[3] However, in the 2022 case Patel v. Garland, the Supreme Court held that the choice of whether to assess a detainee's intent to commit one of the prohibited serious crimes in their cancellation hearing was a question of fact insulated from judicial review.

[5] Writing for the unanimous three-judge panel, Judge Stephanos Bibas cited Patel v. Garland to dismiss Wilkinson's appeal of the hardship determination as a discretionary judgement that the federal judiciary lacks jurisdiction over.

[6] In his petition for a writ of certiorari filed on January 17, 2023, Wilkinson highlighted a circuit split over whether the Supreme Court's decision in Guerrero-Lasprilla v. Barr designates hardship determinations as a mixed question of fact and law subject to judicial review.

Justice Brett Kavanaugh expressed support for allowing federal courts to review hardship determinations while deferring to the immigration judges' fact-finding on the degree of unusuality.

[1] Justice Samuel Alito argued that the Supreme Court's decision in Guerrero-Lasprilla v. Barr was inapplicable because hardship determinations are a far simpler legal standard than equitable tolling, making judicial review unnecessary.

The majority rejected the government's references to the 1928 case Williamsport Wire Rope Co. v. United States as irrelevant because that decision allowed a hardship determination for taxation purposes to be shielded from judicial review since they were conducted with minimal documentation.

In other words, since immigration justices thoroughly explain their fact-finding and decision-making processes, the federal judiciary would be capable of solely reassessing the application of uncontested facts to legal standards.

[1] Alito's dissent argued that allowing judicial review of all mixed questions, regardless of whether they primarily involve factual analysis, will ultimately threaten the independence of juries in their ability to apply the facts presented during a trial to the appropriate legal standards as they see fit.