Nasrallah 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

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.

Cite as: 590 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

_________________

No. 18–1432

_________________

NIDAL KHALID NASRALLAH, PETITIONER v.

WILLIAM P. BARR, ATTORNEY GENERAL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 1, 2020]

JUSTICE KAVANAUGH delivered the opinion of the Court.

Under federal immigration law, noncitizens who commit

certain crimes are removable from the United States. Dur-

ing removal proceedings, a noncitizen may raise claims un-

der the international Convention Against Torture, known

as CAT. If the noncitizen demonstrates that he likely would

be tortured if removed to the designated country of removal,

then he is entitled to CAT relief and may not be removed to

that country (although he still may be removed to other

countries).

If the immigration judge orders removal and denies CAT

relief, the noncitizen may appeal to the Board of Immigra-

tion Appeals. If the Board of Immigration Appeals orders

removal and denies CAT relief, the noncitizen may obtain

judicial review in a federal court of appeals of both the final

order of removal and the CAT order.

In the court of appeals, for cases involving noncitizens

who have committed any crime specified in 8 U. S. C.

§1252(a)(2)(C), federal law limits the scope of judicial re-

view. Those noncitizens may obtain judicial review of con-

2 NASRALLAH v. BARR

Opinion of the Court

stitutional and legal challenges to the final order of re-

moval, but not of factual challenges to the final order of re-

moval.

Everyone agrees on all of the above. The dispute here

concerns the scope of judicial review of CAT orders for those

noncitizens who have committed crimes specified in

§1252(a)(2)(C). The Government argues that judicial re-

view of a CAT order is analogous to judicial review of a final

order of removal. The Government contends, in other

words, that the court of appeals may review the noncitizen’s

constitutional and legal challenges to a CAT order, but not

the noncitizen’s factual challenges to the CAT order.

Nasrallah responds that the court of appeals may review

the noncitizen’s constitutional, legal, and factual chal-

lenges to the CAT order, although Nasrallah acknowledges

that judicial review of factual challenges to CAT orders

must be highly deferential.

So the narrow question before the Court is whether, in a

case involving a noncitizen who committed a crime specified

in §1252(a)(2)(C), the court of appeals should review the

noncitizen’s factual challenges to the CAT order (i) not at

all or (ii) deferentially. Based on the text of the statute, we

conclude that the court of appeals should review factual

challenges to the CAT order deferentially. We therefore re-

verse the judgment of the U. S. Court of Appeals for the

Eleventh Circuit.

I

Nidal Khalid Nasrallah is a native and citizen of Leba-

non. In 2006, when he was 17 years old, Nasrallah came to

the United States on a tourist visa. In 2007, he became a

lawful permanent resident. In 2013, Nasrallah pled guilty

to two counts of receiving stolen property. The U. S. Dis-

trict Court for the Western District of North Carolina sen-

tenced Nasrallah to 364 days in prison.

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

Opinion of the Court

Based on Nasrallah’s conviction, the Government initi-

ated deportation proceedings. See 8 U. S. C.

§1227(a)(2)(A)(i). In those proceedings, Nasrallah applied

for CAT relief to prevent his removal to Lebanon. See Con-

vention Against Torture and Other Cruel, Inhuman or De-

grading Treatment or Punishment, Art. 3, Dec. 10, 1984, S.

Treaty Doc. No. 100–20, p. 20, 1465 U. N. T. S. 114. Nasral-

lah alleged that he was a member of the Druze religion, and

that he had been tortured by Hezbollah before he came to

the United States. Nasrallah argued that he would be tor-

tured again if returned to Lebanon.1

The Immigration Judge determined that Nasrallah was

removable. As to the CAT claim, the Immigration Judge

found that Nasrallah had previously suffered torture at the

hands of Hezbollah. Based on Nasrallah’s past experience

and the current political conditions in Lebanon, the Immi-

gration Judge concluded that Nasrallah likely would be tor-

tured again if returned to Lebanon. The Immigration

Judge ordered Nasrallah removed, but also granted CAT

relief and thereby blocked Nasrallah’s removal to Lebanon.

On appeal, the Board of Immigration Appeals disagreed

that Nasrallah likely would be tortured in Lebanon. The

Board therefore vacated the order granting CAT relief and

ordered Nasrallah removed to Lebanon.

Nasrallah filed a petition for review in the U. S. Court of

Appeals for the Eleventh Circuit, claiming (among other

things) that the Board of Immigration Appeals erred in

finding that he would not likely be tortured in Lebanon.

