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

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No. 23-1270

In the Supreme Court of the United States

PIERRE YASSUE NASHUN RILEY, PETITIONER,

MERRICK B. GARLAND, ATTORNEY GENERAL

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF

ADMINISTRATIVE LAW PROFESSORS

AS AMICI CURIAE IN SUPPORT OF PETITIONER

ALAN B. MORRISON

THE GEORGE WASHINGTON

UNIVERSITY LAW SCHOOL

2000 H STREET NW

WASHINGTON , DC 20052

(202) 994-7120

ZACHARY D. TRIPP

Counsel of Record

JOSHUA M. WESNESKI

LAUREL L. ZIGERELLI

GIANNA I. SCERBO

WEIL , GOTSHAL & MANGES LLP

2001 M STREET NW

WASHINGTON , DC 20036

(202) 682-7000

zack.tripp@weil.com

TABLE OF CONTENTS

Page

Interest of amici curiae .................................................... 1

Summary of argument ..................................................... 2

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

I. The Fourth Circuit’s rule contravenes settled

principles of exhaustion and finality ..................... 5

A. Exhaustion and finality are fundamental

principles of judicial review .............................. 5

1. Administrative exhaustion is a

settled rule that protects agency

authority and enhances judicial

efficiency ..................................................... 6

2. Finality is a core principle of

administrative law and judicial

review more broadly .................................. 9

B. The Fourth Circuit’s rule would

contravene these principles by requiring a

person to seek review of non-final orders

and unexhausted claims .................................. 11

Conclusion ....................................................................... 16

(i)

TABLE OF AUTHORITIES

Cases

Page(s)

Abbott Labs. v. Gardner,

387 U.S. 136 (1967) .................................................. 9

Bennett v. Spear,

520 U.S. 154 (1997) ............................................ 9, 13

Carr v. Saul,

593 U.S. 83 (2021) .................................................... 8

Chicago & S. Air Lines, Inc. v. Waterman S.S.

Corp.,

333 U.S. 103 (1948) .................................................. 9

Cobbledick v. United States,

309 U.S. 323 (1940) ............................................ 9, 10

Cutter v. Wilkinson,

544 U.S. 709 (2005) ................................................ 13

Darby v. Cisneros,

509 U.S. 137 (1993) .................................................. 9

Eisen v. Carlisle & Jacquelin,

417 U.S. 156 (1974) ................................................ 10

Fed. Power Comm’n v. Colo. Interstate Gas Co.,

348 U.S. 492 (1955) .................................................. 6

Holder v. Humanitarian L. Project,

561 U.S. 1 (2010) .................................................... 12

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ................................................ 11

McCarthy v. Madigan,

503 U.S. 140 (1992) .............................................. 6, 8

McKart v. United States,

395 U.S. 185 (1969) .............................................. 7, 8

Microsoft Corp. v. Baker,

582 U.S. 23 (2017) .................................................. 10

Mohawk Indus., Inc. v. Carpenter,

558 U.S. 100 (2009) ................................................ 10

(ii)

