SCOTUS Blows Up Limits on Judicial Review for Criminal Aliens

Upsetting the separation of powers

By Andrew R. Arthur on March 25, 2020

On Monday, the Supreme Court issued a decision in Guerrero-Lasprilla v. Barr, a decision that considered two separate matters involving the application of the judicial review provisions in section 242 of the Immigration and Nationality Act (INA) to aliens whose cases were decided years before. That decision blows up what had been limited judicial review for criminal aliens, and gives aliens who have long since been ordered removed the opportunity to seek judicial review of denials of their motions to reopen their cases. Most critically, it upsets the separation of powers between Congress and the courts.

By way of background (and unfortunately, a lot of background is necessary), the aliens in question in this case had been convicted of drug crimes in the United States, were deported and removed (respectively) and moved to reopen their proceedings. The question before the Supreme Court in Guerrero-Lasprilla was: "Is a request for equitable tolling, as it applies to statutory motions to reopen, judicially reviewable as a 'question of law?'" The answer was much, much broader.

Understanding the underlying question requires an analysis of both the judicial-review provisions and the motion to reopen provisions in the INA, as well as the Fifth Circuit's interpretation of the motion to reopen provisions (both cases arose in that circuit).

First, Congress has strictly limited judicial review as it relates to criminal aliens. Specifically, section 242(a)(2)(C) of the INA (the "criminal alien" bar) divests courts of jurisdiction to review a final order of removal of an alien who is removable because that alien committed a criminal offense "covered in" various grounds of inadmissibility and deportability of the INA. Section 242(a)(2)(D) of the INA (the "limited review provision") provides, however, that notwithstanding that provision, courts retain jurisdiction over "review of constitutional claims or questions of law".

The limited-review provision was added to the INA by section 106 of the REAL ID Act of 2005, to address issues that had been raised by the Supreme Court in INS v. St. Cyr having to do with the availability of habeas review for criminal aliens in light of the criminal-alien bar. (As an aside, I am familiar with this legislation because I drafted it, as well as the relevant portions of the House Conference Report related to that provision.)

Second, Congress set strict restrictions on motions to reopen, in order to prevent alien respondents from filing serial motions, often years after a decision had been issued, to avoid removal. Under section 240(c)(7) of the INA, an alien generally may file one motion to reopen, within 90 days of the final order of removal. That 90-day deadline is subject to equitable tolling, however, as explained below. In addition, by regulation, the BIA may reopen a case on its own motion (sua sponte).

Equitable tolling is a principle that allows an untimely action by a litigant. The Supreme Court has explained in a separate context that "equitable tolling pauses the running of, or 'tolls,' a statute of limitations when a litigant has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action." That is the law, but contained therein are two factual questions that are at issue in considering equitable tolling: (1) diligent pursuit; and (2) extraordinary circumstance.

In Mata v. Lynch, the Supreme Court reversed a decision from the Court of Appeals for the Fifth Circuit, which had declined to review a motion to reopen from an alien who had failed to file that motion in a timely manner. The Fifth Circuit had, up to that point, construed all late-filed motions to reopen as requests that the BIA exercise its discretion to reopen sua sponte, and did not consider whether equitable tolling was proper. Notably, under section 242(a)(2)(B) of the INA, courts generally lack jurisdiction to deny discretionary relief.

The Supreme Court in Mata held that the circuit courts retain jurisdiction over petitions to review denial of late-filed motions to reopen based on equitable tolling: "The jurisdictional question (whether the court has power to decide if tolling is proper) is of course distinct from the merits question (whether tolling is proper)." The Court did not, however, dispositively determine whether, under the INA, the 90-day filing deadline may be equitably tolled.

Subsequently, in July 2016, the Fifth Circuit joined the other courts of appeal on the issue, holding in Lugo-Resendez v. Lynch that the 90-day time limit to refiling could be "equitably tolled".

Guerrero-Lasprilla was convicted in 1988 for possession with intent to distribute and conspiracy to possess with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1988). He was deported in 1998. At the time of his deportation, under prevailing law, he would not have been eligible for a waiver under former section 212(c) of the INA, as a result of amendments to and the ultimate repeal of that law in separate legislative acts in 1996.

