SCOTUS: Courts Can Review Factual Challenges to CAT Denials for Criminal Aliens

Moving the goal posts to find jurisdiction

By Andrew R. Arthur on June 3, 2020

On Monday, the Supreme Court issued a decision in Nasrallah v. Barr, in which it concluded that circuit courts can review factual challenges to denials by the Department of Justice (DOJ) of protection under the UN Convention Against Torture (CAT) brought by criminal aliens. Respectfully, that decision is not only wrong, but it will grind removals to a halt for some of the worst aliens in the United States.

The Convention Against Torture

The United States is a signatory to CAT, which it ratified on October 21, 1994. Our ratification was not "self-executing", that is, it required congressional legislation to make it effective.

That legislation was section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), which made it U.S. policy "not to expel, extradite, or otherwise effect the involuntary removal of any person to a country where there are substantial grounds for believing that the person would be in danger of being subjected to torture." FARRA did not expressly explain how that policy was to be implemented, however leaving it up to the "appropriate" executive-branch agencies to enact regulations to enforce CAT protections.

This is in contrast to, for example, asylum, for which Congress drafted a specific enforcement regime by which applicants could apply for such protection (found in section 208 of the Immigration and Nationality Act (INA)). Aside from the somewhat vague directions in FARRA, CAT protection is largely regulatory, and the regulations implementing CAT are found in 8 C.F.R. §§ 1208.16, 1208.17, and 1208.18. The last provision states, in pertinent part:

Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. [Emphasis added.]

There are two forms of CAT that DOJ can grant: withholding of removal and deferral of removal. The latter is a more restrictive protection that is available to applicants for protection who are not eligible for withholding because they fall within one or more of a series of categories barring a grant of that protection in section 241(b)(3)(B) of the INA (including the fact that the alien is a persecutor, has been convicted of a particularly serious crime, or poses a danger to the national security of the United States).

In essence, regardless of how significant a danger than an alien poses to the national security or the community, an alien can apply for, and if eligible be granted, CAT. I have often clarified this by stating that had Osama bin Laden been apprehended in the United States, he could have sought, and likely would have been granted, deferral under CAT.

Pursuant to the regulations, there is no guarantee that an alien granted CAT deferral will not be detained indefinitely (although a reviewing court on habeas may have something to say about that), and both withholding and deferral under CAT are country-specific. This means that withholding or deferral of removal thereunder only applies to a specified country or countries, but the alien can be removed to any other country that will take him or her. Deferral can also be terminated at any time, assuming that DHS can convince DOJ that it is not more likely than not the alien will be tortured.

Finally, an alien granted CAT can be removed even to a country to which withholding or deferral has been granted, assuming that the State Department receives assurances from that country that the alien will not be tortured if removed, and sends those assurances to DOJ. Under the regulations, only the attorney general, the deputy attorney general, or the commissioner of the Immigration and Naturalization Service (INS) may assess whether the assurances are "sufficiently reliable" to allow the alien to be removed to that country, consistent with CAT.

Of course, the INS was abolished on March 1, 2003, but it is unclear from the regulations that this authority has been conveyed to the successor of the INS commissioner, which in this case could be either the director of U.S. Citizenship and Immigration Services (USCIS) or the director of U.S. Immigration and Customs Enforcement (ICE). It likely has not, because neither is a delegate of the attorney general — both are in DHS.

Statutory Withholding of Removal

CAT and asylum are two forms of protection that are extended to aliens under the INA and the regulations implementing it. The third is statutory "withholding of removal", which is provided for in section 241(b)(3) of the Immigration and Nationality Act (INA). Section 241 of the INA is the provision that governs the detention and removal of aliens ordered removed.

Statutory withholding is similar to asylum in that it requires the applicant to prove a likelihood of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, but the burden of proof under section 241(b)(3) of the INA is higher ("more likely than not" that the applicant will be persecuted, as opposed to past persecution or a "well-founded fear" of persecution), and unlike asylum (which allows an alien to remain in the United States indefinitely, petition for relatives, and apply for a green card and ultimately citizenship), withholding of removal only prevents an alien from being removed to a specific country or countries.

