Amicus Curiae Brief — Nidal Khalid Nasrallah, Petitioner v. William P. Barr, Attorney General

Supreme Court briefDec 16, 2019

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NO. 18-1432

In the

Supreme Court of the United States

NIDAL KHALID NASRALLAH,

Petitioner,

WILLIAM P. BARR, ATTORNEY GENERAL.

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Brief for Amici Curiae Legal Service Providers

in support of Petitioner Nidal Khalid Nasrallah

CHARLES G. ROTH

Counsel of Record

KEREN HART ZWICK

NATIONAL IMMIGRANT

JUSTICE CENTER

224 S. Michigan Ave.

Suite 600

Chicago, IL 60604

(312) 660-1370

croth@heartlandalliance.org

AARON KARL BLOCK

CASSANDRA

KERKHOFF

JOHNSON

ALSTON & BIRD LLP

1201 West Peachtree

Street

Atlanta, GA 303093424

(404) 881-7000

Counsel for Amici Curiae

TABLE OF CONTENTS

Table Of Contents ....................................................... i

Table of Authorities .................................................. iii

Interest Of Amicus Curiae ..........................................1

Introduction and Summary of Argument ..................2

Argument.....................................................................5

Immigration judges adjudicate torture

claims within an overtaxed system

lacking sufficient safeguards against

error. ....................................................................5

A. The United States is

committed, by treaty, to

refrain from removal to

torture in all cases. ........................................6

B. The administrative

immigration system fails to

adequately safeguard against

fact errors leading to the

denial of mandatory

protection. ......................................................8

II.

The need for robust judicial review is

critical given the various crimes that

can swept up by Section 1252(a)(2)(C). ............13

A. Section 1252(a)(2)(C) applies

to a wide array of criminal

conduct. ........................................................13

B. Traditional judicial review

promotes important

democratic values in this

important class of cases...............................17

III. CAT protection is distinct from

traditional immigration relief. .........................19

A. CAT relief conveys unique

rights and limitations. .................................19

B. In many cases, Immigration

Judges adjudicating protection

claims do not enter removal

orders at all. .................................................20

IV. The Government’s reading of Section

1252(a)(2)(C) is constitutionally

doubtful. ............................................................23

A. Jurisdiction-stripping

precedent has not adequately

grappled with the

Constitution’s vesting of

judicial power in the courts. ........................23

B. Jurisdiction-stripping in this

context raises problematic due

process concerns. .........................................27

Conclusion .................................................................31

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Ardestani v. INS,

502 U.S. 129 (1991) ................................................6

Ashki v. INS,

233 F.3d 913 (6th Cir. 2000)................................28

Avendano-Hernandez v. Lynch,

800 F.3d 1072 (9th Cir. 2015)................................3

Balogun v. Ashcroft,

270 F.3d 274 (5th Cir. 2001)................................16

Matter of Bart,

20 I. & N. Dec. 436 (BIA 1992) ............................14

Benslimane v. Gonzales,

430 F.3d 828 (7th Cir. 2005)............................9, 30

Bosede v. Mukasey,

512 F.3d 946 (7th Cir. 2008)................................16

Bridges v. Wixon,

326 U.S. 135 (1945) ..............................................29

Cafeteria Workers v. McElroy,

367 U.S. 886 (1961) ..............................................29

Castilho de Oliveira v. Holder,

564 F.3d 892 (7th Cir. 2009)..................................4

Castillo-Torres v. Holder,

394 F.App’x 517 (10th Cir. 2010) ........................14

Chi Alfred Zuh v. Mukasey,

547 F.3d 504 (4th Cir. 2008)................................10

Cole v. Holder,

659 F.3d 762 (9th Cir. 2011)..................................7

Connecticut Board of Pardons v.

Dumschat,

452 U.S. 458 (1981) ........................................28, 29

Crowell v. Benson,

285 U.S. 22 (1932) ................................................31

De Sandoval v. U.S. Att’y Gen.,

440 F.3d 1276 (11th Cir. 2006)............................22

Dep’t of Transp. v. Ass’n of Am. R.R.,

135 S.Ct. 1225 (2015)...........................................24

Devitri v. Cronen,

289 F. Supp. 3d 287 (D. Mass. 2018) ..................29

DOT v. Ass’n of Am. R.R.,

575 U.S. 43 (2015) ................................................24

Matter of E-,

2 I. & N. Dec. 134 (BIA 1944; A.G.

1944) .....................................................................14

FH-T v. Holder,

723 F.3d 833 (7th Cir. 2013)..................................3

Hashish v. Gonzales,

442 F.3d 572 (7th Cir. 2006)................................14

Honda Motor Co. v. Oberg,

512 U.S. 415 (1994) ..............................................10

Matter of I-S- & C-S-,

24 I. & N. Dec. 432 (BIA 2008) ............................19

Johnson v. United States,

559 U.S. 133 (2010) ..............................................21

Jordan v. De George,

341 U.S. 223 (1951) ..............................................14

Kadia v. Gonzales,

501 F.3d 817 (7th Cir. 2007)................................11

Khouzam v. Ashcroft,

361 F.3d 161 (2d Cir. 2004) ...............................2, 6

Kporlor v. Holder,

597 F.3d 222 (4th Cir. 2010)................................16

Kucana v. Holder,

558 U.S. 233 (2010) ................................................5

Malu v. Lynch,

136 S.Ct. 6 (2015).................................................22

Malu v. U.S. Att’y Gen.,

764 F.3d 1282 (11th Cir. 2014)................ 16, 17, 21

Mansour v. INS,

230 F.3d 902 (7th Cir. 2000)..................................4

Marin-Rodriguez v. Holder,

710 F.3d 734 (7th Cir. 2013)................................14

Mathews v. Eldridge,

424 U.S. 319 (1976) ..............................................28

Mathews v. Eldridge,

424 U.S. 319 (1976) ..............................................29

Ex parte McCardle,

74 U.S. 506 (1868) ..........................................26, 27

Mellouli v. Lynch,

135 S.Ct. 1980 (2015)...........................................15

Morales-Izquierdo v. Gonzales,

486 F.3d 484 (9th Cir. 2007)................................22

Morrissey v. Brewer,

408 U.S. 471 (1972) ..............................................29

Ohio Adult Parole Authority v.

