NASRALLAH v. BARR, ATTORNEY GENERAL
No. 18–1432
SUPREME COURT OF THE UNITED STATES
June 1, 2020
590 U. S. ____ (2020)
Argued March 2, 2020—Decided June 1, 2020
Syllabus
NOTE: Whеre it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
Syllabus
NASRALLAH v. BARR, ATTORNEY GENERAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
Under federal immigration law, noncitizens who commit certain crimes are removable from the United States. During removal proceedings, a noncitizen who demonstrates a likelihood of torture in the
The Government sought to remove petitioner Nidal Khalid Nasrallah after he pled guilty to receiving stolen property. Nasrallah applied for CAT relief to prevent his removal to Lebanon. The Immigration Judge ordered Nasrallah removed and granted CAT relief. On appeal, the Board of Immigration Appeals vacated the CAT relief order and ordered Nasrallah removed to Lebanon. The Eleventh Circuit declined to review Nasrallah’s factual challenges to the CAT order because Nasrallah had committed a
Held: Sections
(a) Three interlocking statutes establish that CAT orders may be reviewed together with final orders of removal in a court of appeals. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 authorizes noncitizens to obtain direct “review of a final order of re-moval” in a court of appeals,
(b) Sections
(c) The standard of review for factual challenges to CAT orders is substantial evidence—i.e., the agency’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”
The Government insists that the statute supplies no judicial review of factual challenges to CAT orders, but its arguments are unpersuasive. First, the holding in Foti v. INS, 375 U. S. 217, depends on an outdated interpretation of “final orders of deportation” and so does not control here. Second, the Government argues that
762 Fed. Appx. 638, reversed.
KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, KAGAN, and GORSUCH, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.
NIDAL KHALID NASRALLAH, PETITIONER v. WILLIAM P. BARR, ATTORNEY GENERAL
No. 18–1432
SUPREME COURT OF THE UNITED STATES
June 1, 2020
590 U. S. ____ (2020)
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typograрhical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
JUSTICE KAVANAUGH delivered the opinion of the Court.
Under federal immigration law, noncitizens who commit certain crimes are removable from the United States. During removal proceedings, a noncitizen may raise claims under the international Convention Against Torture, known as CAT. If the noncitizen demonstrates that he likely would be tortured if removed to the designated country of removal, then he is entitled to CAT relief and may not be removed to that country (although he still may be removed to other countries).
If the immigration judge orders removal and denies CAT relief, the noncitizen may appeal to the Board of Immigration Appeals. If the Board of Immigration Appeals orders removal and denies CAT relief, thе noncitizen may obtain judicial review in a federal court of appeals of both the final order of removal and the CAT order.
In the court of appeals, for cases involving noncitizens who have committed any crime specified in
Everyone agrees on all of the above. The dispute here concerns the scope of judicial review of CAT orders for those noncitizens who have committed crimes specified in
So the narrow question before the Court is whether, in a case involving a noncitizen who committed a crime specified in
I
Nidal Khalid Nasrallah is a native and citizen of Lebanon. In 2006, when he was 17 years old, Nasrallah came to the United States on a tourist visa. In 2007, he became a lawful permanent resident. In 2013, Nasrallah pled guilty to two counts of receiving stolen property. The U. S. District Court for the Western District of North Carolina sentenced Nasrallah to 364 days in prison.
Based on Nasrallah’s conviction, the Government initiated deportation proceedings. See
The Immigration Judge determined that Nasrallah was removable. As to the CAT claim, the Immigration Judge found that Nasrallah had previously suffered torture at the hands of Hezbollah. Based on Nasrallah’s past experience and the current political conditions in Lebanon, the Immigration Judge concluded that Nasrallah likely would be tortured again if returned to Lebanon. The Immigration Judge ordered Nasrallah removed, but also granted CAT relief and thereby blocked Nasrallah’s removal to Lеbanon.
On appeal, the Board of Immigration Appeals disagreed that Nasrallah likely would be tortured in Lebanon. The Board therefore vacated the order granting CAT relief and ordered Nasrallah removed to Lebanon.
Nasrallah filed a petition for review in the U. S. Court of Appeals for the Eleventh Circuit, claiming (among other
Nasrallah contends that the Eleventh Circuit should have reviewed his factual challenges to the CAT order because the statute bars review only of factual challenges to a “final order of removal.” According to Nasrallah, a CAT order is not a “final order of removal” and does not affect the validity of a final order of removal. Therefore, Nasrallah argues, the statute by its terms does not bar judicial review of factual challenges to a CAT order.
The Courts of Appeals are divided over whether
In light of the Circuit split on this important question of federal law, we granted certiorari. 589 U. S. ___ (2019).3
II
When a noncitizen is removable because he committed a crime specified in
A
We begin by describing the three interlocking statutes that provide for judicial review of final orders of removal and CAT orders.
