High Court Considers Barred Torture Claim in Deportation Appeal

WASHINGTON (CN) — A Lebanese immigrant who broke his back while fleeing Hezbollah soldiers pushed the Supreme Court on Monday to block his deportation under the Convention Against Torture.

The U.S. government is attempting to remove Nidal Nasrallah back to Lebanon in connection to his 2013 conviction for selling stolen cigarettes. As noted in his high petition, Nasrallah otherwise is a college graduate with no criminal history who belongs to a persecuted religious minority in Lebanon called the Druze.

A riot police officer, center right, stops other policemen from beating a protester who lies on the ground, after clashes erupted between an anti-government protesters and Hezbollah supporters near the government palace in Beirut, Lebanon, on Oct. 29, 2019. (AP Photo/Hussein Malla)

That a 16-year-old Nasrallah broke his back jumping off a cliff in Lebanon to flee Hezbollah soldiers in 2005 is undisputed. For the government, however this experience was a voluntary act. The Board of Immigration Appeals subsequently vacated a deferral of removal for Nasrallah after concluding that “shouting and firing their guns in the air” did not amount to torture by the Hezbollah militants.

Nasrallah then sought relief from the 11th Circuit, but the federal appeals court said it was jurisdictionally barred from reviewing the immigrant’s vulnerability to torture.

McDermott Will & Emery attorney Paul Hughes fought that conclusion Monday in Washington, asking the justices to look closely at Section 1252(a)(2)(C) of a federal law related to aliens and nationality.

“It very clearly bars the act of reviewing final orders of removal,” Hughes said of the 2(C) subsection. “It doesn’t bar review of separately CAT claims.”

Assistant U.S. Solicitor General Matthew Guarnieri meanwhile called Nasrallah’s position on reviewability “self-defeating.”

“If a CAT claim is not reviewable as part of a final order of removal, it is not reviewable at all,” Guarnieri said, using the abbreviation for Convention Against Torture.

The lawyer faced repeated questions from Justice Neil Gorsuch, however, on how an order of removal can remain valid after an alien is granted CAT protection.

“Once the government concedes, as I think it must, right, that — that a CAT order is distinct from, is not the same thing as a final order of removal, why — why isn’t that seriously problematic,” the judge asked.

As Guarnieri struggled to make a distinction in the “in the legal sense,” as he called it, Gorsuch appeared skeptical.

“Sounds pretty metaphysical, counsel,” Gorsuch said. “I mean, it’s integral to and part of, but distinct from. It’s like the Holy Trinity.”

Guarnieri did not back down, emphasizing how district courts can “make a final variety of decisions that culminate in a final decision.”

“The final decision under the statutory provision for review of final decisions to the district court, has been universally understood that review of the final decision … encompasses review of the various decisions made earlier in the course of the district court proceedings,” he added.

Justice Samuel Alito asked Hughes to reconcile his argument with the so-called zipper clause, which consolidates or “zips” judicial review of immigration proceedings into one action in the Court of Appeals.

“So, you take an appeal from the final decision of the district court, but that permits review of everything else leading up to the final decision,” Alito said. “And so, therefore, your CAT claim is reviewable only in review of a final order of removal.”

“What happens is you get review of the final order of removal to the extent that review is allowed,” Hughes said. “You also, though, independently have review of the CAT claim.”

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