The U.S. Supreme Court ruled against the Trump administration in a dispute over federal court power to review noncitizens’ claims that they’ll be tortured in their home countries if they’re deported.
Monday’s 7-2 opinion by Justice Brett Kavanaugh, in the case of a Lebanese native allegedly at risk of torture by ISIS and Hezbollah, is the high court’s latest pronouncement on the broader issue of immigration that’s dominated the docket this term.
It settled a split in the nation’s appeals courts, overturning a Feb. 2019 ruling by the Atlanta-based U.S. Court of Appeals for the Eleventh Circuit that said courts don’t have jurisdiction to review the factual underpinnings of immigrants’ torture claims. While most appellate courts had similarly sided with the government, the Seventh and Ninth Circuits had not.
Federal law implementing the UN Convention Against Torture prevents sending noncitizens to countries where they’ll likely be tortured. Federal law also bars federal courts from reviewing factual challenges to final orders of removal.
But the question left open, until today, was whether courts are likewise barred from reviewing factual challenges to CAT orders.
They’re not, Kavanaugh wrote in the decision that immigrant advocates say is a step toward vindicating serious legal claims.
“Today’s decision guarantees noncitizens fulsome judicial review, ensuring that overworked administrative agencies do not have final say over questions that may carry life-or-death consequences,” said Paul Hughes, the McDermott Will & Emery partner who successfully represented the man at the center of the case, Nidal Khalid Nasrallah.
Before this decision, “torture convention denials could be reviewed by the courts, but most circuits allowed only review for legal error,” explained National Immigration Justice Center director of appellate litigation Chuck Roth. He filed an amicus brief supporting Nasrallah.
“Today’s decision will allow torture convention appeals to include factual arguments as well as legal arguments,” Roth said. “So, for instance, where a judge found that a person would only be harassed or imprisoned, but not tortured, courts will now be able to decide if the immigration judge’s decision was a reasonable one.”
The Justice Department didn’t respond to a request for comment on the decision.
And while Kavanaugh’s opinion rejected DOJ’s argument against judicial review, he characterized his ruling as a narrow one.
Indeed, even with the availability of court review, it still may be tough for noncitizens to prevail. Judicial review in these circumstances “must be highly deferential,” Kavanaugh emphasized.
In this case, an immigration judge said Nasrallah was subject to removal following convictions stemming from his purchase of hundreds of thousands of dollars’ worth of stolen cigarettes for purpose of resale.
But the judge granted him a deferral of removal under the torture convention. Nasrallah said he’d be tortured by groups such as ISIS and Hezbollah, each of which are U.S.-designated foreign terrorist organizations, if he’s deported to Lebanon.
The Board of Immigration Appeals later ruled that Nasrallah should not have been granted that deferral and ordered his removal to Lebanon. Under circuit precedent as it stood at the time, now overturned by the Supreme Court, the Eleventh Circuit refused to review Nasrallah’s factual claims.
Justice Clarence Thomas dissented from Kavanaugh’s majority opinion.
Nasrallah’s argument is “largely driven by policy considerations,” Thomas said, joined in dissent by Justice Samuel Alito. “He contends that the United States has obligated itself not to return any alien, even a criminal alien, to a country where he may be tortured or killed.”
Thomas conceded that such an argument is “not without rhetorical and emotional force.” But the justice went to say that such an argument, and the majority’s endorsement of it, is part of a decades-long trend at the high court to “systematically chip away at this statute and other jurisdictional limitations on immigration claims, thus thwarting Congress’ intent.”
The case is Nasrallah v. Barr, U.S., No. 18-1432.