Guerrero-Lasprilla v. Barr

(Slip Opinion) 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

GUERRERO-LASPRILLA v. BARR, ATTORNEY

GENERAL

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

No. 18–776. Argued December 9, 2019—Decided March 23, 2020*

The Immigration and Nationality Act provides for judicial review of a

final Government order directing the removal of an alien from this

country. 8 U. S. C. §1252(a). Section 1252(a)(2)(C) limits the scope of

that review where the removal rests upon the fact that the alien has

committed certain crimes. And §1252(a)(2)(D), the Limited Review

Provision, says that in such instances courts may consider only “con-

stitutional claims or questions of law.”

Petitioners Guerrero-Lasprilla and Ovalles, aliens who lived in the

United States, committed drug crimes and were subsequently ordered

removed (Guerrero-Lasprilla in 1998 and Ovalles in 2004). Neither

filed a motion to reopen his removal proceedings “within 90 days of the

date of entry of [the] final administrative order of removal.”

§1229a(c)(7)(C)(i). Nonetheless, Guerrero-Lasprilla (in 2016) and

Ovalles (in 2017) asked the Board of Immigration Appeals to reopen

their removal proceedings, arguing that the 90-day time limit should

be equitably tolled. Both petitioners, who had become eligible for dis-

cretionary relief due to various judicial and Board decisions years after

their removal, rested their claim for equitable tolling on Lugo-

Resendez v. Lynch, 831 F. 3d 337, in which the Fifth Circuit had held

that the 90-day time limit could be equitably tolled. The Board denied

both petitioners’ requests, concluding, inter alia, that they had not

demonstrated the requisite due diligence. The Fifth Circuit denied

their requests for review, holding that, given the Limited Review Pro-

——————

* Together with No. 18–1015, Ovalles v. Barr, Attorney General, also

on certiorari to the same court.

2 GUERRERO-LASPRILLA v. BARR

Syllabus

vision, it “lack[ed] jurisdiction” to review petitioners’ “factual” due dil-

igence claims. Petitioners contend that whether the Board incorrectly

applied the equitable tolling due diligence standard to the undisputed

facts of their cases is a “question of law” that the Provision authorizes

courts of appeals to consider.

Held: Because the Provision’s phrase “questions of law” includes the ap-

plication of a legal standard to undisputed or established facts, the

Fifth Circuit erred in holding that it had no jurisdiction to consider

petitioners’ claims of due diligence for equitable tolling purposes.

Pp. 3–13.

(a) Nothing in the statute’s language precludes the conclusion that

Congress used the term “questions of law” to refer to the application of

a legal standard to settled facts. Indeed, this Court has at times re-

ferred to the question whether a given set of facts meets a particular

legal standard as presenting a legal inquiry. See Neitzke v. Williams,

490 U. S. 319, 326 (“Rule 12(b)(6) authorizes a court to dismiss a claim

on the basis of a dispositive issue of law”); Mitchell v. Forsyth, 472 U. S.

511, 528, n. 9 (“[T]he appealable issue is a purely legal one: whether

the facts alleged . . . support a claim of violation of clearly established

law”); cf. Nelson v. Montgomery Ward & Co., 312 U. S. 373, 376 (“The

effect of admitted facts is a question of law”). That judicial usage indi-

cates that the statutory term “questions of law” can reasonably encom-

pass questions about whether settled facts satisfy a legal standard.

The Court has sometimes referred to such a question as a “mixed ques-

tion of law and fact.” See, e.g., U. S. Bank N. A. v. Village at Lakeridge,

LLC, 583 U. S. ___, ___. And the Court has often used the phrase

“mixed questions” in determining the proper standard for appellate re-

view of a district, bankruptcy, or agency decision that applies a legal

standard to underlying facts. But these cases present no such question

involving the standard of review. And, in any event, nothing in those

cases, nor in the language of the statute, suggests that the statutory

phrase “questions of law” excludes the application of law to settled

facts. Pp. 4–5.

(b) A longstanding presumption, the statutory context, and the stat-

ute’s history all support the conclusion that the application of law to

undisputed or established facts is a “questio[n] of law” within the

meaning of §1252(a)(2)(D). Pp. 5–11.

(1) A “well-settled” and “strong presumption,” McNary v. Haitian

Refugee Center, Inc., 498 U. S. 479, 496, 498, “favor[s] judicial review

of administrative action,” Kucana v. Holder, 558 U. S. 233, 251. That

presumption, which can only be overcome by “ ‘ “clear and convincing

evidence” ’ ” of congressional intent to preclude judicial review, Reno v.

Catholic Social Services, Inc., 509 U. S. 43, 64, has consistently been

applied to immigration statutes, Kucana, 558 U. S., at 251. And there

Cite as: 589 U. S. ____ (2020) 3

Syllabus

is no reason to make an exception here. Because the Court can rea-

sonably interpret the statutory term “questions of law” to encompass

the application of law to undisputed facts, and given that a contrary

interpretation would result in a barrier to meaningful judicial review,

the presumption indicates that “questions of law” does indeed include

mixed questions. Pp. 6–7.

(2) The Limited Review Provision’s immediate statutory context

belies the Government and the dissent’s claim that “questions of law”

excludes the application of law to settled facts. The Provision is part

of §1252, which also contains §1252(b)(9), the “zipper clause.” The zip-

per clause is meant to “consolidate judicial review of immigration pro-

ceedings into one action in the court of appeals.” INS v. St. Cyr, 533

U. S. 289, 313. The zipper clause’s language makes clear that Con-

gress understood the statutory term “questions of law and fact,” to in-

clude the application of law to facts. One interpretation of the zipper

clause at the very least disproves the Government’s argument that

Congress consistently uses a three-part typology, such that “questions

of law” cannot include mixed questions. And another interpretation—

that “questions of law” in the zipper clause includes mixed questions—

directly supports the holding here and would give the term the same

meaning in the zipper clause and the Limited Review Provision.

Pp. 7–8.

(3) The Provision’s statutory history and relevant precedent also

support this conclusion. The Provision was enacted in response to INS

v. St. Cyr, in which the Court interpreted the predecessor of

§1252(a)(2)(C) to permit habeas corpus review in order to avoid the

serious constitutional questions that would arise from a contrary in-

terpretation, 533 U. S., at 299–305, 314. In doing so, the Court sug-

gested that the Constitution, at a minimum, protected the writ of ha-

beas corpus “ ‘as it existed in 1789.’ ” Id., at 300–301. The Court then

noted the kinds of review that were traditionally available in a habeas

proceeding, which included “detentions based on errors of law, includ-

ing the erroneous application or interpretation of statutes.” Id., at 302

(emphasis added). Congress took up the Court’s invitation to “provide

an adequate substitute [for habeas review] through the courts of ap-

peals,” id., at 314, n. 38. It made clear that the limits on judicial review

in various §1252 provisions included habeas review, and it consoli-

dated virtually all review of removal orders in one proceeding in the

courts of appeals. Congress also added the Limited Review Provision,

permitting review of “constitutional claims or questions of law.” Con-

gress did so, the statutory history strongly suggests, because it sought

an “adequate substitute” for habeas in view of St. Cyr’s guidance. If

“questions of law” in the Provision does not include the misapplication

of a legal standard to undisputed facts, then review would not include

4 GUERRERO-LASPRILLA v. BARR

Syllabus

an element that St. Cyr said was traditionally reviewable in habeas.

