Amicus Curiae Brief — Pierre Yassue Nashun Riley, Petitioner v. Pamela Bondi, Attorney General

No. 23-1270

In the Supreme Court of the United States

_________

P IERRE Y ASSUE N ASHUN R ILEY ,

Petitioner,

v.

M ERRICK B. G ARLAND , U.S. ATTORNEY G ENERAL ,

Respondent.

_________

On Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

_________

BRIEF OF PACIFIC LEGAL

FOUNDATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

_________

ALLISON D. DANIEL

Pacific Legal Foundation

3100 Clarendon Blvd.

Suite 1000

Arlington, VA 22201

Telephone: (202) 888-6881

ADaniel@pacificlegal.org

D AMIEN M. S CHIFF

Counsel of Record

Pacific Legal Foundation

555 Capitol Mall

Suite 1290

Sacramento, CA 95814

Telephone: (916) 419-7111

DSchiff@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation

TABLE OF CONTENTS

Interest of Amicus Curiae .......................................... 1

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

Argument .................................................................... 4

I. The Immigration and Nationality Act

requires meaningful judicial review

of final CAT determinations ............................. 4

A. Congress expressly provided for judicial

review of CAT claims .................................. 4

B. The Fourth Circuit’s interpretation

severely constrains meaningful review...... 5

II. This Court’s precedents require review

at a meaningful time ......................................... 6

A. The Court has consistently protected

access to judicial review ............................. 6

B. Pre-enforcement review is essential

when agency decisions have immediate

consequences ............................................... 8

C. The timing of review implicates core

separation of powers concerns.................. 10

III. The Court should hold that review

becomes available upon final BIA

CAT determinations ........................................ 12

A. Final agency action occurs when

decision-making is complete..................... 12

B. Delayed review serves no legitimate

purpose ...................................................... 13

Conclusion ................................................................. 14

ii

TABLE OF AUTHORITIES

Cases:

Abbott Laboratories v. Gardner,

387 U.S. 136 (1967) ........................................... 6, 8

Axon Enterprise, Inc. v. FTC,

598 U.S. 175 (2023) ........................................... 3, 8

Bennett v. Spear,

520 U.S. 154 (1997) ............................................. 12

Bowen v. Michigan Acad. of Family Physicians,

476 U.S. 667 (1986) ............................................. 13

Commodity Futures Trading Comm’n v. Schor,

478 U.S. 833 (1986) ............................................. 11

F.J.A.P. v. Garland,

94 F.4th 620 (7th Cir. 2024) .................................. 5

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ............................................ 5-6

Franklin v. Massachusetts,

505 U.S. 788 (1992) ............................................. 12

Free Enterprise Fund v. PCAOB,

561 U.S. 477 (2010) ...................................... 6, 9-10

Knick v. Township of Scott,

588 U.S. 180 (2019) ........................................... 1, 9

Martinez v. Garland,

86 F.4th 561 (4th Cir. 2023) .................................. 5

N. Pipeline Constr. Co. v. Marathon Pipe Line Co.,

458 U.S. 50 (1982) ............................................... 11

Pakdel v. City & Cnty. of San Francisco,

594 U.S. 474 (2021) ........................................... 1, 9

Sackett v. EPA,

566 U.S. 120 (2012) .......................... 1-2, 6-7, 12-13

Stern v. Marshall,

564 U.S. 462 (2011) ............................................. 10

iii

Suitum v. Tahoe Reg’l Plan. Agency,

520 U.S. 725 (1997) ........................................... 1, 9

Thunder Basin Coal Co. v. Reich,

510 U.S. 200 (1994) ........................................... 6, 9

U.S. Army Corps of Eng’rs v. Hawkes Co.,

578 U.S. 590 (2016) .................................. 1-3, 7, 12

Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv.,

586 U.S. 9 (2018) ................................................ 1-2

Wilkins v. United States,

598 U.S. 152 (2023) ........................................... 1, 9

Statutes:

8 U.S.C. § 1252(a)(4) ............................................. 4, 13

8 U.S.C. § 1252(b)(9) ................................................... 4

Other Authorities:

Friendly, Henry J., “Some Kind of Hearing,”

123 U. Pa. L. Rev. 1267 (1975) ............................ 10

Merrill, Thomas W., Article III, Agency

Adjudication, and the Origins of the Appellate

Review Model of Administrative Law,

111 Colum. L. Rev. 939 (2011) ............................ 10

INTEREST OF AMICUS CURIAE 1

Founded in 1973, Pacific Legal Foundation (PLF)

is a nonprofit, tax-exempt California corporation established to litigate matters affecting the public interest. PLF defends Americans’ liberties when threatened by government overreach. It is the most experienced public interest legal nonprofit, both as lead

counsel and amicus curiae, in cases vindicating the

right to meaningful judicial review of government action. See, e.g., Wilkins v. United States, 598 U.S. 152

(2023); Pakdel v. City & Cnty. of San Francisco, 594

U.S. 474 (2021); Knick v. Township of Scott, 588 U.S.

180 (2019); Weyerhaeuser Co. v. U.S. Fish & Wildlife

Serv., 586 U.S. 9 (2018); U.S. Army Corps of Eng’rs v.

Hawkes Co., 578 U.S. 590 (2016); Sackett v. EPA, 566

U.S. 120 (2012); Suitum v. Tahoe Reg’l Plan. Agency,

520 U.S. 725 (1997).

This amicus brief supports Petitioner’s argument

that the Immigration and Nationality Act permits judicial review of Convention Against Torture (CAT) determinations when petitions are filed within 30 days

of the Board of Immigration Appeals’ decision on CAT

relief, even where, as here, the decision comes many

months after the initial removal order. PLF has an

interest in this issue because it implicates fundamental questions about the timing and availability of judicial review of agency action.

This brief brings a unique perspective by showing

how the Fourth Circuit’s interpretation conflicts with

this Court’s established framework for review of

No party’s counsel authored any part of this brief. No person

or entity, other than Amicus Curiae and its counsel, paid for the

brief ’s preparation or submission.

1

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agency decisions, frustrates Congress’s express provision for review of CAT claims, and undermines the judiciary’s vital role in checking agency power—a role

PLF has long defended across numerous contexts, including environmental law and securities regulation.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

This amicus brief addresses only the second question presented, restated as: whether a person can obtain judicial review of the Board of Immigration Appeals’ denial of protection under the Convention

Against Torture by filing a petition within 30 days of

that decision, even though the underlying removal order was issued at an earlier date. The timing of judicial review directly implicates this Court’s precedents

about when parties can challenge significant agency

determinations in federal court, particularly when

those determinations affect fundamental liberties and

Congress has expressly provided for judicial review.

The Immigration and Nationality Act’s provision

for judicial review of Convention Against Torture determinations must be interpreted to permit review

when petitions are filed within 30 days of the Board’s

final decision, even where, as here, the decision comes

many months after the initial removal order. This

reading aligns with this Court’s precedents requiring

meaningful rather than illusory judicial review of significant agency determinations.

This Court has consistently rejected interpretations that would effectively preclude review of consequential agency action, as demonstrated in cases such

as Weyerhaeuser Co. v. U.S. Fish & Wildlife Service,

586 U.S. 9 (2018), Sackett v. EPA, 566 U.S. 120 (2012),

U.S. Army Corps of Engineers v. Hawkes Co., 578 U.S.

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590 (2016), and Axon Enterprise, Inc. v. FTC, 598 U.S.

175 (2023). The Fourth Circuit’s contrary approach—

requiring petitions within 30 days of the initial removal order rather than the final CAT determination—makes judicial review practically impossible in

many cases. This undermines Congress’s express provision for review of CAT claims and conflicts with this

Court’s longstanding precedents protecting meaningful judicial oversight of agency power.