Nasrallah raised factual challenges to the Board’s CAT or-

der. Applying Circuit precedent, the Eleventh Circuit de-

clined to review Nasrallah’s factual challenges. Nasrallah

v. United States Attorney General, 762 Fed. Appx. 638

——————

1 To qualify as torture, actions must be “inflicted by or at the instiga-

tion of or with the consent or acquiescence of a public official or other

person acting in an official capacity.” 8 CFR §1208.18(a)(1) (2019).

4 NASRALLAH v. BARR

Opinion of the Court

(2019). The court explained that Nasrallah had been con-

victed of a crime specified in 8 U. S. C. §1252(a)(2)(C).

Noncitizens convicted of §1252(a)(2)(C) crimes may not ob-

tain judicial review of factual challenges to a “final order of

removal.” §§1252(a)(2)(C)–(D). Under Eleventh Circuit

precedent, that statute also precludes judicial review of fac-

tual challenges to the CAT order.2

Nasrallah contends that the Eleventh Circuit should

have reviewed his factual challenges to the CAT order be-

cause the statute bars review only of factual challenges to

a “final order of removal.” According to Nasrallah, a CAT

order is not a “final order of removal” and does not affect

the validity of a final order of removal. Therefore, Nasral-

lah argues, the statute by its terms does not bar judicial

review of factual challenges to a CAT order.

The Courts of Appeals are divided over whether

§§1252(a)(2)(C) and (D) preclude judicial review of factual

challenges to a CAT order. Most Courts of Appeals have

sided with the Government; the Seventh and Ninth Circuits

have gone the other way. Compare Gourdet v. Holder, 587

F. 3d 1, 5 (CA1 2009); Ortiz-Franco v. Holder, 782 F. 3d 81,

88 (CA2 2015); Pieschacon-Villegas v. Attorney General of

U. S., 671 F. 3d 303, 309–310 (CA3 2011); Oxygene v.

Lynch, 813 F. 3d 541, 545 (CA4 2016); Escudero-Arciniega

v. Holder, 702 F. 3d 781, 785 (CA5 2012); Tran v. Gonzales,

447 F. 3d 937, 943 (CA6 2006); Lovan v. Holder, 574 F. 3d

990, 998 (CA8 2009); Cole v. United States Attorney Gen-

eral, 712 F. 3d 517, 532 (CA11 2013), with Wanjiru v.

Holder, 705 F. 3d 258, 264 (CA7 2013); Vinh Tan Nguyen v.

Holder, 763 F. 3d 1022, 1029 (CA9 2014).

In light of the Circuit split on this important question of

federal law, we granted certiorari. 589 U. S. ___ (2019).3

——————

2 This opinion uses the term “noncitizen” as equivalent to the statutory

term “alien.” See 8 U. S. C. §1101(a)(3).

3 This case comes to us on the premise that Nasrallah committed a

crime specified in §1252(a)(2)(C). That said, courts are divided on the

Cite as: 590 U. S. ____ (2020) 5

Opinion of the Court

II

When a noncitizen is removable because he committed a

crime specified in §1252(a)(2)(C), immigration law bars ju-

dicial review of the noncitizen’s factual challenges to his fi-

nal order of removal. In the Government’s view, the law

also bars judicial review of the noncitizen’s factual chal-

lenges to a CAT order. Nasrallah disagrees. We conclude

that Nasrallah has the better of the statutory argument.

A

We begin by describing the three interlocking statutes

that provide for judicial review of final orders of removal

and CAT orders.

The first relevant statute is the Illegal Immigration Re-

form and Immigrant Responsibility Act of 1996. That Act

authorizes noncitizens to obtain direct “review of a final or-

der of removal” in a court of appeals. 110 Stat. 3009–607,

8 U. S. C. §1252(a)(1). As the parties agree, in the deporta-

tion context, a “final order of removal” is a final order “con-

cluding that the alien is deportable or ordering deporta-

tion.” §1101(a)(47)(A); see §309(d)(2), 110 Stat. 3009–627;

Calcano-Martinez v. INS, 533 U. S. 348, 350, n. 1 (2001).

The Act also states that judicial review “of all questions of

law and fact . . . arising from any action taken or proceeding

brought to remove an alien from the United States under

this subchapter shall be available only in judicial review of

a final order under this section.” 8 U. S. C. §1252(b)(9); see

110 Stat. 3009–610. In other words, a noncitizen’s various

challenges arising from the removal proceeding must be

——————

question whether §§1252(a)(2)(C)–(D)’s limitation on judicial review ap-

plies when a noncitizen has committed only a single crime of moral tur-

pitude. But that issue is not the question presented in this Court, and

we do not address it. Compare Keungne v. United States Attorney Gen-

eral, 561 F. 3d 1281, 1283 (CA11 2009), with Yeremin v. Holder, 738 F.