Lower court precedent citing St. Cyr and legislative history also sup-

port this conclusion. Pp. 8–11.

(c) The Government’s additional arguments in favor of its contrary

reading are unpersuasive. More than that, the Government’s inter-

pretation is itself difficult to reconcile with the Provision’s basic pur-

pose of providing an adequate substitute for habeas review. Pp. 11–

13.

No. 18–776, 737 Fed. Appx. 230; No. 18–1015, 741 Fed. Appx. 259, va-

cated and remanded.

BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J.,

and GINSBURG, SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ.,

joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined

as to all but Part II–A–1.

Cite as: 589 U. S. ____ (2020) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order that

corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 18–776 and 18–1015

_________________

PEDRO PABLO GUERRERO-LASPRILLA, PETITIONER

18–776 v.

WILLIAM P. BARR, ATTORNEY GENERAL; AND

RUBEN OVALLES, PETITIONER

18–1015 v.

WILLIAM P. BARR, ATTORNEY GENERAL

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[March 23, 2020]

JUSTICE BREYER delivered the opinion of the Court.

Section 242(a) of the Immigration and Nationality Act,

codified as 8 U. S. C. §1252(a), provides for judicial review

of a final Government order directing the removal of an al-

ien from this country. See 66 Stat. 163, as amended, 8

U. S. C. §1101 et seq. A subdivision of that section limits

the scope of that review where the removal rests upon the

fact that the alien has committed certain crimes, including

aggravated felonies and controlled substance offenses.

§1252(a)(2)(C). Another subdivision, §1252(a)(2)(D), which

we shall call the Limited Review Provision, says that in

such instances courts may consider only “constitutional

claims or questions of law.” The question that these two

consolidated cases present is whether the phrase “questions

of law” in the Provision includes the application of a legal

standard to undisputed or established facts. We believe

2 GUERRERO-LASPRILLA v. BARR

Opinion of the Court

that it does.

I

The two petitioners before us, Pedro Pablo Guerrero-

Lasprilla and Ruben Ovalles, are aliens who lived in the

United States. Each committed a drug crime and conse-

quently became removable. App. 33; Record in No. 18–1015,

p. 66. In 1998, an Immigration Judge ordered Guerrero-

Lasprilla removed. Record in No. 18–776, p. 137. In

2004, the Board of Immigration Appeals ordered Ovalles re-

moved, reversing a decision by an Immigration Judge. App.

to Pet. for Cert. in No. 18–1015, pp. 32a–35a. Both removal

orders became administratively final, and both petitioners

left the country.

Several months after their removal orders became final,

each petitioner’s window for filing a timely motion to reopen

his removal proceedings closed. That is because the Immi-

gration and Nationality Act permits a person one motion to

reopen, “a form of procedural relief that asks the Board to

change its decision in light of newly discovered evidence or

a change in circumstances.” Dada v. Mukasey, 554 U. S. 1,

12, 14 (2008) (internal quotation marks omitted). But the

motion must usually be filed “within 90 days of the date of

entry of a final administrative order of removal.” 8 U. S. C.

§1229a(c)(7)(C)(i).

Nonetheless, Guerrero-Lasprilla (in 2016) and Ovalles

(in 2017) asked the Board to reopen their removal proceed-

ings. Recognizing that the 90-day time limit had long since

passed, both petitioners argued that the time limit should

be equitably tolled. Both petitioners, who had become eli-

gible for discretionary relief due to various judicial and

Board decisions years after their removal, rested their

claim for equitable tolling on Lugo-Resendez v. Lynch, 831

F. 3d 337 (CA5 2016). In that case, the Fifth Circuit had

held that the 90-day time limit could be “equitably tolled.”

Id., at 344. Guerrero-Lasprilla filed his motion to reopen a

Cite as: 589 U. S. ____ (2020) 3

Opinion of the Court

month after Lugo-Resendez was decided. App. 5. Ovalles

filed his motion to reopen eight months after the decision.

Id., at 35. The Board denied both petitioners’ requests for

equitable tolling, concluding, inter alia, that they had failed

to demonstrate the requisite due diligence. App. to Pet. for

Cert. in No. 18–1015, at 6a; App. to Pet. for Cert. in No. 18–

776, p. 12a.

Guerrero-Lasprilla and Ovalles each asked the Fifth Cir-

cuit to review the Board’s decision. See 8 U. S. C.

§1252(a)(1); 28 U. S. C. §2342; Reyes Mata v. Lynch, 576

U. S. 143, 147 (2015) (“[C]ircuit courts have jurisdiction

when an alien appeals from the Board’s denial of a motion

to reopen a removal proceeding”). The Fifth Circuit denied

their requests for review, concluding in both cases that

“whether an alien acted diligently in attempting to reopen

removal proceedings for purposes of equitable tolling is a

factual question.” Guerrero-Lasprilla v. Sessions, 737 Fed.

Appx. 230, 231 (2018) (per curiam); Ovalles v. Sessions, 741

Fed. Appx. 259, 261 (2018) (per curiam). And, given the

Limited Review Provision, it “lack[ed] jurisdiction” to re-

view those “factual” claims. 737 Fed. Appx., at 231; 741

Fed. Appx., at 261.

Both petitioners claim that the underlying facts were not

in dispute, and they asked us to grant certiorari in order to

determine whether their claims that the Board incorrectly

applied the equitable tolling due diligence standard to the

“undisputed” (or established) facts is a “question of law,”

which the Limited Review Provision authorizes courts of

appeals to consider. We agreed to do so.

II

The Limited Review Provision provides that, in this kind

of immigration case (involving aliens who are removable for

having committed certain crimes), a court of appeals may

consider only “constitutional claims or questions of law.” 8

U. S. C. §1252(a)(2)(D). The issue before us is, as we have

4 GUERRERO-LASPRILLA v. BARR

Opinion of the Court

said, whether the statutory phrase “questions of law” in-

cludes the application of a legal standard to undisputed or

established facts. If so, the Fifth Circuit erred in holding

that it “lack[ed] jurisdiction” to consider the petitioners’

claims of due diligence for equitable tolling purposes. We

conclude that the phrase “questions of law” does include

this type of review, and the Court of Appeals was wrong to

hold the contrary.

