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    Super Moderator GeorgiaPeach's Avatar
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    The Opportunity Provided by SCOTUS's Decision in Nasrallah: Move CAT Protection to DH

    The Opportunity Provided by SCOTUS's Decision in Nasrallah: Move CAT Protection to DHS

    June 5, 2020


    Andrew R. Arthur


    Never let a bad decision go to waste


    • Currently, DHS has very limited (if any) jurisdiction over claims under the Convention Against Torture (CAT).
    • The former INS used to have jurisdiction over those claims for almost four years, before that jurisdiction was shifted to the immigration courts and the BIA. When INS had jurisdiction over CAT claims, that protection worked the way it was supposed to, without encumbering the immigration courts and the BIA.
    • CAT claims now clog those courts: In FY 2018, immigration judges and the BIA completed 69,618 CAT cases. Of that number, 1,157 aliens were granted withholding and 177 were granted deferral — 1,334 in total, or just under 2 percent of all cases completed.
    • Criminal aliens who have no other form of relief can still seek deferral of removal under CAT — needlessly extending their cases and delaying their removal from the United States.
    • Asylum officers in USCIS already consider whether an alien has a credible fear of torture in expedited removal proceedings (despite an absence of statutory authority to do so). Consideration of those CAT claims is likely a major reason why the affirmative credible fear rate in FY 2019 was 73.6 percent of all credible fear claims — allowing 75,252 aliens who had entered illegally or without proper documents to remain in the United States indefinitely.
    • Those 75,252 cases also added a huge burden to immigration judges' already staggering dockets.
    • Shifting jurisdiction over CAT from the immigration courts and the BIA to DHS would better protect aliens from torture because it would allow DHS to assess the likelihood an alien would be tortured at the time the alien is reviewed.
    • It would eliminate the burden on DOJ of adjudicating CAT claims (the vast majority of which, as noted, are denied), and expedite consideration of those claims, all while not significantly increasing the burden on DHS.
    • Under Nasrallah, circuit courts' consideration of CAT claims has been divorced from its consideration of final removal orders, meaning that even an alien who failed to file a timely petition for review could still seek review of DHS's orders denying them CAT — ensuring due process.

    In my previous post, I discussed an opinion issued by the Supreme Court in Nasrallah v. Barr. The majority there held that circuit courts can review factual challenges to denials by the Department of Justice (DOJ) of protection under the UN Convention Against Torture (CAT) brought by criminal aliens. While I explained in that post how the Court erred in reaching that conclusion, it nonetheless provides the administration with an opportunity to shift the authority for making CAT determinations from DOJ to the Department of Homeland Security (DHS) — where it properly belongs.

    The United States is a signatory to CAT, which it ratified on October 21, 1994. That ratification was not "self-executing", and required congressional legislation to make it effective.

    The legislation implementing CAT is section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA). Pursuant to that section, it is the policy of the United States "not to expel, extradite, or otherwise effect the involuntary removal of any person to a country where there are substantial grounds for believing that the person would be in danger of being subjected to torture." FARRA did not dictate how that policy was to be implemented, instead leaving it up to the "appropriate" executive branch agencies to enact regulations to enforce CAT protections.

    Aside from the somewhat vague directions in FARRA, CAT protection is largely regulatory, and the regulations implementing CAT are found in 8 C.F.R. §§ 1208.16, 1208.17, and 1208.18.

    There are two forms of CAT protection that are available to aliens: withholding of removal and deferral of removal. The latter is a more restrictive protection that is available to applicants for protection who are not eligible for withholding because they fall within one or more of a series of categories barring a grant of that form of CAT in section 241(b)(3)(B) of the Immigration and Nationality Act (INA)(including the fact that the alien is a persecutor, has been convicted of a particularly serious crime, or poses a danger to the national security of the United States).

    The Congressional Research Service has explained: "DHS has primary day-to-day authority to implement and enforce these regulations, with the DOJ, through the Executive Office of Immigration Review (EOIR), having adjudicative authority over detention and removal." That is one way of putting it.

    More precisely, in most cases, CAT claims are considered as protection from removal in the course of removal proceedings. Under 8 C.F.R. § 1208.16, immigration judges (IJs) within EOIR consider applications for withholding of removal, and under 8 C.F.R. § 1208.17, IJs have jurisdiction over applications for deferral of removal.

    CAT applications are submitted on the same form as asylum and statutory withholding of removal under section 241(b)(3) of the Immigration and Nationality Act (INA) — the I-589 — and the three forms of protection are generally considered by the IJ in conjunction with one another (the applicant just checks a box if seeking CAT).
    Specifically, if an alien asserts a fear of harm if returned, the IJ will determine first whether the alien is eligible for asylum. If the alien is barred from receiving asylum (because the applicant failed to file within one year of entry or does not merit asylum in the exercise of discretion), the IJ will consider whether the alien is eligible for statutory withholding of removal.