The timing of judicial review implicates core separation of powers concerns that transcend immigration

law. When agencies make determinations affecting

fundamental rights, courts must be able to exercise

their essential oversight role at a meaningful time and

in a meaningful manner. An interpretation that effectively requires petitioners to file for review before the

agency has even made its CAT determination—or risk

losing their right to review entirely—imposes significant barriers to judicial oversight that cannot be

squared with these constitutional principles or with

Congress’s clear intent to provide for judicial review of

CAT claims.

These same considerations have led this Court to

preserve meaningful judicial review in a variety of

regulatory contexts, from environmental determinations to financial regulation to the structure and procedures of independent agencies. The same principles

should govern here, ensuring that individuals facing

removal have a genuine opportunity to obtain court

review of agency decisions that could result in torture

or death.

4

ARGUMENT

I. The Immigration And Nationality Act

Requires Meaningful Judicial Review Of

Final CAT Determinations

Petitioner’s brief persuasively demonstrates how

the Fourth Circuit’s interpretation conflicts with the

Immigration and Nationality Act’s text and the strong

presumption of judicial review in immigration cases.

See Pet. Br. at 40-44. Building on those arguments,

Amicus PLF explains how this case reflects a broader

pattern of administrative agencies attempting to

evade court oversight. The statutory framework here

illustrates why courts must vigilantly protect access

to review at a meaningful time and in a meaningful

manner.

A. Congress expressly provided for judicial

review of CAT claims

The Act contains two key provisions that, read together, establish a comprehensive framework for

court oversight. First, Congress specified in 8 U.S.C.

§ 1252(a)(4) that “a petition for review filed with an

appropriate court of appeals in accordance with this

section shall be the sole and exclusive means for judicial review of any cause or claim under the United Nations Convention Against Torture.” Second, Congress

enacted a comprehensive “zipper clause” in 8 U.S.C.

§ 1252(b)(9), requiring that all questions “arising from

any action taken or proceeding brought to remove an

alien” be consolidated for review after the Board issues its final order.

This framework reflects Congress’s deliberate

choice to channel review through the courts of appeals

while ensuring such review occurs after the agency

completes its decision-making process. The structure

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makes eminent sense: judicial review would be both

premature and inefficient before the Board reaches its

final determination on a CAT claim.

B. The

Fourth

Circuit’s

interpretation

severely constrains meaningful review

By holding that the 30-day review period runs from

the initial removal order rather than the Board’s final

CAT determination, the Fourth Circuit has created a

severe practical barrier to judicial review. Because

CAT proceedings before the agency invariably extend

beyond 30 days,2 petitioners must either forfeit their

right to review or file premature protective petitions

challenging CAT determinations that haven’t yet been

made. App. 4a-5a (dismissing petition because petitioner “did not petition for review within 30 days of

the January 26, 2021, Final Administrative Removal

Order,” even though the BIA did not deny CAT relief

until May 31, 2022).

Such a reading undermines Congress’s express provision for judicial review. While theoretically preserving review through protective filings, it creates an

awkward and inefficient procedure that conflicts with

both statutory text and fundamental canons of construction. This Court has long disfavored interpretations that create internal contradictions within a statute or produce absurd results. See FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)

(courts must interpret statutes “as a symmetrical and

2

See, e.g., F.J.A.P. v. Garland, 94 F.4th 620, 635 (7th Cir.

2024), acknowledging that these proceedings take much longer

than 30 days. See also Martinez v. Garland, 86 F.4th 561, 574

(4th Cir. 2023) (Floyd, J., concurring) (noting that “withholding

and CAT proceedings often take months or even years to conclude”).

6

coherent regulatory scheme” and “fit, if possible, all

parts into a harmonious whole” (citations omitted)).