Woodard,

523 U.S. 272 (1998) ..............................................29

Patchak v. Zinke,

138 S.Ct. 897 (2018).......................................26, 27

Reno v. Flores,

507 U.S. 292 (1993) ..............................................28

Robertson v. Seattle Audubon Soc.,

503 U.S. 429 (1992) ..............................................27

Rodriguez v. Robbins,

804 F.3d 1060 (9th Cir. 2015)..............................12

Matter of Serna,

20 I. & N. Dec. 579 (BIA 1992) ............................14

vii

Silva-Rengifo v. Atty. Gen. of US,

473 F.3d 58 (3d Cir. 2007) .....................................3

Tall v. Mukasey,

517 F.3d 1115 (9th Cir. 2008)..............................14

Tushar Pravinkumar Gor v. Holder,

607 F.3d 180 (6th Cir. 2010)................................10

United States v. Copeland,

376 F.3d 61 (2d Cir. 2004) ...................................28

United States v. Esparza-Ponce,

193 F.3d 1133 (9th Cir. 1999)..............................14

United States v. Witkovich,

353 U.S. 194 (1957) ..............................................30

Valdiviez-Hernandez v. Holder,

739 F.3d 184 (5th Cir. 2013)..........................21, 22

Wang v. U.S. Att’y Gen.,

423 F.3d 260 (3d Cir. 2005) .................................11

Wani Site v. Holder,

656 F.3d 590 (7th Cir. 2011)..................................3

Wanjiru v. Holder,

705 F.3d 258 (7th Cir. 2013)..................................7

Ex parte Yerger,

8 Wall. 85 (1869) ..................................................26

Zadvydas v. Davis,

533 U.S. 678 (2001) ........................................28, 30

viii

Zheng v. Ashcroft,

332 F.3d 1186 (9th Cir. 2003)................................3

Statutes

8 U.S.C. § 1231 (1999) .................................................7

8 U.S.C. § 1158(c)(1)(A) .............................................19

8 U.S.C. § 1158(c)(1)(B) .............................................19

8 U.S.C. § 1159(b)......................................................19

8 U.S.C. § 1226(c) ......................................................11

8 U.S.C. § 1228(b)......................................................20

8 U.S.C. § 1228(b)(1) .................................................20

8 U.S.C. § 1229a(a)(1) ...............................................20

8 U.S.C. § 1229a(b)(4)(A) ..........................................11

8 U.S.C. § 1231(a)(5) ...........................................22, 23

8 U.S.C. § 1252(a)(2)(B)(ii) ..........................................5

8 U.S.C. § 1252(a)(2)(C) .................................... passim

8 U.S.C § 1252(a)(2)(D) ................................. 18, 26, 30

Foreign Affairs Reform and

Restructuring Act of 1998, Pub. L.

No. 105–277, 112 Stat. 2681 (1998) ......................7

Regulations

8 C.F.R. 208.16(f) ......................................................19

8 C.F.R. 223.1 ............................................................19

8 C.F.R. 238.1(d)........................................................20

8 C.F.R. 238.1(f)(3) ....................................................22

8 C.F.R. 241.4(b)(3) ...................................................20

8 C.F.R. 241.4(j).........................................................20

8 C.F.R. 241.8(c) ........................................................22

8 C.F.R. 241.8(e) ..................................................21, 22

8 C.F.R. 245.1(d)(1) ...................................................19

8 C.F.R. 274a.12(a)(5) ...............................................19

8 C.F.R. 1208.2(c)(2) ...................................... 21, 22, 23

8 C.F.R. 1208.31(g)(1) ...............................................21

84 Fed. Reg. 31463 ......................................................9

Other Authorities

ABA: Voices from the Bench (Jan. 15,

2019), https://bit.ly/36u1qcX..................................8

Accessing Justice: The Availability and

Adequacy of Counsel in Removal

Proceedings: NewYork Immigrant

Representation Study Report: Part 1,

33 CARDOZO L. REV. 357 (2011) ...........................11

Charges Asserted in Deportation

Proceedings in the Immigration

Courts, https://bit.ly/35aidRH .............................15

Comm. on Foreign Relations,

Convention Against Torture and

Other Cruel, Inhuman or Degrading

Treatment or Punishment, S. Exec.

Rep. No. 101-30 ......................................................6

David E. Engdahl, Intrinsic Limits of

Congress’ Power Regarding the

Judicial Branch, 1999 BYU L. Rev.

75 ..........................................................................25

Gov’t Accountability Office,

Immigration Courts: Action Needed

to Reduce Case Backlog and Address

Long Standing Management and

Operational Control Challenges

(June 2017), https://bit.ly/2P7HarC ......................9

Hon. Mark A. Drummond, “‘Death

Penalty Cases in a Traffic Court

Setting’: Lessons from the Front

Lines of Today’s Immigration

Courts,” ABA: Voices from the Bench

(Jan. 15, 2019)........................................................8

Ilyce Shugall, Op-Ed: Why I resigned as

an immigration judge LA TIMES,

(Aug. 4, 2019),

https://lat.ms/2YyS3Wu .........................................9

Immigrants’ Rights Clinic, Imprisoned

Justice: Inside Two Georgia

Immigrant Detention Centers 25

(2017), https://bit.ly/2Pz04Xc ..............................12

Ingrid V. Eagly, Remote Adjudication in

Immigration, 109 NORTHWESTERN

UNIV. L. REV. (2015) .............................................13

Ingrid V. Eagly & Steven Shafer, A

National Study of Access to Counsel

in Immigration Court, 164 U. PENN.

L. REV. 1(2015) .....................................................12

Laura Meckler, New Quotas for

Immigration Judges as Trump

Administration Seeks Faster

Deportations, WALL STREET JOURNAL

(Apr. 2, 2018)..........................................................8

Neomi Rao, Administrative Collusion:

How Delegation Diminishes the

Collective Congress, 90 N.Y.U. L.

REV. 1463 (2015) ..................................................25

TRAC, New Deportation Proceedings

Filed in Immigration Court,

https://bit.ly/2RICLwT .........................................15

U.S. Dep’t of Justice, Board of

Immigration Appeals,

https://bit.ly/2qKAqGQ ..........................................9

U.S. Dep’t of Justice, Exec. Office for

Immigration Review, Statistical

Yearbook: Fiscal Year 2018,

https://bit.ly/2RGvgGI ...........................................9

xii

The Unitary Executive, Jurisdiction

Stripping and the Hamdan

Opinions: a Textualist Response to

Justice Scalia, 107 COLUM. L. REV.

1002 (May 2007) ..................................................25

INTEREST OF AMICUS CURIAE1

Amici, listed in the appendix to this brief, are nonprofit organizations serving immigrants, many of

whom seek shelter from torture and persecution in

their home countries. Collectively, Amici represent

or advise tens of thousands of applicants for

protection throughout the country. Amici have a

strong interest in ensuring access to judicial review

over these claims and in ensuring that federal-court

oversight remains available to safeguard against

inevitable errors in the overtaxed immigration court

system, particularly in circumstances where the

consequences are deportation to torture. Amici

believe their extensive experience practicing in the

immigration system will help the Court in

considering this case.

Amici include the American Immigration Lawyers

Association, Bronx Defenders, Brooklyn Defender

Services, Capital Area Immigrant Rights Coalition,

Florence Immigrant & Refugee Rights Project,

Georgia Asylum and Immigration Network, Human

Rights First, Immigrant Defenders Law Center,

Immigrant Defense Project, Immigrant Law Center

of Minnesota, Immigration Equality, Legal Aid

Justice Center, Public Counsel, National Immigrant

Justice Center, National Immigration Project of the

National Lawyers Guild, Prisoners’ Legal Services of

Counsel for the petitioner and counsel for the respondents

have consented in writing to the filing of this amicus brief. No

counsel for a party authored this brief in whole or in part, and

no person or entity, other than the amicus and its counsel,

made a monetary contribution intended to fund the preparation

or submission of this brief.

