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SCOTUS Scrutinizes DOJ’s ‘Metaphysical’ Immigration Stance (1)

March 2, 2020, 5:57 PMUpdated: March 2, 2020, 7:46 PM

The U.S. Supreme Court weighed a patchwork of laws, decisions, and what Justice Neil Gorsuch called the government’s “metaphysical” position in a dispute over whether courts can review administrative findings involving claims of torture when noncitizens are deported.

The hour-long oral argument session on Monday, which on the whole seemed to favor the Lebanese native and citizen at issue here, was mired in an alphabet soup of statutes, leading Justice Samuel Alito to remark that “all this is very complicated.”

Those complications could make it difficult for the justices to sort out the central issue in the dispute: Whether Nidal Khalid Nasrallah’s claims of likely torture at the hands of ISIS and Hezbollah can be reviewed in court or whether they’re bound up in an unreviewable final removal order.

A decision is expected by late June.

Immigration disputes have dominated the high court’s docket this term. On Monday alone, the justices heard arguments in two separate cases on the subject. The other involves asylum seekers’ ability to get federal courts to review their claims prior to “expedited” deportation.

Reviewable or Not?

Nasrallah was convicted of receiving stolen property in interstate commerce. Charges stemmed from his buying hundreds of thousands of dollars worth of stolen cigarettes for purpose of resale.

An immigration judge said he was subject to removal for a crime involving moral turpitude.

But the judge granted him a deferral of removal under the United Nations Convention Against Torture. Federal law implementing that treaty prevents sending noncitizens to countries where they’ll more likely than not be tortured. Nasrallah said he’d be tortured by terror groups in Lebanon because of his Druze religion and western ties.

The Board of Immigration Appeals later ruled that Nasrallah should not have been granted that deferral and ordered his removal.

Nasrallah then petitioned the U.S. Court of Appeals for the Eleventh Circuit, which also ruled against him. The appeals court said it was restricted in reviewing the torture determination because it’s a fact finding, not a legal question. With courts across the country divided on the review issue, the Supreme Court took Nasrallah’s case to settle the split.

In doing so, the justices are faced with potentially conflicting and confusing legal provisions in determining whether administrative rulings resolving torture convention claims count as final removal orders that are not subject to judicial review.

‘Pretty Metaphysical’

Arguing for the Justice Department, assistant to the U.S. solicitor general Matthew Guarnieri said torture convention claims are “part of the final order of removal” yet “distinct from the order of removal in the legal sense.”

Gorsuch, a 2017 nominee of President Donald Trump, wasn’t buying that.

“Sounds pretty metaphysical, counsel,” the justice said. “It’s like the Holy Trinity.”

The other Trump appointee, Brett Kavanaugh, asked during Guarnieri’s presentation “why would Congress have wanted to preclude judicial review of those highly important factual components” of a torture convention claim?

Yet Kavanaugh also probed the position of Nasrallah’s lawyer, McDermott Will & Emery’s Paul Hughes, and the newest justice’s vote is the hardest to pin on his oral argument questioning.

The court’s more liberal justices—Sonia Sotomayor, Ruth Bader Ginsburg, Elena Kagan, and Stephen Breyer—seemed to favor Nasrallah’s bid, with Breyer noting that courts favor reviewability.

Chief Justice John Roberts didn’t question either side, nor did Justice Clarence Thomas, who usually doesn’t.

Ginsburg asked Guarnieri if Nasrallah can be deported any place else in the world, just not to Lebanon. “Is there an impediment to deporting him to some other country?”

There’s no impediment, the government lawyer replied.

Alito, who expressed the most skepticism toward Nasrallah’s position, observed that means that “some country with which he has no connection would have to accept him.”

The case is Nasrallah v. Barr, U.S., No. 18-1432, oral argument 3/2/20.

(Adds more detail from argument, link to transcript. )

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

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

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