And, this Court has consistently rejected interpretations that would make judicial review unnecessarily

burdensome or impractical. See Abbott Laboratories

v. Gardner, 387 U.S. 136, 153 (1967). Specifically, the

Court has rejected statutory interpretations that

would force parties to choose between undertaking

costly compliance or risking severe penalties to obtain

review. See Free Enterprise Fund v. PCAOB, 561 U.S.

477, 490 (2010) (rejecting procedures that would require regulated parties to “bet the farm” by violating

the law to test its validity); cf. Thunder Basin Coal Co.

v. Reich, 510 U.S. 200, 218 (1994) (emphasizing the

need to preserve review where compliance costs are

prohibitive). The Fourth Circuit’s interpretation here

presents a similar barrier to effective review—while

not completely foreclosing review, it imposes procedural requirements that significantly impair the

meaningful judicial oversight Congress intended.

II. This Court’s Precedents Require Review At

A Meaningful Time

A. The Court has consistently protected access

to judicial review

This Court has long recognized that the timing of

judicial review must ensure meaningful oversight of

agency action. Through a series of landmark decisions, the Court has rejected interpretations that

would effectively deny review by making it practically

inaccessible.

In Sackett, property owners challenged an EPA

compliance order finding that their land contained

wetlands subject to federal jurisdiction. 566 U.S. at

124-25. The agency argued that the Sacketts could

7

not seek judicial review of the compliance order until

EPA brought an enforcement action, meaning they

would have to risk daily fines of up to $75,000 to test

EPA’s jurisdiction. Id. at 127. This Court unanimously rejected that interpretation, explaining that

such a scheme would place landowners in an impossible position: either they must risk ruinous penalties

or be denied their day in court entirely. Ibid. The

Court refused to read the Clean Water Act in a way

that would make review practically unavailable, noting that Congress could not have intended to create

such an unjust scheme. Id. at 129-30.

Similarly, in Hawkes, this Court addressed when

parties could challenge the Corps’ determination that

their property contained “waters of the United

States.” 578 U.S. at 594. The Corps argued that landowners had to either complete the permit process or

proceed without a permit and risk enforcement. Id. at

599. The Court rejected this argument, noting that

both options were unreasonably burdensome—the

permitting process was prohibitively expensive and

time-consuming, while proceeding without a permit

carried the unacceptable risk of significant penalties.

Id. at 595-99. The Court explained that such a scheme

would effectively deprive landowners of meaningful

access to judicial review, as they would have to choose

between two unsatisfactory options without the ability to challenge the Corps’ determination before facing

enforcement. Id. at 599. In ruling that the Corps’ jurisdictional determination is reviewable, the Court

emphasized that Congress intended for judicial review

to be practically accessible and not an illusory remedy.

Ibid.

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B. Pre-enforcement review is essential when

agency decisions have immediate consequences

When administrative decisions threaten immediate and grave consequences, pre-enforcement review

becomes not just important but essential to due process. See Abbott Labs., 387 U.S. at 153. This principle

takes on particular urgency in the CAT context, where

the consequences of delayed review could be irreparable and even fatal.

In Axon, 598 U.S. 175, this Court reaffirmed these

principles by preserving district court jurisdiction

over structural constitutional challenges, recognizing

that meaningful review cannot be delayed until after

an agency concludes its proceedings. The Court emphasized that where Congress has provided a statutory review scheme, courts must ensure that the

scheme provides a meaningful opportunity for review

of constitutional claims. Id. at 189-90. This case presents similar concerns about the practical availability

of review. But unlike the structural challenges in

Axon, the harm in this case involves torture or death,

where meaningful review is not just important but essential to prevent irreparable harm.