New York, Refugee and Immigrant Center for

Education and Legal Services, Rocky Mountain

Immigrant Advocacy Network, and University of

California Davis School of Law Immigration Law

Clinic.

INTRODUCTION AND SUMMARY OF ARGUMENT

Our Nation has committed via international

treaty to refrain from removing people—including

those convicted of serious crimes—to countries

where they will be tortured. That is the essence of

our commitment under the Convention Against

Torture (“CAT”) and of our national aversion to

arbitrary state violence. That commitment explains

why CAT protections are mandatory: “Article 3 of

the CAT expressly prohibits the United States from

returning any person to a country in which it is more

likely than not that he or she would be in danger of

being subjected to torture.” Khouzam v. Ashcroft, 361

F.3d 161, 168 (2d Cir. 2004) (internal quotation

marks omitted).

If the immigration courts got it right every time,

there might be little need for judicial review of the

factfinding that went into considering that

mandatory protection. But immigration courts are

flawed. All agencies make mistakes, and those

mistakes are even more pronounced due to crushing

workloads and onerous case-completion deadlines.

Because of the high cost of decisional error in

these cases—life and death—judicial review of

agency factual determinations is vital. The extent

and variety of fact errors committed by the agency

are much too common. Preserving access to judicial

review is necessary to ensure that the United States

does not deport individuals to countries where they

are likely to be tortured or killed.

CAT protection exists to safeguard against some

of the most egregious human rights violations in the

world. A CAT applicant might have been

“imprisoned in a military prison camp” and deprived

of food in Eritrea. FH-T v. Holder, 723 F.3d 833 (7th

Cir. 2013). Or she could be someone who was “raped,

forced to perform oral sex, beaten severely, and

threatened” because of her transgender identity.

Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1079

(9th Cir. 2015). Some people have fled to the United

States following forced disappearance and presumed

death of family members in war torn countries like

South Sudan. Wani Site v. Holder, 656 F.3d 590, 592

(7th Cir. 2011). Others face a clear probability of

harm like kidnapping, extrajudicial killing, or

grievous physical violence by non-state actors acting

with the acquiescence of public officials. See, e.g.,

Silva-Rengifo v. Atty. Gen. of US, 473 F.3d 58, 67 (3d

Cir. 2007) (fear of kidnapping and extrajudicial

killing by Colombian paramilitary); Zheng v.

Ashcroft, 332 F.3d 1186, 1190 (9th Cir. 2003) (fear of

torture by Chinese snakeheads for testifying against

them).

Despite the serious nature of these cases, the

factual errors that can arise are pronounced. For

instance, Samer Mansour, an Iraqi Assyrian

Christian, requested CAT protection based on his

status as an Assyrian Christian. He offered evidence,

including a State Department report, that the Iraqi

government engaged in flagrant abuses against the

Assyrian Christian minority. Mansour v. INS, 230

F.3d 902 (7th Cir. 2000). The BIA denied relief. The

Seventh Circuit reversed, calling the BIA’s

treatment of Mansour’s torture claim “troubling.” Id.

at 908. The BIA was “silen[t] with regard to the U.S.

State Department’s Report,” and it misread the

facts, labeling Mansour a “Syrian Christian” rather

than an Assyrian. Id. Based on the latter error, the

Seventh Circuit “question[ed] whether the BIA

adequately comprehended and addressed Mansour’s

torture claim” and remanded for reconsideration. Id.

And in Castilho de Oliveira v. Holder, 564 F.3d

892 (7th Cir. 2009), the immigration judge outright

refused to consider evidence; arbitrarily demanded

an affidavit from a specific person (despite other

corroboration); speculated about the relevance of the

claimant’s Catholic faith; and assumed without

evidence that the claimant’s mother did not testify

because she could not withstand cross-examination.

Id. at 897-98. The BIA adopted and affirmed the

immigration judge’s decision. The Seventh Circuit

reversed,

decrying

the

judge’s

“sometimes

inflammatory questions,” his “refus[al] to consider

important evidence,” and his failure to “seriously

engag[e] with the evidence in the record.” Id. at 894.

This particular case involved asylum, but these

errors are just as likely in a case for CAT protection.

That is the kind of gross error that the

government contends should be immune from

judicial review. The government’s theory is wrong as

a matter of text and constitutional norms.

In Kucana v. Holder, 558 U.S. 233, 251 (2010),

this Court applied “the presumption favoring judicial

review of administrative action” to interpret the

scope of 8 U.S.C. § 1252(a)(2)(B)(ii), which covers

judicial review over discretionary immigration

remedies.

Here, in the context of mandatory

protection against torture, the need for judicial

review is even stronger. Accordingly, Amici write to

urge this Court to adopt Nasrallah’s position that 8

U.S.C. § 1252(a)(2)(C) does not preclude traditional

judicial review of agency factfinding in cases

involving applications for CAT protection.

ARGUMENT

Amici draw on their collective experience to

amplify three themes in Petitioner’s case. First,

judicial review is critical as a means of error

correction in an error-prone system, and as a way of

cabining the collateral consequences of criminal

convictions to minimize the risk of deportation to

likely torture as punishment for a criminal offense.

Additionally, Amici offer context to support

Petitioner’s argument that a final removal order is

distinct from a CAT grant. And finally, Amici write

to address some of the constitutional concerns that

arise when applying Section 1252(a)(2)(C) to

mandatory protection claims.

I. Immigration judges adjudicate torture

claims within an overtaxed system lacking

sufficient safeguards against error.

This Court has long recognized “the complexity of

immigration procedures, and the enormity of the

interests at stake.” Ardestani v. INS, 502 U.S. 129,

138 (1991). In cases involving applications for CAT

protection, the interests could not be higher. Yet the

system designed to hear these claims is set up in a

way that makes factual errors virtually inevitable.

This Court should preserve robust judicial review of

factual questions that arise in these circumstances

to safeguard this country’s commitment to protect

individuals from removal to serious harm.

A. The United States is committed, by

treaty, to refrain from removal to

torture in all cases.

Torture is “antithetical to basic notions of liberty,

and prohibited by the U.N. Convention Against

Torture and Other Forms of Cruel, Inhuman or

Degrading Treatment or Punishment.” Khouzam,

361 F.3d at 162-63. The Convention was designed to

“make more effective the struggle against torture

and other cruel, inhuman or degrading treatment or

punishment throughout the world.” United Nations,

Convention Against Torture and Other Cruel

Inhuman or Degrading Treatment or Punishment,

Preamble, 23 I.L.M. 1027, 1027 (1984).

After adoption by the United Nations General

Assembly, the United States ratified the Convention.

The Senate Foreign Relations Committee described

ratification as “consistent with longstanding U.S.

efforts to promote and protect basic human rights

and fundamental freedoms throughout the world.”

Comm. on Foreign Relations, Convention Against

Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, S. Exec. Rep. No. 101-30,

at 3 (1990).

Under the CAT, the United States agreed to

refrain from deporting an individual who is likely to

be tortured elsewhere. Article 3 of the CAT provides

that “[n]o State Party shall expel, return (‘refouler’)

or extradite a person to another State where there

are substantial grounds for believing that he would

be in danger of being subjected to torture.”

