Issues
Can courts of appeal judicially review, as a “question of law,” statutory motions to reopen deportation proceedings to determine if equitable tolling should apply?
This case asks the Supreme Court to determine whether the issue of a petitioner’s request for equitable tolling in filing motions to reopen his deportation proceedings is a purely legal question or a mixed question of law and fact. Petitioners Pedro Pablo Guerrero-Lasprilla and Ruben Ovalles contend that the term “question of law” in 8 U.S.C. § 1252(a)(D) encompasses mixed questions of law and fact, thereby permitting appellate courts to review whether immigration judges or the Board of Immigration Appeals correctly applied the law to settled historical facts. They contend that even if the Court finds that “question of law” does not encompass mixed questions of law and fact, Guerrero and Ovalles assert that the issue of equitable tolling is closer to a legal rather than factual inquiry, therefore also allowing the appellate courts to review the decision. Attorney General William P. Barr counters that “question of law” does not extend to mixed questions of law and fact, and that even if it did, equitable tolling is a primarily factual determination that cannot be subject to judicial review. This case will affect whether courts experience an increase in the amount of litigation and expended resources, and the effectiveness and meaningfulness of judicial review of immigration proceedings.
Questions as Framed for the Court by the Parties
Whether a request for equitable tolling as it applies to statutory motions to reopen, is judicially reviewable as a “question of law.”
Facts
Petitioner Pedro Pablo Guerrero-Lasprilla (“Guerrero”) is a native and citizen of Colombia. Guerrero-Lasprilla v. Sessions at 1. Guerrero was admitted to the United States in 1986. Id. In 1988, Guerrero was deported from the United States for felony convictions of conspiracy to possess with the intent to distribute cocaine and possession with intent to distribute cocaine. Id.
In September 2016, Guerrero petitioned an immigration judge (“IJ”) to reopen his deportation proceedings and review his case. Id. He requested this relief based on the 2014 decision in Matter of Abdelghany. Id. In Matter of Abdelghany, the Board of Immigration Appeals (“BIA”) held that lawful permanent residents who were removable from the United States due to a plea or a conviction entered prior to April 24, 1997 were eligible to request a discretionary waiver of relief under the now-repealed Section 212(c) of the Immigration and Nationality Act (“INA”). Matter of Abdelghany at 254. Section 212(c) applied at the time of Guerrero’s conviction but was repealed before his deportation proceedings. Brief for the Petitioners, Pedro Pablo Guerrero-Lasprilla at 11–12. Because Congress determined that the repeal was retroactive, Guerrero was ineligible to move for relief under Section 212(c) during his removal proceedings until the holding in Matter of Abdelghany in 2014 made it applicable. Brief for the Petitioners at 12.
The IJ denied Guerrero’s motion to reopen his case, determining that Guerrero should have filed the motion in 2005 based on 8 C.F.R. § 1003.44(h). Guerrero-Lasprilla at 2. Section 1003.44(h) outlines the procedure and guidelines for individuals to file a special motion to seek relief under Section 212(c). Id. Specifically, subsection (h) requires an individual to file this special motion by April 26, 2005, after a final removal order. Id. Because Guerrero waited two years to file the motion to reopen his case after Matter of Abdelghany, the IJ held that Guerrero failed to “diligently” pursue his rights. Id.
Guerrero appealed this decision to the BIA, which affirmed the IJ’s denial. Id. In its decision, the BIA reiterated that Guerrero had not filed the motion to reopen his case in a timely manner and upheld the IJ’s determination that equitable tolling did not apply in this case. Id. Equitable tolling is a legal doctrine which stops the statute of limitations from running in cases where an individual diligently pursued their rights but was prevented from bringing a timely action due to extraordinary circumstances outside of the litigant’s control. Brief for the Petitioners at 23. The BIA also held that a sua sponte reopening of Guerrero’s proceedings was not required. Id.