In Axon, this Court preserved immediate judicial

review of structural constitutional challenges because

waiting until after agency proceedings would effectively deny meaningful review—the constitutional

harm of being subjected to an unconstitutionally

structured agency process would already have occurred. 598 U.S. at 190. CAT claims present an even

stronger case for immediate review upon final agency

determination. Like structural constitutional claims,

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CAT claims are “wholly collateral” to the merits of removal—they don’t challenge removability itself but

rather raise distinct claims about the consequences of

removal. See Thunder Basin Coal Co., 510 U.S. at

212-13 (claims are “wholly collateral” when they are

not “of the type Congress intended to be reviewed

within th[e] statutory structure”).

The Court’s precedents in other contexts similarly

demonstrate that timing of review must align with the

nature and gravity of the threatened harm. In Free

Enterprise Fund, 561 U.S. at 490-91, the Court permitted a pre-enforcement challenge to an agency’s

constitutional structure, recognizing that regulated

parties should not have to risk severe penalties and

potential ruin to obtain judicial review of agency action. In Knick v. Township of Scott, 588 U.S. 180

(2019), the Court eliminated the state-litigation requirement for takings claims, recognizing that forcing

property owners to first pursue state court remedies

unconstitutionally barred access to federal courts.

And, in Suitum v. Tahoe Regional Planning Agency,

520 U.S. 725 (1997), the Court refused to allow agencies to indefinitely postpone judicial review of takings

claims by requiring property owners to first attempt

selling development rights before challenging regulatory restrictions. Similarly, in Pakdel v. City &

County of San Francisco, 594 U.S. 474 (2021), the

Court rejected attempts to impose additional administrative exhaustion requirements before property

owners could access federal courts, emphasizing that

such novel procedural requirements cannot be used to

foreclose judicial review. Continuing this trend, in

Wilkins v. United States, 598 U.S. 152 (2023), the

Court reaffirmed these principles by rejecting the government’s attempt to bar judicial review of a property

10

dispute through a “jurisdictional” reading of the Quiet

Title Act’s statute of limitations.

These decisions reflect the Court’s longstanding

commitment to ensuring that procedural hurdles do

not become insurmountable barriers to judicial review.

C. The timing of review implicates core

separation of powers concerns

When agencies make determinations affecting fundamental rights, courts must be able to exercise their

essential oversight role at a meaningful time and in a

meaningful manner. This principle is deeply rooted in

separation of powers doctrine. See Free Enterprise

Fund, 561 U.S. at 513 (rejecting interpretation that

would require parties to incur sanctions before obtaining judicial review); Stern v. Marshall, 564 U.S. 462,

483 (2011) (explaining that Article III courts must retain meaningful authority to check executive power

when fundamental rights are at stake).

Indeed, the constitutional necessity of preserving

meaningful access to judicial review is supported by

both case law and scholarly analysis. See Henry J.

Friendly, “Some Kind of Hearing,” 123 U. Pa. L. Rev.

1267, 1311-15 (1975) (examining how timing of review

affects its constitutional adequacy); Thomas W. Merrill, Article III, Agency Adjudication, and the Origins

of the Appellate Review Model of Administrative Law,

111 Colum. L. Rev. 939, 953-63 (2011) (discussing the

Court’s recognition of judicial review as essential to

maintaining the separation of powers and protecting

individual rights from administrative overreach).

The Constitution’s separation of powers requires

effective judicial oversight not just as a matter of individual rights, but as a structural safeguard against

11

executive overreach. When Congress creates a statutory right to judicial review, as it has for CAT claims,

courts play a vital constitutional role in ensuring that

the right is effective. The executive branch cannot,

through its procedural choices or timing requirements, effectively nullify Congress’s decision to provide for judicial oversight.

This constitutional understanding flows directly

from Article III’s vesting of the judicial power in independent courts. While agencies may structure their

internal procedures, they cannot do so in ways that

frustrate the courts’ fundamental duty to check administrative power. See Commodity Futures Trading

Comm’n v. Schor, 478 U.S. 833, 850 (1986) (examining

whether agency procedures impermissibly encroach

on Article III judicial power); N. Pipeline Constr. Co.

v. Marathon Pipe Line Co., 458 U.S. 50, 58 (1982) (discussing constitutional limits on congressional power

to restrict Article III review).

