Nasrallah v. Barr
| Citation | 207 L.Ed.2d 111,140 S.Ct. 1683 |
| Decision Date | 01 June 2020 |
| Docket Number | No. 18-1432,18-1432 |
| Parties | Nidal Khalid NASRALLAH, Petitioner v. William P. BARR, Attorney General |
| Court | United States Supreme Court |
Eugene R. Fidell, Yale Law School, Supreme Court Clinic, New Haven, CT, Andrew J. Pincus, Charles A. Rothfeld, Mayer Brown LLP, Washington, DC, Brian Wolfman, Washington, DC, Paul W. Hughes, Michael B. Kimberly, Andrew A. Lyons-Berg, McDermott Will & Emery LLP, Washington, DC, Helen L. Parsonage, Elliot Morgan, Parsonage PLLC, Winston-Salem, NC, for petitioner.
Noel J. Francisco, Solicitor General, Joseph H. Hunt, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Matthew Guarnieri, Assistant to the Solicitor General, Donald E. Keener, John W. Blakeley, Andrew C. MacLachlan, Attorneys, Department of Justice, Washington, D.C., for the respondent.
Under federal immigration law, noncitizens who commit certain crimes are removable from the United States. During removal proceedings, a noncitizen may raise claims under the international Convention Against Torture, known as CAT. If the noncitizen demonstrates that he likely would be tortured if removed to the designated country of removal, then he is entitled to CAT relief and may not be removed to that country (although he still may be removed to other countries).
If the immigration judge orders removal and denies CAT relief, the noncitizen may appeal to the Board of Immigration Appeals. If the Board of Immigration Appeals orders removal and denies CAT relief, the noncitizen may obtain judicial review in a federal court of appeals of both the final order of removal and the CAT order.
In the court of appeals, for cases involving noncitizens who have committed any crime specified in 8 U.S.C. § 1252(a)(2)(C), federal law limits the scope of judicial review. Those noncitizens may obtain judicial review of constitutional and legal challenges to the final order of removal, but not of factual challenges to the final order of removal.
Everyone agrees on all of the above. The dispute here concerns the scope of judicial review of CAT orders for those noncitizens who have committed crimes specified in § 1252(a)(2)(C). The Government argues that judicial review of a CAT order is analogous to judicial review of a final order of removal. The Government contends, in other words, that the court of appeals may review the noncitizen's constitutional and legal challenges to a CAT order, but not the noncitizen's factual challenges to the CAT order. Nasrallah responds that the court of appeals may review the noncitizen's constitutional, legal, and factual challenges to the CAT order, although Nasrallah acknowledges that judicial review of factual challenges to CAT orders must be highly deferential.
So the narrow question before the Court is whether, in a case involving a noncitizen who committed a crime specified in § 1252(a)(2)(C), the court of appeals should review the noncitizen's factual challenges to the CAT order (i) not at all or (ii) deferentially. Based on the text of the statute, we conclude that the court of appeals should review factual challenges to the CAT order deferentially. We therefore reverse the judgment of the U. S. Court of Appeals for the Eleventh Circuit.
Nidal Khalid Nasrallah is a native and citizen of Lebanon. In 2006, when he was 17 years old, Nasrallah came to the United States on a tourist visa. In 2007, he became a lawful permanent resident. In 2013, Nasrallah pled guilty to two counts of receiving stolen property. The U. S. District Court for the Western District of North Carolina sentenced Nasrallah to 364 days in prison.
Based on Nasrallah's conviction, the Government initiated deportation proceedings. See 8 U.S.C. § 1227(a)(2)(A)(i). In those proceedings, Nasrallah applied for CAT relief to prevent his removal to Lebanon. See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100–20, p. 20, 1465 U. N. T. S. 114. Nasrallah alleged that he was a member of the Druze religion, and that he had been tortured by Hezbollah before he came to the United States. Nasrallah argued that he would be tortured again if returned to Lebanon.1
The Immigration Judge determined that Nasrallah was removable. As to the CAT claim, the Immigration Judge found that Nasrallah had previously suffered torture at the hands of Hezbollah. Based on Nasrallah's past experience and the current political conditions in Lebanon, the Immigration Judge concluded that Nasrallah likely would be tortured again if returned to Lebanon. The Immigration Judge ordered Nasrallah removed, but also granted CAT relief and thereby blocked Nasrallah's removal to Lebanon.
On appeal, the Board of Immigration Appeals disagreed that Nasrallah likely would be tortured in Lebanon. The Board therefore vacated the order granting CAT relief and ordered Nasrallah removed to Lebanon.