Cases – Continued

Myers v. Bethlehem Shipbuilding Corp.,

303 U.S. 41 (1938) .................................................... 6

Nasrallah v. Barr,

590 U.S. 573 (2020) .......................................... 13, 14

Nken v. Holder,

556 U.S. 418 (2009) ................................................ 13

Ross v. Blake,

578 U.S. 632 (2016) .............................................. 8, 9

Santos-Zacaria v. Garland,

598 U.S. 411 (2023) .................................................. 6

Sekhar v. United States,

570 U.S. 729 (2013) .................................................. 4

FTC v. Standard Oil Co. of Cal.,

449 U.S. 232 (1980) .................................................. 9

Stringfellow v. Concerned Neighbors in Action,

480 U.S. 370 (1987) ................................................ 10

Thomas v. Union Carbide Agric. Prods. Co.,

473 U.S. 568 (1985) ................................................ 10

Warth v. Seldin,

422 U.S. 490 (1975) ................................................ 10

Weinberger v. Salfi,

422 U.S. 749 (1975) .................................................. 7

Woodford v. Ngo,

548 U.S. 81 (2006) ............................................ 6, 7, 8

Constitution, treaty, statutes, and regulations

U.S. Const. Art. III ................................................ 8, 10

Convention Aainst Torture and Other Cruel,

Inuman or Degrading Treatment or

Punishment, adopted Dec. 10, 1984, S. Treaty

Doc. No. 20, 100th Cong., 2d Sess. (1988), 1465

U.N.T.S. 85 ............................................................... 2

(iii)

Constitution, treaty, statutes, and regulations –

Continued

Administrative Orders Review Act of 1950, ch.

1189, 64 Stat. 1129, 28 U.S.C. 2341 et seq. ......... 6, 9

28 U.S.C. 2344 ...................................................... 13

28 U.S.C. 2346 ...................................................... 13

Administrative Procedure Act, 5 U.S.C. 701 et.

seq. ............................................................................ 9

5 U.S.C. 704............................................................ 9

Foreign Affairs Reform and Restructuring Act of

1998, Pub. L. No. 105-277, Div. G, § 2242(d),

112 Stat. 2681–822................................................... 3

Immigration and Nationality Act of 1952,

8 U.S.C. 1101 et seq. ............................................. 5, 9

8 U.S.C. 1101(a)(47)(B) ....................................... 15

8 U.S.C. 1228(b) ..................................................... 3

8 U.S.C. 1252.......................................................... 3

8 U.S.C. 1252(a)(1) ................................................. 6

8 U.S.C. 1252(a)(2)(C) .......................................... 14

8 U.S.C. 1252(a)(2)(D) .......................................... 14

8 U.S.C. 1252(a)(4) ........................................... 3, 14

8 U.S.C. 1252(b)(1) ......................................... 3, 4, 9

8 U.S.C. 1252(b)(9) ................................................. 3

8 U.S.C. 1252(d) ..................................................... 9

8 U.S.C. 1252(d)(1) ............................................. 4, 9

Prison Litigation Reform Act of 1995,

42 U.S.C. 1997e(a).................................................... 8

28 U.S.C. 1291 ....................................................... 9, 10

29 U.S.C. 626(d)........................................................... 8

42 U.S.C. 2000e-5(e) ................................................... 8

8 C.F.R. 208.31(e) .................................................. 3, 11

8 C.F.R. 208.31(g)(2).................................................. 11

8 C.F.R. 238.1(d) .......................................................... 3

8 C.F.R. 1208.5(a) ........................................................ 3

(iv)

Other authorities

James E. Dunlap, Administrative Law—

Exhaustion of Administrative Remedies as a

Prerequisite to Judicial Review—Discretionary

Treatment By Federal Courts, 44 Mich. L. Rev.

1034 (1946) ............................................................... 6

Howard B. Eisenberg & Alan B. Morrison,

Discretionary Appellate Review of Non-Final

Orders: It’s Time to Change the Rules, 1 J. App.

Prac. & Process 285 (1999) ................................... 12

William Funk, Exhaustion of Administrative

Remedies—New Dimensions Since Darby, 18

Pace Envir. L. Rev. 1 (2000) .................................... 7

D. Bruce Janzen Jr., First Impressions and Last

Resorts: The Plenary Power Doctrine, the

Convention Against Torture, and Credibility

Determinations in Removal Proceedings, 67

Emory L. J. 1235 (2018) ......................................... 12

Jeffrey S. Lubbers, Fail to Comment at Your Own

Risk: Does Issue Exhaustion Have a Place in

Judicial Review of Rules?, 70 Admin L. Rev.