    If the alien fails to establish that he or she will be harmed on account of race, religion, nationality, membership in a particular social group, or political opinion (the bases for asylum and for statutory withholding of removal), the IJ will determine if the alien is eligible for CAT withholding.

    If, however, the alien is or would be barred from statutory withholding because the alien has been a persecutor, has been convicted of a particularly serious crime in the United States, committed a serious nonpolitical crime outside of the United States, or poses a danger to the national security, the IJ will assess whether the alien must be granted CAT deferral.

    A whole lot of criminal aliens are not eligible for either asylum or statutory withholding because of their convictions. As an IJ, I could have disposed of a significant number of such cases, if I did not have jurisdiction over those respondents' CAT claims, as well. This was particularly true given the fact that there are no bars whatsoever to CAT deferral, meaning that any criminal alien who wanted to extend his or her time in the United States would simply apply for CAT and hope for the best.

    Needless to say, all of that takes time and space on the IJs' docket. It does not, however, end there.

    Where the IJ denies any or all of those forms of protection, the applicant by regulation may appeal that decision to the Board of Immigration Appeals (BIA). Pursuant to that regulation, DHS may appeal a grant of such protection to the BIA, as well (which is what happened in Nasrallah). Again, those cases strain the BIA's docket, as well.

    If an alien receives an adverse decision from the BIA, the alien may file a petition for review of that decision under section 242 of the INA. Specifically, an alien can seek review of EOIR's denial of CAT under section 242(a)(4) of the INA.

    In Nasrallah, the Supreme Court held that CAT determinations do not "merge" into final orders of removal. In other words, if an alien is denied CAT and ordered removed, the alien petitioner's eligibility for CAT is not subject to the restrictions in section 242(a)(2)(C) of the INA, limiting judicial review of factual determinations for aliens who are removable on certain criminal grounds (the "criminal alien bar"). This means that circuit court judges can review EOIR's assessment of the facts of a criminal petitioner's CAT claims, as well as their legal and constitutional claims.

    Only once that whole process is completed, and only if the CAT appeal is denied, can the alien be ordered removed.

    By regulation, DHS does have some (extremely limited) jurisdiction over CAT claims, at least putatively. Pursuant to 8 C.F.R. §§ 1208.18(d) and 1235.8(b)(4), the Immigration and Naturalization Service (INS) was required to assess whether an alien the INS regional director has ordered removed under section 235(c) of the INA (relating to the removal of an arriving alien on security and related grounds) was eligible for statutory withholding or CAT before removing the alien.
    I say "putatively" because, of course, the INS was abolished on March 1, 2003. It is unclear whether authority to implement this provision has shifted to its successors at U.S. Customs and Border Protection ("CBP", which would encounter such "arriving alien") or U.S. Immigration and Customs Enforcement ("ICE", which would remove such alien), both of which are in DHS.

    Of course, it is probable that this authority has not shifted to either. Notably, the implementing statute for such removal (section 235(c)(1)(B) of the INA) directs the "immigration officer" or IJ encountering such alien and ordering such alien removed to report such removal to the attorney general ("AG", the head of DOJ), who will then (under section 235(c)(2) of the INA) review the order and order the alien removed (or not). That authority that was previously assigned to the AG's then-delegate, the INS regional director, under 8 C.F.R. § 235.8(b)(4) . But again, there is no longer an INS, and CBP and ICE are both in DHS, and therefore no one therein can be a delegate of the attorney general.
    As the foregoing shows, the regulations are in need of a clean-up, and Nasrallahgives DOJ and DHS an opportunity and reason to do so.
    EOIR has not always had (near-exclusive or whatever) jurisdiction over CAT. From the ratification of CAT (on November 20, 1994) until the issuance of an interim rule implementing FARRA (effective March 22, 1999), INS "adopted a pre-regulatory administrative process to assess the applicability of" CAT "to individual cases in which an alien is subject to removal." The interim rule explains:

    Under this pre-regulatory administrative process, upon completion of deportation, exclusion, or removal proceedings and prior to execution of a final order of removal, the INS has considered whether removing an alien to a particular country is consistent with [CAT]. If it is determined that the alien could not be removed to the country in question consistent with [CAT], the INS has used its existing discretionary authority to ensure the alien is not removed to that country for so long as he or she is likely to be tortured there.

    ...

    This approach has allowed the INS to address the applicability of Article 3 to a case only when actually necessary to comply with the Convention. It has also allowed an individual alien to exhaust all avenues for pursuing any other more extensive benefit or protection for which he or she may be eligible before seeking the minimal guarantee provided by Article 3 that he or she will not be returned to a specific country where it is likely that he or she would be tortured. At the same time, this approach has allowed the INS, the agency responsible for executing removal orders, to ensure that no order is executed under circumstances that would violate [CAT]. [Emphasis added.]



