Argument analysis: Is judicial review of a claim under the Convention Against Torture completely barred in cases involving removal orders on certain criminal grounds?

Nidal Khalid Nasrallah seeks the United States’ protection under the Convention Against Torture. An immigration judge found that he qualified for deferral of removal under the CAT. He remained eligible for this form of relief even though that judge also found that he had committed an offense that qualified as a crime involving moral turpitude and that would have rendered him otherwise removable. The Board of Immigration Appeals agreed with the immigration judge’s finding that Nasrallah had committed a crime involving moral turpitude, but disagreed that he qualified for deferral of removal under the CAT. When Nasrallah appealed to the U.S. Court of Appeals for the 11th Circuit, that court determined that it lacked jurisdiction to hear his appeal because 8 U.S.C. § 1252(a)(2)(C) prohibits courts from reviewing questions of fact in “any final order of removal against” a noncitizen “removable by reason of having committed” certain criminal offenses. Nasrallah maintains that that the court did have jurisdiction to review his claim because 8 U.S.C. § Section 1252(a)(4) allows for judicial review of “any cause or claim under the United Nations Convention Against Torture.” Today’s argument seemed to go better for Nasrallah than for the government.

Early in the argument, Justice Samuel Alito jumped in to advance an argument not raised or endorsed by the government. He asked whether any review provided for by Section 1252(a)(4) would be covered by the “zipper clause” of the Immigration and Nationality Act. The zipper clause, 8 U.S.C. § 1252(b)(9), provides that “[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.” Read together with the bar of 8 U.S.C. § 1252(a)(2)(C), Alito suggests, this provision means that the CAT denial can only be reviewed as part of a final order of removal, and review of that final order is barred under 8 U.S.C. § 1252(a)(2)(C).

Paul Hughes, counsel for Nasrallah, maintained that the zipper clause may not apply to CAT claims, citing footnote two of the Supreme Court’s 2018 decision in Jennings v. Rodriguez, which queries whether that provision applies to asylum. But even if there is no general exemption, he noted that the review provision concerning CAT claims was added after the zipper clause, and was intended to fill existing jurisdictional gaps. He suggested that the appropriate course for federal courts is to review the final order to the extent review is allowed – here, there would be no review of an order of removal on criminal grounds – but that the courts should independently review the CAT claim as allowed by Section 1252(a)(4). “The CAT order,” Hughes noted, “does not challenge the validity of the final order of removal.” The zipper clause bundles all claims into a single petition for review, but the CAT claim remains reviewable even though the review of the removal order on criminal grounds is barred.

Justice Brett Kavanaugh tried to get Hughes to concede that the CAT order invalidates the order of removal, “[a]t least in common parlance,” but Hughes flatly disagreed, reiterating that the removal order remains valid and can be effectuated whenever deferral under CAT is revoked. Kavanaugh wondered if this logic would also apply to challenges to denials of cancellation of removal, but Hughes explained that cancellation under 8 U.S.C. § 1229b negates the final order of removal, and therefore is distinct from CAT relief. In response to questions from Justice Sonia Sotomayor, Hughes conceded that CAT withholding (a more generous form of relief than CAT deferral) and statutory withholding of removal under 8 U.S.C. 241(b)(3) might also be covered by the logic of his argument. All three of these forms of relief prevent, at least temporarily, the implementation of a removal order while leaving the underlying order intact. Hughes stressed that statutory withholding is not at issue in this case and that it might be covered by the zipper clause. CAT relief, however, is carved out for continued review by Section 1252(a)(4).

Alito wanted to make sure that the court should even reach this question, noting the possibility that the 11th Circuit erred in applying the criminal-grounds bar in this case. The criminal ground upon which the government seeks Nasrallah’s removal is a crime involving moral turpitude. An order of deportation against a lawful permanent resident grounded upon a single crime involving moral turpitude is not on the list of orders categorically barred from review by 8 U.S.C. § 1252(a)(2)(C). Alito wondered whether the jurisdictional bar could still apply to this removal order because it covers crimes involving moral turpitude under the listed inadmissibility (rather than deportability) grounds.  Hughes cited to precedent from the U.S. Courts of Appeals for the 7th and 5th Circuit to the contrary, and explained why reliance on analogous inadmissibility grounds would be an inappropriate basis to apply the jurisdictional bar in this case, which involves a permanent resident subject to deportation grounds, not inadmissibility grounds, for removal.