109 (2018) ................................................................. 7

Katherine A. Macfarlane, The Improper

Dismissal of Title VII Claims on

“Jurisdictional” Exhaustion Grounds: How

Federal Courts Require that Allegations be

Presented to an Agency Without the Resources

to Consider Them, 21 Geo. Mason U. Civ. Rts.

L.J. 213 (2011) .......................................................... 8

Maurice Rosenberg, Solving the Federal FinalityAppealability Problem, 47 Duke L. Rev. 171

(1984) ...................................................................... 10

(v)

In the Supreme Court of the United States

NO. 23-1270

PIERRE YASSUE NASHUN RILEY, PETITIONER,

MERRICK B. GARLAND, ATTORNEY GENERAL

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF

ADMINISTRATIVE LAW PROFESSORS

AS AMICI CURIAE IN SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE1

Amici curiae are legal scholars who teach and write

about administrative law, civil procedure, and constitutional law. Amici have a strong interest in the proper

development and application of administrative law

principles. Amici are participating solely in their individual capacities; their academic affiliations are listed

solely for identification purposes. Amici are:

1 No counsel for a party authored this brief in whole or in part, and

no person or entity other than amici and their counsel made a monetary contribution to its preparation or submission. S. Ct. Rule 37.6.

(1)

Alan B. Morrison, Lerner Family Associate Dean for

Public Interest and Public Service Law at The George

Washington University Law School;

Robert L. Glicksman, J.B & Maurice C. Shapiro Professor of Environmental Law at The George Washington

University Law School;

Emily Hammond, Professor of Law at The George

Washington University Law School;

Jeffrey Lubbers, Professor of Practice of Law, Washington College of Law at American University; and

Richard J. Pierce, Lyle T. Alverson Professor of Law

at The George Washington University Law School.

SUMMARY OF ARGUMENT

Congress has provided detailed substantive and procedural protections to ensure that no person is removed

to a country where it is likely they will be tortured or

killed. Even when a noncitizen has been ordered removed from the United States and administrative review of the removal decision itself is barred, the noncitizen can still seek relief under the Convention Against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), art. 3, adopted Dec. 10,

1984, S. Treaty Doc. No. 20, 100th Cong., 2d Sess.

(1988), 1465 U.N.T.S. 85, not to be removed to a particular country because of the risk of torture or death

there. If CAT relief is denied in those proceedings—

called “withholding-only” proceedings because there is

no opportunity to challenge the order of removal itself—

the noncitizen can obtain judicial review of that denial:

“[T]he sole and exclusive means for judicial review” of a

CAT order is via a petition for review filed in the appropriate court of appeals. 8 U.S.C. 1252(a)(4); see Foreign

Affairs Reform and Restructuring Act of 1998, Pub. L.

No. 105-277, Div. G, § 2242(d), 112 Stat. 2681–822 (note

following 8 U.S.C. 1231) (“[P]rovid[ing] for judicial review of CAT claims ‘as part of the review of a final order

of removal pursuant to … 8 U.S.C. § 1252.’”). The noncitizen may file only a single petition for review, covering

all issues to be reviewed. 8 U.S.C. 1252(b)(9).

Notably, Congress required that, before seeking judicial review, the noncitizen first must “exhaust[] all administrative remedies available … as of right,” 8 U.S.C.

1252(d)(1), and must file the petition for review “not

later than 30 days after the date of the final order of removal,” 8 U.S.C. 1252(b)(1).

In the decision below, the Fourth Circuit held that a

noncitizen who seeks judicial review of a CAT order in a

withholding-only proceeding must file a petition for review within 30 days after a Department of Homeland

Security (“DHS”) officer issues the underlying “Final

Administrative Removal Order,” (“FARO”), i.e., the conclusive administrative order that an aggravated felon be

removed from the United States. See 8 U.S.C. 1228(b);

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

For a noncitizen in withholding-only proceedings,

however, such an order marks the start—not the end—

of the relevant administrative process. The initiation of

withholding-only proceedings stays removal to the country at issue, see 8 C.F.R. 1208.5(a), and the immigration

judge and Board of Immigration Appeals (“BIA”) need

to make and then review the CAT determination, see 8

C.F.R. 208.31(e).