    In other words, when INS had jurisdiction over CAT, that protection worked the way it was supposed to, without burdening IJs and the BIA.

    Of course, even prior to Nasrallah, there were plenty of reasons to shift EOIR's jurisdiction over CAT to DHS. As I have previously explained, divesting EOIR of its responsibility over CAT claims and giving that authority to DHS:

    [W]ould actually protect aliens: Years can pass between the issuance of a final removal order and the actual removal of an alien from the United States. Giving the CAT determination to DHS would ensure that, at the time of removal, an assessment could be made that the alien was not facing torture upon return to the country of removal.

    In addition, divesting immigration courts and the BIA of jurisdiction over CAT claims would also reduce the backlog of cases before the immigration courts.



    A point I made above, but worth reiterating. And transferring those cases would cut the immigration courts' backlog, while not significantly increasing DHS's. How is that possible?

    Well, EOIR statistics reveal that the component completed 69,618 CAT cases in FY 2018 (the last year for which data is available). Of that number, 1,157 aliens were granted withholding and 177 were granted deferral — 1,334 in total, or just under 2 percent of the total.

    An additional 9,816 CAT claims were withdrawn (14 percent), 3,414 were abandoned (5 percent, likely because many or most of those aliens failed to appear), 3,288 were not adjudicated (4.7 percent, for reasons that are unclear, but likely because the aliens were granted some other form of relief, including the privilege of voluntary departure), and 25,964 were denied (37.3 percent). In addition, 25,802 were "other" (37 percent), again for reasons that are not clear.

    Focusing on just the grants, however, adjudicating 1,334 cases is not a significant burden for DHS. By contrast, in FY 2018, 106,147 affirmative asylum claims were filed by aliens present in the United States with USCIS (cases with many more factual and legal issues).

    And the department would likely deny as many cases as EOIR, but much more quickly. Looking at just the grants and denials, 95 percent of CAT claims in FY 2018 were denied, but still took up space on IJs' and the BIA's dockets.

    Plus, as I noted in the aforementioned post (from October 201, transferring responsibility over CAT from EOIR to DHS would close the "CAT loophole in credible fear cases".

    To explain, section 235(b) of the INA governs expedited removal of aliens from United States. That section of the INA allows CBP officers — not immigration judges — to order aliens apprehended at or between the ports of entry removed from the United States if they are inadmissible on the basis of fraud, because they lack proper documents, or because they entered without being admitted or paroled.

    Section 235(b) allows aliens to claim a credible fear of persecution, and if they make such a claim, they are referred by CBP to USCIS asylum officers. In FY 2019, asylum officers received 105,439 credible fear cases, and issued 102,204 decisions. Of that number, fear was established in 75,252 (73.6 percent of the total), while an additional 16,679 aliens were found not to have a fear (16.3 percent), and 10,273 cases were closed (10 percent, because the alien withdrew the request or was released without an interview, as well as other reasons).
    Comparing just the fear/no fear findings (91,931), 81.8 percent of claimants were found to have a credible fear, while just over 18 percent were found not to have a fear. Why is the "fear" rate so high? As I have explained before, the credible fear standard is too low. And INS decided, in December 2000, to add an assessment of whether an alien has a "credible fear of torture" to the asylum officers' credible fear determination.

    Notably, however, there is no statutory requirement for such a determination. The credible fear of persecution definition in section 235(b)(1)(B)(v) of the INA does not mention CAT, or require that asylum officers determine whether an alien has a credible fear of torture, despite the fact that CAT had been in effect in the United States for almost two years by the time expedited removal was added to the INA by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

    Why does this matter? As I have explained:

    [E]ven if an asylum officer were to find that an alien failed to show a credible fear of persecution because the alien failed to demonstrate that the harm inflicted or feared was on account of one of the five factors for asylum relief, if the asylum officer were to find that there was a "significant possibility" the alien could be subjected to significant physical or mental pain or suffering if returned to the country of removal, that officer could find that the alien still had a credible fear of torture, and refer the matter to the immigration court for removal proceedings.


    Given the fact that then-Attorney General Jeff Sessions provided bright-line rules for immigration judges, asylum officers, and the BIA to follow in making assessments in asylum cases involving criminal harm inflicted or threatened by non-government actors in Matter of A-B- (which likely significantly cut down on the number of grants) if an alien asserts that he or she fears such harm, the asylum officer would still be obligated to pass the case on to the IJ for an assessment of whether the alien has a CAT claim — even when it would be obvious that such harm did not implicate the government, a requirement for CAT protection.