Matthew Guarnieri, arguing for the government, began with the claim that the CAT determination was part of the final order of removal subject to the jurisdictional bar. Justice Neil Gorsuch immediately pushed back, wondering, “[W]hat do we do with the fact that the government has repeatedly represented that a CAT order is not a final order of removal and that a final order of removal remains effective whatever happens to the CAT order?” His follow-up questions caused Guarnieri to “agree with” Gorsuch’s notion that that the CAT claim was not in a separate proceeding, but “that doesn’t necessarily mean it’s the same thing as a final order of removal.” Guarnieri argued, however, that CAT deferral was “an integral and constituent part of the final order” but “distinct from the order … in the legal sense.” “Sounds pretty metaphysical, counsel,” responded Gorsuch, analogizing this understanding of the removal order to the Holy Trinity.

Justice Elena Kagan jumped in to grapple, again, with the government’s repeated insistence in the past that the CAT deferral was not part of the final removal order. Guarnieri tried to explain that CAT deferral made it impossible to implement the removal order, and so was functionally part of it. Justice Stephen Breyer then observed that the government has “not a bad argument … on the language” and that Nasrallah has “a pretty good argument” concerning the statutory structure and legislative intent. He went on to note that “into this breach steps the presumption in favor of reviewability.” Guarnieri argued that the plain language compels a different outcome.

Justice Ruth Bader Ginsburg wondered whether the fact that “we pledged to our treaty partners that we would not return a person to a place where the returnee would be likely subject to torture” should “figure into this analysis.” Guarnieri said that it should not because the determination below was that Nasrallah would not be tortured. But Kavanaugh pointed out that, unlike the criminal grounds that serve as the basis for deportation and for which review is barred, the CAT claim is never tested in court. He suggested that this could be why Congress sought to preserve review of these claims, citing to Senator Spencer Abraham’s analysis in the legislative record. Guarnieri said this was also true in asylum and statutory withholding claims, but that Congress sought expeditious review and removal for individuals ordered removed on criminal grounds in all cases. Kavanaugh did not seem convinced, citing the absence of jurisdiction-stripping language concerning CAT claims, and Breyer flatly disagreed with Guarnieri’s efforts to argue otherwise. “No,” he said in response to Guarnieri’s interpretation of the statute, “it doesn’t say that. That’s why it’s difficult.”

Guarnieri continued to emphasize the potentially broad implications of Nasrallah’s arguments in a colloquy with Sotomayor until Kagan cut in to tell him that “this is not a case where we have to figure out the meaning of the term by looking to zillions of different statutory provisions and trying to make sense of them.” Kagan returned to the statute in question, suggested that the “order of deportation” in the statute does not encompass the CAT determination and then chided counsel for asking the justices to look to “a bunch of cases that were decided before the statutory definition came about.” To support his interpretation of what constituted the order of removal, Guarnieri had leaned heavily throughout his argument on Foti v. Immigration and Naturalization Service, a 1963 case that substantially predated the statutory provisions in question.

At the end of his argument, Guarnieri also asserted that Nasrallah had waived his argument that his removal order premised on a crime involving moral turpitude was not covered by the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C). The government concedes that such an order is not covered, and that the 11th Circuit erred in this regard, “[b]ut that’s of no moment.” This puts the government in the distasteful position of arguing that even though the criminal-grounds jurisdictional bar does not actually apply in this case, and even though the petitioner is alleging that he will face torture if removed to Lebanon, the Supreme Court should not allow any judicial review of his life-and-death claim.

Some members of the court may be uncomfortable with that. Kavanaugh asked Guarnieri whether the 7th and 9th Circuits have experienced problems, given that they currently allow judicial review of CAT claims. Guarnieri responded that “there are some decisions in the Ninth Circuit in which in our view criminal aliens were able to reverse the agency’s factual findings on appeal.” Kavanaugh mused that this might mean “the courts thought there were mistakes being made by the administrative process in those cases.” Rather than undercutting the need for review, Kavanaugh suggested, Guarnieri’s argument might support it.

The justices then allowed Hughes to completed his rebuttal almost uninterrupted.

Editor’s note: Analysis based on transcript of oral argument.