The Fourth Circuit’s rule would thus require a

noncitizen to file a petition for review before the immigration judge has issued even a preliminary ruling on

the CAT application, much less a final one denying CAT

relief. The Fourth Circuit’s rule would likewise require

noncitizens to file a petition for review before they could

possibly have exhausted available administrative remedies, which include an appeal to the BIA. Under the

Fourth Circuit’s approach, a noncitizen seeking judicial

review of a CAT order thus must file a petition for review essentially as a placeholder, to preserve the right

to obtain judicial review in the future if the agency later

denies CAT relief.

That rule is inconsistent with the statutory text and

scheme, as petitioner and the government explain. See

Pet. Br. 29–44; U.S. Br. 25–40. Amici write to emphasize that it is also inconsistent with bedrock principles

of administrative law, which Congress is presumed to

have followed when providing for judicial review and requiring “final[ity]” and “exhaust[ion].” 8 U.S.C.

1252(b)(1), (d)(1); see, e.g., Sekhar v. United States, 570

U.S. 729, 733 (2013) (“[I]f a word is obviously transplanted from another legal source, whether the common

law or other legislation, it brings the old soil with it.”

(citation omitted)).

First, it is well settled that litigants generally must

exhaust their administrative remedies before pursuing

judicial review of agency action. That requirement protects an agency’s decisionmaking power and expertise,

and also enhances judicial efficiency.

Second, as a matter of both administrative law and

civil procedure more generally, orders are ordinarily not

subject to judicial review until they are “final,” meaning

that the order conclusively adjudicates the litigant’s relevant rights and in turn becomes sufficiently ripe for judicial review of the agency’s decision. Again, this principle promotes judicial efficiency and avoids unnecessary

or premature judicial intrusion.

Together, these two principles powerfully support petitioner and the government: Congress did not require

noncitizens to file a petition for review of a CAT order

before they have exhausted their administrative remedies and before the agency has issued a final decision on

the CAT application. Rather, the 30-day clock starts

once the administrative process is complete and the underlying proceedings have become final for purposes of

judicial review.

ARGUMENT

I. The Fourth Circuit’s Rule Contravenes

Principles of Exhaustion and Finality

Settled

A. Exhaustion and finality are fundamental principles

of judicial review

Two related, but distinct, principles of judicial review

should inform this Court’s understanding and interpretation of the relevant provisions of the Immigration and

Nationality Act of 1952 (“INA”), 8 U.S.C. 1101 et seq.

The first is exhaustion, which generally requires—even

in the absence of express congressional direction—that

a litigant must exhaust administrative remedies before

seeking judicial review of agency action. The second is

finality, which limits judicial review to actions or decisions that actually determine rights and obligations and

in turn are ripe for judicial review.

1. Administrative exhaustion is a settled rule that

protects agency authority and enhances judicial

efficiency

“This Court long has acknowledged the general rule

that parties exhaust prescribed administrative remedies before seeking relief from the federal courts.”

McCarthy v. Madigan, 503 U.S. 140, 144–145 (1992). Indeed, this Court had recognized exhaustion as a “longsettled” rule by 1938. Myers v. Bethlehem Shipbuilding

Corp., 303 U.S. 41, 50–51 (1938). That is well before

Congress enacted the Administrative Orders Review

Act of 1950 (Hobbs Act), ch. 1189, 64 Stat. 1129, which

now governs petitions for review in immigration matters. See 8 U.S.C. 1252(a)(1). Exhaustion has been the

default rule for judicial review of administrative action

since the early 1900s, when Congress began creating

more administrative boards of review. See James E.

Dunlap, Administrative Law—Exhaustion of Administrative Remedies as a Prerequisite to Judicial Review—

Discretionary Treatment By Federal Courts, 44 Mich. L.

