The circuits have long split on whether they can review factual findings underlying denials of CAT relief. A new cert petition might finally resolve the matter.
May 29, 2019
The Convention Against Torture (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. If deferral is denied, the Immigration and Nationality Act gives the courts of appeals jurisdiction to review that denial.
But appellate jurisdiction might not extend to all aspects of a denial. The Immigration and Nationality Act contains several provisions specifying which issues are—and are not—within a court’s appellate jurisdiction. The courts of appeals have split on whether one of these provisions—the bar on reviewing many issues when a petitioner has been convicted of certain crimes—bars review of immigration authorities’ conclusion that a petitioner is not likely to be tortured upon removal. The Supreme Court has repeatedly declined to review this split, despite the United States conceding that the issue merits cert. But a recently filed cert petition—Nasrallah v. Barr, No. 18-1432—might finally be the right opportunity for the Court to resolve this split.
The Split Over CAT Review
We’ll start with some background. The Immigration and Nationality Act has some somewhat-unique provisions on appellate review. It’s appellate-jurisdiction provision—8 U.S.C. § 1252—starts 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 jurisdiction over several issues that might be raised in review of a removal order.
Section 1252(a)(2)(B), for example, strips courts of jurisdiction to review certain discretionary judgments by immigration authorities. 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.
Relevant to the petition in Nasrallah, § 1252(a)(2)(C) strips jurisdiction over final removal orders against immigrants convicted of particular crimes. In the context of CAT deferral, the courts of appeals have split on whether this subsection applies to immigration authorities’ findings that petitioners would not likely by tortured upon removal. Most hold that it does. But two courts—the Seventh and Ninth Circuits—hold that it doesn’t. (For more background on the split, see this note by Sarah M. Vogt, full citation in the links below.)
Several petitions over the past few years have sought cert on this issue, including Shabo v. Barr, No. 18-827, in which the Court denied cert last week. And the United States has acknowledged that cert is appropriate on this issue.1
The government’s response is due June 14, 2019. We’ll see then if the government thinks this is finally the appropriate vehicle to address this issue.
Links
For those interested, here are some materials to get acquainted with the case and the underlying circuit split:
- Nasrallah v. Barr, No. 18-1432
- Supreme Court Docket
- Cert Petition at Westlaw (the PDF is not available on the Supreme Court’s website)
- The Eleventh Circuit’s Decision: Nasrallah v. U.S. Attorney General, 762 F. App’x 683 11th Cir. 2019), available at Google Scholar and Westlaw
- The Immigration and Nationality Act’s appellate-jurisdiction provision, 8 U.S.C. § 1252
- Sarah M. Vogt, Note, As a Matter of Fact, No: Appellate Jurisdiction to Review Denials of Deferral of Removal Under the Convention Against Torture, 25 American University Journal of Gender, Social Policy and the Law 87 (2017)