Guerrero appealed the BIA’s decision to the U.S. Court of Appeals for the Fifth Circuit (the “Fifth Circuit”). Id. The Fifth Circuit determined that it lacked jurisdiction because Section 1252 of the INA limited judicial review to issues involving “constitutional claims or questions of law.” Id. at 8. The Fifth Circuit dismissed Guerrero’s appeal, explaining that the inquiry was a factual question which it would not consider. Id. at 14. The Court explained that the present issue—whether Guerrero acted diligently in trying to reopen his case and thus be eligible for equitable tolling—is a factual question and not a legal question appropriate for appellate review. Id.
The United States Supreme Court granted Guerrero certiorari on June 21, 2019. The Supreme Court also consolidated another appeal, Ovalles v. Barr, for oral argument.
Analysis
JUDICIAL REVIEW LIMITED TO QUESTIONS OF LAW
Pedro Pablo Guerrero-Lasprilla (“Guerrero”) argues that the Fifth Circuit should have judicially reviewed the BIA’s decision because Guerrero and Ruben Ovalles (“Ovalles”) were challenging the governing legal standard for equitable tolling, which they argue is not a question of fact. Brief for the Petitioners, Pedro Pablo Guerrero-Lasprilla and Ruben Ovalles at 22. Guerrero explains that to make an equitable tolling claim, a party usually must establish “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Id. at 23. Guerrero argues that in Ovalles’s appeal, the Fifth Circuit had to determine whether the BIA applied the correct “reasonable diligence” standard, which it argues is a legal issue. Id. at 24–25. Guerrero asserts that in his appeal the main underlying issue was whether the Fifth Circuit’s precedent had prevented him from moving to reopen his deportation earlier. Id. at 26. Guerrero argues that the BIA erred in underestimating the significance of its prior rulings and whether those rulings “presented an obstacle to relief.” Id. Guerrero argues that this is a legal question over which the Fifth Circuit has jurisdiction. Id.
Respondent United States Attorney General William P. Barr (“Barr”), counters that Guerrero’s and Ovalles’s appeals did not warrant judicial review by the Fifth Circuit. Brief for the Respondent, William P. Barr at 18. Barr argues that Ovalles asserts a mistaken claim: that the Fifth Circuit did not exercise jurisdiction over his claim that the BIA applied the incorrect legal standard. Id. at 54. Rather, Barr contends that the Fifth Circuit did exercise jurisdiction over Ovalles’s claim about the IJ and BIA applying an incorrect legal standard, but it rejected that claim on the merits. Id. Barr also argues that Guerrero framed his claim about the review of his diligence to seek equitable tolling as one involving a mixed question of law and facts, rather than framing it as one about a proper legal standard. Id. at 54–55. Barr contends that because Guerrero framed his challenge in this manner, he improperly characterizes his argument before the Fifth Circuit as a legal one. Id. at 55.
“QUESTION OF LAW” AS INCLUDING MIXED QUESTIONS OF LAW AND FACT
Guerrero asserts that the INA’s Saving Clause, U.S.C. § 1252(a)(2)(D), permits judicial review of the application of the legal standard to undisputed facts based on the statute’s text, purpose, and a common-sense practice of the purview of judicial review. Brief for the Petitioners at 27. First, Guerrero contends that the Saving Clause’s statutory text authorizes courts to review the application of law to undisputed historical facts. Id. at 28–29. He cites precedent and legal dictionaries to argue that when historical facts are undisputed, either application or interpretation of the law to those facts is a question of law. Id. Second, Guerrero argues that the INA’s purpose was to create an alternative to habeas corpus jurisdiction which may only be accomplished if courts can review the “application of law to fact.” Id. at 31. Guerrero contends that in habeas writs, courts routinely assessed whether a person was being wrongfully held pursuant to an incorrect application of the law to his case and therefore, he argues, the Savings Clause which replaced this jurisdiction preserved the ability of courts to interpret how law was applied to undisputed facts. Id. at 33–38. Finally, Guerrero asserts that courts have consistently distinguished factual and legal matters in several contexts and therefore interpreting the Savings Clause as permitting judicial review of only questions of law would leave courts powerless to ensure that the “BIA does not say one thing and do something else.” Id. at 38–41.