Rev. 1034, 1036 (1946); see also Fed. Power Comm’n v.

Colo. Interstate Gas Co., 348 U.S. 492, 500 (1955) (noting the “time-honored doctrine of exhaustion of administrative remedies”). And this Court has since recognized that the INA imposes an exhaustion requirement,

describing exhaustion as a “quintessential claim-processing rule.” Santos-Zacaria v. Garland, 598 U.S. 411,

417 (2023).

Requiring exhaustion advances two “twin purposes”:

“protecting administrative agency authority and promoting judicial efficiency.” McCarthy, 503 U.S. at 145;

Woodford v. Ngo, 548 U.S. 81, 89 (2006) (same).

As to the first goal—protecting agency authority—

this Court has emphasized that an agency is “created

for the purpose of applying a statute in the first instance,” so “it is normally desirable to let the agency develop the necessary factual background upon which decisions should be based.” McKart v. United States, 395

U.S. 185, 194 (1969); see also William Funk, Exhaustion

of Administrative Remedies—New Dimensions Since

Darby, 18 Pace Envir. L. Rev. 1, 2 (2000). “[S]ince

agency decisions are frequently of a discretionary nature or frequently require expertise, the agency should

be given the first chance to exercise that discretion or to

apply that expertise.” McKart, 395 U.S. at 194. In other

words:

Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently

and so that it may have an opportunity to correct its

own errors, to afford the parties and the courts the

benefit of its experience and expertise, and to compile

a record which is adequate for judicial review.

Weinberger v. Salfi, 422 U.S. 749, 765 (1975). Exhaustion therefore ensures “that the agency has had the opportunity to bring its expertise to bear and to correct any

errors it may have made at an earlier stage.” Jeffrey S.

Lubbers, Fail to Comment at Your Own Risk: Does Issue

Exhaustion Have a Place in Judicial Review of Rules?,

70 Admin L. Rev. 109, 111 (2018).

As to the second goal—enhancing judicial efficiency—exhaustion keeps “premature” actions out of

court entirely. McKart, 395 U.S. at 193. Claims can

sometimes be “settled at the administrative level,” and

sometimes “the proceedings before the agency convince

the losing party not to pursue the matter in federal

court.” Woodford, 548 U.S. at 89. And “[c]laims gener-

ally can be resolved much more quickly and economically” in agency proceedings rather than in federal

court. Ibid. Requiring exhaustion therefore can help

eliminate the need for an expensive and time-consuming Article III proceeding altogether. See McKart, 395

U.S. at 195; see also Katherine A. Macfarlane, The Improper Dismissal of Title VII Claims on “Jurisdictional”

Exhaustion Grounds: How Federal Courts Require that

Allegations be Presented to an Agency Without the Resources to Consider Them, 21 Geo. Mason U. Civ. Rts.

L.J. 213, 219–220 (2011). And even where a matter ultimately proceeds to federal court, exhaustion allows for

development of a complete factual record before the

agency. See Carr v. Saul, 593 U.S. 83, 89, 90 (2021).

This Court has long required administrative exhaustion even when a statute does not expressly require it.

E.g., McCarthy, 503 U.S. at 144; see also Ross v. Blake,

578 U.S. 632, 640 (2016) (discussing judge-made exhaustion). Congress also frequently codifies the requirement of administrative exhaustion in various statutory

review schemes. For example, the Prison Litigation Reform Act of 1995, 42 U.S.C. 1997e(a), at issue in Ross,

bars covered suits “until such administrative remedies

as are available are exhausted.” Ibid. And before filing

a Title VII lawsuit in court, a plaintiff must first file a

discrimination claim with the Equal Employment Opportunity Commission and obtain a right-to-sue letter.

See 42 U.S.C. 2000e-5(e); see also 29 U.S.C. 626(d) (similar for age discrimination).