3d 708, 713 (CA6 2013); Wanjiru v. Holder, 705 F. 3d 258, 262–263 (CA7

2013); Lee v. Gonzales, 410 F. 3d 778, 781–782 (CA5 2005).

6 NASRALLAH v. BARR

Opinion of the Court

“consolidated in a petition for review and considered by the

courts of appeals.” INS v. St. Cyr, 533 U. S. 289, 313, and

n. 37 (2001). By consolidating the issues arising from a fi-

nal order of removal, eliminating review in the district

courts, and supplying direct review in the courts of appeals,

the Act expedites judicial review of final orders of removal.

The second relevant statute is the Foreign Affairs Reform

and Restructuring Act of 1998, known as FARRA. FARRA

implements Article 3 of the international Convention

Against Torture, known as CAT. As relevant here, CAT

prohibits removal of a noncitizen to a country where the

noncitizen likely would be tortured. Importantly for pre-

sent purposes, §2242(d) of FARRA provides for judicial re-

view of CAT claims “as part of the review of a final order of

removal pursuant to section 242 of the Immigration and

Nationality Act (8 U. S. C. 1252).” 112 Stat. 2681–822, note

following 8 U. S. C. §1231.

The third relevant statute is the REAL ID Act of 2005.

As relevant here, that Act responded to this Court’s 2001

decision in St. Cyr. In St. Cyr, this Court ruled that the

1996 Act, although purporting to eliminate district court re-

view of final orders of removal, did not eliminate district

court review via habeas corpus of constitutional or legal

challenges to final orders of removal. 533 U. S., at 312–313.

The REAL ID Act clarified that final orders of removal may

not be reviewed in district courts, even via habeas corpus,

and may be reviewed only in the courts of appeals. See 119

Stat. 310, 8 U. S. C. §1252(a)(5). The REAL ID Act also pro-

vided that CAT orders likewise may not be reviewed in dis-

trict courts, even via habeas corpus, and may be reviewed

only in the courts of appeals. See 119 Stat. 310, 8 U. S. C.

§1252(a)(4).

B

Those three Acts establish that CAT orders may be re-

viewed together with final orders of removal in a court of

Cite as: 590 U. S. ____ (2020) 7

Opinion of the Court

appeals. But judicial review of final orders of removal is

somewhat limited in cases (such as Nasrallah’s) involving

noncitizens convicted of crimes specified in §1252(a)(2)(C).

In those cases, a court of appeals may review constitutional

or legal challenges to a final order of removal, but the court

of appeals may not review factual challenges to a final order

of removal. §§1252(a)(2)(C)–(D); see Guerrero-Lasprilla v.

Barr, 589 U. S. ___, ___–___ (2020) (slip op., at 11–13).

The question in this case is the following: By precluding

judicial review of factual challenges to final orders of re-

moval, does the law also preclude judicial review of factual

challenges to CAT orders? We conclude that it does not.

The relevant statutory text precludes judicial review of

factual challenges to final orders of removal—and only to

final orders of removal. In the deportation context, a final

“order of removal” is a final order “concluding that the alien

is deportable or ordering deportation.” §1101(a)(47)(A).4

A CAT order is not itself a final order of removal because

it is not an order “concluding that the alien is deportable or

ordering deportation.” As the Government acknowledges,

——————

4 Title 8 U. S. C. §1252(a)(2)(C) provides:

“Notwithstanding any other provision of law (statutory or nonstatu-

tory), including section 2241 of title 28, or any other habeas corpus pro-

vision, and sections 1361 and 1651 of such title, and except as provided

in subparagraph (D), no court shall have jurisdiction to review any final

order of removal against an alien who is removable by reason of having

committed a criminal offense covered in section 1182(a)(2) or

1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by

section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are,

without regard to their date of commission, otherwise covered by section

1227(a)(2)(A)(i) of this title.” (Emphasis added.)

Section 1252(a)(2)(D) provides:

“Nothing in subparagraph (B) or (C), or in any other provision of this

chapter (other than this section) which limits or eliminates judicial

review, shall be construed as precluding review of constitutional claims

or questions of law raised upon a petition for review filed with an

appropriate court of appeals in accordance with this section.” (Emphasis

added.)

8 NASRALLAH v. BARR

Opinion of the Court

a CAT order does not disturb the final order of removal.

Brief for Respondent 26. An order granting CAT relief

means only that, notwithstanding the order of removal, the

noncitizen may not be removed to the designated country of

removal, at least until conditions change in that country.

But the noncitizen still “may be removed at any time to an-

other country where he or she is not likely to be tortured.”