Convention Against Torture, 23 I.L.M. at Art. 3.

Congress codified that protection in 1998, stating

that “[i]t shall be the policy of the United States” to

follow Article 3 and directing the “appropriate

agencies [to] prescribe regulations” to implement

that

policy.

Foreign

Affairs

Reform

and

Restructuring Act of 1998 (FARRA), Pub. L. No.

105–277, § 2242(a), (b), 112 Stat. 2681, 2681-822

(1998) (codified as a note to 8 U.S.C. 1231 (1999)).

CAT protection is so critical to the country’s

international treaty obligations that the protection

afforded is mandatory. The law “does not permit any

discretion or provide for any exceptions” that would

allow removal where torture is likely. Cole v. Holder,

659 F.3d 762, 770 (9th Cir. 2011) (citation omitted).

This right to be free from removal to torture applies

to all noncitizens, without regard to their criminal

record. See, e.g., Wanjiru v. Holder, 705 F.3d 258,

267 (7th Cir. 2013) (“CAT does not exist only for

persons with an unblemished record.”).

B. The

administrative

immigration

system fails to adequately safeguard

against fact errors leading to the

denial of mandatory protection.

Despite the exceptional interests at stake, the

administrative process leaves much to be desired. As

Dana Marks, President Emeritus of the National

Association of Immigration Judges, put it, “In

essence, we’re doing death penalty cases in a traffic

court setting.” See Hon. Mark A. Drummond, “‘Death

Penalty Cases in a Traffic Court Setting’: Lessons

from the Front Lines of Today’s Immigration Courts,”

ABA: Voices from the Bench (Jan. 15, 2019),

https://bit.ly/36u1qcX. The system is designed for

expediency, often at the cost of accuracy,

underscoring the need for judicial review as a factcorrection mechanism.

1. The immigration system is gravely

overburdened, making accurate decisions on

important mandatory-protection cases difficult to

obtain. A quota system requires immigration judges

to “complete 700 cases a year and to see fewer than

15% of their decisions” remanded; failure to meet the

quota puts their job at risk. Laura Meckler, New

Quotas for Immigration Judges as Trump

Administration Seeks Faster Deportations, WALL

STREET

JOURNAL

(Apr.

2018),

https://on.wsj.com/356TKNo. The implications for

quality control are evident.

Because of those case pressures, Amici have

routinely observed immigration judges with triplebooked calendars, endeavoring to complete complex

protection claims in under an hour. Immigration

judges have acknowledged the obvious: those

pressures limit their “ability to render correct and

well-reasoned decisions.” Ilyce Shugall, Op-Ed: Why

I resigned as an immigration judge, LA TIMES, (Aug.

4, 2019), https://lat.ms/2YyS3Wu (explaining that

her docket “was fully booked with cases through

2021” and that she was instructed to schedule “three

cases every day” on top of status dockets and

administrative responsibilities).

Review by the Board of Immigration Appeals is

not an adequate safeguard. “From fiscal year 2006 to

fiscal year 2015, single BIA members annually

reviewed 90 percent or more of completed appeals.”

Gov’t Accountability Office, Immigration Courts:

Action Needed to Reduce Case Backlog and Address

Long Standing Management and Operational

Control

Challenges

(June

2017),

https://bit.ly/2P7HarC. Single-member review is

necessary for the Board to maintain a completion

rate of approximately 30,000 cases per year with

fewer than 20 Board members. See U.S. Dep’t of

Justice, Exec. Office for Immigration Review,

Statistical Yearbook: Fiscal Year 2018, 35,

https://bit.ly/2RGvgGI (five years of case completion);

U.S. Dep’t of Justice, Board of Immigration Appeals,

https://bit.ly/2qKAqGQ (listing BIA members). And

although the BIA “is presumed to have considered

all of the parties’ relevant issues” when it

adjudicates an appeal, 84 Fed. Reg. 31463, courts

routinely criticize its boilerplate, unreasoned

decisions. See Benslimane v. Gonzales, 430 F.3d 828,

829, 830 (7th Cir. 2005) (collecting cases, finding

that BIA adjudication “has fallen below the

minimum standards of legal justice”); see also

Tushar Pravinkumar Gor v. Holder, 607 F.3d 180,

198-99 (6th Cir. 2010) (“[F]ollowing the Attorney

General’s 2002 streamlining reforms—which cut the

number of BIA members from twenty-three to eleven

and allowed single-member review of most appeals—

board members must review an enormous number of

deportation cases, resulting in errors of disturbing

magnitude and frequency.”); Chi Alfred Zuh v.

Mukasey, 547 F.3d 504, 514 (4th Cir. 2008)

(“[C]ourts have grown increasingly skeptical of the

high error rate within the immigration system.”)

(internal citation omitted).

Scholarly analyses further demonstrate that

errors and inconsistencies pervade the immigration

system, reinforcing the importance of judicial review.

Cf. Honda Motor Co. v. Oberg, 512 U.S. 415, 433 n.11

(1994) (reasoning that the “empirical evidence” of

problematic and highly inconsistent verdicts in other

contexts—there, jury damages awards—“supports

the importance of judicial review”). Review of

thousands of decisions shows that outcomes for

similar claimants vary strongly from courthouse to

courthouse. For example, researchers found that “an

individual fleeing persecution in China is 986% more

likely to win her asylum claim in [Orlando] than in

[Atlanta].” Ramji-Nougales et al., Refugee Roulette:

Disparities in Asylum Adjudication, 60 STANFORD L.

REV. 295, 329-30 (2007). The authors found

numerous such examples, revealing a system in

which like cases are not decided in a like manner.

And because applicants for mandatory CAT

protection are pursuing their last line of defense, the

consequences of mistakes are especially severe.

The Courts of Appeals have expressed concern

with the impacts of this system on the interests at

stake. For example, the Seventh Circuit has

described how “[r]epeated egregious failures of the

Immigration Court and the Board to exercise care

commensurate with the stakes in an asylum case

can be understood, but not excused, as consequences

of a crushing workload that the executive and

legislative branches of the federal government have

refused to alleviate.” Kadia v. Gonzales, 501 F.3d

817, 820-21 (7th Cir. 2007); see Wang v. U.S. Att’y

Gen., 423 F.3d 260, 269 (3d Cir. 2005) (“The tone, the

tenor, the disparagement, and the sarcasm of the IJ

seem more appropriate to a court television show

than a federal court proceeding.”).

2. The risk of an inaccurate decision is even

greater from detention; a fact that is significant here

because virtually all CAT claimants who could be

affected by Section 1252(a)(2)(C) are also subject to

mandatory detention due to the overlap with 8

U.S.C. § 1226(c), which governs mandatory

detention.

This difficulty is heightened without counsel, and

detained applicants are far less likely to have

representation. The statute does not guarantee

appointed counsel in immigration cases. 8 U.S.C.

§ 1229a(b)(4)(A) (right to counsel only at the

noncitizen’s expense). And detained noncitizens are

significantly less likely to have legal representation

than their non-detained counterparts. See Peter L.

