Nasrallah v. Barr

Nasrallah v. Barr, 590 U.S. 573 (2020), was a United States Supreme Court case in which the Court ruled on the question of what appeals courts can review when determining whether a noncitizen who has committed a crime in the United States can be deported.^[1] It reversed the judgment of the U.S. Court of Appeals for the Eleventh Circuit.

Nasrallah v. Barr
Supreme Court of the United States
Argued March 2, 2020 Decided June 1, 2020
Full case name	Nidal Khalid Nasrallah v. William P. Barr, Attorney General
Docket no.	18-1432
Citations	590 U.S. 573 (more) 140 S. Ct. 1683
Case history
Prior	Nasrallah v. U.S. Attorney Gen., 762 F. App'x 638 (11th Cir. 2019); cert. granted, 140 S. Ct. 428 (2019).
Court membership
Chief Justice John Roberts Associate Justices Clarence Thomas · Ruth Bader Ginsburg Stephen Breyer · Samuel Alito Sonia Sotomayor · Elena Kagan Neil Gorsuch · Brett Kavanaugh
Case opinions
Majority	Kavanaugh, joined by Roberts, Ginsburg, Breyer, Sotomayor, Kagan, Gorsuch
Dissent	Thomas, joined by Alito

Background

Noncitizens convicted of certain crimes may face removal from the United States. If they can demonstrate a likelihood of torture if returned to their home country they may be granted relief under Article 2 of the Convention Against Torture (CAT). Aliens convicted of crimes are barred from making factual challenges to removal orders. The question in Nasrallah v. Barr was if they can make a factual challenge to appeal a denial of CAT relief.

Nidal Khalil Nasrallah, a citizen of Lebanon and lawful permanent resident of the United States, was ordered removed from the country after being convicted of receiving stolen property. Nasrallah applied for deferral of removal under the Convention Against Torture (CAT), arguing he would likely be tortured if returned to Lebanon.

An immigration judge found that Nasrallah had previously been tortured and likely would again if he was removed to Lebanon. The Board of Immigration Appeals (BIA) disagreed. Nasrallah then petitioned for review in the U.S. Court of Appeals for the Eleventh Circuit. The Eleventh Circuit dismissed his petition, holding it lacked jurisdiction to review factual challenges to CAT relief denials under the jurisdictional limitations in 8 U.S.C. § 1252(a)(2)(C).

There was a circuit split regarding whether judicial review of factual challenges to CAT orders is barred under § 1252(a)(2)(C). The Supreme Court granted certiorari to resolve a circuit split on this jurisdictional issue.

Statutes

• The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) authorizes review, in a consolidated proceeding at a court of appeals, of all challenges arising from a final order of removal.^[2]

• The Foreign Affairs Reform and Restructuring Act (FARRA) implements Article 3 of the Convention Against Torture and provides for judicial review of CAT claims "as part of the review of a final order of removal".

• The REAL ID Act of 2005 says final orders of removal and CAT orders may be reviewed only in the courts of appeals. This was a legislative response to INS v. St. Cyr.

Supreme Court

Oral argument

Justice Samuel Alito was not persuaded by the argument that the denial of CAT relief was, while being consolidated in the same review proceeding as a final removal order, reviewable separately from that order. He asked whether the "zipper clause"^[3] which limited judicial review of "all questions of law and fact" to the review of the final order would bar review of a denial of CAT relief for claimants in Nasrallah's circumstances. Matthew Guarnieri argued for the government. He did not rely on the zipper clause. Instead, Guarnieri argued that CAT deferral was subject to the jurisdictional bar because it was "an integral and cosntitutent part of the final order". ^[4]

Decision

Writing for the Court, Justice Brett Kavanaugh held that "the court of appeals should review factual challenges to the CAT order deferentially".^[5]

The Court's analysis centered on interpreting seemingly conflicting provisions of immigration law. A final orders includes "all matters of which the validity of the final order is contingent". CAT orders do not affect the validity of a final order of removal. Therefore, they are reviewable "as part of the review of a final order of removal" under FARRA, and the zipper clause, without being subject to the same jurisdictional bar as a final order of removal.

Dissent

Justices Clarence Thomas and Alito argued the zipper clause barred judicial review because CAT claims arise from removal proceedings.^[5]