8 CFR §§1208.17(b)(2), 1208.16(f ).

Even though CAT orders are not the same as final orders

of removal, a question remains: Do CAT orders merge into

final orders of removal in the same way as, say, an immi-

gration judge’s evidentiary rulings merge into final orders

of removal? The answer is no. For purposes of this statute,

final orders of removal encompass only the rulings made by

the immigration judge or Board of Immigration Appeals

that affect the validity of the final order of removal. As this

Court phrased it in INS v. Chadha, review of a final order

of removal “includes all matters on which the validity of the

final order is contingent.” 462 U. S. 919, 938 (1983) (inter-

nal quotation marks omitted). The rulings that affect the

validity of the final order of removal merge into the final

order of removal for purposes of judicial review. But the

immigration judge’s or the Board’s ruling on a CAT claim

does not affect the validity of the final order of removal and

therefore does not merge into the final order of removal.

To be sure, as noted above, FARRA provides that a CAT

order is reviewable “as part of the review of a final order of

removal” under 8 U. S. C. §1252. §2242(d), 112 Stat. 2681–

822; see also 8 U. S. C. §1252(a)(4). Likewise, §1252(b)(9)

provides that “[j]udicial review of all questions of law and

fact . . . arising from any action taken or proceeding brought

to remove an alien from the United States under this sub-

chapter shall be available only in judicial review of a final

order under this section.” §1252(b)(9). But FARRA and

§1252(b)(9) simply establish that a CAT order may be re-

viewed together with the final order of removal, not that a

Cite as: 590 U. S. ____ (2020) 9

Opinion of the Court

CAT order is the same as, or affects the validity of, a final

order of removal.

Consider an analogy. Suppose a statute furnishes appel-

late review of convictions and sentences in a single appel-

late proceeding. Suppose that the statute also precludes

appellate review of certain factual challenges to the sen-

tence. Would that statute bar appellate review of factual

challenges to the conviction, just because the conviction and

sentence are reviewed together? No. The same is true here.

A CAT order may be reviewed together with the final order

of removal. But a CAT order is distinct from a final order

of removal and does not affect the validity of the final order

of removal. The CAT order therefore does not merge into

the final order of removal for purposes of §§1252(a)(2)(C)–

(D)’s limitation on the scope of judicial review. In short, as

a matter of straightforward statutory interpretation, Con-

gress’s decision to bar judicial review of factual challenges

to final orders of removal does not bar judicial review of fac-

tual challenges to CAT orders.

It would be easy enough for Congress to preclude judicial

review of factual challenges to CAT orders, just as Congress

has precluded judicial review of factual challenges to cer-

tain final orders of removal. But Congress has not done so,

and it is not the proper role of the courts to rewrite the laws

passed by Congress and signed by the President.

C

Although a noncitizen may obtain judicial review of fac-

tual challenges to CAT orders, that review is highly defer-

ential, as Nasrallah acknowledges. See Reply Brief 19–20;

Tr. of Oral Arg. 5. The standard of review is the substan-

tial-evidence standard: The agency’s “findings of fact are

conclusive unless any reasonable adjudicator would be com-

pelled to conclude to the contrary.” §1252(b)(4)(B); see

Kenyeres v. Ashcroft, 538 U. S. 1301, 1306 (2003) (Kennedy,

J., in chambers); INS v. Elias-Zacarias, 502 U. S. 478, 481,

10 NASRALLAH v. BARR

Opinion of the Court

n. 1, 483–484 (1992).

But the Government still insists that the statute supplies

no judicial review of factual challenges to CAT orders. The

Government advances a slew of arguments, but none per-

suades us.

First, the Government raises an argument based on prec-

edent. In Foti v. INS, 375 U. S. 217 (1963), this Court in-

terpreted the statutory term “final orders of deportation” in

the Immigration and Nationality Act of 1952, as amended

in 1961, to encompass “all determinations made during and

incident to the administrative proceeding” on removability.

Id., at 229. The Government points out (correctly) that the

Foti definition of a final order—if it still applied here—

would cover CAT orders and therefore would bar judicial

review of factual challenges to CAT orders. But Foti’s in-

terpretation of the INA as it existed as of 1963 no longer

applies. Since 1996, the INA has defined final “order of de-

portation” more narrowly than this Court interpreted the

term in Foti. A final order of deportation is now defined as

a final order “concluding that the alien is deportable or or-

dering deportation.” 8 U. S. C. §1101(a)(47)(A); Antiterror-

ism and Effective Death Penalty Act of 1996, 110 Stat.

1277; see §309(d)(2) of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, 110 Stat. 3009–627.

And as we have explained, an order denying CAT relief does

not fall within the statutory definition of an “order of depor-

tation” because it is not an order “concluding that the alien

is deportable or ordering deportation.” Therefore, Foti does

not control here.