    Although there are no numbers on the number of positive credible fear findings based on CAT, I believe that many if not most of those 75,252 cases in which credible fear was found by asylum officers were based strictly on CAT — over which, as noted, DHS generally and asylum officers in USCIS specifically have no jurisdiction.

    Assuming that belief to be true (and I have seen a lot of credible fear cases), if USCIS were to be given jurisdiction to determine whether those aliens have a CAT claim or not, those cases would never be referred to IJs, and would not further clog their dockets.
    Remember — Nasrallah divorced the CAT determination from the final order of removal determination (despite the requirement in section 2242(d) of FARRA that no circuit court has jurisdiction to review a CAT denied "except as part of the review of a final order of removal"). So, an alien denied CAT by USCIS following an expedited removal order could still seek review of that determination in circuit court under section 242(a)(4) of the INA, despite the fact that expedited removal orders are not otherwise reviewable under section 242(a)(2)(A) of the INA — consistent with our international obligations and due process.

    But most of the aliens eligible for that protection would likely receive it (and more quickly) from USCIS, and those who were not eligible would not bother to take an appeal, as they would be detained throughout that process (under section 235(b)(1)(B)(IV) of the INA).

    That would satisfy FARRA, and section 242(a)(4) of the INA.
    Aliens who went through proceedings, were ordered removed, and who were denied CAT prior to removal could also seek circuit court review of those denials under section 242(a)(4) of the INA. Would that contravene FARRA's requirement that circuit courts could only review CAT claims "as part of the review of a final order of removal"? No.

    As Justice Kavanaugh stated in Nasrallah:

    FARRA and [the "zipper clause" in section 242(b)(9) of the INA] simply establish that a CAT order may be reviewed together with the final order of removal, not that a CAT order is the same as, or affects the validity of, a final order of removal. [Emphasis added.]


    If the Supreme Court says it, it must be true.

    In fact, in rejecting the government's argument that "if a CAT order is not merged into a final order of removal, then no statute would authorize a court of appeals to review a CAT order in the first place", Justice Kavanaugh replied that "as a result of the 2005 REAL ID Act, [section 242(a)(4) of the INA] now provides for direct review of CAT orders in the courts of appeals." Again, under this logic, the circuit courts could review CAT denials even if an appeal of the underlying removal order was not timely filed (within 30 days of the final order of removal under section 242(b)(1) of the INA).


    What DOJ did by regulation in 1999, DOJ and DHS can undo by regulation in 2020. Transferring jurisdiction over CAT claims from DOJ to DHS would protect aliens, streamline removal proceedings, reduce the burden on the IJs' and BIA's dockets, and ensure due process. Thanks to the Supreme Court in Nasrallah, there is no reason not to do so.

    https://cis.org/Arthur/Opportunity-P...Protection-DHS



    Last edited by GeorgiaPeach; 06-05-2020 at 12:26 PM.
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  2. #2
    Super Moderator GeorgiaPeach's Avatar
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    SCOTUS: Courts Can Review Factual Challenges to CAT Denials for Criminal Aliens


    June 3, 2020

    Andrew R. Arthur


    Moving the goal posts to find jurisdiction

    On Monday, the Supreme Court issued a decision in Nasrallah v. Barr, in which it concluded that circuit courts can review factual challenges to denials by the Department of Justice (DOJ) of protection under the UN Convention Against Torture (CAT) brought by criminal aliens. Respectfully, that decision is not only wrong, but it will grind removals to a halt for some of the worst aliens in the United States.
    The Convention Against Torture

    The United States is a signatory to CAT, which it ratified on October 21, 1994. Our ratification was not "self-executing", that is, it required congressional legislation to make it effective.

    That legislation was section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), which made it U.S. policy "not to expel, extradite, or otherwise effect the involuntary removal of any person to a country where there are substantial grounds for believing that the person would be in danger of being subjected to torture." FARRA did not expressly explain how that policy was to be implemented, however leaving it up to the "appropriate" executive-branch agencies to enact regulations to enforce CAT protections.
    This is in contrast to, for example, asylum, for which Congress drafted a specific enforcement regime by which applicants could apply for such protection (found in section 208 of the Immigration and Nationality Act (INA)). Aside from the somewhat vague directions in FARRA, CAT protection is largely regulatory, and the regulations implementing CAT are found in 8 C.F.R. §§ 1208.16, 1208.17, and 1208.18. The last provision states, in pertinent part:

    Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. [Emphasis added.]

    There are two forms of CAT that DOJ can grant: withholding of removal and deferral of removal. The latter is a more restrictive protection that is available to applicants for protection who are not eligible for withholding because they fall within one or more of a series of categories barring a grant of that protection in section 241(b)(3)(B) of the INA (including the fact that the alien is a persecutor, has been convicted of a particularly serious crime, or poses a danger to the national security of the United States).
    In essence, regardless of how significant a danger than an alien poses to the national security or the community, an alien can apply for, and if eligible be granted, CAT. I have often clarified this by stating that had Osama bin Laden been apprehended in the United States, he could have sought, and likely would have been granted, deferral under CAT.