Nasrallah filed a petition for review in the U. S. Court of Appeals for the Eleventh Circuit, claiming (among other things) that the Board of Immigration Appeals erred in finding that he would not likely be tortured in Lebanon. Nasrallah raised factual challenges to the Board's CAT order. Applying Circuit precedent, the Eleventh Circuit declined to review Nasrallah's factual challenges. Nasrallah v. United States Attorney General , 762 Fed.Appx. 638 (2019). The court explained that Nasrallah had been convicted of a crime specified in 8 U.S.C. § 1252(a)(2)(C). Noncitizens convicted of § 1252(a)(2)(C) crimes may not obtain judicial review of factual challenges to a "final order of removal." §§ 1252(a)(2)(C)–(D). Under Eleventh Circuit precedent, that statute also precludes judicial review of factual challenges to the CAT order.2
Nasrallah contends that the Eleventh Circuit should have reviewed his factual challenges to the CAT order because the statute bars review only of factual challenges to a "final order of removal." According to Nasrallah, a CAT order is not a "final order of removal" and does not affect the validity of a final order of removal. Therefore, Nasrallah argues, the statute by its terms does not bar judicial review of factual challenges to a CAT order.
The Courts of Appeals are divided over whether §§ 1252(a)(2)(C) and (D) preclude judicial review of factual challenges to a CAT order. Most Courts of Appeals have sided with the Government; the Seventh and Ninth Circuits have gone the other way. Compare Gourdet v. Holder , 587 F.3d 1, 5 (CA1 2009) ; Ortiz-Franco v. Holder , 782 F.3d 81, 88 (CA2 2015) ; Pieschacon-Villegas v. Attorney General of U. S. , 671 F.3d 303, 309–310 (CA3 2011) ; Oxygene v. Lynch , 813 F.3d 541, 545 (CA4 2016) ; Escudero-Arciniega v. Holder , 702 F.3d 781, 785 (CA5 2012) ; Tran v. Gonzales , 447 F.3d 937, 943 (CA6 2006) ; Lovan v. Holder , 574 F.3d 990, 998 (CA8 2009) ; Cole v. United States Attorney General , 712 F.3d 517, 532 (CA11 2013), with Wanjiru v. Holder , 705 F.3d 258, 264 (CA7 2013) ; Vinh Tan Nguyen v. Holder , 763 F.3d 1022, 1029 (CA9 2014).
In light of the Circuit split on this important question of federal law, we granted certiorari. 589 U. S. ––––, 140 S.Ct. 428, 205 L.Ed.2d 244 (2019).3
When a noncitizen is removable because he committed a crime specified in § 1252(a)(2)(C), immigration law bars judicial review of the noncitizen's factual challenges to his final order of removal. In the Government's view, the law also bars judicial review of the noncitizen's factual challenges to a CAT order. Nasrallah disagrees. We conclude that Nasrallah has the better of the statutory argument.
We begin by describing the three interlocking statutes that provide for judicial review of final orders of removal and CAT orders.
The first relevant statute is the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. That Act authorizes noncitizens to obtain direct "review of a final order of removal" in a court of appeals. 110 Stat. 3009–607, 8 U.S.C. § 1252(a)(1). As the parties agree, in the deportation context, a "final order of removal" is a final order "concluding that the alien is deportable or ordering deportation." § 1101(a)(47)(A) ; see § 309(d)(2), 110 Stat. 3009–627; Calcano-Martinez v. INS , 533 U.S. 348, 350, n. 1, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001). The Act also states that judicial review "of all questions of law and fact ... arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section." 8 U.S.C. § 1252(b)(9) ; see 110 Stat. 3009–610. In other words, a noncitizen's various challenges arising from the removal proceeding must be "consolidated in a petition for review and considered by the courts of appeals." INS v. St. Cyr , 533 U.S. 289, 313, and n. 37, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). By consolidating the issues arising from a final order of removal, eliminating review in the district courts, and supplying direct review in the courts of appeals, the Act expedites judicial review of final orders of removal.
The second relevant statute is the Foreign Affairs Reform and Restructuring Act of 1998, known as FARRA. FARRA implements Article 3 of the international Convention Against Torture, known as CAT. As relevant here, CAT prohibits removal of a noncitizen to a country where the noncitizen likely would be tortured. Importantly for present purposes, § 2242(d) of FARRA provides for judicial review of CAT claims "as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act ( 8 U.S.C. 1252 )." 112 Stat. 2681–822, note following 8 U.S.C. § 1231.
The third relevant statute is the REAL ID Act of 2005. As relevant here, that Act responded to this Court's 2001 decision in St. Cyr . In St. Cyr , this Court ruled that the 1996 Act, although purporting to...
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