A

Consider the statute’s language. Nothing in that lan-

guage precludes the conclusion that Congress used the term

“questions of law” to refer to the application of a legal stand-

ard to settled facts. Indeed, we have at times referred to

the question whether a given set of facts meets a particular

legal standard as presenting a legal inquiry. Do the facts

alleged in a complaint, taken as true, state a claim for relief

under the applicable legal standard? See Fed. Rule Civ.

Proc. 12(b)(6); Neitzke v. Williams, 490 U. S. 319, 326 (1989)

(“Rule 12(b)(6) authorizes a court to dismiss a claim on the

basis of a dispositive issue of law”). Did a Government offi-

cial’s alleged conduct violate clearly established law? See

Mitchell v. Forsyth, 472 U. S. 511, 528, n. 9 (1985) (“[T]he

appealable issue is a purely legal one: whether the facts al-

leged . . . support a claim of violation of clearly established

law”); cf. Nelson v. Montgomery Ward & Co., 312 U. S. 373,

376 (1941) (“The effect of admitted facts is a question of

law”). Even the dissent concedes that we have sometimes

referred to mixed questions as raising a legal inquiry. See

post, at 3–4 (opinion of THOMAS, J.). While that judicial us-

age alone does not tell us what Congress meant by the stat-

utory term “questions of law,” it does indicate that the term

can reasonably encompass questions about whether settled

facts satisfy a legal standard.

We have sometimes referred to such a question, which

has both factual and legal elements, as a “mixed question

Cite as: 589 U. S. ____ (2020) 5

Opinion of the Court

of law and fact.” See, e.g., U. S. Bank N. A. v. Village at

Lakeridge, LLC, 583 U. S. ___, ___ (2018) (slip op., at 7)

(“[W]hether the historical facts found satisfy the legal test

chosen” is a “so-called ‘mixed question’ of law and fact” (cit-

ing Pullman-Standard v. Swint, 456 U. S. 273, 289, n. 19

(1982))). And we have often used the phrase “mixed ques-

tions” in determining the proper standard for appellate re-

view of a district, bankruptcy, or agency decision that ap-

plies a legal standard to underlying facts. The answer to

the “proper standard” question may turn on practical con-

siderations, such as whether the question primarily “re-

quire[s] courts to expound on the law, particularly by am-

plifying or elaborating on a broad legal standard” (often

calling for review de novo), or rather “immerse[s] courts in

case-specific factual issues” (often calling for deferential re-

view). Village at Lakeridge, 583 U. S., at ___ (slip op., at 8).

But these cases present no such question involving the

standard of review. And, in any event, nothing in those

cases forecloses the conclusion that the application of law

to settled facts can be encompassed within the statutory

phrase “questions of law.” Nor is there anything in the lan-

guage of the statute that suggests that “questions of law”

excludes the application of law to settled facts.

B

The Government, respondent here, argues to the con-

trary. Namely, the Government claims that Congress in-

tended to exclude from judicial review all mixed questions.

We do not agree. Rather, a longstanding presumption, the

statutory context, and the statute’s history all support the

conclusion that the application of law to undisputed or es-

tablished facts is a “questio[n] of law” within the meaning

of §1252(a)(2)(D).

6 GUERRERO-LASPRILLA v. BARR

Opinion of the Court

1

Consider first “a familiar principle of statutory construc-

tion: the presumption favoring judicial review of adminis-

trative action.” Kucana v. Holder, 558 U. S. 233, 251

(2010). Under that “well-settled” and “strong presump-

tion,” McNary v. Haitian Refugee Center, Inc., 498 U. S.

479, 496, 498 (1991), when a statutory provision “is reason-

ably susceptible to divergent interpretation, we adopt the

reading that accords with traditional understandings and

basic principles: that executive determinations generally

are subject to judicial review.” Kucana, 558 U. S., at 251

(quoting Gutierrez de Martinez v. Lamagno, 515 U. S. 417,

434 (1995); internal quotation marks omitted); see McNary,

498 U. S., at 496 (“[G]iven [that] presumption . . . , it is most

unlikely that Congress intended to foreclose all forms of

meaningful judicial review”). The presumption can only be

overcome by “clear and convincing evidence” of congres-

sional intent to preclude judicial review. Reno v. Catholic

Social Services, Inc., 509 U. S. 43, 64 (1993) (quoting Abbott

Laboratories v. Gardner, 387 U. S. 136, 141 (1967); internal

quotation marks omitted); see Cuozzo Speed Technologies,

LLC v. Lee, 579 U. S. ___, ___–___ (2016) (slip op., at 9–10).

We have “consistently applied” the presumption of re-

viewability to immigration statutes. Kucana, 558 U. S., at

251. And we see no reason to make an exception here. The

dissent’s “doubts” about the presumption, see post, at 6–9,

do not undermine our recognition that it is a “well-settled”

principle of statutory construction, McNary, 498 U. S., at

496. Notably, even the Government does not dispute the

soundness of the presumption or its applicability here. See

Brief for Respondent 47–48 (arguing only that the presump-

tion is overcome).

As discussed above, we can reasonably interpret the stat-

utory term “questions of law” to encompass the application

of law to undisputed facts. See supra, at 4–5. And as we

explain further below, infra, at 13, interpreting the Limited

Cite as: 589 U. S. ____ (2020) 7

Opinion of the Court

Review Provision to exclude mixed questions would effec-

tively foreclose judicial review of the Board’s determina-

tions so long as it announced the correct legal standard.

The resulting barrier to meaningful judicial review is thus

a strong indication, given the presumption, that “questions

of law” does indeed include the application of law to estab-

lished facts. That is particularly so given that the statutory

context and history point to the same result.

2

Consider next the Limited Review Provision’s immediate

statutory context. That context belies the Government and

the dissent’s claim that “questions of law” refers only to

“pure” questions and necessarily excludes the application of

law to settled facts. See Brief for Respondent 19–26; post,

at 3–6. The Limited Review Provision forms part of §1252,

namely, §1252(a)(2)(D). The same statutory section con-

tains a provision, §1252(b)(9), which we have called a “ ‘zip-

per clause.’ ” INS v. St. Cyr, 533 U. S. 289, 313 (2001). We

have explained that Congress intended the zipper clause to

“consolidate judicial review of immigration proceedings into

one action in the court of appeals.” Ibid. (internal quotation

marks omitted). The zipper clause reads in part as follows:

“Judicial review of all questions of law and fact, includ-

ing interpretation and application of constitutional

and statutory provisions, arising from any action taken

. . . to remove an alien from the United States under

this subchapter shall be available only in judicial re-

view of a final order under this section.” §1252(b)(9)

(emphasis added).