    Pursuant to the regulations, there is no guarantee that an alien granted CAT deferral will not be detained indefinitely (although a reviewing court on habeas may have something to say about that), and both withholding and deferral under CAT are country-specific. This means that withholding or deferral of removal thereunder only applies to a specified country or countries, but the alien can be removed to any other country that will take him or her. Deferral can also be terminated at any time, assuming that DHS can convince DOJ that it is not more likely than not the alien will be tortured.

    Finally, an alien granted CAT can be removed even to a country to which withholding or deferral has been granted, assuming that the State Department receives assurances from that country that the alien will not be tortured if removed, and sends those assurances to DOJ. Under the regulations, only the attorney general, the deputy attorney general, or the commissioner of the Immigration and Naturalization Service (INS) may assess whether the assurances are "sufficiently reliable" to allow the alien to be removed to that country, consistent with CAT.

    Of course, the INS was abolished on March 1, 2003, but it is unclear from the regulations that this authority has been conveyed to the successor of the INS commissioner, which in this case could be either the director of U.S. Citizenship and Immigration Services (USCIS) or the director of U.S. Immigration and Customs Enforcement (ICE). It likely has not, because neither is a delegate of the attorney general — both are in DHS.
    Statutory Withholding of Removal

    CAT and asylum are two forms of protection that are extended to aliens under the INA and the regulations implementing it. The third is statutory "withholding of removal", which is provided for in section 241(b)(3) of the Immigration and Nationality Act (INA). Section 241 of the INA is the provision that governs the detention and removal of aliens ordered removed.

    Statutory withholding is similar to asylum in that it requires the applicant to prove a likelihood of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, but the burden of proof under section 241(b)(3) of the INA is higher ("more likely than not" that the applicant will be persecuted, as opposed to past persecution or a "well-founded fear" of persecution), and unlike asylum (which allows an alien to remain in the United States indefinitely, petition for relatives, and apply for a green card and ultimately citizenship), withholding of removal only prevents an alien from being removed to a specific country or countries.

    Why would an alien apply for 241(b)(3) withholding, if the burden is higher and the benefits fewer? Generally because the applicant is not eligible for asylum, either because the alien failed to apply for protection within one year of arrival (a bar to asylum under section 208(a)(2)(B) of the INA), or because the alien has failed to establish that he or she merits asylum in the exercise of discretion (while asylum is discretionary relief, 241(b)(3) withholding of removal must be granted to any alien who is eligible).

    Statutory Withholding and CAT Follow a Removal Order

    Both statutory withholding of removal and CAT protection are unique in that they can only be granted to an alien who is removable from the United States, and has been ordered removed. As the foregoing shows, an alien granted either form of protection can be removed to a third country — just not any country to which that protection has been extended (and not rescinded). For example, to grant statutory withholding or CAT when I was an immigration judge, I had to first order the applicant removed, and then withhold or defer the removal to the country in question.

    By way of contrast, an alien granted asylum is not ordered removed. This distinction is critical to the Supreme Court's decision.

    Facts of the Case

    Nasrallah, a native and citizen of Lebanon who entered as a visitor in 2006 and became a lawful permanent resident in 2007, was convicted in 2013 of two felony counts of receiving stolen property in interstate commerce, in violation of 18 U.S.C. 2315.
    DHS placed him into removal proceedings, charging him with removability under section 237(a)(2)(A)(i) of the INA as an alien convicted of a crime involving moral turpitude (CIMT). An immigration judge (IJ) found him removable, denied his application for asylum and statutory withholding of removal (on the ground that his conviction was a "particularly serious crime" under section 241(b)(3)(B)(ii) of the INA), but granted him deferral of removal under CAT.

    Both Nasrallah and DHS appealed this decision to the Board of Immigration Appeals (BIA). The BIA reversed the IJ's grant of deferral, finding that the alien had failed to show eligibility for that protection, and ordered him removed. He appealed to the Court of Appeals for the Eleventh Circuit, alleging that that the IJ was biased, his conviction was not a CIMT, and that he had not been convicted of a particularly serious crime.

    The circuit court found no evidence of bias and concluded that his crime was a CIMT. Therefore, it determined that it lacked jurisdiction, pursuant to the "criminal alien bar" in section 242(a)(2) of the INA, to review Nasrallah's claim that his crime was not "particularly serious" and that he was eligible for deferral under CAT.