Markowitz et al., Accessing Justice: The Availability

and Adequacy of Counsel in Removal Proceedings:

NewYork Immigrant Representation Study Report:

Part 1, 33 CARDOZO L. REV. 357, 367-68 (2011)

(finding that “detained individuals with cases

adjudicated in New York Immigration Courts were

unrepresented 67% of the time, while nondetained

individuals in the same courts were unrepresented

only 21% of the time”); Ingrid V. Eagly & Steven

Shafer, A National Study of Access to Counsel in

Immigration Court, 164 U. PENN. L. REV. 1, 32 (2015)

(finding that from 2007 to 2012 “nondetained

respondents were almost five times more likely to

obtain counsel than detained respondents”).

Detention coupled with lack of representation

also makes it harder for noncitizens to effectively

present their cases in a way that minimizes the risk

of a fact error that could result from, for example,

the misunderstanding of a piece of evidence or the

absence of objective corroboration. “[T]he resources

in detention facility law libraries are minimal at

best.” Rodriguez v. Robbins, 804 F.3d 1060, 1073

(9th Cir. 2015), reversed and remanded on other

grounds sub nom. Jennings v. Rodriguez, 138 S. Ct.

830 (2018); see also Penn State Law Ctr. for

Immigrants’ Rights Clinic, Imprisoned Justice:

Inside Two Georgia Immigrant Detention Centers 25

(2017),

https://bit.ly/2Pz04Xc

(“At

Stewart

[Detention Center], many of the detained

immigrants expressed that the law library was not

useful because all of the materials were in English

and they cannot read English. At Irwin [County

Detention

Center]

and

Stewart,

detained

immigrants reported that they do not have access to

the internet.”). And, noncitizens often appear by

video with their interpreter and a judge in entirely

different locations, adding to the challenges of

communicating their claims. Ingrid V. Eagly, Remote

Adjudication in Immigration, 109 NORTHWESTERN

UNIV. L. REV. 933, 934 (2015) (noting that in 2015,

“nearly one-third of all detainees attend their

immigration hearings by video.”).

Given the stakes at issue here, deportation to

torture or death, this Court can and should take the

flaws in the court system into account when

considering whether Congress intended to limit

judicial review of fact errors in CAT claims.

II.

The need for robust judicial review is

critical given the various crimes that can

be swept up by Section 1252(a)(2)(C).

In addition to considering the inherent limits of

the immigration court system, this Court should be

mindful of the broad reach of Section 1252(a)(2)(C)

and balance it against a need to preserve judicial

review.

A. Section 1252(a)(2)(C) applies to a wide

array of criminal conduct.

On the government’s view, Section 1252(a)(2)(C)

would strip appellate jurisdiction in cases for people

with a wide set of convictions. These convictions are

often relatively minor, and they are always legally

irrelevant in an applicant’s ability to receive

protection against removal to torture. The list of

covered offenses could include selling cigarettes

across state lines, as was the case for Mr. Nasrallah,

or illegally downloading music, or minor drug

possession. Nothing about criminal convictions

should categorically insulate the CAT analysis from

judicial review for factual errors.

Section 1252(a)(2)(C) applies to noncitizens

ordered removed “by reason of having committed a

criminal offense” covered by one of several statutory

cross references, including grounds relating to

crimes involving “moral turpitude.” See Tall v.

Mukasey, 517 F.3d 1115, 1118 (9th Cir. 2008). Moral

turpitude is a common law term not defined by

statute. See Jordan v. De George, 341 U.S. 223, 23132 (1951). Early case law applied the term to “crimes

. . . of a serious nature.” See Matter of E-, 2 I. & N.

Dec. 134, 139-40 (BIA 1944; A.G. 1944).

But more recent cases interpret the term broadly,

finding that “neither the seriousness of the offense

nor the severity of the sentence imposed is

determinative of whether a crime involves moral

turpitude.” Matter of Serna, 20 I. & N. Dec. 579, 581

(BIA 1992). Thus, low-level offenses have been found

turpitudinous. See, e.g., Matter of Bart, 20 I. & N.

Dec. 436 (BIA 1992) (writing of bad checks); Hashish

v. Gonzales, 442 F.3d 572, 576 (7th Cir. 2006) (“theft

of a recordable sound”—i.e., illegally downloading

music); United States v. Esparza-Ponce, 193 F.3d

1133, 1136 (9th Cir. 1999) (making false statements

on a driver’s license application); Castillo-Torres v.

Holder, 394 F. App’x 517, 521 (10th Cir. 2010)

(giving false identification information to a police

officer); Marin-Rodriguez v. Holder, 710 F.3d 734,

739 (7th Cir. 2013) (using a false Social Security

card to obtain employment).

Nonviolent drug offenses can likewise bar a

noncitizen from judicial review over fact errors.

Section 1252(a)(2)(C) cross references both Section

1182(a)(2)(A) and Section 1227(a)(2)(B). The first

renders noncitizens inadmissible for a conviction for

“any law or regulation of a State, the United States,

or a foreign country relating to a controlled

substance.” And Section 1227(a)(2)(B) makes a

noncitizen “deportable” based on any controlled

substance violation “other than a single offense

involving possession for one’s own use of 30 grams or

less of marijuana.” See also Mellouli v. Lynch, 135 S.

Ct. 1980, 1284 (2015).

Moral turpitude and non-violent drug offenses

are two of the most commonly proffered removal

charges. Available data suggest that the vast

majority of immigration charges that could trigger

the Section 1252(a)(2)(C) fall into one of these

categories. Indeed, from October 1, 2001 to July 26,

2011, 62.7% of charges against noncitizens that

implicated Section 1252(a)(2)(C) were for turpitude

offenses or controlled substance violations; only 25%

were for aggravated felony convictions.2 After fiscal

year 2011, data on immigration charges is not

available, but the overall trend remains that

noncitizens are placed in removal proceedings for

less serious offenses much more often than they are

for more serious ones.3

See Transactional Record Access Clearinghouse (TRAC),

Charges Asserted in Deportation Proceedings in the

Immigration Courts, https://bit.ly/35aidRH.

3 See TRAC, New Deportation Proceedings Filed in Immigration

Court, https://bit.ly/2RICLwT.

For example, Stephen Bosede was convicted of

two drug possession offenses that rendered him

removable despite his 26 years of residence in the

United States. Bosede v. Mukasey, 512 F.3d 946, 948

(7th Cir. 2008). Due to his HIV status, he feared

removal to Nigeria because Nigerian law mandates

imprisonment of people convicted of drug offenses

abroad, and he would likely die due to lack of access

to appropriate medicine during imprisonment. Id. at

949. The immigration judge reasoned, however, that

Bosede might be able to bribe his way out of prison.

Id. at 951. On appeal, the Government argued that

this was a “factual finding” immune from review; the

Seventh Circuit nonetheless weighed in, reasoning

that “whether an alien might succeed in escaping

persecution or torture through bribery is an

irrational and altogether improper consideration in

deciding a claim for asylum or other relief.” Id.

Without judicial review, Bosede might have been

subjected to the high likelihood of death in Nigeria

for drug possession.