Because it is meant to consolidate judicial review, the zip-

per clause must encompass mixed questions. Indeed, the

clause by its very language includes the “application of [a]

statutory provisio[n].” Ibid.

The zipper clause accordingly makes clear that Congress

8 GUERRERO-LASPRILLA v. BARR

Opinion of the Court

understood the statutory term “questions of law and fact”

to include the application of law to facts. Reread the zipper

clause: It uses the terms “[(1)] questions of law and [(2)]

fact, including” the “application of ” statutes, i.e., the appli-

cation of law to fact. Ibid. (emphasis added). Thus, there

are three possibilities: Congress either used (1) “questions

of law,” (2) “fact,” or (3) the combination of both terms to

encompass mixed questions. Even the Government does

not argue that Congress used “questions of fact” alone to

cover mixed questions. Congress thus either meant the

term “questions of law” alone to include mixed questions, or

it used both “questions of law” and questions of “fact” to en-

compass mixed questions. The latter interpretation at the

very least disproves the Government’s argument that Con-

gress consistently uses a three-part typology, referring to

mixed questions separately from questions of law or ques-

tions of fact (such that “questions of law” cannot include

mixed questions). See Brief for Respondent 21; see also

post, at 3 (arguing that this Court has often used that three-

part typology and thus “questions of law” must exclude

mixed questions). And the former interpretation directly

supports the conclusion that “questions of law” includes

mixed questions. That interpretation gives “questions of

law” the same meaning across both provisions. Notably,

when Congress enacted the Limited Review Provision, it

added language to the end of the zipper clause (following

the language quoted above) to clarify that, except as pro-

vided elsewhere in §1252, “ ‘no court shall have jurisdic-

tion’ ” to “ ‘review . . . such questions of law or fact.’ ” §106,

119 Stat. 311. There is thus every reason to think that Con-

gress used the phrase “questions of law” to have the same

meaning in both provisions.

3

Consider also the Limited Review Provision’s statutory

history and the relevant precedent. The parties agree that

Cite as: 589 U. S. ____ (2020) 9

Opinion of the Court

Congress enacted the Limited Review Provision in response

to this Court’s decision in St. Cyr. See Brief for Respondent

16, 27–31; Brief for Petitioners 31–33. In that case, the

Court evaluated the effect of various allegedly jurisdiction-

stripping provisions, including the predecessor to

§1252(a)(2)(C). That predecessor (which today is modified

by the Limited Review Provision) essentially barred judicial

review of removal orders based on an alien’s commission of

certain crimes. See St. Cyr, 533 U. S., at 298, 311 (citing

§1252(a)(2)(C) (1994 ed., Supp. V)). This Court interpreted

that predecessor and the other purportedly jurisdiction-

stripping provisions as not barring (i.e., as permitting) re-

view in habeas corpus proceedings, to avoid the serious con-

stitutional questions that would be raised by a contrary

interpretation. See St. Cyr, 533 U. S., at 299–305, 314.

In doing so, the Court suggested that the Constitution, at

a minimum, protected the writ of habeas corpus “ ‘as it ex-

isted in 1789.’ ” Id., at 300–301. The Court then noted the

kinds of review that were traditionally available in a ha-

beas proceeding, which included “detentions based on er-

rors of law, including the erroneous application or interpre-

tation of statutes.” Id., at 302 (emphasis added). And it

supported this view by citing cases from the 18th and early

19th centuries. See id., at 302–303, and nn. 18–23. English

cases consistently demonstrate that the “erroneous applica-

tion . . . of statutes” includes the misapplication of a legal

standard to the facts of a particular case. See, e.g., Hol-

lingshead’s Case, 1 Salk. 351, 91 Eng. Rep. 307 (K. B. 1702);

King v. Nathan, 2 Str. 880, 93 Eng. Rep. 914 (K. B. 1724);

King v. Rudd, 1 Cowp. 331, 334–337, 98 Eng. Rep. 1114,

1116–1117 (K. B. 1775); King v. Pedley, 1 Leach 325, 326,

168 Eng. Rep. 265, 266 (1784). The Court ultimately made

clear that “Congress could, without raising any constitu-

tional questions, provide an adequate substitute [for habeas

review] through the courts of appeals.” St. Cyr., 533 U. S.,

at 314, n. 38.

10 GUERRERO-LASPRILLA v. BARR

Opinion of the Court

Congress took up this suggestion. It made clear that the

limits on judicial review in various provisions of §1252 in-

cluded habeas review, and it consolidated virtually all re-

view of removal orders in one proceeding in the courts of

appeals. See §106(a), 119 Stat. 310–311 (inserting specific

references to 28 U. S. C. §2241 and “ ‘any other habeas cor-

pus provision’ ”). At the same time, Congress added the

Limited Review Provision, which permits judicial review of

“ ‘constitutional claims or questions of law,’ ” the words di-

rectly before us now. 119 Stat. 310.

This statutory history strongly suggests that Congress

added the words before us because it sought an “adequate

substitute” for habeas in view of St. Cyr’s guidance. See

supra, at 9. If so, then the words “questions of law” in the

Limited Review Provision must include the misapplication

of a legal standard to undisputed facts, for otherwise review

would not include an element that St. Cyr said was tradi-

tionally reviewable in habeas.

We reach the same conclusion through reference to lower

court precedent. After we decided St. Cyr, numerous Courts

of Appeals held that habeas review included review of the

application of law to undisputed facts. See Cadet v. Bulger,

377 F. 3d 1173, 1184 (CA11 2004) (“[W]e hold that the scope

of habeas review available in [28 U. S. C.] §2241 petitions

by aliens challenging removal orders . . . includes . . . errors

of law, including both statutory interpretations and appli-

cation of law to undisputed facts or adjudicated facts”); Og-

budimkpa v. Ashcroft, 342 F. 3d 207, 222 (CA3 2003)

(same); Mu-Xing Wang v. Ashcroft, 320 F. 3d 130, 143 (CA2

2003) (same); Singh v. Ashcroft, 351 F. 3d 435, 441–442

(CA9 2003) (“[O]ther courts have rejected the Government’s

argument that only ‘purely legal questions of statutory in-

terpretation’ permit the exercise of habeas jurisdiction. . . .

We agree with those rulings”). We normally assume that

Congress is “aware of relevant judicial precedent” when it

enacts a new statute. Merck & Co. v. Reynolds, 559 U. S.

Cite as: 589 U. S. ____ (2020) 11

Opinion of the Court

633, 648 (2010). Thus, we should assume that Congress,

aware of this precedent (and wishing to substitute review

in the courts of appeals for habeas review), would have in-

tended the phrase “questions of law” to include the applica-

tion of a legal standard to established or undisputed facts.

