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Justices Lean Toward Broader Review of Deportation Orders (1)

Dec. 9, 2019, 5:15 PMUpdated: Dec. 9, 2019, 8:01 PM

The U.S. Supreme Court seemed likely after oral argument Dec. 9 to rule in favor of a challenge seeking judicial review of deportation orders more broadly.

Justices from both the conservative and liberal wings of the court aggressively questioned the government’s attorney in a case examining what immigration decisions are reviewable in federal court.

The outcome of the case could have implications for those deported years, or even decades ago.

The Immigration and Nationality Act cuts off judicial review for immigrants convicted of certain crimes, except when there are “constitutional claims or questions of law.”

Frederick Liu, the federal government’s lawyer, said that means courts can only look at whether an immigration judge used the correct legal standard when making a decision, not whether that standard was correctly applied.

That would turn judicial review into a “rubber stamp,” Justice Neil Gorsuch said, noting that all an immigration court would have to do is use the correct words, but could then go on to make a “crazy” decision.

Even if it isn’t entirely clear what the law requires, shouldn’t the general presumption of judicial review “win the day” for the immigrants? Justice Elena Kagan asked Liu.

A high court ruling in their favor would allow Pedro Pablo Guerrero-Lasprilla and Ruben Ovalles a chance to have a federal court look at whether they are entitled to reopen their deportation cases. Guerrero-Lasprilla was deported in 1998, and Ovalles in 2004.

The Board of Immigration Appeals said both had waited too long to ask to reopen their cases. The New-Orleans based U.S. Court of Appeals for the Fifth Circuit said that question was a factual one and couldn’t review it.

A high court ruling is expected by the end of June.

Streamlined, Expedited

There was some indication early in the argument that at lease some of the justices might agree with the government.

It’s clear that Congress wanted “limited review” for immigrants convicted of certain crimes, Justice Ruth Bader Ginsburg told the plaintiffs’ attorney, Paul Hughes, of McDermott Will & Emery.

Allowing courts to look at the application of the legal standard would undermine that congressional intent to “streamline and expedite” the removal of those immigrants, Liu said.

But Justice Samuel Alito said there would be very little difference between review for “criminal aliens” and “non-criminal aliens,” even though Congress clearly meant for there to be one.

More Pressure

Liu, an assistant to the U.S. solicitor general, came under more pressure.

He suggested that there might be an exception allowing judicial review where, for example, an immigrant missed a deadline because they were in a coma, but the immigration court said there wasn’t a good reason for delay.

Gorsuch asked Liu if he’d “given up the ghost?”

He argued that Liu’s concession showed that there was room for federal courts to consider whether the law was correctly applied. The rest is just a matter of degrees, Gorsuch added.

The government wants the Supreme Court to say that federal courts can’t review an immigration decision, even if the lower level decision-maker was “either a monster or an idiot,” Alito said.

“Why would Congress have wanted that?” he asked Liu.

The case is Guerrero-Lasprilla v. Barr, U.S., No. 18-776, argued 12/9/19.

(Updates throughout with argument details, comments by the justices. )

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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