Issues
Does Section 1252(a)(2)(C) of the Immigration and Nationality Act (INA) prohibit federal courts of appeals from reviewing the denial of a claim for relief from removal based on the United Nations Convention Against Torture of a noncitizen ordered removed from the country for committing certain criminal offenses?
This case asks the Supreme Court to determine whether Section 1252(a)(2)(C) of the Immigration and Nationality Act (INA)—which provides that courts do not have jurisdiction to review “final orders of removal” against any noncitizen ordered removed from the country for committing certain criminal offenses—prohibits federal courts of appeals from reviewing the facts underlying orders granting or denying noncitizens relief from deportation under the United Nations Convention Against Torture (CAT). Under CAT, the United States cannot remove a noncitizen to a country where they are likely to be tortured. While Section 1252(a)(2)(C) strips courts of the ability to review “any final order of removal,” Nasrallah argues that CAT orders are distinct orders that fall outside this phrase. Barr, on the other hand, argues that Section 1252(a)(2)(C) intends to include CAT orders within the phrase “final order of removal” and thus limits judicial review of the facts underlying those orders. The outcome of this case will affect the number of opportunities that criminal noncitizens have to challenge the accuracy of the facts underlying a denial of their claim for CAT relief.
Questions as Framed for the Court by the Parties
Whether, notwithstanding 8 U.S.C. § 1252(a)(2)(C), the courts of appeals possess jurisdiction to review factual findings underlying denials of withholding (and deferral) of removal relief.
Facts
Petitioner Nidal Khalid Nasrallah, a native and citizen of Lebanon, entered the United States on a tourist visa in 2006 and later became a lawful permanent resident. Nasrallah v. U.S. Attorney General at 2. On November 11, 2011, the United States government charged Nasrallah with eight felony counts of receiving stolen property in interstate commerce under 18 U.S.C. § 2315 after he purchased 273 cases of stolen cigarettes worth $587,096. Id. at 2–3. In accordance with a plea bargain agreement, Nasrallah pled guilty to two of the eight felony counts and was sentenced to two concurrent twelve-month prison sentences. Id. Nasrallah began serving his sentence in August 2014. Id.
Eventually, the government attempted to remove Nasrallah under 8 U.S.C. § 1227(a)(2)(A)(i). Id. at 4. That statute allows the removal of any noncitizen convicted, within five years of being admitted into the United States, of “a crime involving moral turpitude” that may carry a term of imprisonment of at least one year. Id. In response, Nasrallah applied for both a withholding of removal and protection under the Convention Against Torture (CAT), two forms of relief that would allow him to avoid removal. Id. Nasrallah claimed in his application that groups such as Hezbollah—whom he had a prior run-in with in Lebanon—and ISIS would torture and persecute him if he returned to Lebanon because of his Druze religion and Western ties. Id.
Ultimately, the immigration judge that heard Nasrallah’s case determined that Nasrallah was eligible for removal on the bases that he committed a particularly serious crime and that he committed a crime involving moral turpitude. Id. at 5. Nonetheless, the immigration judge concluded that Nasrallah plainly demonstrated a probability of torture should he be removed to Lebanon and ruled that Nasrallah qualified for deferral of removal under the CAT. Id. Upon the appeals of both the government and Nasrallah, the Board of Immigration Appeals (BIA) affirmed the immigration judge’s findings that Nasrallah committed particularly serious crimes and crimes involving moral turpitude, but reversed the immigration judge’s decision granting Nasrallah CAT protection. Id. at 5–6. The BIA concluded that Nasrallah did not qualify for CAT protection because Nasrallah’s prior encounter with Hezbollah did not constitute past torture and because general civil unrest in Lebanon would not lead to Nasrallah being personally targeted for torture upon his return. Id. at 6.
Nasrallah then appealed the BIA’s ruling to the Court of Appeals for the Eleventh Circuit, arguing that the BIA’s conclusions as to the nature of his crimes and his eligibility for CAT protection were incorrect. Id. at 2. In addressing Nasrallah’s claims, the Eleventh Circuit stated that they did not have jurisdiction to review whether Nasrallah was convicted of a particularly serious crime or the likelihood that Nasrallah would be subject to future harm if he was removed to Lebanon. Id. at 10, 11, 13. The Eleventh Circuit held that it was bound by its own precedent, interpreting 8 U.S.C. § 1252(a)(2)(C) as instituting the “criminal-alien jurisdictional bar.” Id. at 10. The criminal-alien jurisdictional bar prevents a noncitizen whom the government is seeking to remove from the country pursuant to 8 U.S.C. § 1227(a)(2)(A)(i) from challenging, in the circuit court, the factual findings underlying his final order of removal. Id. Accordingly, the Eleventh Circuit stated that it could only review questions of law or constitutional claims related to Nasrallah’s final order of removal. Id.