Those who deem legislative history a useful interpretive

tool will find that the congressional history of the Limited

Review Provision supports this analysis. The House Con-

ference Report refers to St. Cyr and adds that Congress’

amendments are designed to “provide an ‘adequate and ef-

fective’ alternative to habeas corpus” in the courts of ap-

peals. H. R. Conf. Rep. No. 109–72, p. 175 (2005) (citing St.

Cyr, 533 U. S., at 314, n. 38). The Report adds that the

amendments “would not change the scope of review that

criminal aliens currently receive.” H. R. Conf. Rep. No.

109–72, at 175. And as we know, that “scope of review” in-

cluded review of decisions applying a legal standard to un-

disputed or established facts. That is what this Court, in

St. Cyr, had said was traditionally available in habeas; and

it was how courts of appeals then determined the scope of

habeas review. Notably, the legislative history indicates

that Congress was well aware of the state of the law in the

courts of appeals in light of St. Cyr. See H. R. Conf. Rep.

No. 109–72, at 174 (discussing issues on which the Courts

of Appeals agreed and those on which they had split after

St. Cyr). The statutory history and precedent, as well as

the legislative history, thus support the conclusion that the

statutory term “questions of law” includes the application

of a legal standard to established facts.

III

The Government makes two significant arguments that

we have not yet discussed. First, it points out that

§1252(a)(2)(C) forbids (subject to the Limited Review Provi-

sion) review of a removal order based on an alien’s commis-

12 GUERRERO-LASPRILLA v. BARR

Opinion of the Court

sion of certain crimes. If the words “questions of law” in-

clude “mixed questions,” then for such aliens, the Limited

Review Provision excludes only (or primarily) agency fact-

finding from review. But if Congress intended no more than

that, then why, the Government asks, did it not just say so

directly rather than eliminate judicial review and then re-

store it for “constitutional claims or questions of law?” Brief

for Respondent 49–50.

One answer to this question is that the Limited Review

Provision applies to more of the statute than the immedi-

ately preceding subparagraph. See §1252(a)(2)(D) (apply-

ing notwithstanding “subparagraph (B) or (C), or in any

other provision of this chapter (other than this section)”).

Another answer is that Congress did not write the Limited

Review Provision on a blank slate. Rather, subparagraph

(C) initially forbade judicial review, and Congress then

simply wrote another subparagraph reflecting our descrip-

tion in St. Cyr of the review traditionally available in ha-

beas (or a substitute for habeas in the courts of appeals).

See supra, at 8–10. That statutory history also illustrates

why the dissent errs in relying so significantly on language

in subparagraph (C) proscribing judicial review. See post,

at 5–6, 9 (referring to the “sweeping” and “broad” language

of subparagraph (C)). A broad and sweeping reading of sub-

paragraph (C) was precisely what this Court rejected in St.

Cyr, and Congress enacted subparagraph (D) in response to

that opinion. Subparagraph (C)—constrained as it is by

subparagraph (D)—must thus be read in that context.

Second, the Government argues that our interpretation

will undercut Congress’ efforts to severely limit and stream-

line judicial review of an order removing aliens convicted of

certain crimes. See Brief for Respondent 29–30; see also

post, at 11, n. 5 (noting that the legislative history indicates

that Congress intended to streamline removal proceedings

by limiting judicial review). The Limited Review Provision,

Cite as: 589 U. S. ____ (2020) 13

Opinion of the Court

however, will still forbid appeals of factual determina-

tions—an important category in the removal context. And

that Provision, taken together with other contemporaneous

amendments to §1252, does streamline judicial review rel-

ative to the post-St. Cyr regime, by significantly curtailing

habeas proceedings in district courts.

More than that, the Government’s interpretation is itself

difficult to reconcile with the Provision’s basic purpose of

providing an adequate substitute for habeas review. That

interpretation would forbid review of any Board decision

applying a properly stated legal standard, irrespective of

how mistaken that application might be. By reciting the

standard correctly, the Board would be free to apply it in a

manner directly contrary to well-established law. The Gov-

ernment, recognizing the extreme results of its interpreta-

tion, suggested at oral argument that the courts of appeals

might still be able to review certain “categori[es]” of appli-

cations, such as whether someone being in a coma always,

sometimes, or never requires equitable tolling. See Tr. of

Oral Arg. 38. The Government, however, left the nature

and rationale of this approach unclear. The approach does

not overcome the problem we have just raised, and seems

difficult to reconcile with the language and purposes of the

statute.

* * *

For these reasons, we reverse the Fifth Circuit’s “juris-

dictional” decisions, vacate its judgments, and remand

these cases for further proceedings consistent with this

opinion.

It is so ordered.

Cite as: 589 U. S. ____ (2020) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 18–776 and 18–1015

_________________

PEDRO PABLO GUERRERO-LASPRILLA, PETITIONER

18–776 v.

WILLIAM P. BARR, ATTORNEY GENERAL; AND

RUBEN OVALLES, PETITIONER

18–1015 v.

WILLIAM P. BARR, ATTORNEY GENERAL

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[March 23, 2020]

JUSTICE THOMAS, with whom JUSTICE ALITO joins as to

all but Part II–A–1, dissenting.

We granted certiorari to decide whether a denial of equi-

table tolling for lack of due diligence is reviewable as a

“question of law” under 8 U. S. C. §1252(a)(2)(D). Not con-

tent with resolving that narrow question, the Court cate-

gorically proclaims that federal courts may review immi-

gration judges’ applications of any legal standard to

established facts in criminal aliens’ removal proceedings.

Ante, at 1–2. In doing so, the majority effectively nullifies

a jurisdiction-stripping statute, expanding the scope of ju-

dicial review well past the boundaries set by Congress. Be-

cause this arrogation of authority flouts both the text and

structure of the statute, I respectfully dissent.

I

Under §1252(a)(2)(C), “[n]otwithstanding any other pro-

vision of law (statutory or nonstatutory), . . . no court shall

have jurisdiction to review any final order of removal

2 GUERRERO-LASPRILLA v. BARR

THOMAS, J., dissenting

against an alien who is removable by reason of having

committed [certain] criminal offense[s].” This broad

jurisdiction-stripping provision is known as the “criminal-alien

bar.” The only exceptions to the provision’s otherwise all-

encompassing language are found in §1252(a)(2)(D), which

states that “[n]othing in subparagraph . . . (C) . . . shall be

construed as precluding review of constitutional claims or

questions of law.” Thus, under the criminal-alien bar, any

claim that neither is constitutional nor raises a question

of law is unreviewable. Because petitioners raise no con-

stitutional claim and due diligence in the equitable-tolling

context is not a “question of law,” their claims are

unreviewable.