    Circuit Court Jurisdiction Over Immigration Cases

    Section 242 of the INA governs circuit-court review of orders of removal. As the conference report for the REAL ID Act of 2005 makes clear, since 1961 Congress has been streamlining review of immigration claims, and in particular divesting district courts of review and consolidating jurisdiction in the circuit courts, restricting the ability of criminal aliens to obtain judicial review, and limiting the issues over which courts have jurisdiction, particularly in the case of criminal aliens.

    Those efforts have not always been successful, as reviewing courts have nonetheless found jurisdiction over claims on appeal. For example, Congress attempted to limit district court habeas review of deportation orders in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Section 440(a) of AEDPA, in particular, precluded all judicial review of deportation orders for certain classes of criminal aliens. These were efforts that Congress continued in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)— passed five months after AEDPA — which is the source of most of the provisions in section 242 of the INA.

    Nonetheless, five years later in INS v. St. Cyr, the Supreme Court held that criminal aliens are actually entitled to more review than they had before the 1996 amendments, and more review than non-criminal aliens. Specifically, the Court held that criminal aliens could seek habeas review of their removal orders under 28 U.S.C. Sec. 2241. Through habeas, the criminal alien could get review in district court and, on appeal, in the court of appeals. As Justice Scalia wrote in the dissent in St. Cyr, allowing criminal aliens to obtain habeas review of their immigration orders in district court:


    [B]rings forth a version of the statute that affords criminal aliens more opportunities for delay-inducing judicial review than are afforded to non-criminal aliens, or even than were afforded to criminal aliens prior to the legislation concededly designed to expedite their removal.


    To address these anomalies, in section 106 of the REAL ID Act, Congress attempted to restore uniformity and order to the law by limiting the opportunities for criminal aliens to delay their removal by eliminating district-court review, and channeling review to the courts of appeals. And, significantly for purposes of Nasrallah, section 106(a)(1)(B) of that act added a new section 242(a)(4) to the INA to provide review of CAT claims. That section of the INA states:

    Claims under the United Nations Convention

    Notwithstanding any other provision of law (statutory or nonstatutory), ... a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of any cause or claim under [CAT], except as provided in [section 242(e) of the INA, relating to expedited removal].


    The Criminal Alien Bar, the Limited Review Provision, and the Zipper Clause



    Also relevant to the Court's decision in Nasrallah are three other provisions in section 242: the aforementioned "criminal alien bar" in section 242(a)(2)(C) of the INA, the "limited review provision" in section 242(a)(2)(D) of the INA, and the "zipper clause" in section 242(b)(9) of the INA.

    Through the criminal alien bar, Congress strictly limited judicial review as it relates to criminal aliens. Specifically, it divests courts of jurisdiction to review a final order of removal of an alien who is removable because that alien committed a criminal offense "covered in" various grounds of inadmissibility and deportability of the INA.

    That provision is modified by the limited review provision, which provides that, notwithstanding the criminal alien bar, courts retain jurisdiction over "constitutional claims" and "questions of law" — not factual issues, such as those at issue in Nasrallah.

    The zipper clause consolidates "[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 ... in judicial review of a final order under" section 242 of the INA. In other words, circuit courts' consideration of any question of law and fact in removal proceedings is subject to the limitations in section 242 (including the criminal alien bar), and is limited to judicial review of final orders of removal, eliminating piecemeal litigation.

    Section 2242(d) of FARRA


    The final judicial review provision at issue in Nasrallah is section 2242(d) of FARRA, which again was part of the legislation that implemented CAT. Passed after the rewriting of the judicial review provisions in section 242 of the INA by IIRIRA, it states:

    Notwithstanding any other provision of law, ... nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under [CAT] ... or any other determination made with respect to the application of the policy set forth in subsection (a), except as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act. [Emphasis added.]


    The Supreme Court Decision in Nasrallah


    Nasrallah subsequently sought Supreme Court review of the Eleventh Circuit's decision. In a 7-2 opinion authored by Justice Kavanaugh (Justices Thomas writing for himself and Justice Alito dissented), the Court held that, notwithstanding the "criminal alien bar", circuit courts retain the authority to review factual challenges brought by criminal aliens to denials of CAT.
    The majority reached this decision by reading the criminal alien bar extremely narrowly. As noted, an alien who has been granted CAT has still been ordered removed, but removal to a specific country or countries is "withheld" or "deferred". The Court concluded that "[a] CAT order is not itself a final order of removal because it is not an order 'concluding that the alien is deportable or ordering deportation'", and that CAT orders do not "merge into final orders of removal in the same way as, say, an immigration judge's evidentiary rulings merge into final orders of removal."
    To reach this conclusion, the majority has to distinguish section 2242(d) of FARRA (again, which states "nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under [CAT] except as part of the review of a final order of removal pursuant to section 242" of the INA) (emphasis added) and the "zipper clause" in section 242(b))(9) of the INA.

