Argument preview: Do federal courts have jurisdiction to review a challenge to an administrative denial of relief under the Convention Against Torture?
on Feb 24, 2020 at 10:38 am
In 1996, Congress enacted a number of provisions limiting judicial review of immigration court decisions. In the 2001 case Immigration and Naturalization Service v. St. Cyr, the Supreme Court addressed one of these bars, and found that because Congress had not expressly stated that the provision was intended to strip federal courts of jurisdiction to consider petitions for habeas corpus, the bar could not be read to foreclose review of Enrico St. Cyr’s legal and constitutional challenges to his removal order. In response, Congress amended the relevant statute in 2005 through the REAL ID Act, in which it expressed with greater clarity its intent to limit judicial review in certain categories of immigration appeals.
The revised provisions of the Immigration and Nationality Act, 8 U.S.C. §1252(a)(4), allow for judicial review of “any cause or claim under the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment” through “a petition for review filed with an appropriate court of appeals.” At the same time, Section1252(a)(2)(C) bars review of “any final order of removal against” a noncitizen “removable by reason of having committed” a “criminal offense” specified in enumerated sections of the INA. Nidal Khalid Nasrallah’s case arguably sits at the intersection of these two provisions, and the Supreme Court is being asked to decide whether federal courts have jurisdiction to decide his appeal.
Nasrallah, a native and citizen of Lebanon, entered the United States in 2006 on a visitor visa and became a lawful permanent resident in 2007. In November of 2011, the U.S. government charged him with eight counts of receiving stolen property in interstate commerce under 18 U.S.C. § 2315. In 2013, he pled guilty to two counts of the indictment and was sentenced to 12 months imprisonment for each count.
Initially, Immigration and Customs Enforcement sought to remove Nasrallah for his convictions under 8 U.S.C. §1101(a)(43)(G), arguing that he had been convicted of an “aggravated felony.” But because the district judge reduced Nasrallah’s sentence from one year to 364 days, his offense did not meet the INA’s “aggravated felony” definition. Subsequently, ICE attempted to remove Nasrallah for one of his convictions on the grounds that it constituted a “crime involving moral turpitude” committed within five years of his date of admission, which would make him removable under 8 U.S.C. § 1227(a)(2)(A)(i). Nasrallah challenged this characterization of his crime. He also applied defensively for withholding of removal and deferral of removal under the Convention Against Torture.
The CAT prohibits a state party to the convention from “expel[ling], return[ing] … or extradit[ing] a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Congress codified the requirements of the CAT into domestic law with the Foreign Affairs Reform and Restructuring Act of 1998. To qualify for CAT protection, a noncitizen must establish that if he is returned to his home country, his torture by government actors (or someone acting with the acquiescence of the government) is more likely than not. Noncitizens who meet this burden are entitled to relief—either withholding or deferral of removal. The former provides more comprehensive protections, but it is not available to noncitizens who have committed a “particularly serious crime.” The latter is available even to those with serious criminal convictions, making it an exceptional form of relief for noncitizens who would be otherwise removable. Deferral does not undo or eliminate a final order of removal against a noncitizen, but it operates as a stay of that removal order.
Nasrallah alleged that he was eligible for CAT relief because his Druze religion and Western ties would expose him to torture and persecution in Lebanon by groups such as Hezbollah and ISIS. In support of his application, he detailed an encounter he had with Hezbollah members in 2005 that left him with a broken back. The government argued that Nasrallah was ineligible for withholding of removal because he has been convicted of a “particularly serious crime” under 8 U.S.C. § 1231(b)(3)(B)(ii). Nasrallah argued that his conviction neither involved moral turpitude, nor was a particularly serious crime barring him from withholding of removal.
The immigration judge found that Nasrallah’s conviction involved moral turpitude, rendering him removable, and that it constituted “a particularly serious crime,” leaving him ineligible for withholding of removal. But the IJ also found that Nasrallah had met his burden of establishing that he would more likely than not be tortured if removed to Lebanon. The IJ therefore granted Nasrallah deferral of removal under the CAT. Deferral is a very thin form of legal protection. Withholding, which prohibits the government from returning an individual to their home country, can only be terminated if the government successfully reopens the case and establishes that the recipient is no longer likely to be tortured in their home country. Deferral, on the other hand, can be terminated more quickly and easily upon a motion of the government that “shall be granted if accompanied by evidence that is relevant” to the question of the possibility of torture and was not presented at the prior hearing. The burden of retaining deferral at such a hearing is on the noncitizen. An individual granted deferral can also be detained by the Department of Homeland Security if found to be a threat to the community.
