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The United States Law Week

Justices Back Broader Review of Deportation Orders (2)

March 23, 2020, 2:36 PMUpdated: March 23, 2020, 8:09 PM

The U.S. Supreme Court broadened the scope of when federal courts can review deportation orders in a ruling that the government said could frustrate congressional efforts to streamline the removal of immigrants convicted of certain crimes.

Under federal law, appellate courts can only review constitutional claims or those involving “questions of law.” Immigrants convicted of certain crimes cannot get federal courts to review factual issues related to their deportation orders.

But on Monday, the Supreme Court said in a 7-2 decision that the application of a legal standard to undisputed or established facts is a question of law subject to judicial review.

There’s a “strong presumption” of judicial review of agency actions that can only be overcome by clear and convincing statutory language, Justice Stephen Breyer wrote for the court.

The case is one of three this term testing the reach of federal courts to review immigration decisions.

Monday’s decision could point to broader judicial review in those cases, too, said University of Houston Law Center’s Geoffrey Hoffman, who directs the school’s immigration clinic.

The “black letter” holding of today’s decision is that legal questions encompass the application of law to undisputed facts, Hoffman said.

But, he said, “the real power of the decision comes from its acknowledgment of the importance of habeas corpus"—that is, the ability to have a judge look at your case.

The other two cases are DHS v. Thuraissigiam, involving “expedited removal” or the limited process for deporting those found close to the boarder, and Nasrallah v. Barr, involving the deportation of those who claim they will be persecuted or tortured if returned to their home country. Both were argued March 2.

Justices Clarence Thomas and Samuel Alito said in dissenting from Monday’s ruling that it “effectively nullifies a jurisdiction-stripping statute, expanding the scope of judicial review well past the boundaries set by Congress.”

Christopher Hajec of the Immigration Reform Law Institute said “the majority used fancy footwork to get around a jurisdiction-stripping provision.”

But, the court’s “constitutional role is to respect, by its own free will, congressional preeminence in setting the bounds of its jurisdiction,” Hajec said.

The decision overturned a U.S. Court of Appeals for the Fifth Circuit ruling reading the term “question of law” narrowly to find it had no jurisdiction to consider claims by Pablo Guerrero-Lasprilla and Ruben Ovalle. Both men, deported following drug convictions, can now have a federal court take a second look at whether they waited too long to reopen their cases.

The case is Guerrero-Lasprilla v. Barr, U.S., No. 18-776.

(Adds comments from University of Houston Law Center's Geoffrey Hoffman and the Immigration Reform Law Institute's Christopher Hajec.)
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