⚖️👍🏼SUPREMES UPHOLD JUDICIAL REVIEW OF CAT DENIAL, 7-2 — NASRALLAH v. BARR, Opinion By Justice Kavananaugh — Round Table ⚔️🛡 Files Amicus For Winners!

NASRALLAH v. BARR, No. 18-432, June 1, 2020

SUPREME COURT SYLLABUS:

OCTOBER TERM, 2019 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

NASRALLAH v. BARR, ATTORNEY GENERAL CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

No. 18–1432. Argued March 2, 2020—Decided June 1, 2020

Under federal immigration law, noncitizens who commit certain crimes are removable from the United States. During removal proceedings, a noncitizen who demonstrates a likelihood of torture in the designated country of removal is entitled to relief under the international Conven- tion Against Torture (CAT) and may not be removed to that country. If an immigration judge orders removal and denies CAT relief, the noncitizen may appeal both orders to the Board of Immigration Ap- peals and then to a federal court of appeals. But if the noncitizen has committed any crime specified in 8 U. S. C. §1252(a)(2)(C), the scope of judicial review of the removal order is limited to constitutional and legal challenges. See §1252(a)(2)(D).

The Government sought to remove petitioner Nidal Khalid Nasral- lah after he pled guilty to receiving stolen property. Nasrallah applied for CAT relief to prevent his removal to Lebanon. The Immigration Judge ordered Nasrallah removed and granted CAT relief. On appeal, the Board of Immigration Appeals vacated the CAT relief order and ordered Nasrallah removed to Lebanon. The Eleventh Circuit declined to review Nasrallah’s factual challenges to the CAT order because Nasrallah had committed a §1252(a)(2)(C) crime and Circuit precedent precluded judicial review of factual challenges to both the final order of removal and the CAT order in such cases.

Held: Sections 1252(a)(2)(C) and (D) do not preclude judicial review of a noncitizen’s factual challenges to a CAT order. Pp. 5–13.

(a) Three interlocking statutes establish that CAT orders may be re- viewed together with final orders of removal in a court of appeals. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 authorizes noncitizens to obtain direct “review of a final order of re-

2

NASRALLAH v. BARR Syllabus

moval” in a court of appeals, §1252(a)(1), and requires that all chal- lenges arising from the removal proceeding be consolidated for review, §1252(b)(9). The Foreign Affairs Reform and Restructuring Act of 1998 (FARRA) implements Article 3 of CAT and provides for judicial review of CAT claims “as part of the review of a final order of removal.” §2242(d). And the REAL ID Act of 2005 clarifies that final orders of removal and CAT orders may be reviewed only in the courts of appeals. §§1252(a)(4)–(5). Pp. 5–6.

(b) Sections 1252(a)(2)(C) and (D) preclude judicial review of factual challenges only to final orders of removal. A CAT order is not a final “order of removal,” which in this context is defined as an order “con- cluding that the alien is deportable or ordering deportation,” §1101(a)(47)(A). Nor does a CAT order merge into a final order of re- moval, because a CAT order does not affect the validity of a final order of removal. See INS v. Chadha, 462 U. S. 919, 938. FARRA provides that a CAT order is reviewable “as part of the review of a final order of removal,” not that it is the same as, or affects the validity of, a final order of removal. Had Congress wished to preclude judicial review of factual challenges to CAT orders, it could have easily done so. Pp. 6– 9.

(c) The standard of review for factual challenges to CAT orders is substantial evidence—i.e., the agency’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” §1252(b)(4)(B).

The Government insists that the statute supplies no judicial review of factual challenges to CAT orders, but its arguments are unpersua- sive. First, the holding in Foti v. INS, 375 U. S. 217, depends on an outdated interpretation of “final orders of deportation” and so does not control here. Second, the Government argues that §1252(a)(1) sup- plies judicial review only of final orders of removal, and if a CAT order is not merged into that final order, then no statute authorizes review of the CAT claim. But both FARRA and the REAL ID Act provide for direct review of CAT orders in the courts of appeals. Third, the Gov- ernment’s assertion that Congress would not bar review of factual challenges to a removal order and allow such challenges to a CAT order ignores the importance of adherence to the statutory text as well as the good reason Congress had for distinguishing the two—the facts that rendered the noncitizen removable are often not in serious dis- pute, while the issues related to a CAT order will not typically have been litigated prior to the alien’s removal proceedings. Fourth, the Government’s policy argument—that judicial review of the factual components of a CAT order would unduly delay removal proceedings— has not been borne out in practice in those Circuits that have allowed factual challenges to CAT orders. Fifth, the Government fears that a

Cite as: 590 U. S. ____ (2020) 3 Syllabus

decision allowing factual review of CAT orders would lead to factual challenges to other orders in the courts of appeals. But orders denying discretionary relief under §1252(a)(2)(B) are not affected by this deci- sion, and the question whether factual challenges to statutory with- holding orders under §1231(b)(3)(A) are subject to judicial review is not presented here. Pp. 9–13.

