A Winston-Salem attorney’s battle to keep one of her clients from being removed from the country will continue after the U.S. Supreme Court handed down a ruling in the client’s favor that reinforces the government’s obligations to avoid deporting people to countries where they could suffer torture.
Helen Parsonage of Elliot Morgan Parsonage represents Nidal Khalid Nasrallah, a Lebanese citizen who became a lawful permanent resident of the United States in 2007. Nasrallah pleaded guilty to two counts of receiving stolen property in federal court in 2013, and the government later initiated removal proceedings. Nasrallah sought to prevent his removal based on America’s obligations under the Convention Against Torture (CAT) treaty, contending that he’d been tortured by the militants of Hezbollah while in Lebanon and would likely be tortured again if returned there.
An immigration judge ordered Nasrallah’s removal but granted his request for relief under the CAT and blocked enforcement of the order indefinitely. But the Board of Immigration Appeals found that the CAT didn’t preclude his removal, and when Nasrallah, who was being held in Georgia, tried to appeal to the 11th U.S. Circuit Court of Appeals, the court determined that it lacked jurisdiction to hear the case.
Nasrallah’s case highlighted a tension in federal law regarding review of removal orders. Federal courts are explicitly allowed to review any claims for relief under the CAT, but explicitly barred from reviewing removal orders against non-citizens who are removable because they’ve committed a criminal offense. Although a few circuits had gone the other way, the 11th Circuit followed the lead of most in finding that the criminal offense provision took precedence and thus precluded review of the board’s ruling.
Parsonage soon heard from Paul Hughes, a co-director of Yale Law School’s Supreme Court Advocacy Clinic, who said that he and his students were interested in helping Parsonage try to take the case to the U.S. Supreme Court. Although the Supreme Court will often step in to resolve disagreements between circuit courts, such writs for certiorari are rarely granted, and the court had declined to hear a similar case only a few months earlier, so the attorneys were pleasantly surprised when the justices agreed to hear Nasrallah’s case.
The CAT, now out of a bag
For Parsonage, it was her first time being involved in a case before the U.S. Supreme Court, and she said it was a tremendous experience to sit just a few feet away from the justices as Hughes presented oral arguments on March 2, shortly before in-person oral arguments were stopped due to the pandemic. Even more pleasantly, on June 1, the court returned a 7-2 decision in Nasrallah’s favor, ruling that circuit courts may review denials of requests for relief under the CAT in cases like his.
Justice Brett Kavanaugh, delivering the court’s opinion, wrote that a CAT order is not itself a final order of removal, but rather simply signifies that the non-citizen may not be removed to the designated country of removal, at least until conditions change in that country. Although the two may be reviewed together, a CAT order is distinct from a final order of removal and does not affect the latter’s validity.
“In short, as a matter of straightforward statutory interpretation, Congress’s decision to bar judicial review of factual challenges to final orders of removal does not bar judicial review of factual challenges to CAT orders,” Kavanaugh wrote, clarifying that such review should nevertheless be “deferential.”
Justice Clarence Thomas wrote a dissent arguing that the ruling could have far-reaching effects and open the door to judicial review of requests to prevent removal in cases where a non-citizen’s life or freedom would be threatened due to race, religion, or certain other characteristics. The government had raised such an argument, but Kavanagh rejected it, finding that the issue wasn’t properly before the court. Parsonage said that her side hadn’t raised the argument but agreed that other immigration attorneys may well pursue that line of reasoning in future cases.
The case will now presumably return to the 11th Circuit for further review. Parsonage said that it was gratifying to see the Supreme Court endorse her reading of the statute, especially given that the majority of federal circuits had gone the other way.
“It’s not a sure path to victory, but it does give us a chance to have his case properly and thoroughly reviewed by an independent judicial body, and that was really what we wanted,” Parsonage said. “I don’t know how many people [this ruling] is going to affect, but it’s going to affect a lot of people. We’re very pleased.”
Parsonage said that she was also pleased to see that although the relevant statute uses the term “alien,” Kavanaugh opted to employ “non-citizen” as an equivalent term in his opinion instead. Justice Sonia Sotomayor has also avoided using the term “alien” in her opinions, and Parsonage said that she was encouraged by the court’s trend away from using the more derogatory term.
Follow David Donovan on Twitter @NCLWDonovan