Opinion analysis: Federal courts can review factual findings of a Convention Against Torture claim raised as a defense to crime-based removal

In a narrow, textualist decision, the Supreme Court today agreed with Nidal Khalid Nasrallah that a federal court of appeals has jurisdiction to review, albeit deferentially, the factual basis of the Board of Immigration Appeals’ denial of his claim that he qualifies for protection under the Convention Against Torture.

Nasrallah sought the United States’ protection under CAT, which prohibits removal of a noncitizen to a country where the noncitizen likely would be tortured. An immigration judge found that Nasrallah qualified for deferral of removal under CAT because he likely would be tortured if returned to his native country of Lebanon. Nasrallah remained eligible for this form of relief even though the immigration judge also found that he had committed an offense that qualified as a crime involving moral turpitude, rendering 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 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 maintained that the federal court of appeals 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.” In an opinion authored by Justice Brett Kavanaugh, and joined by Chief Justice John Roberts as well as Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan and Neil Gorsuch, the court held that “the court of appeals should review factual challenges to the CAT order deferentially.”

The decision will alter the legal landscape for two reasons. First, the courts of appeals have split on this question, with most courts embracing the government’s more restrictive interpretation of the relevant statute. Aside from the U.S. Courts of Appeals for the 7th and 9th Circuits, all other circuit courts have sided with the government’s contention that factual review of a CAT claim is barred by Sections 1252(a)(2)(C) and (D). So the opinion will change practices in most courts of appeals, though whether it will change outcomes in individual cases under the deferential standard of review remains to be seen. Second, the decision may imply the availability of judicial review for factual claims in cases involving other forms of relief from removal – most notably, statutory withholding of removal under 8 U.S.C. § 1231(b)(3)(A).

As Kavanaugh’s opinion makes clear, all parties agreed that Section 1252(a)(1) authorizes noncitizens to obtain direct “review of a final order of removal” in a court of appeals. The parties also agreed that all challenges to the “final order of removal” had to be consolidated in a single petition for review under Section 1252(b)(9). At the same time, the Foreign Affairs Reform and Restructuring Act of 1998 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).” The majority opinion also notes that under the REAL ID Act of 2005, codified at 8 U.S.C. §1252(a)(4), “CAT orders … may not be reviewed in district courts, even via habeas corpus, and may be reviewed only in the courts of appeals.”

Although the resulting statutory text appears to contemplate federal appellate review of the factual findings of a CAT claim, the government argued that such review is constrained in cases like Nasrallah’s, in which the final order of removal is based on criminal conduct covered by Section 1252(a)(2)(C). In such cases, courts of appeals may review constitutional or legal challenges to a final order of removal, but not factual challenges to that order. The government argued that this bar to judicial review of factual challenges applied to Nasrallah’s CAT claim as well as other aspects of his removal order.

The Supreme Court disagreed. Kavanaugh’s opinion reasons:

A CAT order leaves a final removal order in place. It simply defers the order’s execution. It does not prevent the government from executing the removal order when country conditions change or prohibit removal to a third country. Nor does the CAT order merge into the final order of removal for purposes of judicial review. Kavanaugh writes, “[f]or purposes of this statute, final orders of removal encompass only the rulings made by the immigration judge or Board of Immigration Appeals that affect the validity of the final order of removal.”

After interpreting CAT relief as separate from, although reviewed with, the underlying removal order, the majority concludes that the appropriate standard of review for challenges to the factual findings on a CAT claim 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.’”

In concluding that factual CAT claims are reviewable by courts of appeals, the court addresses five arguments raised by the government in support of its position. First, it rejects the government’s reliance on the broad definition of “final orders of deportation” articulated in Foti v. INS, noting that Foti was decided before Congress substantially revised the definition and content of final removal orders in 1996. Second, the court rejects the government’s claim that, because Section 1252(b) only allows for review of “final orders of removal,” placing review of a CAT claim outside the jurisdictional limits of the statute would deprive the appellate courts of any power to review CAT decisions. The majority notes that both FARRA and the REAL ID Act expressly provide for judicial review of CAT claims. Third, the court dismisses the government’s argument that congressional intent favors streamlining judicial review of removal orders for noncitizens convicted of crimes, requiring a different result. The court finds such an interpretation of congressional intent contrary to the statute, and reasons that even if Congress wanted to streamline review of straightforward questions regarding noncitizens’ previously litigated criminal conduct, such reasoning would not apply to CAT claims, which have never been reviewed by any court. Fourth, the court disagrees with the government’s claim that a decision in Nasrallah’s favor would “unduly delay removal proceedings,” because the review of CAT claims does not add any new layers of review. The court also points to the government’s failure to inform the court of “any significant problems stemming from” the review of factual determinations in CAT claims in the two circuits that already allow it.

Finally, the court rejects the government’s “slippery slope” argument that allowing review of factual findings in CAT claims might also require such review for a variety of claims for relief. Addressing this concern, the court concludes that “another jurisdiction-stripping provision, §1252(a)(2)(B), states that a noncitizen may not bring a factual challenge to orders denying discretionary relief, including cancellation of removal, voluntary departure, adjustment of status, certain inadmissibility waivers, and other determinations ‘made discretionary by statute.’” Such determinations are therefore not affected by this decision. The court also adds in a footnote that its decision does not mean that CAT claims raised in expedited removal proceedings are entitled to judicial review, because those claims are governed by distinct statutory provisions. The dissent argues that nevertheless, these limits do not confine the effects of today’s decision to the CAT context.

Justice Clarence Thomas dissented, joined by Justice Samuel Alito. Pursuing a line of reasoning articulated by Alito during oral argument, Thomas looks to the “zipper clause,” 8 U.S.C. § 1252(b)(9), which 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.” Thomas reasons that this applies to the CAT claims “arising from” the relevant removal proceedings. Under this interpretation, CAT claims are limited by the bars on factual review set forth in Sections 1252(a)(2)(C) and(D).

Returning to slippery slope concerns, Thomas’ opinion notes that the court’s reasoning regarding CAT claims applies equally well to statutory claims for withholding of removal, which are available if “the alien’s life or freedom would be threatened … because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” Like CAT relief, statutory withholding leaves the underlying removal order in place and simply prevents the removal of the noncitizen unless and until other conditions are satisfied. Thomas notes that this is a “frequently sought form of relief.” He therefore predicts that this decision will bring about a “sea change” in immigration law because courts of appeals will now be able to review factual challenges to denials of statutory withholding of removal.

Interestingly, the majority opinion does not refute this possibility. “That question,” Kavanaugh writes, “is not presented in this case, and we therefore leave its resolution for another day.” Ultimately, then, this decision allows for federal appellate court review of administrative factual findings in CAT claims, but it also may invite such challenges in statutory withholding of removal claims.