left.

Ketanji Brown Jackson: Thank you.

John G. Roberts, Jr.: Thank you, counsel. Rebuttal?

Jaime A. Santos: Thank you, Your Honor. I have about 42 points I'd like to address on rebuttal, but I will settle for about five. First, I think that my friend on the other side has mistakenly focused a lot of her argument on what Congress did in 1996.

This case is about what Congress did in 2005 when it created an exception to Section 1250 -- 1252(a)(2)(B) and it -- it amended both (a)(2)(B) and (a)(2)(D) to make clear that the limited review provision trumps the designation of a particular determination as discretionary. Second, Your Honor, I think all of my friend's arguments about this not being a legal standard really run smack into the Board's own understanding of what the -- the hardship determination is.

The Board said itself no more than -- no less than a dozen times in its precedential decision in Monreal-Aguinaga that this is a standard.

It used its -- its purported authority under Chevron to interpret that standard using the canons of statutory construction that courts use day in and day out. And it said the meaning of that standard can be further given -- given -- shed light on it through case-by-case adjudication, which is all we're asking for federal courts to have the power to do. I think that the -- the notion that it's not a legal standard just makes no sense. And I think the same is true with the notion that this is discretionary.

Neither IJs nor the BIA understand themselves to have discretion when deciding whether someone is eligible for cancellation.

And you can see this in cases like Monreal-Aguinaga, where the Board says things like, you know, if we only had discretion, we would absolutely grant cancellation, but Congress has put these constraints on us, so we don't have the power to do so. Also, Your Honor, there was a -- a -- a fair bit of discussion about the expertise that the agency has that makes it well positioned to make these determinations I think in both sides of the argument.

But the same could be said of every decision that immigration judges make, that patent ALJs make, that district judge make -- district judges make during sentencing.

But appellate review is still a core and fundamentally important way that -- that appellate courts make sure that agencies and district courts stay within the guardrails, as -- as several justices have mentioned. And I think that's true even where appellate review involves deference.

In cases where court -- courts adopt deferential review for mixed questions like Cooter & Gell and like Village of Lakeridge, the Court still takes pains to emphasize that if appellate -- if -- if district courts or agencies are -- are going outside the guardrails, that appellate courts will be able to intervene and correct misapplications of law, misunderstandings of law, and inconsistent applications of law. And I think, in the context of immigration decisions, where the risk of error could be enormous, judicial review is even more critical.

And I would point you to the former IJ and BIA brief to talk about the -- that -- that talks about the enormous resource constraints that the agency is under.

These officials are doing their best every day, but when you have 3,000 backlogged cases on your docket, mistakes are going to happen. And the -- the government's position incredibly is that as long as an IJ or the BIA just recites the right standard in a boilerplate section of its decision, it can go on to egregiously, arbitrarily, or completely inconsistently apply that decision and courts are powerless to intervene.

I think that Guerrero-Lasprilla squarely rejected that extreme result, and -- and the government has pointed to no reason for a different result here. Last, Your Honor, I -- I would point to the -- the history test that -- that my friend has pointed to.

The government, I -- I think, spent a lot of time really praising this historical test, but the point of jurisdiction is that it should be decided quickly.

You shouldn't have to write or read a treatise to decide if you have power to hear a case. And even if some kind of historical approach were appropriate, the government's test here wouldn't be it.

In the standard-of-review context, courts look for a long and consistent application -- appellate practice over an entire genre or class of decisions. They don't scour the U.S. Code to look for a single statute with one or two words in common and use that as a smoking gun for the way the -- the government tries to use a World War I era tax statute here.

And even under -- and under the kind of standard-of-review-type analysis, the government certainly can't point to any long and consistent history of appellate practice. At best, it has this 1919 tax statute, which wasn't reviewed.

That -- that was exceptional circumstances.

It points to exceptional case determinations of the Patent Act which were reviewed for abuse of discretion. And, of course, we have undue hardship under Title VII and under the bankruptcy code which is reviewed de novo.

So, even under a historical-type analysis test, the -- this case wouldn't even make any sense under it. Finally, the -- the government's argument that -- that it wouldn't make any sense for the standard of review to be mismatched with judicial review is exactly the argument that the government made in Guerrero-Lasprilla and it's exactly what the majority's opinion expressly rejected.

And I think that most of my friend's arguments today were -- were the same arguments the government made there. Thank you, Your Honor.

John G. Roberts, Jr.: Thank you, counsel. The case is submitted.