Barr counters that the Saving Clause does not include “mixed questions of law and fact” such as the application of law to settled facts because of the INA statute’s text, context, history, and purpose. Brief for the Respondent at 19. First, Barr argues that the statute’s text does not refer to “mixed questions of law and fact” and only refers to “constitutional claims” and “questions of law.” Id. Considering that the Court routinely differentiates questions of law from both questions of fact and mixed questions of law and fact, Barr asserts that “mixed questions of law and fact” were intentionally excluded from judicial review. Id. at 19–21. Second, Barr cites to a statutory interpretation of 28 U.S.C. § 1254(2) which also uses the term “question of law” as buttressing his argument. Id. at 21. Barr explains that Section 1254(2) was interpreted as excluding mixed questions of law and fact, so Congress was aware of this term’s interpretation when using it in the Savings Clause. Id. at 22. Further, Barr contends that Congress would explicitly refer to mixed questions when it intends to do so, citing the phrase used in 28 U.S.C. § 2254(d). Id. at 24–25. Third, Barr asserts that the statute’s history proves that “questions of law” do not include mixed questions of law and fact because the legislative history indicates that Congress did not include the word “pure” before “questions of law” in the INA and other statutes as it considered the word unnecessary. Id. at 26. Finally, Barr argues that because Congress enacted the statute to resolve the constitutional problem of insufficient judicial review for pure questions of law after the repeal of habeas relief for criminal aliens, the origin and purpose of the statute indicate that “questions of law” only refers to the questions of law. Id. at 27.
“EQUITABLE TOLLING” AS A LEGAL OR FACTUAL QUESTION
Guerrero argues that this Court should not require lower courts to frame mixed questions in the Saving Clause as principally legal or principally factual because this will impede administration of the Saving Clause. Brief for the Petitioners at 43–46. He explains that framing these questions in this way would increase litigation in every case with regard to whether it is a principally legal or principally factual question. Id. Guerrero contends that in any case interpreting whether a person is entitled to equitable tolling is legal rather than factual when historical facts are settled. Id. First, Guerrero argues that historical practice confirms that courts have a long tradition of interpreting the first prong of equitable tolling, whether the person has shown reasonable diligence, as an ultimate question of law. Id. Second, Guerrero explains that when required to characterize equitable tolling as either primarily legal or factual, many circuit courts have concluded that it is a legal question, particularly when historical facts were undisputed. Id. at 48. Lastly, Guerrero asserts that treating equitable tolling as a legal issue would also help to maintain uniformity among BIA decisions and would ensure that two similarly-situated petitioners are ensured the same outcome. Id. at 51–52.
Barr counters that although the phrase “question of law” has a broader construction than “questions of law only,” it should not embrace mixed questions of law and fact that are not “primarily legal.” Brief for the Respondent at 32. Barr argues that a broad interpretation encompassing all mixed questions, even those that are primarily factual, would frustrate another provision of the INA that bars judicial review except where it involves questions of law. Id. at 32. Further, Barr contends that this would create conflicts with the relevant standard of review since different standards of reviews apply to primarily factual and primarily legal questions. Id. at 34. Barr counters that equitable tolling inquiry is “primarily factual” because determining whether a litigant acted with reasonable diligence requires the decision-maker to explore the facts and history of the claim in the context of complicated procedural history. Id. at 34–35. Even if a certain degree of legal work is involved in the inquiry, Barr asserts that there is more factual work than legal work. Id. at 37.