Second, the Government puts forward a structural argu-

ment. As the Government sees it, if a CAT order is not

merged into a final order of removal, then no statute would

authorize a court of appeals to review a CAT order in the

first place. That is because, in the Government’s view, the

only statute that supplies judicial review of CAT claims is

the statute that provides for judicial review of final orders

Cite as: 590 U. S. ____ (2020) 11

Opinion of the Court

of removal. See §1252(a)(1). The premise of that argument

is incorrect. Section 2242(d) of FARRA, enacted in 1998,

expressly provides for judicial review of CAT claims to-

gether with the review of final orders of removal. Moreover,

as a result of the 2005 REAL ID Act, §1252(a)(4) now pro-

vides for direct review of CAT orders in the courts of ap-

peals. See also 8 U. S. C. §1252(b)(9). In short, our decision

does not affect the authority of the courts of appeals to re-

view CAT orders.

Third, the Government asserts a congressional intent ar-

gument: Why would Congress bar review of factual chal-

lenges to a removal order, but allow factual challenges to a

CAT order? To begin with, we must adhere to the statutory

text, which differentiates between the two kinds of orders

for those purposes. In any event, Congress had good reason

to distinguish the two. For noncitizens who have commit-

ted crimes that subject them to removal, the facts that ren-

dered the noncitizen removable are often not in serious dis-

pute. The relevant facts will usually just be the existence

of the noncitizen’s prior criminal convictions. By barring

review of factual challenges to final orders of removal, Con-

gress prevented further relitigation of the underlying fac-

tual bases for those criminal convictions—a point that Sen-

ator Abraham, a key proponent of the statutory bar to

judicial review, stressed back in 1996. See 142 Cong. Rec.

7348–7350 (1996).

By contrast, the issues related to a CAT order will not

typically have been litigated prior to the alien’s removal

proceedings. Those factual issues may range from the

noncitizen’s past experiences in the designated country of

removal, to the noncitizen’s credibility, to the political or

other current conditions in that country. Because the fac-

tual components of CAT orders will not previously have

been litigated in court and because those factual issues may

be critical to determining whether the noncitizen is likely

12 NASRALLAH v. BARR

Opinion of the Court

to be tortured if returned, it makes some sense that Con-

gress would provide an opportunity for judicial review, al-

beit deferential judicial review, of the factual components

of a CAT order.

Fourth, the Government advances a policy argument—

that judicial review of the factual components of a CAT or-

der would unduly delay removal proceedings. But today’s

decision does not affect whether the noncitizen is entitled to

judicial review of a CAT order and does not add a new layer

of judicial review. All agree that a noncitizen facing re-

moval under these provisions may already seek judicial re-

view in a court of appeals of constitutional and legal claims

relating to both the final order of removal and the CAT or-

der. Our holding today means only that, in that same case

in the court of appeals, the court may also review the

noncitizen’s factual challenges to the CAT order under the

deferential substantial-evidence standard. For many

years, the Seventh and Ninth Circuits have allowed factual

challenges to CAT orders, and the Government has not in-

formed this Court of any significant problems stemming

from review in those Circuits.

Fifth, what about the slippery slope? If factual challenges

to CAT orders may be reviewed, what other orders will now

be subject to factual challenges in the courts of appeals?

Importantly, another jurisdiction-stripping provision,

§1252(a)(2)(B), states that a noncitizen may not bring a fac-

tual challenge to orders denying discretionary relief, includ-

ing cancellation of removal, voluntary departure, adjust-

ment of status, certain inadmissibility waivers, and other

determinations “made discretionary by statute.” Kucana v.

Holder, 558 U. S. 233, 248 (2010). Our decision today there-

fore has no effect on judicial review of those discretionary

determinations.5

——————

5 In expedited removal proceedings, the immigration laws do not pro-

vide for any judicial review of CAT claims. See 8 U. S. C.

Cite as: 590 U. S. ____ (2020) 13

Opinion of the Court

The Government suggests that our decision here might

lead to judicial review of factual challenges to statutory

withholding orders. A statutory withholding order pre-

vents the removal of a noncitizen to a country where the

noncitizen’s “life or freedom would be threatened” because

of the noncitizen’s “race, religion, nationality, membership

in a particular social group, or political opinion.” 8 U. S. C.

§1231(b)(3)(A). That question is not presented in this case,

and we therefore leave its resolution for another day.