    With respect to the latter provision, limiting the availability of "[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" to judicial reviews of final orders under section 242 of the INA would logically merge issues relating to eligibility for CAT with the final order of removal itself, as a matter of fact and law.

    And, read strictly (as Justice Thomas writing for the dissent would do), in conjunction with the criminal alien bar, it would divest courts of jurisdiction to review factual determinations in CAT cases involving criminal aliens. He explained:

    To "arise" means "to originate from a specified source" or "to come into being." ... And "from" most naturally refers here to the "ground, reason, or basis" for something. ... Thus, [section 242(b)(9) of the INA] covers all "questions of law and fact" that an immigration judge must decide as a result of the Government's decision to initiate removal proceedings against an alien. See also Reno v. American Arab Anti-Discrimination Comm. ... (stating that the zipper clause applies to the "many ... decisions or actions that may be part of the [removal] process"). The plain text clearly covers CAT claims such as the one petitioner raised.

    [I]Justice Kavanaugh sidesteps these issues by limiting the scope of the zipper clause, and does so in turn by relying on the definition of the term "order of deportation" in section 101(a)(47) of the INA, which he references as a "final 'order of removal' ... n the deportation context".

    But here is what that provision states:

    (A) The term "order of deportation" means the order of the special inquiry officer, or other such administrative officer to whom the Attorney General has delegated the responsibility for determining whether an alien is deportable, concluding that the alien is deportable or ordering deportation.

    (B) The order described under subparagraph (A) shall become final upon the earlier of-
    (i) a determination by the Board of Immigration Appeals affirming such order; or
    (ii) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals.


    Anyone familiar with immigration law would assume — based upon the verbiage — that this is a very old provision of the INA — the term "special inquiry officer" was supplemented by the term "immigration judge" (now the preferred term) in 1973, and the entire deportation/exclusion regime was replaced by the concept of "removal" in IIRIRA, which was enacted on September 30, 1996.
    But, in fact, it was only added to the INA by section 440(b) of the AEDPA, which was passed on April 24, 1996. Why was it added to the INA almost 44 years after that law was passed?

    Two reasons: (1) to define the term for purposes of setting a 30-day deadline for the deportation of criminal aliens under then-section 242(c) of the INA; and (2) to define the term for purposes of eliminating judicial review for certain criminal aliens (as noted above) in then-section 106 of the INA.

    Former sections 106 and 242 of the INA (with the exception of section 242(j), which was redesignated as section 241(j) of the INA) were repealed, however, by section 306 of IIRIRA, and section 106 of the INA was replaced (in section 306(a) of IIRIRA) with what is now section 242 of the INA — the provision at question in this case, including the aforementioned zipper clause in section 242(b)(9) of the INA.

    Why is this important? Because section 101(a)(47) of the INA (again, defining "order of deportation") is key to Justice Kavanaugh's determination that criminal aliens can seek judicial review of factual determinations in CAT cases:

    The relevant statutory text precludes judicial review of factual challenges to final orders of removal — and only to final orders of removal. In the deportation context, a final "order of removal" is a final order "concluding that the alien is deportable or ordering deportation." [Section 101(a)(47)(A) of the INA].

    A CAT order is not itself a final order of removal because it is not an order "concluding that the alien is deportable or ordering deportation." [Emphasis added.]


    Those three sentences are the most important passages in the entire 24-page decision. But the majority's logic rests upon a provision that was added to the INA to modify two provisions therein that were effective for just five months and four days almost two dozen years ago.


    By way of further proof, the transition provisions in section 309 of IIRIRA state, in paragraph (d)(2):

    For purposes of carrying out the Immigration and Nationality Act, as amended by this subtitle — (2) any reference in law to an order of removal shall be deemed to include a reference to an order of exclusion and deportation or an order of deportation.

    Note how that provision is phrased: not that a reference in law to an "order of deportation" shall be deemed to include a reference to an "order of removal", but vice versa. The Court references this provision, but fails to appreciate the discrepancy — a difference with a distinction because it was an attempt to ensure that no action was excluded from the scope of IIRIRA, not that criminal aliens could seek judicial review of factual issues. Section 101(a)(47) of the INA is a vestige that is at best a side note to history — not a basis to provide judicial review to untold numbers of aliens annually.

    Want proof? Consider criminal aliens subject to inadmissibility under section 212 of the INA who apply for CAT. Section 101(a)(47) of the INA never would have applied to any of them who are arriving aliens (including most if not all aliens in expedited removal), and it never would have applied to any of them after IIRIRA. And yet they are now eligible for judicial review of the facts of their CAT denials thanks to the Supreme Court. Curiously, neither the majority nor the dissent ever addresses this discrepancy.

