Opinion analysis: Court sides with immigrants on availability of judicial review of removal orders

Today, the Supreme Court issued its decision in the consolidated cases of Guerrero-Lasprilla v. Barr and Ovalles v. Barr. The court ruled in favor of the noncitizens who were challenging the U.S. Court of Appeals for the 5th Circuit’s denial of their motions to reopen their removal cases. The 5th Circuit had said it lacked the ability to review their cases. With the court’s decision, Pedro Pablo Guerrero-Lasprilla and Ruben Ovalles will now be able to continue their legal efforts to come back into the United States.

8 U.S.C. § 1252(a)(2)(C) bars federal courts from considering appeals from decisions of the Board of Immigration Appeals by noncitizens convicted of certain crimes who challenge their removal orders. These cases center on Section 1252(a)(2)(D), which the court dubs the “Limited Review Provision.” This provision allows circuit courts to consider “questions of law” raised in appeals from the BIA from the removal orders covered by Section 1252(a)(2)(C) when review would otherwise be precluded by that provision.

At the 5th Circuit, there was no dispute that courts of appeals have the ability to review the BIA’s analysis of pure questions of law. But in deciding the appeals of Guerrero-Lasprilla and Ovalles, the 5th Circuit held that the Limited Review Provision prohibited it and all other circuit courts from reviewing the BIA’s application of a legal standard to undisputed facts.

Today, the Supreme Court overturned the 5th Circuit, holding that appellate courts can review the BIA’s application of law to undisputed facts. The court sent the cases back for the lower courts to determine whether the BIA erred in finding that the time limit on their individual motions to reopen should have been equitably tolled, or extended.

Justice Stephen Breyer penned the court’s opinion. He was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, Neil Gorsuch and  Brett Kavanaugh. Justices Clarence Thomas, joined in part by Justice Samuel Alito, dissented.

The court’s opinion focuses on the phrase “questions of law” in Section 1252(a)(2)(D). The court finds no evidence that Congress intended to bar circuit courts’ review of whether settled facts satisfy a legal standard. In the opinion, Breyer analyzes how the court has, in the past, used the phrase “questions of law,” finding that prior usage entirely compatible with review of the application of a legal standard to undisputed facts.

The court locates additional support for its statutory interpretation in three places.

First, the court notes there is a longstanding presumption in favor of judicial review of administrative action, a presumption the court has “consistently applied” to immigration statutes. Noncitizens would be left without meaningful judicial review if the Limited Review Provision were read to preclude review of BIA decisions misapplying a legal standard so long as the BIA considered the correct legal standard to begin with. This presumption, like the majority’s statutory interpretation, works in favor of allowing circuit courts to review the application of law to established facts.

Second, the court highlights the statutory context of Section 1252(a)(2)(D). The nearby  “zipper clause,” Section 1252(b)(9), gets its name from the idea that it zips together all judicial review of immigration proceedings into a single action at the court of appeals. The court keys into the particular phrasing of the zipper clause. By its letter, the zipper clause limits judicial review of “all questions of law and fact, including interpretation and application of constitutional and statutory provisions,” to appeals properly brought under Section 1252. The court points out that “questions of … fact” in this context does not include the “application of … [a] statut[e].” Congress must have understood the phrase “questions of law” to be the same in both the zipper clause and the Limited Review Provision, the court continues. In both cases, “questions of law” must “includ[e] … application of … statutory provisions.”

Third and finally, the court considers the history of Section 1252(a)(2)(D). Congress enacted the Limited Review Provision in 2005 in response to the Supreme Court’s decision in Immigration & Naturalization Service v. St. Cyr. In that case, the court evaluated the effect of 8 U.S.C. Section 1252(a)(2)(C). That provision strips circuit courts of jurisdiction to review deportation orders of noncitizens convicted of certain crimes. Yet, as St. Cyr explained, that provision couldn’t strip circuit courts of the ability to review removal orders in habeas corpus proceedings without creating “substantial constitutional questions.” In today’s decision, the court reasons that, because Congress created the Limited Review Provision to fix this potential constitutional problem, it must have sought to allow judicial review that would be a sufficient substitute for habeas. And the St. Cyr decision itself specifically discussed the need to protect courts’ ability to review and correct the “erroneous application … of statutes.”

It is important to emphasize what today’s decision does not do. It does not change the fact that federal circuit courts still cannot review factual questions raised by noncitizens convicted of certain crimes who challenge their removal orders. Nor does it change the structure created by Section 1252, which funnels review of removal orders to circuit courts in the first instance and curtails habeas cases brought to federal district courts.

The dissent, written by Thomas and joined in part by Alito, centers around plain-text meaning and statutory purpose. Thomas writes that the court’s interpretation of Section 1252(a)(2)(D) contradicts the plain language of the statute and nullifies the jurisdiction-stripping purpose of Section 1252(a)(2)(C). According to Thomas, the phrase “questions of law” cannot be reasonably read to include the mixed questions of law and fact present when considering the application of a legal standard to fact. Otherwise, he reasons, the exception will “swallow the rule.” Thomas’ dissent—in a portion not joined by Alito—also questions the soundness of the presumption-of-reviewability principle. Finally, both justices find that even if the presumption-of-reviewability principle holds, it does not allow the phrase “questions of law” to embrace mixed questions of law and fact.

As the end of the day, this decision paves the way for two immigrants to achieve federal review of how diligently they pursued their motions to reopen. Yet the opinion is not limited to this factual scenario. The court has determined that Congress did not strip circuit courts of authority to review the application of law to settled facts in any removal appeals brought by noncitizens with certain criminal convictions, not just removal appeals involving equitable tolling. Just how many cases will fall within this category is unknown.