The Board of Immigration Appeals affirmed the IJ’s finding that Nasrallah’s conviction involved moral turpitude and constituted a particularly serious crime, as well as the denial of withholding of removal, but it reversed the grant of deferral of removal. Contrary to the IJ’s findings, the BIA found that Nasrallah’s past encounter with members of Hezbollah did not constitute torture. The BIA also rejected the IJ’s finding of the threat of future harm. The BIA concluded that Nasrallah had established only generalized civil strife in Lebanon and had not shown that he would “personally be targeted for harm rising to the level of torture if removed to Lebanon.”
Nasrallah appealed the BIA’s decision to the U.S. Court of Appeals for the 11th Circuit. Among other things, he argued that the BIA erred in finding that he had failed to establish that he more likely than not will be tortured if returned to Lebanon. The 11th Circuit held that it lacked jurisdiction to review his appeal of this determination, which it characterized as a factual conclusion. Although determinations concerning CAT eligibility clearly are reviewable in federal court under Section 1252(a)(4), the circuit court found that Section1252(a)(2)(C), which prohibits courts from reviewing questions of fact in “any final order of removal against” a noncitizen “removable by reason of having committed” certain enumerated criminal offenses, stripped it of jurisdiction to review Nasrallah’s appeal.
The Supreme Court is now being asked to decide whether Section 1252(a)(2)(C), which bars judicial review of factual determinations in final orders of removal on criminal grounds, also bars judicial review of Nasrallah’s challenge to the denial of his application for deferral of removal under the CAT, notwithstanding the jurisdictional grant in Section 1252(a)(4).
The circuit courts are currently split on this issue. The U.S. Court of Appeals for the 7th Circuit has held that the denial of a CAT deferral is not a “final order of removal” under Section 1252(a)(2)(C), but rather a revocable form of injunctive relief that allows a government to halt removal temporarily. Consequently, the jurisdictional bar in Section 1252(a)(2)(C) does not apply. The U.S. Court of Appeals for the 9th Circuit has also found that Section 1252(a)(2)(C) does not bar review of CAT determinations, but has done so the ground that denial of a CAT deferral is a decision on the merits of the CAT claim and not a decision on the basis of a criminal conviction.
On the other hand, the U.S. Courts of Appeals for the 1st, 2nd, 3rd, 4th, 5th, 6th and 8th Circuits agree with the 11th Circuit’s conclusion that Section 1252(a)(2)(C) divests the courts of jurisdiction to adjudicate factual challenges to the denial of deferral of removal under the CAT. The government urges the Supreme Court to uphold the 11th Circuit’s interpretation in Nasrallah’s case. It argues that the BIA’s decision constitutes a final order of removal on criminal grounds. Review of the findings of fact involved in the denial of Nasrallah’s request for deferral under the CAT is therefore barred by Section 1252(a)(2)(C), which states that “[n]otwithstanding any other provision of law,” “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a [specified] criminal offense.” The government contends that the only exception to this jurisdictional bar is contained in Section 1252(a)(2)(D). That provision applies only to constitutional claims and questions of law, and neither of these exceptions is implicated in this case.
Nasrallah argues, citing the Supreme Court’s 2016 decision in Cuozzo Speed Techs., LLC v. Lee, that the court should apply a presumption in favor of reviewability. Elaborating on the 7th and 9th Circuit opinions in favor of reviewability, he argues that a CAT determination is not in itself “a final order of removal” within the meaning of the jurisdictional bar of Section 1252(a)(2)(C). Instead, it is a separate determination to withhold or defer such an order, a determination over which the federal courts have jurisdiction under Section 1252(a)(4). Alternatively, he suggests that the factual issues of his CAT claim should be treated as distinct from the factual questions relating to his removability on criminal grounds, and that it is only the latter that are barred from judicial review by Section 1252(a)(2)(C).
The Convention Against Torture and the domestic legislation that implements it were designed to protect vulnerable people in matters of life and death. Perhaps this is why Congress expressly granted the federal courts the power to review agency determinations concerning the CAT. Errors in these cases can exact the ultimate price. As it hears arguments in Nasrallah, the Supreme Court will likely focus on the text and structure of the statute to determine how best to reconcile Congress’ clear desire for judicial review in CAT cases with its competing, expressed desire to limit judicial review in certain cases involving noncitizens who have been convicted of crimes.
Andrea Del-Carmen Gonzalez contributed to this post.