762 Fed. Appx. 638, reversed.

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, KAGAN, and GORSUCH, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.

*****************

Score at least a modest victory for the NDPA over the “Deportation Railroad.”

Once again the Round Table 🛡⚔️ intervened with an amicus brief on the side of justice.  Here’s a report from Judge Jeffrey Chase:

Hi All:  Our Round Table filed an amicus brief in Nasrallah v. Barr.  The Supreme Court issued it’s 7-2 decision in the case today, and we were on the winning side.
Kavanaugh wrote the decision, and was joined by Roberts, Ginsburg, Breyer, Sotomayor, Kagan, and Gorsuch.  Thomas wrote a dissenting opinion that was joined by Alito.
The decision reverses the 11th Cir. and holds that federal courts may review factual issues as well as legal and constitutional issues in CAT appeals  filed by noncitizens with criminal convictions falling under 8 C.F.R. section 1252(a)(2)(C).
Gibson Dunn assisted us with the drafting of the brief.
Best, Jeff
Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Retired Immigration Judges
Knightess
Knightess of the Round Table

And, of course, as Jeffrey notes, we couldn’t have done it without help from our pro bono heroes 🥇 over at Gibson Dunn! Many, many thanks!

Great that Justice Kavanaugh, Chief Justice Roberts, and Justice Gorsuch “saw the light” on this one! Not sure how often it will happen in the future, but gotta take what we can get.

Also, given the “haste makes waste” policies thrust on EOIR by the DOJ under Trump, and the significant number of fundamental legal and factual errors made by the BIA, judicial review is likely to turn up additional instances of substandard decision-making.

PWS

06-01-20

IMMIGRATIONPROF BLOG: Johnson, Olivas, Wadhia on DACA: “DACA will be reminisced as a story about human pain and hope.“

Kevin R. Johnson
Kevin R. Johnson
Dean
UC Davis School of Law
Professor Michael Olivas
Professor Michael Olivas
University of Houston Law Center
Professor Shoba Wadhia
Professor Shoba Wadhia
Penn State Law

https://lawprofessors.typepad.com/immigration/2020/06/the-meaning-of-daca-by-kevin-r-johnson-michael-a-olivas-and-shoba-sivaprasad-wadhia-.html

The Meaning of DACA

By Kevin R. Johnson, Michael A. Olivas, and Shoba Sivaprasad Wadhia 

The Supreme Court will soon release an opinion on the lawfulness of the Trump administration’s choice to end DACA or Deferred Action for Childhood Arrivals (DACA). Former President Barack Obama rolled out DACA in June 2012 and the Department of Homeland Security implemented it two months later through a memorandum signed by then-Secretary Janet Napolitano.

DACA, based on a conventional concept of prosecutorial discretion, provided limited relief from removal – and work authorization — to nearly 800,000 young undocumented immigrants through a discretionary tool called “deferred action.” All legal challenges to DACA, including one by campus immigration hawk former Maricopa County (Arizona) Sheriff Joe Arpaio, failed. How will the story of DACA be remembered?

Much more than the sum of its parts, DACA will be remembered as an intriguing political story. For years, Congress introduced legislation known as the DREAM Act to provide legal status and a pathway to permanent residency for young undocumented college students. Congress has debated some kind of comprehensive immigration reform over two decades. All of these efforts failed. Said President Obama in announcing DACA “In the absence of any immigration action from Congress to fix our broken immigration system, what we’ve tried to do is focus our immigration enforcement resources in the right places.” DACA helped jump start the forceful movement across the nation calling for the vindication of the rights of immigrants.

Politics led to DACA’s demise. Donald J. Trump ran for President on a strident immigration enforcement ticket and promised to end the “unconstitutional” DACA policy. After the inauguration of President Trump and lobbying by some Republican leaders to keep DACA, the administration tried to terminate DACA and announced this “wind-down” in a press conference on September 5, 2017. Ultimately, political slogans, not reasoned analysis, were offered for the decision to end DACA.

The Trump administration’s arguments to the Supreme Court defending the end of DACA were also mired in politics. In a convoluted fashion that wended its way to federal appellate courts from coast to coast, the administration—through a series of Interim leaders—simply ignored the requirements of the Administrative Procedure Act and in an arbitrary and capricious way simply declared that DACA was “illegal,” and that they were required to end it.