The Eleventh Circuit then held that Nasrallah’s request for the court to reconsider the factors in the BIA’s determinations that his crime was particularly serious did not involve a constitutional claim or a question of law. Id. at 10–11. Furthermore, the Eleventh Circuit concluded that the BIA’s holding that Nasrallah would not be targeted for torture in Lebanon, and therefore that Nasrallah was not eligible for deferral of removal under CAT, was a finding of fact not subject to circuit court review. Id. at 13.
Nasrallah petitioned the United States Supreme Court for a writ of certiorari on May 14, 2019. Brief for Respondent, United States Attorney General William Barr at 1. The petitioned was granted on October 18, 2019. Id.
Analysis
THE MEANING OF “FINAL ORDER OF REMOVAL”
Nasrallah argues that the text of Section 1252(a)(2)(C) of the Immigration and Nationality Act (INA) does not limit judicial review of an order settling a Convention Against Torture (CAT) claim because such an order is not a “final order of removal.” Brief for Petitioner, Nidal Khalid Nasrallah at 23–24. Nasrallah notes that an immigration judge enters a final removal order after he or she decides that a noncitizen is removable and there is no reason to suspend or prevent removal. Id. at 25. However, Nasrallah asserts that when a noncitizen raises a fear of torture if they are removed to a certain country, the immigration judge may then order CAT relief and block removal to that particular country. Id. Nasrallah contends that a grant of CAT relief does not disturb the removal order—that is, a noncitizen may still be deported to another country where torture is unlikely—and thus that the two orders are separate. Id. Nasrallah maintains that regulations further distinguish removal orders from CAT claims. Id. at 31. According to Nasrallah, the governing regulations provide immigration judges with separate authority to issue removal orders and to resolve CAT claims. Id. Moreover, Nasrallah states that the governing regulations refer to several distinct orders, such as CAT “withholding orders,” “orders of deferral,” and “removal orders.” Id. at 31–32.
Nasrallah further contends that the government’s reliance on INS v. Chadha and Foti v. INS to the contrary is erroneous. Id. at 32–34. Nasrallah argues that in Chadha, the Court defines “final orders of deportation” to “include[] all matters on which the validity of the final order is contingent”; however, Nasrallah reiterates that a removal order does not depend on a CAT claim because even where a CAT claim is granted, removal may still be executed. Id. at 33. Likewise, although the Court in Foti held that a “suspension of deportation” is part of a “final deportation order,” Nasrallah asserts that a suspension order cancels a deportation whereas a CAT claim allows removal to remain in effect. Id. at 33–34. Nasrallah further maintains that Foti’s holding turned on the Court’s desire to prevent “[b]ifurcation of judicial review of deportation proceedings,” a concern inapplicable to CAT claims because CAT claims and removal orders are reviewed in the same proceeding. Id. at 34. Nasrallah also argues that the definitions of removal orders expressed in these two cases predate the definition Congress adopted in the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and used to enact Section 1252(a)(2)(C). Id. at 33–34.
Barr, on the other hand, argues that the text of Section 1252(a)(2)(C) of the INA clearly bars judicial review of factual challenges to the denial of a CAT claim on the basis that orders denying CAT claims are not distinct from final removal orders. Brief for Respondent, William P. Barr at 16–19. As Barr describes it, final removal orders encompass all of the “administrative determinations made in the course of removal proceedings,” similar to how decisions made in the course of a trial constitute the final judgement of a district court. Id. at 18. As such, Barr contends that the disposition of a CAT claim is part of a final order of removal for purposes of judicial review and therefore is reviewable only to the extent that the final order or removal is reviewable. Id. Furthermore, Barr notes that Nasrallah does not dispute that his challenges to the denial of his CAT claim are purely factual and not questions of law. Id.
Barr also contends that in Foti, the Court declined to consider discretionary requests for deportation relief as separate from final deportation orders because the Court considered the phrase “final order of deportation” to include all holdings made “during and incident to the administrative proceeding” and because the Court found that Congress had an interest in consolidating judicial review. Id. at 19–20. Barr further asserts that the Court’s subsequent decisions in Chadha and Cheng Fan Kwok v. INS, along with numerous circuit court cases, reaffirm the view that a “denial of withholding of deportation” is a final deportation order, regardless of the discretionary or mandatory nature of the relief. Id. at 20–21. Barr also maintains that the holdings in Foti and Chadha, as well as the definition of “order of deportation” under AEDPA, speak to the “finality” of the immigration judge’s decision rather than the scope of judicial review. Id. at 23–26. Barr contends that if Congress meant to limit “final order of deportation” to include only decisions on deportability, the statutory criminal-alien jurisdictional bar would be ineffective. Id. at 24–25. Barr further asserts that Foti is not distinguishable because it involved a suspension of deportation, as the Court explained in Foti that its reasoning applied to “‘all determinations made during’ the deportation proceedings,” including “‘orders denying the withholding of deportation.’” Id. at 25–26.