Administrative exhaustion is therefore the default

rule for judicial review of agency action. And the requirement carries particular force when Congress has

expressly required exhaustion in a statute. See Ross,

578 U.S. at 640. As noted above, it has done so here. See

8 U.S.C. 1252(d)(1).

2. Finality is a core principle of administrative law

and judicial review more broadly

Finality is a fundamental principle of administrative

law, and judicial review more generally. “[T]he finality

requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury[.]” Darby v.

Cisneros, 509 U.S. 137, 144 (1993) (citation omitted).

Like exhaustion, the finality requirement in administrative law was well settled before Congress adopted the

Hobbs Act, the INA, or the specific provisions at issue

here. E.g., Chicago & S. Air Lines, Inc. v. Waterman S.S.

Corp., 333 U.S. 103, 112–114 (1948). The Administrative Procedure Act, 5 U.S.C. 701 et seq., allows for judicial review only of “final agency action.” 5 U.S.C. 704.

And the INA provision applicable here likewise permits

judicial review only of “final” agency action. See 8 U.S.C.

1252(b)(1), (d).

In the administrative context, finality has two elements. First, “the action must mark the ‘consummation’

of the agency’s decisionmaking process,” and second,

“the action must be one by which ‘rights or obligations

have been determined,’ or from which ‘legal consequences will flow.’” Bennett v. Spear, 520 U.S. 154, 177–

178 (1997) (citations omitted); see also Abbott Labs. v.

Gardner, 387 U.S. 136, 149 (1967). For example, this

Court has held that action that merely initiates further

administrative process is not “final.” FTC v. Standard

Oil Co. of Cal., 449 U.S. 232, 240–241 (1980).

Finality is also fundamental to civil litigation more

broadly. “Finality as a condition of review is an historic

characteristic of federal appellate procedure. It was

written into the first Judiciary Act and has been departed from only when observance of it would practically defeat the right to any review at all.” Cobbledick v.

United States, 309 U.S. 323, 324–325 (1940) (footnotes

omitted). The finality requirement is currently codified

in 28 U.S.C. 1291. Under the final judgment rule, a “final” decision is “typically one ‘by which a district court

disassociates itself from a case.’” Mohawk Indus., Inc. v.

Carpenter, 558 U.S. 100, 106 (2009) (citation omitted).

This Court in turn “routinely require[s] litigants to wait

until after final judgment to vindicate” their right of appellate review. Id. at 108–109.

The rationale for finality is similar in both contexts:

Requiring final action before judicial review promotes

efficient judicial administration. See Eisen v. Carlisle &

Jacquelin, 417 U.S. 156, 170 (1974). “This final-judgment rule … preserves the proper balance between trial

and appellate courts, minimizes the harassment and delay that would result from repeated interlocutory appeals, and promotes the efficient administration of justice.” Microsoft Corp. v. Baker, 582 U.S. 23, 36–37

(2017). “Pretrial appeals may cause disruption, delay,

and expense for the litigants; they also burden appellate

courts by requiring immediate consideration of issues

that may become moot or irrelevant[.]” Stringfellow v.

Concerned Neighbors in Action, 480 U.S. 370, 380

(1987); see Maurice Rosenberg, Solving the Federal Finality-Appealability Problem, 47 Duke L. Rev. 171, 171

(1984).

The finality requirement also implicates fundamental concerns of Article III justiciability. By preventing

review until the dispute between the regulated party

and the agency is fully ripe, finality helps to “prevent

the courts, through premature adjudication, from entangling themselves in abstract disagreements.”

Thomas v. Union Carbide Agric. Prods. Co., 473 U.S.

568, 580 (1985) (citation omitted); see also Warth v.

Seldin, 422 U.S. 490, 499 n.10 (1975) (ripeness concerns

“whether the harm asserted has matured sufficiently to

warrant judicial intervention”). Indeed, if an agency has

not actually denied an application for relief and the denial is not “imminent,” there may not even be a “case” or

“controversy” between the applicant and the agency.