Bosede is not a unique example. In Kporlor v.

Holder, 597 F.3d 222 (4th Cir. 2010) the Court held

that its jurisdiction was limited by Section

1252(a)(2)(C) based on a larceny offense where “the

underlying behavior . . . consisted of taking several

taxi cab rides for which [Kporlor] could not pay.” Id.

at 223. In Balogun v. Ashcroft, 270 F.3d 274, 276

(5th Cir. 2001), the Court concluded that it lacked

jurisdiction to consider a CAT claim based on a

conviction for illegal possession and fraudulent use

of credit cards. And in Malu v. U.S. Att’y Gen., 764

F.3d 1282 (11th Cir. 2014), the court refused to

exercise its jurisdiction based on a conviction for

simple battery. Id. at 1289-90.

In sum, while some noncitizens seeking CAT

protection have criminal records, that criminal

record does not bar CAT relief, nor should a criminal

record insulate agency factual errors from judicial

review.

B. Traditional judicial review promotes

important democratic values in this

important class of cases.

Eliminating judicial review of fact errors

undermines our Nation’s commitment to the Torture

Convention. Judicial review promotes important

values in CAT litigation; the statutory text of Section

1252(a)(2)(C) does not compel the courts to abandon

those values. Appellate review of agency

decisionmaking facilitates decisional accuracy and

adherence to the rule of law. Getting it right after a

fair contest is the core requirement of a democratic

system for resolving disputes. That benefits not only

the litigants, but also public confidence in the

institutions of government. The statutory text does

not clearly demonstrate an intent to subvert those

values in CAT cases.

And the cost of promoting those values is low. In

fact, the term “cost” is inapt. Getting the outcome

right when human life is on the line is fundamental

to our system. Deliberativeness is a good to promote,

not a business expense to avoid.

Petitioner’s reading of Section 1252(a)(2)(C)

already prevails in more than half the country by

volume of immigration appeals. Experience shows

that appellate jurisdiction over factual issues is not

only workable but works. The Seventh and Ninth

Circuits have affirmed CAT denials where supported

by substantial evidence, but also reversed and

remanded when the agency commits gross factual

error. In the Courts of Appeals where the rule

Petitioner advances is not available, CAT petitioners

already can and do raise constitutional and legal

challenges under 8 U.S.C § 1252(a)(2)(D). Adding a

basis for reversal may change the nature of the

arguments, but it is unlikely to materially increase

the volume of CAT litigation.

Because of the deferential standard of review,

BIA decisions are unlikely to be reversed for factual

errors unless they are grossly inaccurate. That is

exactly when reversal is most important. That is not

a tautology, but a practical point: the cases likely to

be reversed for factual errors are those where

reversal is necessary to comply with our treaty

obligations and prevent torture. And it is precisely

those circumstances where more than a generalized

legislative intent to “expedite the removal of

criminal and other illegal aliens from the United

States,” Br. in Opp. to Cert. at 3, is necessary to

establish that Congress meant to immunize CAT

decisions from traditional error-correction.

III.

CAT

protection

distinct

traditional immigration relief.

from

Amici also write to add practical context to

support Petitioner’s argument that a grant of CAT

protection is distinct from a final removal order. In

Amici’s view, the differences between a grant of CAT

and the issuance of a removal order lend support to

treating them differently for judicial review

purposes.

A. CAT relief conveys unique rights and

limitations.

CAT relief differs markedly from asylum, the

most robust protection-based immigration remedy.

When a noncitizen is granted asylum she receives

legal status that operates as a defense to

removability. E.g., 8 C.F.R. 245.1(d)(1) (defining

“lawful immigration status” to include asylees). The

asylum grant is akin to a legal admission, and once

in place, an asylee cannot be removed unless that

status is revoked. See 8 U.S.C. § 1158(c)(1)(A).

Asylees can work without restriction (8 U.S.C. §

1158(c)(1)(B); 8 C.F.R. 274a.12(a)(5)), travel abroad

(8 C.F.R. 223.1), and apply for permanent residence

after one year (8 U.S.C. § 1159(b)).

None of that is true for CAT protection.

Recipients of CAT are ordered removed; indeed, a

removal order is a condition precedent for obtaining

CAT relief. 8 C.F.R. 208.16(f); 1208.16(f); see Matter

of I-S- & C-S-, 24 I. & N. Dec. 432, 434 & n.3 (BIA

2008). Having been ordered removed, they are often

subject to conditions when released from detention,

like placement on an “Order of Supervision.” 8

C.F.R. 241.4(b)(3); 241.5. Such conditions can

require periodic reporting, limited mobility (e.g. no

travel outside of a state or region without consent

from DHS), and other conditions as the agency sees

fit. 8 C.F.R. 241.4(j).

B. In many cases, Immigration Judges

adjudicating protection claims do not

enter removal orders at all.

Further marking the difference, CAT claims are

not even always adjudicated at the same time or by

the same party that adjudicates a removal order.

Specifically, some noncitizens are subject to removal

orders entered by DHS agents rather than

Immigration Judges. In those cases, CAT

applications proceed wholly apart from, and after the

issuance of, the removal order itself.

For example, some noncitizens with criminal

records can receive “administrative removal orders”

under 8 U.S.C. § 1228(b). These orders are entered

by DHS agents outside the immigration court

system. 8 C.F.R. 238.1(d).4 After entry of an

administrative removal order, the asylum office (also

The Agency’s regulatory authority to enter administrative

removal orders is doubtful. The statute does not specify who

should enter an administrative removal order, and in fact

requires that the order of removal be issued “pursuant to the

procedures set forth in this subsection or section 1229a.” 8

U.S.C. § 1228(b)(1). That section in turn provides that “[a]n

immigration judge shall conduct proceedings for deciding the

inadmissibility or deportability of an alien.” 8 U.S.C. §

1229a(a)(1). Amici offer this example as an illustration of the

process, not as an endorsement of the regulations.

part of DHS) addresses the plausibility of a

protection claim. 8 C.F.R. 241.8(e); 208.31. If the

noncitizen cannot pass a threshold “reasonable fear”

inquiry, she is removed without full agency review. 8

C.F.R. 1208.31(g)(1). If the noncitizen is found to

have a reasonable fear, she can see a judge for the

limited purpose of seeking protection from

persecution or torture. 8 C.F.R. 1208.2(c)(2). These

are not removal proceedings; to the contrary, a

removal order would already have been entered and

the protection claim is assessed independently.

For instance, Biuma Malu received a final

administrative removal order and then sought

protection from removal to her native Democratic

Republic of Congo, explaining that she feared

persecution as a lesbian who had been subjected to

forced marriage as a young girl. Malu, 764 F.3d at

1289-93 (11th Cir. 2014), cert. pet. withdrawn, Malu

v. Lynch, 136 S. Ct. 6 (2015). Malu had been

convicted of simple misdemeanor battery and DHS

concluded that this offense was an aggravated felony

despite significant case law to the contrary. See, e.g.,

Johnson v. United States, 559 U.S. 133 (2010). The

proceedings in Malu’s case illustrate the bifurcation

between the issuance of an expedited removal order

by DHS and the adjudication of a CAT claim by an

immigration judge. Malu argued to the Eleventh

Circuit that there was no “reasonable administrative

process” for her to contest the legal determination

that formed the basis of her administrative order.