CONGRESS’ INTENT WITH RESPECT TO SECTION 1252(a)(2)(C)
Nasrallah asserts that Congress considers CAT claims to be distinct from removal orders. Brief for Petitioner at 28. According to Nasrallah, Congress provided the sole means of judicial review of removal orders and of CAT claims under Sections 1252(a)(4) and (a)(5) respectively, which were enacted with the REAL ID Act. Id. Nasrallah further notes that when Congress simultaneously adopted these two provisions, it listed them adjacently and used identical language to describe the applicable scope of judicial review. Id. at 28–29. Nasrallah contends that removal orders and CAT claims must therefore be distinct because otherwise the provision describing judicial review of CAT claims would be superfluous. Id. at 29–30. Nasrallah likewise contends that the Foreign Affairs Reform and Restructuring Act (FARRA)—the statute that implements parts of CAT—distinguishes between removal orders and CAT orders by referring to judicial review of CAT claims as “part of the review of a final order of removal.” Id. at 30. As such, Nasrallah asserts, CAT claims are not the final order of removal themselves because if they were, Congress would not have needed to make such a specification. Id.
Barr counters that Congress enacted Section 1252 of the INA against the backdrop understanding that the term “final order of removal” encompasses the various administrative decisions involved in making the final order. Id. at 19. Thus, Barr contends that Congress intended to include decisions regarding deferral or withholding of removal under the CAT regulations as part of the “final order of removal” that Congress barred from being judicially reviewed under Section 1252(a)(2)(C). Id. at 23. Barr also argues that the REAL ID Act subjects CAT claims to the jurisdictional bar of Section 1252(a)(2)(C) because the Act specifies that a petition for review of a CAT claim must be filed according to Section 1252’s limitations. Id. at 29–30. As Section 1252(a)(2)(C) withdraws jurisdiction over factual challenges to a denial of a CAT claim by a criminal noncitizen, Barr asserts that review of a criminal noncitizen’s CAT denial claim is likewise not permitted by the REAL ID Act. Id. at 29–30. Barr further contends that reading the REAL ID Act in this way would not render Section 1252(a)(4) meaningless because it still serves the distinct function of restricting review of CAT claims made outside of removal proceedings. Id. at 32–33. Barr also counters that Congress did not distinguish between removal orders and CAT orders in the FARRA when establishing that the denial of a CAT claim is reviewable only as “part” of the final order review. Id. at 27–28. Rather, Barr asserts that Congress legislated with the background understanding in mind to mean that judicial review of a final order includes its constituent parts, including the denial of CAT relief. Id. at 28.
THE BROADER FRAMEWORK OF REVIEW IN IMMIGRATION CASES
Nasrallah argues that his construction of Section 1252(a)(2)(C) sits well within the broader framework of judicial review of CAT orders. Brief for Petitioner at 34. According to Nasrallah, there are two conclusions that can be made about CAT orders: first, that there is judicial review of CAT orders; and second, that challenges to CAT orders must be brought through a “petition for review” pursuant to Section 1252(a)(4). Id. at 35. Nasrallah contends that under either conclusion, a CAT order is not the “order of removal.” Id. Nasrallah further emphasizes that while removal orders and CAT orders must be consolidated into the same petition for review, that does not make them the same order. Id. As such, Nasrallah maintains that the jurisdiction-stripping effect of Section 1252(a)(2)(C) does not apply to the whole petition, but rather only to final orders of removal. Id. at 36. Furthermore, Nasrallah asserts that judicial review of CAT orders is appropriate because there is a presumption in favor of judicial review of agency action. Id. Nasrallah explains that the presumption stems from separation-of-powers principles and requires “clear and convincing evidence” to rebut—which Nasrallah urges does not exist with respect to CAT claims. See id. at 37–39.
Barr counters that adopting a definition of “final order of removal” that excludes CAT orders would be self-defeating, because it would strip the courts of appeals of all jurisdiction to review a noncitizen’s CAT claims. Brief for Respondent at 34. As Barr explains, this is because the courts of appeals are only granted jurisdiction under the statute over petitions for review of “final orders of removal.” Id. Thus, Barr posits, if a CAT claim is distinct from a final order of removal for purposes of Section 1252(a)(2)(C), the courts of appeals have not been provided jurisdiction to review the denial of CAT claims. Id. Barr further contends that viewing CAT claims as distinct orders that must merely be consolidated with petitions for review of final orders of removal is inconsistent with established practice. Id. at 35. Barr notes that the courts of appeals routinely exercise jurisdiction to review denials of CAT claims even where the issue of a noncitizen’s removability is not reviewable. Id. at 35–36. Barr argues that if an “order of removal” does not include denials of CAT relief, there is no other explanation for how the courts of appeals can exercise jurisdiction in those circumstances. Id. at 36. Barr further counters that there is “clear and convincing evidence” to overcome the presumption in favor of judicial review here, based on Congress’ clear intention to bar review of factual challenges by criminal noncitizens to the denial of CAT claims. Id. at 37. Moreover, Barr asserts that there is no separation-of-powers argument to be made, because Congress has the authority to limit the jurisdiction of lower federal courts and unambiguously did so here. Id. at 37–38.