Subsequently, in Matter of Abdelghany, the Board of Immigration Appeals (BIA) held in February 2014 that aliens who had been eligible for section 212(c) relief but who had been convicted prior to April 24, 1996 (the enactment date of the Antiterrorism and Effective Death Penalty Act of 1996), would remain eligible for that relief, unless they had "served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996."

Guerrero-Lasprilla filed a motion to reopen in September 2016, more than two years after the issuance of that BIA decision. An immigration judge denied that motion on the grounds that it was untimely filed, and that he was not eligible for equitable tolling, and the BIA affirmed.

He sought review of that decision from the Fifth Circuit, arguing that he was entitled to equitable tolling, as he had filed his motion to reopen 40 days after the circuit's decision in Lugo-Resendez. The circuit court dismissed his petition, finding that "whether an alien acted diligently in attempting to reopen removal proceedings for purposes of equitable tolling is a factual question" over which it had no jurisdiction under the criminal alien bar.

In the companion case, Ovalles v. Barr, the petitioner was convicted of attempted heroin possession in violation of Ohio law and was sentenced to five years' probation. The BIA determined that his conviction rendered him removable from the United States under section 237(a)(2)(B)(i) of the INA, and was also an aggravated felony that rendered him removable under section 237(a)(2)(A)(iii) of the INA. Based on that second ground, the BIA found that he was not eligible for cancellation of removal under section 240A(a)(3) of the INA. He was removed in 2004.

Thereafter, in 2006, the Supreme Court held in Lopez v. Gonzales, 549 U.S. 47, 50 (2006), that a state felony drug offense is not an "aggravated felony" under section 101(a)(43)(B) of the INA if the offense in question is a misdemeanor under federal law. Attempted possession is a misdemeanor under 21 U.S.C. § 844. Ovalles filed a motion to reopen in 2007, which was denied because he had departed the United States. That decision was affirmed by the Fifth Circuit.

He then filed a second motion to reopen in March 2017, which was denied by the BIA because he had already filed one motion to reopen and because he had not shown the requisite due diligence to justify equitable tolling, as he had waited eight months after the Fifth Circuit's decision in Lugo-Resendez to file a motion to reopen. It finally found that there were no exceptional circumstances to justify sua sponte reopening. The Fifth Circuit dismissed his appeal of that decision under the criminal-alien bar, holding: "Whether an alien acted diligently in attempting to reopen removal proceedings for purposes of equitable tolling is a factual question."

Significantly, the Fifth Circuit held:

According to Ovalles, the diligence issue he argues is a mixed question of law and fact reviewable as a legal question. Given that the basis of the BIA's denial of Ovalles's request for equitable tolling was his failure to show diligence, Ovalles has raised an unreviewable fact question, and his arguments amount to no more than his disagreement with the application of the equitable tolling standard.

Before the Supreme Court, the government had argued that Congress had intended to exclude mixed questions of law and fact from judicial review under the limited-review bar. In reversing the Fifth Circuit, the Supreme Court concluded that the phrase "questions of law" in the limited review provision "includes the application of a legal standard to undisputed or established facts" (emphasis added), although it admitted that it had referred to such issues as "mixed questions of law and fact" in the past. Respectfully, that decision is in error.

The Court's opinion rested in part on what it termed "a familiar principle of statutory construction: the presumption favoring judicial review of administrative action." That presumption may be true, but it is plainly belied by the statute itself, as the plain language of the criminal alien bar and limited review provision makes clear. Congress plainly wanted to limit judicial review for criminal aliens to the maximum extent permitted under the Constitution, and yet the majority seeks no recourse to that document to support this finding.

The majority also relied upon the limited review provision's "statutory history" to support its conclusion. The Court correctly noted that "Congress enacted the Limited Review Provision in response to this Court's decision in St. Cyr," and then launched into a lengthy discourse on that decision and "the writ of habeas corpus 'as it existed in 1789'" to support its conclusion that the limited review provision covered "the misapplication of a legal standard to undisputed facts".