Why would an alien apply for 241(b)(3) withholding, if the burden is higher and the benefits fewer? Generally because the applicant is not eligible for asylum, either because the alien failed to apply for protection within one year of arrival (a bar to asylum under section 208(a)(2)(B) of the INA), or because the alien has failed to establish that he or she merits asylum in the exercise of discretion (while asylum is discretionary relief, 241(b)(3) withholding of removal must be granted to any alien who is eligible).

Statutory Withholding and CAT Follow a Removal Order

Both statutory withholding of removal and CAT protection are unique in that they can only be granted to an alien who is removable from the United States, and has been ordered removed. As the foregoing shows, an alien granted either form of protection can be removed to a third country — just not any country to which that protection has been extended (and not rescinded). For example, to grant statutory withholding or CAT when I was an immigration judge, I had to first order the applicant removed, and then withhold or defer the removal to the country in question.

By way of contrast, an alien granted asylum is not ordered removed. This distinction is critical to the Supreme Court's decision.

Facts of the Case

Nasrallah, a native and citizen of Lebanon who entered as a visitor in 2006 and became a lawful permanent resident in 2007, was convicted in 2013 of two felony counts of receiving stolen property in interstate commerce, in violation of 18 U.S.C. 2315.

DHS placed him into removal proceedings, charging him with removability under section 237(a)(2)(A)(i) of the INA as an alien convicted of a crime involving moral turpitude (CIMT). An immigration judge (IJ) found him removable, denied his application for asylum and statutory withholding of removal (on the ground that his conviction was a "particularly serious crime" under section 241(b)(3)(B)(ii) of the INA), but granted him deferral of removal under CAT.

Both Nasrallah and DHS appealed this decision to the Board of Immigration Appeals (BIA). The BIA reversed the IJ's grant of deferral, finding that the alien had failed to show eligibility for that protection, and ordered him removed. He appealed to the Court of Appeals for the Eleventh Circuit, alleging that that the IJ was biased, his conviction was not a CIMT, and that he had not been convicted of a particularly serious crime.

The circuit court found no evidence of bias and concluded that his crime was a CIMT. Therefore, it determined that it lacked jurisdiction, pursuant to the "criminal alien bar" in section 242(a)(2) of the INA, to review Nasrallah's claim that his crime was not "particularly serious" and that he was eligible for deferral under CAT.

Circuit Court Jurisdiction Over Immigration Cases

Section 242 of the INA governs circuit-court review of orders of removal. As the conference report for the REAL ID Act of 2005 makes clear, since 1961 Congress has been streamlining review of immigration claims, and in particular divesting district courts of review and consolidating jurisdiction in the circuit courts, restricting the ability of criminal aliens to obtain judicial review, and limiting the issues over which courts have jurisdiction, particularly in the case of criminal aliens.

Those efforts have not always been successful, as reviewing courts have nonetheless found jurisdiction over claims on appeal. For example, Congress attempted to limit district court habeas review of deportation orders in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Section 440(a) of AEDPA, in particular, precluded all judicial review of deportation orders for certain classes of criminal aliens. These were efforts that Congress continued in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) — passed five months after AEDPA — which is the source of most of the provisions in section 242 of the INA.

Nonetheless, five years later in INS v. St. Cyr, the Supreme Court held that criminal aliens are actually entitled to more review than they had before the 1996 amendments, and more review than non-criminal aliens. Specifically, the Court held that criminal aliens could seek habeas review of their removal orders under 28 U.S.C. Sec. 2241. Through habeas, the criminal alien could get review in district court and, on appeal, in the court of appeals. As Justice Scalia wrote in the dissent in St. Cyr, allowing criminal aliens to obtain habeas review of their immigration orders in district court:

[B]rings forth a version of the statute that affords criminal aliens more opportunities for delay-inducing judicial review than are afforded to non-criminal aliens, or even than were afforded to criminal aliens prior to the legislation concededly designed to expedite their removal.