Discussion
COMPLYING WITH THE PURPOSE OF THE CONVENTION AGAINST TORTURE
Non-profit organizations providing services to immigrants (“Legal Service Providers”), in support of Nasrallah, assert that the United States ratified the U.N. Convention Against Torture because of the United States’ long-term commitment to support and secure basic human rights and fundamental freedoms worldwide. Brief of Amicus Curiae Legal Service Providers, in Support of Petitioners at 6. The Legal Service Providers emphasize that under the terms of the Convention, the United States is required to give all noncitizens CAT protection regardless of their criminal record and without any discretion or exceptions. Id. Likewise, a group of law professors (“Law Professors”), also in support of Nasrallah, contend that the United States intended to explicitly oppose torture when it ratified the CAT with a complete bar against removal and without an exception for criminal noncitizens. Brief of Amicus Curiae Law Professors, in Support of Petitioners at 10. Therefore, the Law Professors caution, the Court should not interpret the CAT in a way that restricts its protections. Id. at 12.
Barr counters that a finding for Nasrallah would undermine the purpose of enforcing CAT regulations. Brief for Respondent at 29. According to Barr, the regulations were designed in a manner to provide the same treatment to claims for withholding of removal due to fear of prosecution and those based on fear of torture. Id. Barr asserts that a finding for Nasrallah would upset the parallel treatment of those two kinds of claims and give criminal noncitizens a loophole to receive judicial review of factual findings after a denial of withholding removal under that CAT regulations. Id. Barr further notes that comparable factual challenges to a statutory denial of withholding of removal would be precluded, further supporting the government’s position on judicial review of denials of CAT protection. Id.
ENSURING ACCURACY IN IMMIGRATION CASES
The Legal Service Providers assert that judicial review of factual challenges to the denial of CAT claims is necessary because the administrative process in the immigration system prioritizes expediency over accuracy. Brief of Legal Service Providers at 8. The Legal Service Providers contend that making correct decisions on CAT claims is challenging because the immigration system is significantly overloaded. Id. The Legal Service Providers argue that a quota system requires immigration judges to finish a large number of cases each year, which inhibits them from publishing accurate and well-reasoned decisions. Id. at 8–9. Furthermore, the Legal Service Providers emphasize that review by the BIA is insufficient as a safeguard because cases before the BIA are reviewed by single member and BIA decisions have been criticized by courts as boilerplate and baseless. Id. at 9. The Legal Service Providers further point to studies from scholars that indicate that the immigration system is pervaded by inaccuracies and discrepancies, underscoring the significance of judicial review. Id. at 10. Finally, the Legal Service Providers maintain that the risk of an inaccurate decision is heightened with regard to CAT claims because a CAT claimant’s ability to reduce the risk of factual mistakes is limited by the fact that almost all CAT claimants are detained and significantly less likely to be represented by counsel. Id. at 11–12.
Barr counters that even in cases where the criminal-alien jurisdictional bar does not apply, a reviewing court typically must review the agency’s finding of fact using the substantial-evidence test, which requires the court to regard the agency’s findings as final unless a reasonable arbitrator would find it necessary to come to a contrary conclusion. Brief for Respondent at 38. As a result, according to Barr, judicial review of CAT denials would not necessarily correct all administrative errors. See id. Furthermore, Barr argues that adding layers of judicial review is more costly in the sense that removable noncitizens who wish stay in the United States may be incentivized to prolong the litigation surrounding their removal. Id. at 38–39. Nonetheless, Barr contends that weighing the costs and benefits of giving removable noncitizens additional levels of judicial review is a job for Congress. Id. 39. Congress, Barr emphasizes, already did so when it prevented criminal noncitizens from pursuing factual challenges to denials of CAT relief but permitted judicial review of constitutional claims and questions of law. Id.
Written by
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Acknowledgments
Additional Resources
- Suzanne Monyak, DOJ Urges Justices to Back Immigration Court Review Limits, Law360 (Jan. 16, 2020).
- Sarah Martinson, Justices Urged to OK Circuit Court Review of Removal Orders, Law360 (Dec. 17, 2019).
- Kimberly Strawbridge Robinson, Justices to Finally Resolve Immigration Circuit Split, Bloomberg Law (Oct. 18, 2019).