Interestingly, although the Court referred to the House Conference Report for the REAL ID Act in this analysis, it did not include the most pertinent excerpt therein:

It should be noted that the word "pure,'' in the phrase "pure question of law,'' which had appeared in prior versions of a proposed section 242(a)(2)(D) of the INA, has been deleted from that phrase in the final version in this subparagraph because it is superfluous. As the ACLU explained during the St. Cyr litigation, a "question of law'' is a question regarding the construction of a statute. The word "pure'' adds no meaning. The purpose of section 106(a)(1)(A)(iii) is to permit judicial review over those issues that were historically reviewable on habeas — constitutional and statutory-construction questions, not discretionary or factual questions. When a court is presented with a mixed question of law and fact, the court should analyze it to the extent there are legal elements, but should not review any factual elements. [Emphasis added.]

The majority blew right through the admonition in the second highlighted portion above in finding that the facts in these cases were "undisputed or established". Congress could not have been more clear — the limited review provision only applies to "the construction of a statute", which was not at issue in this case.

The majority fretted that:

[T]he Government's interpretation is itself difficult to reconcile with the [limited review] Provision's basic purpose of providing an adequate substitute for habeas review. That interpretation would forbid review of any [BIA] decision applying a properly stated legal standard, irrespective of how mistaken that application might be. By reciting the standard correctly, the Board would be free to apply it in a manner directly contrary to well-established law.

Yes, and? As the dissent states with respect to this passage:

"[t]he resulting barrier to meaningful judicial review" is not a problem in need of a judicial solution ... it is evidence of Congress' design.

Speaking of the dissent, as it aptly writes:

We granted certiorari to decide whether a denial of equitable tolling for lack of due diligence is reviewable as a "question of law" under [section 242(a)(2)(D) of the INA]. Not content with resolving that narrow question, the Court categorically proclaims that federal courts may review immigration judges' applications of any legal standard to established facts in criminal aliens' removal proceedings. ... In doing so, the majority effectively nullifies a jurisdiction-stripping statute, expanding the scope of judicial review well past the boundaries set by Congress.

And, as the dissent pointed out: "Because petitioners raise no constitutional claim and due diligence in the equitable-tolling context is not a 'question of law,' their claims are unreviewable." (Emphasis added.)

With respect to this latter point, it explained:

Equitable tolling's due-diligence requirement presents a mixed question of law and fact. A litigant will qualify for equitable tolling only if he "has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action." To determine whether a litigant has exercised due diligence, judges must conduct what this Court has characterized as an "'equitable, often fact intensive'" inquiry, considering "in detail" the unique facts of each case to decide whether a litigant's efforts were reasonable in light of his circumstances. [Emphasis added.]

The majority does not actually dispute this conclusion, and again (respectfully) terming the facts in the case as "undisputed" or "established" does not alter in any way that what the majority is inviting courts to do in cases that fall within the "limited review provision" is what Congress expressly stated they could not: "review the factual elements".

This decision has two deleterious consequences: It allows aliens whose cases are long over (some if not many of whom have already been removed) to seek judicial review of denials of their motions to reopen by asserting that they are eligible for "equitable tolling". More importantly, however, as the dissent notes, it "expand[s] the scope of judicial review" for criminal aliens "well past the boundaries set by Congress" in the limited-review provision.

The dissent aptly explains the serious ramifications of that latter consequence:

Ironically, the majority refers to [section 242(a)(2)(D) of the INA] as the "Limited Review Provision." ... But according to the majority's interpretation, it is anything but "limited" — nearly all claims are reviewable. That reading contradicts the plain text and structure of [section 242(a)(2) of the INA], which was enacted to strip federal courts of their jurisdiction to review most criminal aliens' claims challenging removal proceedings. The Constitution gives the Legislative Branch the authority to curtail that jurisdiction. We cannot simply invoke this presumption of reviewability to circumvent Congress' decision. Doing so upsets, not preserves, the separation of powers reflected in the Constitution's text.

Indeed. Almost 15 years ago, Congress attempted to make the removal of criminal aliens as easy as possible. On Monday, the Supreme Court effectively undid that effort.