The claim that DACA was somehow “illegal” was simply not true. No court found it to be, and for good reason. Deferred action is an instrument of discretion used to shield “low priority” immigrants from deportation. Deferred action enjoys a long history and legal foundation across both Republican and Democratic administrations. The administration could decide to end the policy it, but not by undertaking the judicial role of declaring their own exercise of discretion to be unconstitutional. As it did in the Department of Commerce v. New York (2019) in manufacturing a civil rights rationale for a U.S. citizenship question on the 2020 Census that would have chilled the participation of many Latina/os and immigrants, the administration simply misrepresented facts. The Supreme Court should require the Department of Homeland Security to undertake the searching analysis of facts and policy impacts, and honestly proceed, playing by the rules. Those with DACA have upheld their part of this bargain, and the administration must abide by open and fair procedures required by the law.

DACA will be reminisced as a story about human pain and hope. Said one DACA recipient one author spoke to described September 5, 2017, the day the end of DACA was announced as “just an awful day … Eventually you just get over the pain, get over the fear… and you continue to organize and protect your community in whatever way you can.” Throughout the time DACA has been tossed around in the courts, thousands continue to build families of their own, work in the frontlines of healthcare. and revitalize classrooms in colleges and universities across the country, a phenomenon we have seen first-hand as educators and administrators. DACAmented recipients are now our doctors, lawyers, and schoolteachers, repaying the investment this country has made in them.

If the Supreme Court fails to require the Trump administration to abide by the law, as we urge the Court to insist upon, those with DACA must live under a cruel Sword of Damocles, with no clear pathway to legal permanent residency. They deserve an honest policy determination, and the Supreme Court should insist on no less. Ultimately, it will take Congressional action to enact a DREAM Act, and comprehensive immigration reform to enable these young members a means to their rightful place in our society.

—–

Kevin R. Johnson is Dean of the University of California, Davis School of Law and Mabie/Apallas Professor of Public Interest Law and Chicanx Studies.

Michael A. Olivas is William B. Bates Distinguished Chair of Law, Emeritus, at the University of Houston Law Center and the author of Perchance to DREAM: A Legal and Political History of The DREAM Act and DACA.

Shoba Sivaprasad Wadhia is Samuel Weiss Faculty Scholar, Founding Director of the Center for Immigrants’ Rights Clinic at Penn State Law in University Park, and the author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases and Banned: Immigration Enforcement in the Time of Trump.

******************

I’ll be more blunt. 

The Administration’s legal arguments for ending DACA have always been bogus and totally disingenuous. Indeed, they do not even remain the same from case to case as they essentially make it up as they go along. It’s all transparently about White Nationalist racism and political pandering to a right-wing minority. 

The lower Federal Courts were nearly unanimous in rejecting the DOJ’s various bad faith positions. Yet, instead of unanimously blasting the Administration’s frivolous request for intervention out of hand and sending a clear message reaffirming the lower courts, the Supremes granted an audience to Francisco and the scofflaws. 

By failing to send a clear message that political pandering at the expense of human lives won’t be tolerated, the Supremes have encouraged further lawless, insidiously-motivated acts by Trump and have become part of the problem. They have also unconscionably undermined lower Federal Court judges who stood up for the rule of law and removal of racism and dehumanization from government decision-making.

Among other things, the Supremes have helped Trump: eradicate 40 years of asylum protections without legislation; weaponize the public charge provisions without legislation to endanger the health an safety of immigrants and our nation; allowed invidious discrimination against Muslims and refugees; and forced individuals who have established reasonable fear of persecution to be sent to live in life-threatening squalor and danger in Mexico. 

The Supremes’ majority has knowingly and intentionally furthered the “Dred-Scottification” of “the other” in society: African-Americans, Latinos, immigrants, asylum seekers, the poor, women, prisoners, workers, etc. Our nation is paying the price.

The solution eventually will require a re-examination of the type of individuals to whom we give the high privilege of serving on the Supremes: their humanity, courage, practical experience, empathy, moral leadership, problem-solving ability, expertise in furthering human rights, and commitment to equal justice for all, rather than narrow “out of the mainstream” political ideologies. The current outrage and unrest over the lack of social justice in the United States can be tied directly to the Supremes’ lack of leadership, courage, humanity, and an overriding commitment to equal justice under law. This version of the Supremes has failed America. Badly!  We must do better in the future!

Due Process Forever!

PWS

06-01-20

WASHPOST EDITORIAL BOARD:  TRUMP IS “EXACTLY THE WRONG LEADER FOR OUR TIMES” — “The right message would combine an insistence on keeping protest peaceful with assurances that justice will be done in Mr. Floyd’s death and a recognition that righting deeper wrongs is an urgent priority. That message will not come from a White House that has used racial hatred as a wedge and repeatedly made clear its contempt for urban America.”🤮

https://www.washingtonpost.com/opinions/as-cities-burn-trumps-bullhorn-drowns-out-the-voices-of-our-better-angels/2020/05/31/97a259e8-a367-11ea-bb20-ebf0921f3bbd_story.html

☠️☠️☠️☠️☠️

As cities burn, Trump’s bullhorn drowns out the voices of our better angels

AS BUILDINGS and businesses burn in many cities across America, state and local officials and community leaders are desperately and at times bravely saluting the justifiable moral outrage of peaceful protesters while seeking to ensure that looters and hooligans whose only agenda is mayhem do not irreparably sully the cause. Meanwhile, President Trump, whose words could matter most, plays his customary role as human flamethrower: exactly the wrong leader for the times.

