The US Supreme Court ruled Monday in Nasrallah v. Barr that courts can review an immigrant’s factual challenge to a denial of their application to stay deportation under the Convention Against Torture (CAT).
Under US immigration law, “noncitizens who commit certain crimes are removable from the United States.” However, during these removal proceedings, a “noncitizen who demonstrates a likelihood of torture in the designated country of removal is entitled to relief under the international Convention Against Torture and may not be removed to that country.” Accordingly, if an immigration court judge orders removal and denies CAT relief, the noncitizen may appeal both orders to the Board of Immigration Appeals (BIA) and then to a federal court of appeals.
However, “if the noncitizen has committed any crime specified in 8 USC § 1252(a)(2)(C),” the scope of a judicial review of the removal order is limited to constitutional and legal challenges.” This case concerned whether that scope of review for a denial of a CAT order, which is distinct from the order of removal, must also be limited to constitutional and legal challenges or if it can also include factual challenges.
The court reversed the ruling of the Eleventh Circuit in a 7-2 opinion authored by Justice Brett Kavanaugh. They held that Title §§ 1252(a)(2)(C) and (D) do not preclude judicial review of a removable noncitizen’s factual challenges to an order denying relief under the international CAT. A dissenting opinion written by Justice Clarence Thomas, who was joined by Justice Samuel Alito, argues that Congress had not empowered the courts to hear such disputes and the courts should not overreach to do so themselves.