To address these anomalies, in section 106 of the REAL ID Act, Congress attempted to restore uniformity and order to the law by limiting the opportunities for criminal aliens to delay their removal by eliminating district-court review, and channeling review to the courts of appeals. And, significantly for purposes of Nasrallah, section 106(a)(1)(B) of that act added a new section 242(a)(4) to the INA to provide review of CAT claims. That section of the INA states:

Claims under the United Nations Convention

Notwithstanding any other provision of law (statutory or nonstatutory), ... a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of any cause or claim under [CAT], except as provided in [section 242(e) of the INA, relating to expedited removal].

The Criminal Alien Bar, the Limited Review Provision, and the Zipper Clause

Also relevant to the Court's decision in Nasrallah are three other provisions in section 242: the aforementioned "criminal alien bar" in section 242(a)(2)(C) of the INA, the "limited review provision" in section 242(a)(2)(D) of the INA, and the "zipper clause" in section 242(b)(9) of the INA.

Through the criminal alien bar, Congress strictly limited judicial review as it relates to criminal aliens. Specifically, it 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.

That provision is modified by the limited review provision, which provides that, notwithstanding the criminal alien bar, courts retain jurisdiction over "constitutional claims" and "questions of law" — not factual issues, such as those at issue in Nasrallah.

The zipper clause consolidates "[j]udicial review of all questions of law and fact ... arising from any action taken or proceeding brought to remove an alien from the United States ... in judicial review of a final order under" section 242 of the INA. In other words, circuit courts' consideration of any question of law and fact in removal proceedings is subject to the limitations in section 242 (including the criminal alien bar), and is limited to judicial review of final orders of removal, eliminating piecemeal litigation.

Section 2242(d) of FARRA

The final judicial review provision at issue in Nasrallah is section 2242(d) of FARRA, which again was part of the legislation that implemented CAT. Passed after the rewriting of the judicial review provisions in section 242 of the INA by IIRIRA, it states:

Notwithstanding any other provision of law, ... nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under [CAT] ... or any other determination made with respect to the application of the policy set forth in subsection (a), except as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act. [Emphasis added.]

The Supreme Court Decision in Nasrallah

Nasrallah subsequently sought Supreme Court review of the Eleventh Circuit's decision. In a 7-2 opinion authored by Justice Kavanaugh (Justices Thomas writing for himself and Justice Alito dissented), the Court held that, notwithstanding the "criminal alien bar", circuit courts retain the authority to review factual challenges brought by criminal aliens to denials of CAT.

The majority reached this decision by reading the criminal alien bar extremely narrowly. As noted, an alien who has been granted CAT has still been ordered removed, but removal to a specific country or countries is "withheld" or "deferred". The Court concluded that "[a] CAT order is not itself a final order of removal because it is not an order 'concluding that the alien is deportable or ordering deportation'", and that CAT orders do not "merge into final orders of removal in the same way as, say, an immigration judge's evidentiary rulings merge into final orders of removal."

To reach this conclusion, the majority has to distinguish section 2242(d) of FARRA (again, which states "nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under [CAT] except as part of the review of a final order of removal pursuant to section 242" of the INA) (emphasis added) and the "zipper clause" in section 242(b))(9) of the INA.

With respect to the latter provision, limiting the availability of "[j]udicial review of all questions of law and fact ... arising from any action taken or proceeding brought to remove an alien from the United States" to judicial reviews of final orders under section 242 of the INA would logically merge issues relating to eligibility for CAT with the final order of removal itself, as a matter of fact and law.

And, read strictly (as Justice Thomas writing for the dissent would do), in conjunction with the criminal alien bar, it would divest courts of jurisdiction to review factual determinations in CAT cases involving criminal aliens. He explained:

To "arise" means "to originate from a specified source" or "to come into being." ... And "from" most naturally refers here to the "ground, reason, or basis" for something. ... Thus, [section 242(b)(9) of the INA] covers all "questions of law and fact" that an immigration judge must decide as a result of the Government's decision to initiate removal proceedings against an alien. See also Reno v. American Arab Anti-Discrimination Comm. ... (stating that the zipper clause applies to the "many ... decisions or actions that may be part of the [removal] process"). The plain text clearly covers CAT claims such as the one petitioner raised.