The Fourth Circuit’s interpretation would allow

agencies to strategically time their decisions to evade

court oversight—precisely the type of executive encroachment on judicial power that the separation of

powers is designed to prevent. When Congress provides for judicial review of agency action, that review

must be structured to allow courts to fulfill their constitutional role as an independent check on executive

authority. This structural principle is especially important where, as here, the consequences of inadequate review could be severe and irreparable.

12

III. The Court Should Hold That Review

Becomes Available Upon Final BIA CAT

Determinations

A. Final agency action occurs when decisionmaking is complete

The Fourth Circuit’s interpretation, which starts

the 30-day review period at the initial removal order

rather than the final CAT determination, creates significant tension with this Court’s finality doctrine and

expands agency power at the expense of judicial oversight. As this Court explained in Sackett, proper oversight of agency action requires that parties have a

genuine opportunity to challenge final agency action

in court. 566 U.S. at 127. While the Fourth Circuit’s

interpretation technically permits review through

protective filings, requiring petitioners to challenge

CAT determinations months before they are made undermines the principles of meaningful review.

This Court’s precedents establish that agency action becomes final and reviewable when the agency

has “completed its decisionmaking process,” Franklin

v. Massachusetts, 505 U.S. 788, 797 (1992), and the

action is “one by which rights or obligations have been

determined.” Bennett v. Spear, 520 U.S. 154, 177-78

(1997) (cleaned up). The BIA’s CAT determination unquestionably meets these criteria—it represents the

culmination of the agency’s process and definitively

resolves whether removal must be withheld. The

Fourth Circuit’s interpretation would create precisely

the type of practically “unreviewable” agency power

this Court has consistently rejected. See Hawkes, 578

U.S. at 599-600.

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B. Delayed review serves no legitimate

purpose

The Fourth Circuit’s interpretation serves no valid

administrative or regulatory purpose. While agencies

sometimes justify delaying judicial review based on

enforcement efficiency—as EPA attempted in Sackett,

566 U.S. at 128-29—no such rationale exists here.

There is no administrative benefit to requiring petitions to be filed within 30 days of the initial removal

order when the CAT determination, which directly affects their claims, has not yet been made.

Congress specifically created a review mechanism

for CAT claims, distinct from the general removal review framework. See 8 U.S.C. § 1252(a)(4). Courts

must interpret such review provisions to effectuate rather than frustrate congressional intent. See Bowen

v. Michigan Acad. of Family Physicians, 476 U.S. 667,

670-71 (1986) (requiring “clear and convincing evidence” before concluding Congress meant to preclude

judicial review). The Fourth Circuit’s interpretation

would render Congress’s express provision for CAT review meaningless—a result this Court has consistently rejected across various administrative contexts.

When Congress provides a specific avenue for judicial

review of agency action, courts cannot interpret procedural requirements in a way that makes that review

impossible to obtain.

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CONCLUSION

The Fourth Circuit’s holding that petitions must be

filed within 30 days of the initial removal order, rather

than the final CAT determination, effectively precludes

judicial review while expanding unreviewable agency

power. The Court should reject this jurisdictional barrier and hold that review of a CAT determination is

available even where, as here, the BIA’s final decision

on CAT relief was made more than 30 days after the initial removal order. Such a holding would preserve both

meaningful judicial review and proper constitutional

checks on executive power.

Respectfully submitted,

ALLISON D. DANIEL

Pacific Legal Foundation

3100 Clarendon Blvd.

Suite 1000

Arlington, VA 22201

Telephone: (202) 888-6881

ADaniel@pacificlegal.org

D AMIEN M. S CHIFF

Counsel of Record

Pacific Legal Foundation

555 Capitol Mall

Suite 1290

Sacramento, CA 95814

Telephone: (916) 419-7111

DSchiff@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation

J ANUARY 2025