SCOTUS skeptical appeals courts barred from hearing deportation challenges on persecution grounds

WASHINGTON (CN) — The Supreme Court appeared skeptical on Monday that federal appeals courts can hear an undocumented migrant’s appeal when they face persecution in their home countries before an immigration board makes a final determination.

The high court heard the case in order to clarify whether an appeals court has jurisdiction to hear an undocumented migrant’s petition of an adverse decision by the Board of Immigration Appeals denying relief under the Convention Against Torture.

Monday’s arguments centered on a challenge brought by Pierre Yassue Nashua Riley, a Jamaican citizen who challenged his removal order over concerns he would be killed by a drug kingpin upon his return.

The question before the court was the validity of the Fourth Circuit Court of Appeals’ ruling that the board’s denial of relief under the convention, or “CAT,” was not a final order of removal, and thus, the 30-day deadline applied to his initial removal order.

Under the convention, a migrant may still be ultimately deported from the United States so long as they are removed to a country where they would not face persecution.

Justice Sonia Sotomayor, a Barack Obama appointee, said the distinction between the order and the determination was similar to the separate steps in a criminal proceeding.

“It’s like a conviction and a sentence,” Sotomayor said, noting that while the conviction is a final judgment, a defendant would have to wait until a sentence to appeal. “You have to wait for the court to finish its work.”

Monday’s case was unique, as attorneys for Riley and the Justice Department agreed that the initial 30-day deadline was not jurisdictional, and thus, Riley would have been unable to challenge the removal order.

If the initial 30-day deadline gave federal appeals courts the ability to intervene, then Congress would have said so, said Keith Bradley, Riley’s attorney.

Both parties agree that Riley’s appeal to the Fourth Circuit was timely because it was filed within 30 days of the immigration board’s denial of relief under the convention.

The high court appointed Stephen Hammer of Gibson Dunn and the Immigration Reform Law Institute to argue in defense of the Fourth Circuit.

Hammer argued that, because Riley was an aggravated felon, he was subject to expedited removal proceedings that resulted in a Final Administrative Removal Order in January 2021. Riley, therefore, had 30 days to challenge his removal order after receiving it in 2021.

Justice Amy Coney Barrett, a Donald Trump appointee, seemed skeptical of Hammer’s point, noting that it seemed to hinge on whether a migrant had other avenues to challenge their removal orders. Otherwise, they ultimately would have no access to judicial review.

Riley entered the United States on a tourist visa in 1995 and has remained since. In 2006, he was convicted on drug and firearm charges and sentenced to 25 years in prison. In 2021, a federal district judge ordered a compassionate release.

The Department of Homeland Security then moved to deport Riley due to his conviction, which he challenged, arguing that he would face persecution if he returned to Jamaica.

At a hearing before an immigration judge, Riley described how a drug kingpin with ties to the government ordered the killing of several of his family members. The judge determined Riley was eligible for relief under the convention.

The DHS challenged the decision to the immigration board, which reversed and gave Riley 30 days to appeal.

He petitioned the Fourth Circuit for a stay of his removal proceedings, but the appellate court found it lacked jurisdiction to hear the appeal and said the 30-day deadline applied earlier.

Attorney Zachary Tripp of Weil, Gotshal & Manges wrote an amicus brief with the Pacific Legal Foundation, and fellow administrative law professors warned of a serious injustice if the high court ruled against Riley.

“The Fourth Circuit’s rule would thus require a noncitizen to file a petition for review before the immigration judge has issued a preliminary ruling on the CAT application, much less a final one denying CAT relief,” Tripp wrote.

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