* * *

In cases where a noncitizen has committed a crime spec-

ified in 8 U. S. C. §1252(a)(2)(C), §§1252(a)(2)(C) and (D)

preclude judicial review of the noncitizen’s factual chal-

lenges to a final order of removal. A CAT order is distinct

from a final order of removal and does not affect the validity

of a final order of removal. Therefore, §§1252(a)(2)(C) and

(D) do not preclude judicial review of a noncitizen’s factual

challenges to a CAT order. We reverse the judgment of the

U. S. Court of Appeals for the Eleventh Circuit.

It is so ordered.

——————

§§1225(b)(1)(B)(iii), 1252(a)(2)(A), and 1252(e). Our ruling today does

not affect that law.

Cite as: 590 U. S. ____ (2020) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 18–1432

_________________

NIDAL KHALID NASRALLAH, PETITIONER v.

WILLIAM P. BARR, ATTORNEY GENERAL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 1, 2020]

JUSTICE THOMAS, with whom JUSTICE ALITO joins, dis-

senting.

The majority holds that the federal courts of appeals have

jurisdiction to review factual challenges to orders resolving

claims brought under the Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punish-

ment. Because I disagree with this interpretation of the

relevant immigration laws, I respectfully dissent.

I

The Convention Against Torture and Other Cruel, Inhu-

man or Degrading Treatment or Punishment (CAT or Con-

vention) is an international human rights treaty that, as its

name implies, obligates signatories to work to eradicate tor-

ture. The Convention was sent to the Senate for its advice

and consent in 1990. Although the Senate ultimately rati-

fied the treaty, it also determined that the first 16 articles

of the Convention were not self-executing. See S. Exec. Rep.

No. 101–30, p. 31 (1990). As such, those articles required

implementing legislation before their obligations could be-

come effective as domestic law. See Medellín v. Texas, 552

U. S. 491, 505, n. 2 (2008).

After the treaty was ratified, Congress enacted legisla-

tion implementing Article III of the Convention by means

of the Foreign Affairs Reform and Restructuring Act of 1998

2 NASRALLAH v. BARR

THOMAS, J., dissenting

(FARRA). See §2242, 112 Stat. 2681–822, note following 8

U. S. C. §1231. Article III of the Convention prohibits its

signatories from “expel[ling], return[ing] or extradit[ing] a

person to another State where there are substantial

grounds for believing that he would be in danger of being

subjected to torture.” S. Treaty Doc. No. 100–20, p. 20, 1465

U. N. T. S. 114. Rather than providing detailed guidance

on the United States’ Article III obligations, FARRA merely

restated the treaty’s language and perfunctorily declared

that “the heads of the appropriate agencies shall prescribe

regulations to implement the obligations of the United

States under Article 3.” §2242(b).1 Congress also provided

that no court would have “jurisdiction to consider or review

claims raised under the Convention . . . except as part of the

review of a final order of removal pursuant to . . . (8 U. S. C.

§1252).” §2242(d).

Section 1252, in turn, grants federal courts of appeals ju-

risdiction to review final orders of removal. 8 U. S. C.

§1252(a)(1). It also specifies that “the sole and exclusive

means for judicial review of an order of removal” is through

“a petition for review filed . . . in accordance with this sec-

tion.” §1252(a)(5). Section 1252 also contains a “zipper

clause,” which states that “all questions of law or fact . . .

arising from any action taken or proceeding brought to re-

move an alien” shall be consolidated and “available only in

judicial review of a final order under this section.”

§1252(b)(9).

At the same time, petitions for review are subject to a

——————

1 In spite of the weighty interests in not returning aliens to countries

where they would likely be tortured or killed, Congress largely left the

relevant issues—most notably, the interaction between CAT and re-

moval orders—to be resolved by agency regulations. See ante, at 8.

These important questions also include the definition of torture, 8 CFR

§1208.18 (2020); available forms of relief, §§1208.16(c), 1208.17; and the

standards that immigration judges should use to decide whether an ap-

plicant has carried his burden, §1208.16(c).

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

THOMAS, J., dissenting

number of limitations, one of which is in §1252(a)(2)(C).

That provision—often referred to as the “criminal-alien

bar”—states that “no court shall have jurisdiction to review

any final order of removal against an alien who is remova-

ble by reason of having committed” certain criminal of-

fenses.

II

A

This case concerns whether CAT claims brought during a

criminal alien’s removal proceeding are covered by the

criminal-alien bar in §1252(a)(2)(C). The most important

provision for determining whether these CAT orders are

subject to §1252(a)(2)(C) is the zipper clause. If orders

deeming a criminal alien ineligible for CAT relief fall within

that clause, then the bar in §1252(a)(2)(C) prevents review;

if they do not, then the courts have jurisdiction to review

factual challenges related to these orders. I would conclude

that CAT orders fall within the zipper clause.

