WASHINGTON (CN) — The Supreme Court ruled Monday that federal immigration laws barring judicial review of deportation orders do not prevent undocumented immigrants from challenging factual findings about fear of torture in their home countries.
The U.S. government is attempting to remove Nidal Nasrallah back to Lebanon in connection to his 2013 conviction for selling stolen cigarettes. According to court records, Nasrallah otherwise is a college graduate with no criminal history who belongs to a persecuted religious minority in Lebanon called the Druze.
At age 16, Nasrallah jumped from a cliff and broke his spine after Hezbollah soldiers cornered him. When Nasrallah sought protection from deportation under the Convention Against Torture, or CAT, the U.S. government argued his jump 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 took his case to the 11th Circuit, but the Atlanta-based appeals court said it was jurisdictionally barred from reviewing the immigrant’s vulnerability to torture.
On Monday, the Supreme Court reversed and ruled 7-2 that the federal law provisions governing deportation do not bar judicial review of a noncitizen’s factual challenges to a CAT order.
Justice Brett Kavanaugh penned the majority opinion, and wrote that “a CAT order is distinct from a final order of removal and does not affect the validity of a final order of removal.” He said Congress did not intend to exclude factual reviews of CAT proceedings.
“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,” Kavanaugh wrote. “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.”
The high court’s majority rejected several arguments from the government, finding that it cited outdated legal precedent on final deportation orders and incorrectly said no statute authorizes review of a CAT claim.
Kavanaugh wrote that three federal laws – the Illegal Immigration Reform and Immigrant Responsibility Act, Foreign Affairs Reform and Restructuring Act and REAL ID Act – “establish that CAT orders may be reviewed together with final orders of removal in a court of appeals.”
Finding the concern doesn’t apply to the case at hand, the justices turned away the government’s claim that the court’s ruling “might lead to judicial review of factual challenges to statutory withholding orders.”
“A statutory withholding order prevents the removal of a noncitizen to a country where the noncitizen’s ‘life or freedom would be threatened’ because of the noncitizen’s ‘race, religion, nationality, membership in a particular social group, or political opinion.’ That question is not presented in this case, and we therefore leave its resolution for another day,” Kavanaugh wrote.
Justice Clarence Thomas wrote a dissenting opinion and was joined by Justice Samuel Alito. Thomas said the majority’s decision “will bring about a sea change in immigration law.”
“Though today’s case involves CAT claims, there is good reason to think that the majority’s rule will apply equally to statutory withholding of removal,” he wrote.
The dissenting opinion argues the court should only be looking at “jurisdiction over certain claims of criminal aliens” rather than broader policy considerations.
“As has been the case for decades now, the decisions of this court continue to systematically chip away at this statute and other jurisdictional limitations on immigration claims, thus thwarting Congress’ intent,” Thomas wrote. “Because today’s erroneous result further weakens a duly enacted statute, I respectfully dissent.”
Paul Hughes, a McDermott Will & Emery attorney who argued for Nasrallah, did not immediately respond to a request for comment Monday. Neither did the Department of Justice.