The first relevant statute is the Illegal Immigration Reform and Immigrant
The second relevant statute is the Foreign Affairs Reform and Restructuring Act of 1998, known as FARRA. FARRA implements Article 3 of the international Convention Against Torture, known as CAT. As relevant here, CAT prohibits removal of a noncitizen to a country where the noncitizen likely would be tortured. Importantly for present purposes, §2242(d) of FARRA provides for judicial review of CAT claims “as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act (8 U. S. C. 1252).” 112 Stat. 2681–822, note following
The third relevant statute is the REAL ID Act of 2005. As relevant here, that Act responded to this Court’s 2001 decision in St. Cyr. In St. Cyr, this Court ruled that the 1996 Act, although purporting to eliminate district court review of final orders of removal, did not eliminatе district court review via habeas corpus of constitutional or legal challenges to final orders of removal. 533 U. S., at 312–313. The REAL ID Act clarified that final orders of removal may not be reviewed in district courts, even via habeas corpus, and may be reviewed only in the courts of appeals. See 119 Stat. 310,
B
Those three Acts establish that CAT orders may be reviewed together with final orders of removal in a court of appeals. But judicial review of final orders of removal is somewhat limited in cases (such as Nasrallah’s) involving noncitizens convicted of crimes specified in
The question in this case is the following: By precluding judicial review of factual challenges to final orders of removal, does the law also preclude judicial review of factual challenges to CAT orders? We conclude that it does not.
A CAT order is not itself a final order of removal because it is not an ordеr “concluding that the alien is deportable or ordering deportation.” As the Government acknowledges, a CAT order does not disturb the final order of removal. Brief for Respondent 26. An order granting CAT relief means only that, notwithstanding the order of removal, the noncitizen may not be removed to the designated country of removal, at least until conditions change in that country. But the noncitizen still “may be removed at any time to another country where he or she is not likely to be tortured.”
Even though CAT orders are not the same as final orders of removal, a question remains: Do CAT orders merge into final orders of removal in the same way as, say, an immigration judge’s evidentiary rulings merge into final orders of removal? The answer is no. For purposes of this statute, final orders of removal encomрass only the rulings made by the immigration judge or Board of Immigration Appeals that affect the validity of the final order of removal. As this Court phrased it in INS v. Chadha, review of a final order of removal “includes all matters on which the validity of the final order is contingent.” 462 U. S. 919, 938 (1983) (internal quotation marks omitted). The rulings that affect the validity of the final order of removal merge into the final order of removal for purposes of judicial review. But the immigration judge’s or the Board’s ruling on a CAT claim does not affect the validity of the final order of removal and therefore does not merge into the final order of removal.
To be sure, as noted above, FARRA provides that a CAT order is reviewable “as part of the review of a final order of removal” under
It would be easy enough for Congress to preclude judicial review of factual challenges to CAT orders, just аs 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.
C
Although a noncitizen may obtain judicial review of factual challenges to CAT orders, that review is highly deferential, as Nasrallah acknowledges. See Reply Brief 19–20; Tr. of Oral Arg. 5. The standard of review is the substantial-evidence standard: The agency’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”
But the Government still insists that the statute supplies no judicial review of factual challenges to CAT orders. The Government advances a slew of arguments, but none persuades us.
First, the Government raises an argument based on precedent. In Foti v. INS, 375 U. S. 217 (1963), this Court interpreted the statutory term “final orders of deportation” in the Immigration and Nationality Act of 1952, as amended in 1961, to encompass “all determinations made during and incident to the administrative proceeding” on removability. Id., at 229. The Government points out (correctly) that the Foti definition of a final order—if it still applied here—would cover CAT orders and therefore would bar judicial review of factual challenges to CAT orders. But Foti’s interpretation of the INA as it existed as of 1963 no longer applies. Since 1996, the INA has defined final “order of deportation” more narrowly than this Court interpreted the term in Foti. A final order of deportation is now defined as a final order “concluding that the alien is deportable or ordering deportation.”
Third, the Government asserts a congressional intent argument: Why would Congress bar review of factual challenges to a removal order, but allow factual challenges to a CAT order? To begin with, we must adhere to the statutory text, which differentiates between the two kinds of orders for those purposes. In any event, Congress had good reason to distinguish the two. For noncitizens who have commit-ted crimes that subject them to removal, the facts that rendered the noncitizen removable are often not in serious dispute. The relevant facts will usually just be the existence of the noncitizen’s prior criminal convictions. By barring review of factual challenges to final orders of removal, Congress prevented further relitigation of the underlying factual bases for those criminal convictions—a point that Senator Abraham, a key proponent of the statutory bar to judicial review, stressed back in 1996. See 142 Cong. Rec. 7348–7350 (1996).
By contrast, the issues related to a CAT order will not typically have been litigated prior to the alien’s removal proceedings. Those factual issues may range from the noncitizen’s past experiences in the designated country of removal, to the noncitizen’s credibility, to the political or other current conditions in that country. Becausе the factual components of CAT orders will not previously have been litigated in court and because those factual issues may be critical to determining whether the noncitizen is likely to be tortured if returned, it makes some sense that Congress would provide an opportunity for judicial review, albeit deferential judicial review, of the factual components of a CAT order.