Malu, 764 F.3d at 1288. Had she been in the Fifth

Circuit, she would have won that argument. See

Valdiviez-Hernandez v. Holder, 739 F.3d 184, 187

(5th Cir. 2013) (holding that review of

administrative orders “is geared toward resolving

only issues of fact”). The Eleventh Circuit rejected

this reading as it applied to Malu herself, but the

tension between that decision and ValdiviezHernandez is instructive in that it demonstrates that

the administrative removal process stands apart

from CAT adjudication processes in time and in

scope.5

Similarly, individuals who reenter illegally after

a prior order of removal have their prior orders

“reinstated” under 8 U.S.C. § 1231(a)(5). Those

orders, likewise, are entered by DHS. 8 C.F.R.

241.8(c); see De Sandoval v. U.S. Att’y Gen., 440 F.3d

1276, 1283 (11th Cir. 2006); Morales-Izquierdo v.

Gonzales, 486 F.3d 484 (9th Cir. 2007) (en banc). As

with administrative removal orders, a noncitizen

who fears return to her homeland is not placed into

removal proceedings, but into “withholding-only”

proceedings under 8 C.F.R. 1208.2(c)(2).

In both of these contexts, the DHS agents who

enter administrative or reinstated removal orders

have no authority over protection claims. 8 C.F.R.

238.1(f)(3) (administrative order); 8 C.F.R. 241.8(e)

(reinstatement). And the judge who decides the

protection claim has no authority over the removal

5 Amicus National Immigrant Justice Center represented Malu

in her proceedings, and on appeal to this Court. See Malu v.

Lynch, 136 S. Ct. 6 (2015). Malu voluntarily dismissed that

case after the government agreed to reopen and withdraw the

administrative order. The factual errors in Malu’s CAT case,

which the Eleventh Circuit refused to review because of Section

1252(a)(2)(C), are evident given that following remand, Malu

received protection.

order. See 8 C.F.R. 1208.2(c)(2) (administrative

order); 8 U.S.C. § 1231(a)(5) (providing that a

reinstatement order “is not subject to being reopened

or reviewed”). These processes highlight the

disconnect between a removal order and a grant or

denial of CAT protection. Removal orders are

logically distinct from the protection remedies, and

in some instances occur in front of different

adjudicators at different points in time. And the

outcome of the protection claim has no effect on the

entry of the removal order.

IV.

The Government’s reading of Section

1252(a)(2)(C) is constitutionally doubtful.

Finally, Amici note that the Government’s

reading of Section 1252(a)(2)(C) raises constitutional

concerns regarding separation of powers and due

process that Petitioner’s reading easily avoids. It is

difficult to think of another regime in which factual

errors made in the course of deciding life and death

questions are immune from judicial review,

particularly where the Executive branch has both

prosecuted and decided the case. The due process

balance surely tips in favor of life over

administrative efficiency.

A. Jurisdiction-stripping precedent has

not adequately grappled with the

Constitution’s vesting of judicial

power in the courts.

As a baseline rule, the “‘check’ the Judiciary

provides to maintain our separation of powers is

enforcement of the rule of law through judicial

review.” DOT v. Ass’n of Am. R.R., 575 U.S. 43, 52

(2015) (Thomas, J., concurring). This Court has

repeatedly considered limitations on judicial review

over immigration matters, but that case law has not

fully assessed or explained when jurisdictionstriping is consistent with Article III. And they have

certainly not done so in cases involving the highest

liberty interest—life—against the backdrop of a

judicial process that an immigration judge compared

to “traffic court.” See supra Part I.B.

The constitution “vest[s]” the judicial power in

the Courts and specifies its reach: “The judicial

power shall extend to all cases, in law and equity,

arising under this Constitution [and] the laws of the

United States.” Art. III, §§ 1-2. And the Founders

were deliberate in separating that power from the

executive. They considered “[t]he accumulation of all

powers, legislative, executive, and judiciary, in the

same hands, whether of one, a few, or many” as “the

very definition of tyranny.” The Federalist No. 47

(Madison). This concern was not limited to executive

encroachment on the legislative branch. “The

executive shall never exercise the legislative and

judicial powers . . . to the end it may be a

government of laws and not of men.” Id. (citing

Mass. Const. pt. 1, art. XXX).

Congress may not, consistent with the

Constitution, reallocate the authority of the three

branches. See Dep’t of Transp. v. Ass’n of Am. R.R.,

135 S. Ct. 1225, 1244 (2015) (Thomas, J., concurring)

(“the Vesting Clauses are exclusive and . . . the

branch in which a power is vested may not give it up

or otherwise reallocate it.”). Indeed, some

commentators blame excessive delegation for the

collapse of Congressional authority. See Neomi Rao,

Administrative

Collusion:

How

Delegation

Diminishes the Collective Congress, 90 N.Y.U. L.

REV. 1463, 1465 (2015).

It is true that some read Article III to permit

Congress to limit federal court jurisdiction, when it

grants the Court “appellate Jurisdiction, both as to

Law and Fact, with such Exceptions, and under such

Regulations as the Congress shall make.” Art. III

§ 2, cl. 2. But as commentators have noted, reading

the Exceptions clause this way is flawed; it would

have been passing strange for the Founders to have

authorized one branch to so limit another branch in

such a “remarkably offhanded” way. David E.

Engdahl, Intrinsic Limits of Congress’ Power

Regarding the Judicial Branch, 1999 BYU L. REV.

75, 119-32; see Steven G. Calabresi, Gary Lawson,

The Unitary Executive, Jurisdiction Stripping and

the Hamdan Opinions: a Textualist Response to

Justice Scalia, 107 COLUM. L. REV. 1002 (May 2007).

Reading Section 1252(a)(2)(C) to allow Congress to

throttle the judicial voice overreads that language.

Congress did not broadly delegate responsibility

for deciding how to prevent torture to the Executive.

Rather, it mandated that federal agencies adopt

rules in conformity to the Torture Convention,

providing a rule against which to judge individual

cases. And Congress made compliance with that

Convention mandatory. This feature distinguishes

this case from many immigration cases that involve

an exercise of discretion. Here, to the contrary, the

decision to grant or withhold protection is not

discretionary and it requires weighing facts against

a legal standard. These are stereotypical judicial

functions.

Nor does the Constitution distinguish between

legal and factual determinations. To the contrary,

the Founders conferred jurisdiction on the courts

“both as to Law and Fact.” Art. III § 2, cl. 2

(emphasis added). As such, the savings provision

found within Section 1252(a)(2)(D) does not avoid

the separation-of-powers problem implicated here.