Justice Kavanaugh sidesteps these issues by limiting the scope of the zipper clause, and does so in turn by relying on the definition of the term "order of deportation" in section 101(a)(47) of the INA, which he references as a "final 'order of removal' ... [i]n the deportation context".

But here is what that provision states:

(A) The term "order of deportation" means the order of the special inquiry officer, or other such administrative officer to whom the Attorney General has delegated the responsibility for determining whether an alien is deportable, concluding that the alien is deportable or ordering deportation.

(B) The order described under subparagraph (A) shall become final upon the earlier of-

(i) a determination by the Board of Immigration Appeals affirming such order; or

(ii) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals.

Anyone familiar with immigration law would assume — based upon the verbiage — that this is a very old provision of the INA — the term "special inquiry officer" was supplemented by the term "immigration judge" (now the preferred term) in 1973, and the entire deportation/exclusion regime was replaced by the concept of "removal" in IIRIRA, which was enacted on September 30, 1996.

But, in fact, it was only added to the INA by section 440(b) of the AEDPA, which was passed on April 24, 1996. Why was it added to the INA almost 44 years after that law was passed?

Two reasons: (1) to define the term for purposes of setting a 30-day deadline for the deportation of criminal aliens under then-section 242(c) of the INA; and (2) to define the term for purposes of eliminating judicial review for certain criminal aliens (as noted above) in then-section 106 of the INA.

Former sections 106 and 242 of the INA (with the exception of section 242(j), which was redesignated as section 241(j) of the INA) were repealed, however, by section 306 of IIRIRA, and section 106 of the INA was replaced (in section 306(a) of IIRIRA) with what is now section 242 of the INA — the provision at question in this case, including the aforementioned zipper clause in section 242(b)(9) of the INA.

Why is this important? Because section 101(a)(47) of the INA (again, defining "order of deportation") is key to Justice Kavanaugh's determination that criminal aliens can seek judicial review of factual determinations in CAT cases:

The relevant statutory text precludes judicial review of factual challenges to final orders of removal — and only to final orders of removal. In the deportation context, a final "order of removal" is a final order "concluding that the alien is deportable or ordering deportation." [Section 101(a)(47)(A) of the INA].

A CAT order is not itself a final order of removal because it is not an order "concluding that the alien is deportable or ordering deportation." [Emphasis added.]

Those three sentences are the most important passages in the entire 24-page decision. But the majority's logic rests upon a provision that was added to the INA to modify two provisions therein that were effective for just five months and four days almost two dozen years ago.

By way of further proof, the transition provisions in section 309 of IIRIRA state, in paragraph (d)(2):

For purposes of carrying out the Immigration and Nationality Act, as amended by this subtitle — (2) any reference in law to an order of removal shall be deemed to include a reference to an order of exclusion and deportation or an order of deportation.

Note how that provision is phrased: not that a reference in law to an "order of deportation" shall be deemed to include a reference to an "order of removal", but vice versa. The Court references this provision, but fails to appreciate the discrepancy — a difference with a distinction because it was an attempt to ensure that no action was excluded from the scope of IIRIRA, not that criminal aliens could seek judicial review of factual issues. Section 101(a)(47) of the INA is a vestige that is at best a side note to history — not a basis to provide judicial review to untold numbers of aliens annually.

Want proof? Consider criminal aliens subject to inadmissibility under section 212 of the INA who apply for CAT. Section 101(a)(47) of the INA never would have applied to any of them who are arriving aliens (including most if not all aliens in expedited removal), and it never would have applied to any of them after IIRIRA. And yet they are now eligible for judicial review of the facts of their CAT denials thanks to the Supreme Court. Curiously, neither the majority nor the dissent ever addresses this discrepancy.

Justice Kavanaugh also references the judicial review provision for CAT cases in section 242(a)(4) of the INA in support of his conclusion. This might seem like burying the lede, but it isn't, because it does not provide a significant basis for Judge Kavanaugh's majority opinion. I am personally familiar with this provision, because as a staffer for the House Judiciary Committee, I drafted it as part of section 106(a) of the REAL ID Act.