Fourth, the Government advances a policy argument—that judicial review of the factual components of a CAT order would unduly delay removal proceedings. But today’s decision does not affect whether the noncitizen is entitled to judicial review of a CAT order and does not add a new layer of judicial review. All agree that a noncitizen facing removal under these provisions may already sеek judicial review in a court of appeals of constitutional and legal claims relating to both the final order of removal and the CAT order. Our holding today means only that, in that same case in the court of appeals, the court may also review the noncitizen’s factual challenges to the CAT order under the deferential substantial-evidence standard. For many years, the Seventh and Ninth Circuits have allowed factual challenges to CAT orders, and the Government has not in-formed this Court of any significant problems stemming from review in those Circuits.
Fifth, what about the slippery slope? If factual challenges to CAT orders may be reviewed, what other orders will now be subject to factual challenges in the courts of appeals? Importantly, another jurisdiction-stripping
The Government suggests that our decision here might lead to judicial review of factual challenges to statutory withholding orders. A statutory withholding order prevents the removal of a noncitizen to a country where the noncitizen’s “life or freedom would be threatened” because of the noncitizen’s “race, religion, nationality, membership in a particular social group, or political opinion.”
* * *
In cases where a noncitizen has committed a crime specified in
It is so ordered.
NIDAL KHALID NASRALLAH, PETITIONER v. WILLIAM P. BARR, ATTORNEY GENERAL
No. 18–1432
SUPREME COURT OF THE UNITED STATES
June 1, 2020
590 U. S. ____ (2020)
JUSTICE THOMAS, with whom JUSTICE ALITO joins, dissenting.
The majority holds that the federal courts of appeals have jurisdiction to review factual challenges to orders resolving claims brought under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Beсause I disagree with this interpretation of the relevant immigration laws, I respectfully dissent.
I
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT or Convention) is an international human rights treaty that, as its name implies, obligates signatories to work to eradicate torture. The Convention was sent to the Senate for its advice and consent in 1990. Although the Senate ultimately ratified the treaty, it also determined that the first 16 articles of the Convention were not self-executing. See S. Exec. Rep. No. 101–30, p. 31 (1990). As such, those articles required implementing legislation before their obligations could become effective as domestic law. See Medellín v. Texas, 552 U. S. 491, 505, n. 2 (2008).
After the treaty was ratified, Congress enacted legislation implementing Article III of the Convention by means of the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA). See §2242, 112 Stat. 2681–822, note following
Sеction 1252, in turn, grants federal courts of appeals jurisdiction to review final orders of removal.
At the same time, petitions for review are subject to a number of limitations, one of which is in
II
A
This case concerns whether CAT claims brought during a criminal alien’s removal proceeding are covered by the criminal-alien bar in
The zipper clause states that “all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien . . . shall be available only in judicial review of a final order under this section.”
The plain text clearly covers CAT claims such as the one petitioner raised. The Government initiated removal proceedings, alleging that petitioner had been convicted of a “crime involving moral turpitude.” See
Because the CAT claim falls within the zipper clause, all of §1252’s other limitations and procedural requirements imposed on final orders of removal, including
B
My analysis would begin and end with the plain meaning of the zipper clause. Rather than focusing on that clause, however, the majority bases its textual analysis almost exclusively on the fact that Congress has defined an “‘order of [removal]’” as an order “concluding that the alien is deportable or ordering deportation.”
As just explained, this conclusion contradicts the statute’s plain text. The zipper clause does not consolidate all questions of law and fact that “affect the validity of the final order of removal.” Ibid. It instead consolidates “all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien.”
The majority nevertheless contends that its reading is supported by
Section 1252(a)(2)(4), on the other hand, serves a far simpler function. That provision simply confirms that, because CAT claims can be reviewed only as part of a final order of removal, and final orders of removal can be reviewed only if a petitioner files a petition for review, a CAT claim likewise can be reviewed only if petitioner files a petition for review. See Ortiz-Franco v. Holder, 782 F. 3d 81, 88–89 (CA2 2015); Lovan v. Holder, 574 F. 3d 990, 998 (CA8 2009). My reading of the statute makes sense of
C
The majority’s interpretation will bring about a sea change in immigration law. Though today’s case involves CAT claims, there is good reason to think that the majority’s rule will apply equally to statutory withholding of removal. Statutory withholding, a frequently sought form of relief, is available if “the alien’s life or freedom would be threatened . . . because of the alien’s raсe, religion, nationality, membership in a particular social group, or political opinion.”
The Government persuasively argues that adopting petitioner’s rule will disturb the courts of appeals’ longstanding practice of subjecting criminal aliens’ statutory withholding claims to
III
At bottom, petitioner’s argument is largely driven by policy considerations. 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. According to petitioner, if CAT claims cannot be reviewed by courts of appeals, then a vital check on erroneous refoulement will be lost. Petitioner’s arguments are not without rhetorical and emotional force. But, like so many other questions related to CAT obligations, Congress chose not to address them through the legislation involved here.
What Congress has done is enact