A

Equitable tolling’s due-diligence requirement presents a

mixed question of law and fact. A litigant will qualify for

equitable tolling only if he “has pursued his rights dili-

gently but some extraordinary circumstance prevents him

from bringing a timely action.” Lozano v. Montoya Alvarez,

572 U. S. 1, 10 (2014). To determine whether a litigant

has exercised due diligence, judges must conduct what

this Court has characterized as an “ ‘equitable, often fact-

intensive’” inquiry, considering “in detail” the unique facts of

each case to decide whether a litigant’s efforts were reason-

able in light of his circumstances. Holland v. Florida, 560

U. S. 631, 653–654 (2010) (BREYER, J., for the Court). In

other words, courts ask “whether the historical facts found

satisfy the legal test,” which, as this Court recently (and

unanimously) recognized, is a quintessential “ ‘mixed ques-

tion’ of law and fact.” U. S. Bank N. A. v. Village at Lake-

ridge, LLC, 583 U. S. ___, ___ (2018) (slip op., at 7) (quoting

Pullman-Standard v. Swint, 456 U. S. 273, 289, n. 19

(1982)); but see ante, at 4–5.

Cite as: 589 U. S. ____ (2020) 3

THOMAS, J., dissenting

B

The text of §1252(a)(2)(D) authorizes courts to review

only “constitutional claims or questions of law.” It does not

refer to mixed questions of law and fact, and cannot be di-

vined to do so. As the statute’s plain language and struc-

ture demonstrate, “questions of law” cannot reasonably be

read to include mixed questions.

Although the statute does not define “questions of law,”

longstanding historical practice indicates that the phrase

does not encompass mixed questions of law and fact. For

well over a century, this Court has recognized questions of

law, questions of fact, and mixed questions of law and fact

as three discrete categories. See, e.g., Pullman-Standard,

supra, at 288 (distinguishing between a “question of law,” a

“mixed question of law and fact,” and a “pure question of

fact”); Ross v. Day, 232 U. S. 110, 116 (1914) (distinguishing

between “a mere question of law” and “a mixed question of

law and fact”); Bates & Guild Co. v. Payne, 194 U. S. 106,

109 (1904) (distinguishing between “mixed questions of law

and fact” and questions “of law alone”); Jewell v. Knight,

123 U. S. 426, 432 (1887) (distinguishing between “ques-

tions of law only,” “questions of fact,” and questions “of

mixed law and fact”); Republican River Bridge Co. v. Kan-

sas Pacific R. Co., 92 U. S. 315, 318–319 (1876) (distin-

guishing between a “mixed question of law and fact,” a “law

question,” and a “fact [question]”). A leading civil procedure

treatise at the time of §1252(a)(2)(D)’s enactment confirms

this understanding. See 9A C. Wright & A. Miller, Federal

Practice and Procedure §§2588–2589 (2d ed. 1995) (distin-

guishing between conclusions and questions of law, and

“mixed questions of law and fact”).

The majority resists this conclusion by pointing to cases

in which the Court has characterized mixed questions as

either legal or factual. But this occasional emphasis on ei-

ther law or fact does not change the reality that many ques-

tions include both. This Court sometimes uses these two

4 GUERRERO-LASPRILLA v. BARR

THOMAS, J., dissenting

categories because “[m]ixed questions are not all alike” and,

in certain contexts, this Court must distinguish between

them by determining whether they present primarily legal

or primarily factual inquiries. Village at Lakeridge, supra,

at ___–___ (slip op., at 8–9) (whether a creditor is a nonstat-

utory insider presents a factual inquiry); see also Neitzke v.

Williams, 490 U. S. 319, 326 (1989) (whether a complaint

fails to state a claim presents a legal inquiry).1

The Court often uses these labels in contexts that lend

themselves to a fact/law dichotomy. For example, it asks

whether a question is primarily legal or primarily factual

when it needs to determine the appropriate standard of ap-

pellate review. See, e.g., Village at Lakeridge, supra, at ___

(slip op., at 9). A similar dichotomy arises when the Court

considers whether an issue is one for the judge or jury. See,

e.g., United States v. Gaudin, 515 U. S. 506, 512 (1995) (“the

application-of-legal-standard-to-fact sort of question . . . ,

commonly called a ‘mixed question of law and fact,’ has typ-

ically been resolved by juries” as a fact issue).

But these considerations are irrelevant in the context of

a statutory judicial-review provision such as §1252(a)(2),

which contains text that refers only to “questions of law.”

The federal appellate judges who review claims under this

provision are competent to review legal, factual, and mixed

questions alike; their authority is constrained only by the

statutory text. Our task, therefore, is simply to interpret

the words of the statute, which invoke no forced dichotomy

——————

1 The majority also cites Mitchell v. Forsyth, 472 U. S. 511 (1985), for

the proposition that “whether a given set of facts meet a particular legal

standard . . . present[s] a legal inquiry.” Ante, at 4. But that case in-

volved a motion for summary judgment, so the inquiry was limited to

whether “a given proposition of law was not clearly established at the

time the defendant committed the alleged acts.” 472 U. S., at 529, n. 10.

It did not concern the application of facts to a legal standard, such as

whether “the defendant’s actions were in fact unlawful.” Ibid.

Cite as: 589 U. S. ____ (2020) 5

THOMAS, J., dissenting

because Congress could have easily included mixed ques-

tions in the text if it wanted to do so. See, e.g., 38 U. S. C.

§7292(d) (referring to a “challenge to a law . . . as applied to

the facts of a particular case” as distinct from “questions

of law”). Accordingly, there is no need to place the due-

diligence inquiry into either category here.2

Moreover, conflating “questions of law” with mixed ques-

tions would lead to absurd results in light of the statute’s

structure. The criminal-alien bar, which directly precedes

8 U. S. C. §1252(a)(2)(D), is an unequivocally broad

jurisdiction-stripping provision, barring review “[n]otwith-

standing any other provision of law (statutory or nonstatu-

tory).” §1252(a)(2)(C). That is the default rule. Section

1252(a)(2)(D) merely delineates two narrow exceptions to

this criminal-alien bar—“constitutional claims” and “ques-

tions of law.”

Reading “questions of law” to include all mixed questions

would turn §1252(a)(2)’s structure on its head. It would

transform §1252(a)(2)(D)’s narrow exception into a broad

provision permitting judicial review of all criminal aliens’

challenges to their removal proceedings except the precious

few that raise only pure questions of fact. Because those

questions are already effectively unreviewable under the

Immigration and Nationality Act’s (INA’s) extremely defer-

ential standard, §1252(b)(4)(B) (Board’s “findings of fact are

conclusive unless any reasonable adjudicator would be com-

pelled to conclude to the contrary”), this interpretation

would reduce the jurisdiction-stripping provision to a near

nullity. Put another way, the exception would all but swal-

low the rule.3 The logical reading of §1252(a)(2) is that the

——————

2 Even if this statute were interpreted in terms of a fact/law dichotomy,

the majority offers no explanation as to why the due-diligence inquiry

would fall on the “primarily legal” side of the line.

