Supreme Court narrows window for immigrants to challenge deportation orders

WASHINGTON (CN) — The Supreme Court ruled against an immigrant seeking to challenge his potential deportation over fears of persecution in his home country on Thursday, finding he filed his challenge well beyond the deadline for a final removal order.

In a 5-4 decision, the high court found that Jamaican immigrant Pierre Riley should have petitioned the Board of Immigration Appeals within 30 days of a “final administrative review order” by the Department of Homeland Security, rather than 30 days after the immigration board denied him relief under the Convention Against Torture.

Justice Samuel Alito, a George H. W. Bush appointee, wrote in the majority opinion that the decision remands the case to the Fourth Circuit Court of Appeals and will not immediately open the door to Riley’s deportation.

“We hold that a BIA order in a withholding-only proceeding is not a ‘final order of removal,’ and therefore the 30-day filing deadline cannot be satisfied by filing a petition for review within 30 days of the BIA’s withholding-only order,” Alito wrote.

The question before the court was the validity of the Fourth Circuit’s 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, joined by justices Elena Kagan, Ketanji Brown Jackson and in part by Neil Gorsuch, dissented and said the majority was “incomprehensibly” creating an incoherent judicial review rule.

“Was his petition due 30 days after the government first notified him he would be deported, well over a year before the [BIA] issued the order Riley sought to challenge? Or was it instead due 30 days after the order denying his claim for deferral of removal?” asked Sotomayor, a Barack Obama appointee. “The answer is clear: One should not be required to appeal an order before it exists.”

Riley entered the United States on a tourist visa in 1995 and has remained since. He later joined a “far-reaching and well-organized” drug trafficking gang and was convicted in 2008 for conspiracy to distribute and possession with intent to distribute over 1,000 kilograms of marijuana, as well as possession of a firearm. Riley was sentenced to 25 years in prison.

In 2021, a federal district judge ordered a compassionate release due to Riley’s Type 2 diabetes and the Covid-19 pandemic’s heightened risk for his health.

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. Then at a subsequent hearing, he added that following his release he and his family received repeated threats from the kingpin.

The judge determined Riley was eligible for relief under the convention.

The DHS challenged the decision to the immigration board, which reversed it 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.

Sotomayor compared Riley’s appellate timeline to a criminal trial, where a conviction counts as a form of final decision, but cannot be appealed until a sentence is imposed.

“Congress directed that appeals from orders of removal and CAT orders be ‘consolidated in a [single] petition for review,’” Sotomayor added. “That should only mean one thing. Because a statute ties appeals of the CAT order to appeals of the removal order, their finality should be tied together too. Accordingly, the order of removal in this case should become final, for purposes of appeal, only after the [BIA] issued its order denying CAT relief.”

Gorsuch, a Donald Trump appointee, joined Sotomayor’s dissent in all but the final part that asserts Thursday’s holding will deal “untold damage to basic principles of finality and judicial review” in immigration cases.

She expressed concern that the decision would create “chaos” for immigrants subject to expedited removal proceedings by requiring immediate appeals following a BIA denial, which could be further upended if the board first remands to an immigration judge. That leaves an open question whether that denial is also final under Thursday’s decision.

“In holding that Riley was required to file his appeal 16 months before the order he sought to challenge existed, the court surely moves from the border well into the heartland of illogic and absurdity,” Sotomayor concluded.

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