Respectfully, that provision was included in section 242 of the INA for a reason. That section of the INA was and is captioned "Judicial Review of Orders of Removal". The intention was that section 242(a)(4) of the INA would be read in conjunction with that provision as a whole, including and especially the criminal alien bar, thanks to the zipper clause.

Again, want proof? The conference report for that bill (which once more is not cited by either the majority or the dissent) specifically cites the zipper clause ("Congress made clear [in IIRIRA] that review of a final removal order is the only mechanism for reviewing any issue raised in a removal proceeding. Section 242(b)(9) of the INA") and it specifically states that "the reforms in section 106 [of the REAL ID Act] would preclude criminals from obtaining review over non-constitutional, non-legal claims." (Emphasis added.)

The reason that I bring this up (except to further underscore the error in the Court's opinion) is the fact that Justice Kavanaugh states:

It would be easy enough for Congress to preclude judicial review of factual challenges to CAT orders, just as Congress has precluded judicial review of factual challenges to certain final orders of removal. But Congress has not done so, and it is not the proper role of the courts to rewrite the laws passed by Congress and signed by the President.

With all due respect to the justice, he's wrong. On two points.

First, as shown above, Congress attempted to preclude factual challenges to CAT orders for criminal aliens. The Court simply failed to appreciate that fact (likely because it never read the REAL ID conference report).

Second, it would not "be easy enough for Congress to preclude judicial review of factual challenges to CAT orders", at least not for criminal aliens, because the courts can "move the goalposts" after Congress passes laws, as this decision demonstrates. I never imagined that any court, let alone the Supreme Court, would go through such a tortured analysis of such a straightforward provision as section 242(a)(4) of the INA, and certainly never imagined that it would reach back to a vestigial provision of section 101 of the INA to do so (I would note that the word "alien" appears in section 101(a)(3) of the INA, but Justice Kavanaugh refuses to use it, preferring "noncitizen", a trend for him as I have previously explained that is in error as a matter of law). In fact, the conference report for the REAL ID Act refers to "final ... deportation order" (a phrase that, as noted, the majority made a cornerstone of its opinion) as "pre-1996" — meaning pre-IIRIRA — "nomenclature".

This is the second time in just over two months that the Supreme Court has misread the criminal alien bar and limited review provisions in section 242 of the INA. As I explained in a March 25 post, in Guerrero-Lasprilla v. Barr (with Justice Breyer then writing for the majority) the Supreme Court allowed criminal aliens whose cases were long over (and therefore an untold number more) to seek judicial review of denials of their motions to reopen by asserting that they are eligible for "equitable tolling" (a legal concept that allows for untimely filing).

To do so, it had to construe that the phrase "questions of law" in the limited review provision of section 242(a)(2)(D) of the INA to "include[] the application of a legal standard to undisputed or established facts", despite the fact that it had admitted that it had referred to such issues as "mixed questions of law and fact" in the past.

As the dissent in Guerrero-Lasprilla (again, Justice Thomas for himself and Justice Alito) noted, that decision "expand[ed] the scope of judicial review" for criminal aliens "well past the boundaries set by Congress" in the limited review provision.

At least in that case, the Court admitted that its opinion rested in part on what it termed "a familiar principle of statutory construction: the presumption favoring judicial review of administrative action" (despite the fact that Congress has done all it can to limit such review in section 242 of the INA). Justice Kavanaugh did not even reach for this fig leaf over judicial activism in Nasrallah.

And, at least in Guerrero-Lasprilla, the majority cited to the conference report for the REAL ID Act — it just failed to cite to the most relevant portion therein (which actually explained how the limited review provision was to be applied), as I explained in my March post. Congress writes such reports for a reason — not its own edification, but the edification of reviewing courts.

CAT deferral, as the foregoing demonstrates, is usually the protection of last resort for some exceptionally bad individuals — those who are not eligible for asylum and statutory withholding. The majority's opinion in Nasrallah will provide them the opportunity to remain in the United States and fight their removal cases in the circuit courts, indefinitely.

All of that said, that decision provides the administration with an opportunity to do something that I have argued it should have done long ago — take CAT authority from DOJ and give it to DHS. I will explain why and how in my next post.