    Justice Kavanaugh also references the judicial review provision for CAT cases in section 242(a)(4) of the INA in support of his conclusion. This might seem like burying the lede, but it isn't, because it does not provide a significant basis for Judge Kavanaugh's majority opinion. I am personally familiar with this provision, because as a staffer for the House Judiciary Committee, I drafted it as part of section 106(a) of the REAL ID Act.

    Respectfully, that provision was included in section 242 of the INA for a reason. That section of the INA was and is captioned "Judicial Review of Orders of Removal". The intention was that section 242(a)(4) of the INA would be read in conjunction with that provision as a whole, including and especially the criminal alien bar, thanks to the zipper clause.

    Again, want proof? The conference report for that bill (which once more is not cited by either the majority or the dissent) specifically cites the zipper clause ("Congress made clear [in IIRIRA] that review of a final removal order is the only mechanism for reviewing any issue raised in a removal proceeding. Section 242(b)(9) of the INA") and it specifically states that "the reforms in section 106 [of the REAL ID Act] would preclude criminals from obtaining review over non-constitutional, non-legal claims." (Emphasis added.)

    The reason that I bring this up (except to further underscore the error in the Court's opinion) is the fact that Justice Kavanaugh states:

    It would be easy enough for Congress to preclude judicial review of factual challenges to CAT orders, just as Congress has precluded judicial review of factual challenges to certain final orders of removal. But Congress has not done so, and it is not the proper role of the courts to rewrite the laws passed by Congress and signed by the President.


    With all due respect to the justice, he's wrong. On two points.
    First, as shown above, Congress attempted to preclude factual challenges to CAT orders for criminal aliens. The Court simply failed to appreciate that fact (likely because it never read the REAL ID conference report).

    Second, it would not "be easy enough for Congress to preclude judicial review of factual challenges to CAT orders", at least not for criminal aliens, because the courts can "move the goalposts" after Congress passes laws, as this decision demonstrates. I never imagined that any court, let alone the Supreme Court, would go through such a tortured analysis of such a straightforward provision as section 242(a)(4) of the INA, and certainly never imagined that it would reach back to a vestigial provision of section 101 of the INA to do so (I would note that the word "alien" appears in section 101(a)(3) of the INA, but Justice Kavanaugh refuses to use it, preferring "noncitizen", a trend for him as I have previously explained that is in error as a matter of law). In fact, the conference report for the REAL ID Act refers to "final ... deportation order" (a phrase that, as noted, the majority made a cornerstone of its opinion) as "pre-1996" — meaning pre-IIRIRA — "nomenclature".


    This is the second time in just over two months that the Supreme Court has misread the criminal alien bar and limited review provisions in section 242 of the INA. As I explained in a March 25 post, in Guerrero-Lasprilla v. Barr (with Justice Breyer then writing for the majority) the Supreme Court allowed criminal aliens whose cases were long over (and therefore an untold number more) to seek judicial review of denials of their motions to reopen by asserting that they are eligible for "equitable tolling" (a legal concept that allows for untimely filing).


    To do so, it had to construe that the phrase "questions of law" in the limited review provision of section 242(a)(2)(D) of the INA to "include[] the application of a legal standard to undisputed or established facts", despite the fact that it had admitted that it had referred to such issues as "mixed questions of law and fact" in the past.

    As the dissent in Guerrero-Lasprilla (again, Justice Thomas for himself and Justice Alito) noted, that decision "expand[ed] the scope of judicial review" for criminal aliens "well past the boundaries set by Congress" in the limited review provision.
    At least in that case, the Court admitted that its opinion rested in part on what it termed "a familiar principle of statutory construction: the presumption favoring judicial review of administrative action" (despite the fact that Congress has done all it can to limit such review in section 242 of the INA). Justice Kavanaugh did not even reach for this fig leaf over judicial activism in Nasrallah.

    And, at least in Guerrero-Lasprilla, the majority cited to the conference report for the REAL ID Act — it just failed to cite to the most relevant portion therein (which actually explained how the limited review provision was to be applied), as I explained in my March post. Congress writes such reports for a reason — not its own edification, but the edification of reviewing courts.
    CAT deferral, as the foregoing demonstrates, is usually the protection of last resort for some exceptionally bad individuals — those who are not eligible for asylum and statutory withholding. The majority's opinion in Nasrallah will provide them the opportunity to remain in the United States and fight their removal cases in the circuit courts, indefinitely.


    All of that said, that decision provides the administration with an opportunity to do something that I have argued it should have done long ago — take CAT authority from DOJ and give it to DHS. I will explain why and how in my next post.


    https://cis.org/Arthur/SCOTUS-Courts...riminal-Aliens
    Last edited by GeorgiaPeach; 06-05-2020 at 12:44 PM.
    Matthew 19:26
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