The zipper clause states that “all questions of law and

fact . . . arising from any action taken or proceeding brought

to remove an alien . . . shall be available only in judicial re-

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

phasis added). To “arise” means “to originate from a speci-

fied source” or “to come into being.” Webster’s Third New

International Dictionary 117 (1976). And “from” most nat-

urally refers here to the “ground, reason, or basis” for some-

thing. Id., at 913. Thus, §1252(b)(9) covers all “questions

of law and fact” that an immigration judge must decide as

a result of the Government’s decision to initiate removal

proceedings against an alien. See also Reno v. American-

Arab Anti-Discrimination Comm., 525 U. S. 471, 482 (1999)

(stating that the zipper clause applies to the “many . . . de-

4 NASRALLAH v. BARR

THOMAS, J., dissenting

cisions or actions that may be part of the [removal] pro-

cess”).2

The plain text clearly covers CAT claims such as the one

petitioner raised. The Government initiated removal pro-

ceedings, alleging that petitioner had been convicted of a

“crime involving moral turpitude.” See §1227(a)(2)(A)(i).

As a direct result, petitioner applied for CAT relief to pre-

vent his removal. He was denied CAT withholding because

the Immigration Judge, during the removal proceeding, de-

termined that petitioner had been convicted of a “particu-

larly serious crime.” §1158(b)(2)(A)(ii). On appeal, the

Board of Immigration Appeals likewise denied CAT defer-

ral in that selfsame removal proceeding. It is beyond dis-

pute that petitioner’s eligibility for CAT relief involved

“questions of law and fact” that directly “ar[ose] from” the

Government’s initiation of removal proceedings against

him. §1252(b)(9). The very forms of relief for which peti-

tioner applied—withholding of removal and deferral of re-

moval—confirm that this relief arose directly from the Gov-

ernment-initiated removal proceeding.

Because the CAT claim falls within the zipper clause, all

of §1252’s other limitations and procedural requirements

imposed on final orders of removal, including

§1252(a)(2)(C)’s criminal-alien bar, also apply. Accordingly,

courts have no jurisdiction to review factual challenges to

CAT claims brought in the course of a criminal alien’s re-

moval proceeding.

B

My analysis would begin and end with the plain meaning

of the zipper clause. Rather than focusing on that clause,

——————

2 As I have previously explained, the zipper clause is actually far

broader, covering all claims “related to” removal proceedings. Jennings

v. Rodriguez, 583 U. S. ___, ___ (2018) (opinion concurring in part and

concurring in judgment) (slip op., at 3).

Cite as: 590 U. S. ____ (2020) 5

THOMAS, J., dissenting

however, the majority bases its textual analysis almost ex-

clusively on the fact that Congress has defined an “ ‘order of

[removal]’ ” as an order “concluding that the alien is deport-

able or ordering deportation.” §1101(47)(A). The majority

correctly notes that a CAT order does not fall within this

definition. See ante, at 7. But it uses that definition to alter

the scope of the zipper clause, asserting that the provision

only consolidates “[t]he rulings that affect the validity of the

final order of removal.” Ante, at 8.

As just explained, this conclusion contradicts the stat-

ute’s plain text. The zipper clause does not consolidate all

questions of law and fact that “affect the validity of the final

order of removal.” Ibid. It instead consolidates “all ques-

tions of law and fact . . . arising from any action taken or

proceeding brought to remove an alien.” §1252(b)(9) (em-

phasis added). “Arising from” covers a broader category of

claims than those that simply impact the validity of the or-

der, including petitioner’s claim. Thus, the majority’s over-

reliance on the definition of final order of removal is mis-

placed.

The majority nevertheless contends that its reading is

supported by §1252(a)(4). That provision states that CAT

claims may be reviewed through a petition for review. Ac-

cording to the majority, this paragraph “provides for direct

review of CAT orders in the courts of appeals.” Ante, at 11.

That is, the majority views §1252(a)(4) as a specific grant of

jurisdiction over CAT claims. Working from that interpre-

tation, the majority contends that the zipper clause and

FARRA merely confirm that CAT orders “may be reviewed

together with the final order of removal.” Ante, at 8.

This is incorrect. Jurisdiction over CAT claims comes

from FARRA §2242(d), which states that courts cannot re-

view CAT claims “except as part of the review of a final or-

der of removal pursuant to . . . (8 U. S. C. §1252).” In other

words, a final order of removal is required if a court is to

review a CAT order at all. The CAT order then becomes

6 NASRALLAH v. BARR

THOMAS, J., dissenting

reviewable “as part of ” that final order of removal through

the zipper clause. And, because FARRA funnels exclusive

review of CAT orders through §1252, all of that section’s

limitations on final orders of removal apply equally to CAT

orders, including §1252(a)(2)(C).