Discussion
INCREASED LITIGATION AND DELAY
Guerrero argues that if the Court determines that “questions of law” do not include mixed questions of law and fact, this will increase litigation among the courts. Brief for Petitioner at 18. Guerrero explains that the Court should interpret statutes to “maximize ‘clarity’ and to minimize collateral litigation over jurisdiction.” Id. at 15. He contends that the Attorney General’s position would cause an increase of litigation regarding jurisdictional issues as the lower courts would have to spend time determining whether each issue in a case is more legal or more factual. Id. at 18. He adds that this increased litigation will complicate cases, causing parties to expend more time and money arguing these issues. Id. at 20. Similarly, Guerrero asserts that this increased litigation will also use more judicial resources as courts would have to distinguish which issues are factual or legal. Id. at 20–21. Thus, he contends that both courts and litigants would benefit from a simple and clear rule. Id. Here, Guerrero argues, the simple and clear rule is to include mixed questions of law and fact as “questions of law.” Id.
Attorney General William P. Barr counters that it would not be unduly burdensome for courts to distinguish between questions of law and mixed questions of law and fact. See Brief for Respondent at 27–30. Barr explains that for over a hundred years, courts have distinguished between (1) questions of law, (2) questions of fact, and (3) mixed questions of law and fact, meaning that this is an exercise courts are equipped to handle. Id. at 19. He asserts that adopting Guerrero’s interpretation would actually cause immigration proceedings to become more costly and time-consuming. Id. at 29–30. He explains that Congress’s intent behind Section 1252 was to “streamline immigration proceedings,” so adopting a new standard—combining mixed questions and legal questions—would run counter to congressional intent. See id. This new standard, explains Barr, would broaden judicial review of immigration proceedings, causing immigrants to delay their removal orders. Id. This delay would undermine Congress’ goal of streamlined immigration proceedings as cases could potentially drag on while judges review the cases. Id.
ENSURING MEANINGFUL JUDICIAL REVIEW
Guerrero contends that if courts only review whether the BIA identified the correct legal standard—and not whether it properly applied that standard to the facts—it would render judicial review of the BIA meaningless. Brief for Petitioner at 17. Guerrero asserts that having proper judicial review is critical, especially in asylum cases, where there are often have “life-and-death consequences” as the asylum seeker may face torture or death if improperly deported. Id. at 20. Additionally, Guerrero notes that having broad review is important as many immigrants may be impoverished, uneducated, unfamiliar with the English language, or unable to follow the U.S. legal system, making it difficult for them to ensure that they have reasonably and diligently pursued their rights. Id. at 25. The American Immigration Council (“AIC”) agrees, adding that immigrants are often not at fault for missing the statute-of-limitations period. Brief of Amicus Curiae the American Immigration Council (“AIC”), in Support of Petitioner at 6. The AIC explains that immigrants are often unable to reopen their cases because of circumstances beyond their control, making broad judicial review even more important to ensure that these individuals can obtain meaningful relief. Id. at 8. Furthermore, Guerrero contends that allowing broad judicial review ensures that cases with similar facts receive the same treatment, thus guaranteeing uniformity among immigration courts. Brief for Petitioner at 52.
Attorney General William P. Barr counters that distinguishing between primarily legal questions and mixed questions of law and fact will actually increase the quality of review in immigration decisions. See Brief of Respondent at 35–36. Attorney General Barr explains that the issue here—whether plaintiffs have reasonably and diligently pursued their rights—requires judges to engage in a fact-intensive inquiry. Id. at 16. He explains that to make this determination, a decisionmaker must “become immersed in the facts and procedural history of the case.” Id. Therefore, given this context, he contends that the decisionmaker must have an intimate knowledge and understanding of the record and the procedural framework. Id. at 36. The Attorney General asserts that the decisionmaker best suited for this inquiry is the immigration judge or the BIA. Id. He explains that the IJ or BIA deals closely with the litigant’s claims, the case’s facts, and the procedural history, making either one better suited than an appellate judge—who generally does not make factual determinations—to decide whether a litigant has diligently and reasonably pursued his or her rights. See id. at 35–36.
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Acknowledgments
Additional Resources
- Kimberly Strawbridge Robinson, Decades-Old Deportations Get Supreme Court Look, Bloomberg Law (June 24, 2019).
- Megan Minerio and Tim Ryan, High Court to Tackle Patent Appeals and Deportation Time Limit, Courthouse News Service (June 2014, 2019).