No magic elixir could extinguish the rage overnight, nor ensure that the fury over George Floyd’s brutal killing in Minneapolis is channeled in a constructive direction. But this much is certain: Words matter, and a commitment to reform matters. Some leaders are trying to deliver both. They recognize the challenges of systemic injustice; the pattern of brutality suffered by African Americans at the hands of white officers; the racism manifested in so many ways, including unequal rates of imprisonment and, now, unequal suffering from the novel coronavirus, both medically and economically.

Meanwhile, Mr. Trump, the divider in chief, fulminates as the nation burns. He does not counsel restraint; nor issue appeals for unity, nor acknowledge the roots and reasons for the fury of black Americans who see white men in uniform as threats to their lives. To his administration, there is no systemic challenge, only “a few bad apples” among police, as Robert C. O’Brien, national security adviser, said Sunday. Even as police train their weapons on journalists doing their jobs by covering the unrest, Mr. Trump attacks the media. As the president vents — warning that “the most ominous weapons” and “the most vicious dogs” would be unleashed on protesters; threatening to deploy the active-duty military; attacking Democrats; relishing the Secret Service’s readiness for “action”; suggesting he may summon his MAGA supporters to the streets — the country’s more emollient voices are muffled.

Live updates on Minneapolis

Wanton destruction, looting and firebombing are unacceptable and unjustified no matter what the provocation, as Rep. John Lewis (D-Ga.) said on Saturday. Responsible leaders are trying to send that message. But against the president’s bullhorn, it becomes harder to hear leaders like Atlanta Mayor Keisha Lance Bottoms, whose anger at destructive rioters in her city was tempered by a heartfelt appeal. “We are better than this as a city, we are better than this as a country,” she said. “Go home. Go home!” It becomes more difficult to focus on the message of Minnesota Gov. Tim Walz (D), who tweeted, “Minnesota consistently ranks highly for our public schools, innovation and opportunity, and happiness – if you’re white. If you’re not, the opposite is true. Systemic racism must be addressed if we are to secure justice, peace, and order for all Minnesotans.”

So much depends right now on moral authority, yet so little of it can break through the chaos of events and the venomous soundtrack from Washington. The right message would combine an insistence on keeping protest peaceful with assurances that justice will be done in Mr. Floyd’s death and a recognition that righting deeper wrongs is an urgent priority. That message will not come from a White House that has used racial hatred as a wedge and repeatedly made clear its contempt for urban America. It is left to other leaders to try to break through the mayhem of the moment, and give voice to our better angels.

**********************

Trump, already the worst President in U.S. history, has been a clear and present danger to the welfare, security, and continued existence of our nation since he took office. 

His malicious incompetence, corruption, ignorance, racism, meanness, and lack of humanity are now on full display. Trump and his band of grifters, White Nationalists, toadies, and incompetents are a big part of the problem, not the solution!

Indeed, we can’t even get a constructive start on solving the problems of institutional racism, inequality, and failure to take equal justice for all as a serious goal with Trump in office. For example, Trump and the GOP have it very clear that they have the intent and a variety of schemes to suppress African-American and Hispanic-American voting and voting power this November — so far, with no meaningful pushback from the Supremes.

Still, we “are where we are” today because those institutions with a responsibility and the authority to curb his abuses, hold him accountable for his racism and dishonesty, and enforce our Constitution, namely, the U.S. Senate, the Supreme Court, and the GOP have failed to do so. Beyond that, on many occasions they have actually encouraged and joined in his misdeeds.

This November, vote like your life depends on it.  Because it does!

PWS

05-31-20

COURTSIDE HISTORY: ANNIKA NEKLASON @ THE ATLANTIC: How White Supremacist Conspiracy Theories Fueled The Civil War & Continue To Divide & Endanger America!🏴‍☠️☠️

Annika Neklason
Annika Neklason
Assistant Editor
The Atlantic

https://www.theatlantic.com/politics/archive/2020/05/conspiracy-theories-civil-war/612283/

The Conspiracy Theories That Fueled the Civil War

The most powerful people and institutions in the South spread paranoia and fear to protect slavery. Their beliefs led the country to war—and continue to haunt our politics to this day.

Annika Neklason is an assistant editor at The Atlantic.May 29, 2020