For a number of reasons, the government cannot

rely on the abstract claim that “Congress generally

does not violate Article III when it strips federal

jurisdiction over a class of cases.” Patchak v. Zinke,

138 S. Ct. 897, 906-07 (2018) (plurality op.) (citing

Ex parte McCardle, 74 U.S. 506, 514 (1868)). First,

McCardle was really a channeling provision, barring

jurisdiction by one route but permitting it by

another. See McCardle, 74 U.S. at 514 (finding that

statute did not repeal “the whole appellate power of

the court). Indeed, this was confirmed that same

term when the Court found jurisdiction to decide Ex

parte Yerger, 8 Wall. 85 (1869). See Patchak, 138 S.

Ct. at 920-21 (Roberts, J., dissenting).

Second, as the Patchak plurality noted, Congress

may not “violate other constitutional provisions” via

jurisdiction-stripping. Patchak, 138 S. Ct. at 906.

The jurisdiction-stripping statute in Patchak did not

render some other body supreme in saying what the

law is, but rather, it removed jurisdiction as a means

of confirming its change in substantive law whereby

it ratified prior governmental decisions. 138 S. Ct.

at 911-12 (Breyer, J., concurring). Whatever one

thinks of Patchak, to the extent that Congress would

wish to employ any Exceptions Clause authority,

Art. III § 2, cl. 2, to vest judicial power in an

agency—or any body other than this Court—that

could not be saved by Patchak or McCardle.

Finally, as discussed below, there are serious due

process questions about the regime that would result

from jurisdiction-stripping in this case. The Patchak

plurality did not address whether Congress may use

jurisdiction-stripping to effectively decide a group of

highest-stakes cases for the executive against a

politically-weak group (immigrants with criminal

convictions), without changing the substantive law.

Cf. Robertson v. Seattle Audubon Soc., 503 U.S. 429,

439 (1992); see also Patchak, 138 S. Ct. at 914

(Roberts, J., dissenting).

Article III vests judicial power in the federal

courts. Whatever deference is appropriate to an

Agency making fact determinations, Article III

requires that the federal courts have authority to

fulfill the judicial function and review those

determinations.

B. Jurisdiction-stripping in this context

raises problematic due process concerns.

Under the Government’s reading of Section

1252(a)(2)(C), the statutory scheme created by

Congress is a house divided. On the one hand, the

executive is ordered, in nondiscretionary terms, to

comply with treaty obligations not to deport people

to death or torture. On the other hand, says the

Agency, Congress requires courts to allow erroneous

removals to happen if the noncitizen has committed

certain crimes, and if the agency error is not an error

of law. The Court should reject that improbable

result as of doubtful constitutionality.

The Due Process Clause “applies to all ‘persons’

within the United States, including aliens, whether

their presence here is lawful, unlawful, temporary,

or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693

(2001). Noncitizens have recognized due process

rights prior to being removed. Reno v. Flores, 507

U.S. 292, 306 (1993) (citing The Japanese Immigrant

Case, 189 U.S. 86, 100-01 (1903)).

To trigger due process protections, the Supreme

Court requires that individuals show that they have

a liberty interest in the remedy. Mathews v.

Eldridge, 424 U.S. 319, 332 (1976). Some courts have

held that a noncitizen has “no constitutionallyprotected liberty interest in obtaining discretionary

relief from deportation.” Ashki v. INS, 233 F.3d 913,

921 (6th Cir. 2000); but see United States v.

Copeland, 376 F.3d 61, 70 (2d Cir. 2004)

(distinguishing between eligibility for discretionary

relief and denial of relief itself). Whatever the merits

of that logic in other immigration matters, it could

have no application to the mandatory protections

provided by the CAT. Here, statute, regulation, and

treaty provide “particularized standards or criteria

[that] guide[s] the [agency’s] decisionmakers.”

Connecticut Board of Pardons v. Dumschat, 452 U.

S. 458, 467 (1981) (Brennan, J., concurring). It is not

the case that an immigration judge “can deny the

requested relief for any constitutionally permissible

reason or for no reason at all.” Id. Congress has

created a constitutionally protected liberty interest

by requiring enforcement of the treaty on these

terms. See id., at 466-67 (opinion of the Court).

In general, to assess a due process claim, courts

look to (1) the “the private interest that will be

affected”; (2) “the risk of an erroneous deprivation”;

(3) “the probable value, if any, of additional or

substitute procedural safeguards”; and (4) the

Government’s interest.” Mathews v. Eldridge, 424

US 319, 335 (1976). But due process “is not a

technical conception with a fixed content unrelated

to time, place and circumstances.” Cafeteria Workers

v. McElroy, 367 U. S. 886, 895 (1961). Rather, it is

“flexible” and “calls for such procedural protections

as the particular situation demands.” Morrissey v.

Brewer, 408 U. S. 471, 481 (1972). All factors point

towards more review here.

First, the stakes are substantial. Removal is a

grave penalty even where death and torture are not

involved. See Bridges v. Wixon, 326 U.S. 135, 154

(1945) (“Though deportation is not technically a

criminal proceeding, it visits a great hardship on the

individual. . . . That deportation is a penalty — at

times a most serious one—cannot be doubted.”). It is

even more so when the stakes are torture. See, e.g.,

Devitri v. Cronen, 289 F. Supp. 3d 287 (D. Mass.

2018) (finding liberty interests in class of Indonesian

Christians fearing persecution). Given what is at

stake, some “minimal procedural safeguards”—

beyond agency level review—should be required.

Ohio Adult Parole Authority v. Woodard, 523 U. S.

272, 289 (1998) (O’Connor, J., concurring in part and

in judgment).

Second, the risk of erroneous deprivation without

judicial review of fact errors is high. Adjudication of

protection claims has verged on the arbitrary.

Ramji-Nougales et al., Refugee Roulette: Disparities

in Asylum Adjudication, 60 STANFORD L. REV. 295,

329-30 (2007). Some courts suggest this challenge

results from agency workload, see supra Part I.B, but

whatever the cause, it could not excuse such errors,

particularly when the stakes are so high.

Finally, the government’s interests do not tip the

balance. Noncitizens are already permitted to bring

petitions for review to challenge legal and

constitutional errors. 8 U.S.C. § 1252(a)(2)(D).

Allowing review to encompass factual issues would

impose some costs, but given that courts would

already review that decision, the additional costs

would not be grave. And given courts’ reversal rates

of Board decisions, see Benslimane v. Gonzales, 430

F.3d at 829, the value of court intervention could

hardly by doubted.

****

If the Government’s reading would subject the

statute to potential unconstitutionality, an alternate

plausible reading should be preferred. See United

States v. Witkovich, 353 U.S. 194, 195, 202 (1957);

Zadvydas, 533 U.S. at 690. Of course, Amici submit

that Petitioner has the better argument on the

statutory text. But even if the textual balance were

in equipoise—indeed, even if the Government had

the better textual arguments—the relevant test is

whether Petitioner’s reading would be “fairly

possible.” Crowell v. Benson, 285 U. S. 22, 62 (1932).

Under the Government’s view, factual mistakes,

illogical decision making, and the like are insulated

from review whenever the noncitizen has committed

a covered criminal offense, even if the outcome would

be torture or death. The Court should reject those

sweeping claims.

CONCLUSION

For the foregoing reasons Amici request that this

Court find that Section 1252(a)(2)(C) does not

impede judicial review of torture claims.

December 16, 2019

Respectfully submitted,