3 The majority claims we must read §1252(a)(2)(C) “in th[e] context” of

the purported legislative intent behind §1252(a)(2)(D). Ante, at 12. As

explained below, atextual legislative intent is not an appropriate tool for

6 GUERRERO-LASPRILLA v. BARR

THOMAS, J., dissenting

exception is narrower than the rule and covers only what is

stated in the text: constitutional claims and questions of

law.4

II

Undeterred by the statute’s text and structure, the ma-

jority concludes that criminal aliens are entitled to judicial

review of any question involving the application of estab-

lished facts to a legal standard. Ante, at 1–2. Even a fact-

intensive mixed question like due diligence, which requires

“[p]recious little” “legal work,” Village at Lakeridge, 583

U. S., at ___ (slip op., at 10), is a “question of law” according

to the majority. To justify its erroneous reading of the text,

the majority resorts to the presumption favoring judicial re-

view and to legislative intent. Neither interpretive tool is

appropriate for, or helpful to, the majority’s analysis.

A

The majority relies heavily on the presumption favoring

judicial review of agency action as set out in our modern

cases. Ante, at 5–7. Even accepting those precedents,

which no party asks us to reconsider, the presumption does

no work here because the statute’s text and structure

plainly preclude review of mixed questions.

1

As an initial matter, I have come to have doubts about

——————

interpreting a statute. See infra, at 8. But even if it were, the purported

legislative intent here supports a narrow reading of §1252(a)(2)(D) that

leaves much of §1252(a)(2)(C) intact. See infra, at 10–12.

4 The majority makes much of the phrase “questions of law and fact” in

another subsection of §1252, known as the “zipper clause,” which consol-

idates judicial review of immigration proceedings. Ante, at 7–8 (discuss-

ing 8 U. S. C. §1252(b)(9)). But that language is most naturally read to

encompass all three categories—“questions of law,” “questions of . . .

fact,” and “questions of law and fact.” §1252(b)(9). At a minimum, the

meaning of the zipper clause’s text is ambiguous and cannot overcome

the plain text of §§1252(a)(2)(C)–(D).

Cite as: 589 U. S. ____ (2020) 7

THOMAS, J., dissenting

our modern cases applying the presumption of reviewabil-

ity. Courts have long understood that they “generally have

jurisdiction to grant relief ” when individuals are injured by

unlawful administrative action. American School of Mag-

netic Healing v. McAnnulty, 187 U. S. 94, 108 (1902). Ap-

plying this well-settled principle, we have refused to read a

statute’s “silence . . . as to judicial review” to preclude such

review. Stark v. Wickard, 321 U. S. 288, 309 (1944); see

also Board of Governors, FRS v. Agnew, 329 U. S. 441, 444

(1947). But the modern presumption of reviewability relied

on by the majority today goes far beyond this traditional

approach.

The modern presumption developed against the backdrop

of the Administrative Procedure Act (APA). See Abbott La-

boratories v. Gardner, 387 U. S. 136, 140–141 (1967); see

also Weyerhaeuser Co. v. United States Fish and Wildlife

Serv., 586 U. S. ___, ___ (2018) (slip op., at 11). In that stat-

ute, Congress created a general right of judicial review for

individuals injured by agency action. 5 U. S. C. §702. No-

tably, however, Congress also specified that this right did

not apply when “statutes preclude judicial review.”

§701(a)(1).

Rather than recognize that courts should give the words

of both the APA and agencies’ organic statutes their natural

meaning, the Court relied on “[t]he spirit of [legislators’]

statements” in Committee Reports and the “broadly reme-

dial purposes of the [APA]” to craft a strong presumption of

reviewability. Heikkila v. Barber, 345 U. S. 229, 232 (1953).

The Court ultimately concluded that statutory text alone,

even that which “appears to bar [judicial review],” is “not

conclusive.” Id., at 233. Under this approach, a court will

yield its jurisdiction “only upon a showing of ‘clear and con-

vincing evidence,’ ” drawn from a statute’s purpose and leg-

islative history, that Congress “intended” as much. Abbott

Laboratories, supra, at 139, 141; see also ante, at 6.

There are at least three reasons to doubt the soundness

8 GUERRERO-LASPRILLA v. BARR

THOMAS, J., dissenting

of this modern presumption. First, it elevates the supposed

purpose or “spirit” of the APA over the statute’s text. The

“spirit” of a law is nothing more than “the unhappy inter-

pretive conception of a supposedly better policy than can be

found in the words of [the] authoritative text.” A. Scalia &

B. Garner, Reading Law: The Interpretation of Legal Texts

344 (2012). Its invocation represents a “bald assertion of an

unspecified and hence unbounded judicial power to ignore

what the law says.” Id., at 343. And it is especially prob-

lematic to rely on the “spirit” of the APA in actions arising

under a separate substantive statute with a judicial-review

provision that is entirely distinct from the APA, such as the

INA.

Second, the Court’s test for rebutting the presumption re-

lies heavily on legislative intent, inviting courts to discern

the mental processes of legislators through legislative his-

tory. But “[e]ven assuming a majority of Congress read the

[legislative history], agreed with it, and voted for [the stat-

ute] with the same intent, ‘we are a government of laws, not

of men, and are governed by what Congress enacted rather

than by what it intended.’ ” Digital Realty Trust, Inc. v.

Somers, 583 U. S. ___, ___ (2018) (THOMAS, J., concurring

in part and concurring in judgment) (slip op., at 1) (quoting

Lawson v. FMR LLC, 571 U. S. 429, 459–460 (2014)

(Scalia, J., concurring in principal part and concurring in

judgment)).

Finally, the clear-and-convincing-evidence requirement

appears to conflict with the text of the Constitution. Under

Articles I and III, Congress has the authority to establish

the jurisdiction of inferior federal courts and to regulate the

appellate jurisdiction of this Court. See Art. I, §8, cl. 9;

Art. III, §2, cl. 2; see also Patchak v. Zinke, 583 U. S. ___,

___–___ (2018) (slip op., at 7–10). It occasionally wields this

power to prevent federal courts from reviewing certain ac-

tions through jurisdiction-stripping statutes. See, e.g., 12

U. S. C. §§1818(i)(1), 4208; 15 U. S. C. §719h(c)(3); 31

Cite as: 589 U. S. ____ (2020) 9

THOMAS, J., dissenting

U. S. C. §3730(e)(4)(A). Using this modern presumption,

however, the Court has reached the opposite result, despite

a statute’s plain text. See, e.g., INS v. St. Cyr, 533 U. S. 289

(2001); see also ante, at 6–7. By placing heightened require-

ments on statutes promulgated under Congress’ exclusive

authority rather than simply giving effect to their ordinary

meaning, courts upset the delicate balance of power re-

flected in the Constitution’s text.