Section 1252(a)(2)(4), on the other hand, serves a far sim-

pler function. That provision simply confirms that, because

CAT claims can be reviewed only as part of a final order of

removal, and final orders of removal can be reviewed only

if a petitioner files a petition for review, a CAT claim like-

wise can be reviewed only if petitioner files a petition for

review. See Ortiz-Franco v. Holder, 782 F. 3d 81, 88–89

(CA2 2015); Lovan v. Holder, 574 F. 3d 990, 998 (CA8 2009).

My reading of the statute makes sense of §1252(a)(4), while

still giving the zipper clause its ordinary meaning.3

C

The majority’s interpretation will bring about a sea

change in immigration law. Though today’s case involves

CAT claims, there is good reason to think that the major-

ity’s rule will apply equally to statutory withholding of re-

moval. Statutory withholding, a frequently sought form of

relief, is available if “the alien’s life or freedom would be

threatened . . . because of the alien’s race, religion, nation-

ality, membership in a particular social group, or political

opinion.” §1231(b)(3)(A); see also 8 CFR §208.16(b) (2020).

Like CAT withholding, statutory withholding is unavaila-

ble to aliens who have committed certain crimes.

§1231(b)(3)(B)(ii). And like CAT relief, statutory withhold-

ing seeks to prevent removability and is considered after

the alien has been deemed removable. See, e.g., Kouambo

——————

3 Reading §1252(a)(4) as a grant of jurisdiction would also require read-

ing §1252(a)(5), which contains very similar language to §1252(a)(4), as

a grant of jurisdiction over “order[s] of removal.” But that interpretation

would render §1252(a)(5) superfluous, since §1252(a)(1) already grants

jurisdiction over such orders.

Cite as: 590 U. S. ____ (2020) 7

THOMAS, J., dissenting

v. Barr, 943 F. 3d 205, 210 (CA4 2019). Thus, statutory

withholding claims also do not affect the validity of the un-

derlying removal order and, in the majority’s view, would

not be subject to §1252(a)(2)(C).

The Government persuasively argues that adopting peti-

tioner’s rule will disturb the courts of appeals’ longstanding

practice of subjecting criminal aliens’ statutory withholding

claims to §1252(a)(2)(C). See, e.g., Rendon v. Barr, 952

F. 3d 963, 970 (CA8 2020); Pierre-Paul v. Barr, 930 F. 3d

684, 693–694 (CA5 2019); Gutierrez v. Lynch, 834 F. 3d 800,

804 (CA7 2016); Jeune v. United States Atty. Gen., 810 F. 3d

792, 806, nn. 3, 12 (CA11 2016); Pechenkov v. Holder, 705

F. 3d 444, 448 (CA9 2012). And at oral argument, peti-

tioner all but conceded that the Government is correct on

that score. See Tr. of Oral Arg. 20–21. Whistling past the

graveyard, the majority attempts to avoid confronting this

result by simply stating that the question is not currently

before us. Ante, at 13. But the Court cannot evade the im-

plications of its decision so easily. We have been presented

with two competing statutory interpretations—one of

which makes sense of all relevant provisions without up-

ending settled practice, and one of which significantly un-

dermines §1252(a)(2)(C) by removing a vast swath of claims

from its reach. If the majority insists on choosing the latter

interpretation, it should justify that choice and candidly

confront its implications.

III

At bottom, petitioner’s argument is largely driven by pol-

icy considerations. He contends that the United States has

obligated itself not to return any alien, even a criminal al-

ien, to a country where he may be tortured or killed. Ac-

cording to petitioner, if CAT claims cannot be reviewed by

courts of appeals, then a vital check on erroneous re-

foulement will be lost. Petitioner’s arguments are not with-

out rhetorical and emotional force. But, like so many other

8 NASRALLAH v. BARR

THOMAS, J., dissenting

questions related to CAT obligations, Congress chose not to

address them through the legislation involved here.

What Congress has done is enact §1252(a)(2)(C), which

strips jurisdiction over certain claims of criminal aliens.

That is what is before us, not the broader policy considera-

tions. As has been the case for decades now, the decisions

of this Court continue to systematically chip away at this

statute and other jurisdictional limitations on immigration

claims, thus thwarting Congress’ intent. See Guerrero-

Lasprilla v. Barr, 589 U. S. ___, ___ (2020) (THOMAS, J., dis-

senting) (slip op., at 1); INS v. St. Cyr, 533 U. S. 289, 328–

330 (2001) (Scalia, J., dissenting). Because today’s errone-

ous result further weakens a duly enacted statute, I re-

spectfully dissent.