Nasrallah v. Barr: Courts Can Review Factual Findings in Convention Against Torture Cases

In Nasrallah v. Barr, the Supreme Court held that appellate courts can review factual findings that underly denials of protection under the Convention Against Torture, even if the petitioner has been convicted of a criminal offense. The Court distinguished between the two orders at issue in the immigration appeal: the final order of removal and the order denying protection under the Convention. The bar on reviewing factual findings applied only to the final order of removal. It did not apply to the separate order denying Convention protection, which tagged along with the final order of removal for appellate review. A dissent by Justice Thomas contended that immigration law’s “zipper clause” meant that the denial of Convention protection was reviewed as a part of the final order of removal. The bar on reviewing factual findings accordingly applied.

Note, the decision in Nasrallah marks the fifth and final appellate-jurisdiction case for this Supreme Court term.

The litigation in Nasrallah and the split on reviewing facts

The immigration proceedings

Nidal Khalid Nasrallah immigrated from Lebanon and soon thereafter became a lawful permanent resident. Several years later he pleaded guilty to receiving stolen property. Due to that conviction, the government began deportation proceedings. And in those proceedings, Nasrallah sought protection under the Convention Against Torture. He said that he was a member of the Druze religion, had been tortured due to his religion, and would be tortured again were he deported to Lebanon.

The Convention (along with its implementing statutes and regulations) prohibits deporting immigrants to countries where they are likely to face torture. Immigrants can accordingly seek to defer their removal when they face a likelihood of torture, which is what Nasrallah sought. An immigration judge determined that Nasrallah was deportable but also concluded that he would be tortured if deported. The judge accordingly ordered Nasrallah removed but deferred that removal under the Convention. But on the government’s appeal to the Board of Immigration Appeals, the Board concluded that Nasrallah would not likely be tortured if deported. It accordingly ordered Nasrallah removed to Lebanon.

The appeal and the split on appellate jurisdiction

Nasrallah petitioned the Eleventh Circuit for review, arguing that the Board had erred in concluding that he would not likely be tortured. But the Eleventh Circuit determined that it did not have jurisdiction to address this issue. To understand why requires some background on the intricacies of appellate jurisdiction in immigration cases.

The Immigration and Nationality Act (as amended) has some unique provisions on the scope of appeals. These provisions define what is—and what’s not—within a court’s appellate jurisdiction. The statute governing jurisdiction—8 U.S.C. § 1252—begins by generally giving the courts of appeals jurisdiction to review a final order of removal in accordance with 28 U.S.C. Chapter 158 (which governs appeals of certain agency actions). It then goes on to specify what issues can and can’t be reviewed, stripping appellate jurisdiction over several issues that might be raised in the review of a removal order. Section 1252(a)(2)(B), for example, strips courts of jurisdiction to review certain discretionary judgments by immigration authorities. In contrast, another section—§ 1252(a)(2)(D)—provides that appellate courts have jurisdiction to review constitutional claims or legal issues raised in a petition for review.

Of particular relevance to Nasrallah is § 1252(a)(2)(C). That subsection generally strips jurisdiction over final removal orders against immigrants convicted of particular crimes. When § 1252(a)(2)(C) applies, courts can address only legal and constitutional issues, not (among other things) factual findings. Nasrallah had been convicted of a qualifying crime. The Eleventh Circuit accordingly held that it could not review the Board’s factual determination of the likelihood of torture.

The circuits had split on this issue. Most courts agreed with the Eleventh Circuit that § 1252(a)(2)(C) applied to bar review of factual findings in denials of Convention protection. But two circuits—the Seventh and Ninth—had held otherwise. The Supreme Court granted cert in Nasrallah to resolve this split.

The Court’s decision in Nasrallah

The Supreme Court held that § 1252(a)(2)(C)’s bar on reviewing factual findings did not apply to the denial of protection under the Convention. Key to the Court’s decision was distinguishing between the final order of removal and the denial of Convention protection.

A “final order of removal” is an order determining that a petitioner is deportable or that orders the petitioner deported. The courts of appeals can review those orders via a petition for review. And all issues arising from the removal proceedings are consolidated into that petition for review. This includes a denial of protection under the Convention Against Torture; the federal statute implementing the Convention provides for appellate review of claims under the Convention alongside the review of a final order of removal.

So appellate courts review orders regarding protection under the Convention alongside final orders of review. But the orders are still distinct; the order denying Convention protection is separate from the final order of removal. It does not merge into the final order of removal, as denial of protection does not change the final order of removal. Indeed, even if the immigration courts had granted deferral under the Convention, that decision would still remain separate from the final order of removal. In either case, the final order of removal remains. When deferral is granted, the order is simply paused. And although there are restrictions on reviewing final orders of removal—such as § 1252(a)(2)(C)’s bar on reviewing factual findings—those same restrictions don’t apply to reviewing claims under the Convention.

Justice Thomas’s dissent

Justice Thomas dissented. He focused on immigration law’s “zipper clause”—8 U.S.C. § 1252(b)(9)—which provides that “[j]udicial review of all questions of law and fact . . . 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.” Justice Thomas read this provision to include orders denying protection under the Convention. Nasrallah’s eligibility for protection under the Convention “involved ‘questions of law and fact’ that directly ‘ar[ose] from’ the Government’s initiation of removal proceedings against him.” Indeed, decisions about Convention protection can be reviewed only as part of a final order of removal. So all of the restrictions on reviewing final orders of removal should apply.

Other coverage

Jennifer Chacon’s opinion analysis for SCOTUSBlog is available here. Of particular interest, she discusses how the Nasrallah decision might impact appellate review of factual findings in cases involving statutory withholding of removal.

Nasrallah v. Barr, 2020 WL 2814299 (June 1, 2020), available at the Supreme Court and Westlaw.