2

Even assuming that the modern presumption is justified

and can properly be applied to actions outside the APA con-

text, it does no work in these cases. First, as explained

above, “questions of law” cannot reasonably be read to in-

clude mixed questions. See supra, at 3–6; cf. Kucana v.

Holder, 558 U. S. 233, 251 (2010). But even if it could, the

sweeping language of §1252(a)(2)(C) provides clear and con-

vincing evidence that judicial review of mixed questions is

barred. The broad language of that provision leaves no

room for ambiguity as to Congress’ design. In erecting the

criminal-alien bar, Congress unequivocally precluded judi-

cial review of wide swaths of claims. The presumption,

to the extent it should apply here at all, is thus firmly

rebutted.

The Court nevertheless concludes that the presumption

of reviewability dictates today’s result. It bases this conclu-

sion on the observation that “interpreting [§1252(a)(2)(D)]

to exclude mixed questions would effectively foreclose judi-

cial review of the Board’s determinations so long as it an-

nounced the correct legal standard.” Ante, at 6–7. But

“[t]he resulting barrier to meaningful judicial review” is not

a problem in need of a judicial solution, ante, at 7—it is ev-

idence of Congress’ design, which is precisely the sort of

“clear and convincing evidence” that should “dislodge the

presumption,” Kucana, supra, at 252 (internal quotation

marks omitted). By using Congress’ preclusive design to

10 GUERRERO-LASPRILLA v. BARR

THOMAS, J., dissenting

justify rather than dislodge the presumption, the majority

dramatically expands the presumption, rendering it effec-

tively irrebuttable.

B

The majority next relies on the purported purpose of

§1252(a)(2)(D) to justify its reading of the text. It claims

that Congress intended to provide an “ ‘adequate substitute’

for habeas in view of St. Cyr’s guidance” regarding the scope

of the Suspension Clause. Ante, at 10. As explained above,

legislative intent, to the extent it exists independent of the

words in the statute, is unhelpful to the proper interpreta-

tion of a statute’s text. See supra, at 8. But its invocation

is especially unhelpful to the majority here. Even assuming

Congress looked to St. Cyr when drafting §1252(a)(2)(D),

the limited “guidance” provided in that opinion supports my

reading of the statute, not the majority’s.

As an initial matter, the Court in St. Cyr expressly de-

clined to resolve “the difficult question of what the Suspen-

sion Clause protects.” St. Cyr, 533 U. S., at 301, n. 13. Re-

spondent in that case argued that §1252(a)(2)(C) would

violate the Suspension Clause if it were read to preclude

review of all questions of law in habeas proceedings. But

rather than affirm that position, the Court concluded that

it was enough to merely identify that “substantial constitu-

tional questio[n]” to warrant rejection of the Government’s

interpretation. Id., at 300. Indeed, the meaning of the Sus-

pension Clause and its applicability to removal proceedings

remain open questions. See Department of Homeland Se-

curity v. Thuraissigiam, post, p. ___ (2019) (granting certi-

orari). In explaining its decision, the Court in St. Cyr

merely asserted that the Suspension Clause “protects the

writ as it existed in 1789” and noted that “there is substan-

tial evidence . . . that pure questions of law” were generally

covered by the common-law writ. 533 U. S., at 301, 304–

305 (emphasis added; internal quotation marks omitted).

Cite as: 589 U. S. ____ (2020) 11

THOMAS, J., dissenting

The decision said nothing about mixed questions or the ap-

plication of settled facts to a legal standard.

The majority relies on one sentence of dicta in St. Cyr,

which states that the common-law writ addressed “the er-

roneous application or interpretation of statutes.” Id., at

302; see ante, at 9. But the application of a statute does not

always involve applying facts to a legal standard, nor is it

necessarily analogous to the equitable and fact-intensive

due-diligence inquiry.

The majority next suggests that Congress was familiar

with the underlying details of common-law cases cited in St.

Cyr, ante, at 9, or the lower court decisions expanding on

St. Cyr’s dicta, ante, at 10. But such a “fanciful presump-

tion of legislative knowledge” cannot justify the majority’s

position. Scalia, Reading Law, at 324.5 And if Congress

were presumed to have such a robust knowledge of our prec-

edents, one would certainly expect it to be familiar with our

historical practice of using “questions of law” and “mixed

questions” as distinct terms. See supra, at 3.

The only guidance provided by St. Cyr’s dicta concerned

——————

5 To support its reliance on this presumption, the majority cites Merck

& Co. v. Reynolds, 559 U. S. 633 (2010). But that case presumed that

when Congress used a specific term it imported a particular meaning

that courts had given the term through uniform interpretation. See id.,

at 647–648. The majority goes much further here, claiming that Con-

gress’ “intent” was to give effect to lower courts’ interpretations of this

Court’s dicta. Ante, at 11. Contrary to the majority’s suggestion, nothing

in the legislative history indicates that Congress relied on lower courts’

interpretations of St. Cyr in enacting §1252(a)(2)(D). Congress merely

highlighted the “confusion in the federal courts” as one of “the many

problems caused by St. Cyr.” H. R. Conf. Rep. No. 109–72, pp. 173–174

(2005). Notably, the Report also stated that “the most significant [prob-

lem]” was “that [the] decision allow[ed] criminal aliens to delay their ex-

pulsion from the United States for years.” Id., at 173. Thus, even if one

could divine a shared legislative intent by reading this Conference Re-

port, it would appear that Congress intended to streamline removal pro-

ceedings by limiting judicial review to the greatest extent possible under

St. Cyr.

12 GUERRERO-LASPRILLA v. BARR

THOMAS, J., dissenting

“pure questions of law.” 533 U. S., at 305; see also id., at

314, n. 38 (“this case raises only a pure question of law . . . ,

not . . . an objection to the manner in which discretion was

exercised”). So even if it were appropriate to assume that

Congress enacted §1252(a)(2)(D) with the collective inten-

tion of following St. Cyr’s guidance (which it is not), that

statutory purpose supports reading “questions of law” to

mean just that: “questions of law.”

* * *

Ironically, the majority refers to §1252(a)(2)(D) as the

“Limited Review Provision.” Ante, at 1. But according to

the majority’s interpretation, it is anything but “limited”—

nearly all claims are reviewable. That reading contradicts

the plain text and structure of §1252(a)(2), which was en-

acted to strip federal courts of their jurisdiction to review

most criminal aliens’ claims challenging removal proceed-

ings. The Constitution gives the Legislative Branch the au-

thority to curtail that jurisdiction. We cannot simply in-

voke this presumption of reviewability to circumvent

Congress’ decision. Doing so upsets, not preserves, the sep-

aration of powers reflected in the Constitution’s text. I re-

spectfully dissent.