See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).

B. The Fourth Circuit’s rule would contravene these

principles by requiring a person to seek review of

non-final orders and unexhausted claims

The Fourth Circuit’s rule requiring the filing of a petition for judicial review before a noncitizen has exhausted their administrative remedies and before the

agency has decided the application for CAT relief is inconsistent with both of these fundamental principles.

Under the Fourth Circuit’s rule, the 30-day clock for

seeking judicial review of a CAT order starts ticking at

the very beginning of withholding-only proceedings:

when DHS enters the underlying order of removal (the

FARO). But when the asylum officer finds that a noncitizen has a reasonable fear, that starts full withholding-only proceedings before an immigration judge with

a later appeal to the BIA. See 8 C.F.R. 208.31(e); 8

C.F.R. 208.31(g)(2). By definition, that process cannot

be finished on the date the underlying order of removal

is entered: the administrative process for the CAT claim

has only just begun. The Fourth Circuit’s rule therefore

dispenses with both exhaustion and finality, notwithstanding that Congress has expressly required both.

The policy concerns underlying administrative exhaustion are at their zenith here. Protection of the

agency’s power to make difficult policy judgments is crucial in the context of CAT proceedings, which often require a nuanced understanding of foreign affairs and

country conditions abroad, which are issues uniquely

within the expertise of DHS, immigration judges, and

the BIA. See D. Bruce Janzen Jr., First Impressions and

Last Resorts: The Plenary Power Doctrine, the Convention Against Torture, and Credibility Determinations in

Removal Proceedings, 67 Emory L. J. 1235, 1237 (2018).

Courts—and especially appellate courts—are poorly positioned to make those determinations in the first instance. “[W]hen it comes to collecting evidence and

drawing factual inferences in th[ese] area[s], ‘the lack of

competence on the part of the courts is marked.’” Holder

v. Humanitarian L. Project, 561 U.S. 1, 34 (2010) (citation omitted).

Likewise, dispensing with administrative exhaustion, as the Fourth Circuit’s rule in effect does, would

impair judicial efficiency and result in a “scheme [that]

is freakish and inconsistent in its application.” Howard

B. Eisenberg & Alan B. Morrison, Discretionary Appellate Review of Non-Final Orders: It’s Time to Change the

Rules, 1 J. App. Prac. & Process 285, 291 (1999). For example, to satisfy the Fourth Circuit’s deadline, petitioner would have had to file his petition for review contemporaneously with his initial filing for CAT relief itself—16 months before the BIA issued its final decision

after petitioner exhausted his administrative remedies.

The Fourth Circuit then, although met with a document purporting to be a “petition for review,” would

have no relevant record or decision to “review” at all.

The court thus would have to hold the petition in abeyance until at least the immigration judge and the BIA

have ruled. That sequence of filing, abeyance, administrative exhaustion, a final decision, and then reopening

of appellate proceedings would mark a sharp “intrusion

into the ordinary processes of administration and judicial review.” Nken v. Holder, 556 U.S. 418, 427 (2009).

Requiring noncitizens to file their petitions for review before there is a CAT order to review also runs

headlong into the finality principle. At the time the

30-day clock would begin to run, the agency would not

have issued any decision at all on the CAT application,

much less a final one representing “the ‘consummation’

of the agency’s decisionmaking process” and determining “‘rights or obligations.’” Bennett, 520 U.S. at 178–

178 (citations omitted). Not only would that be nonsensical—because there would be no agency action for the

court to “review”—but also it would contravene the rule

that courts of appeals are “court[s] of review, not of first

view.” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005).

The requirements of the Hobbs Act lay bare the irrationality of this procedure and its inconsistency with the

statutory scheme. For example, the Hobbs Act requires

the petitioner to attach “the order, report, or decision of

the agency” to the petition for review. 28 U.S.C. 2344.

But under the Fourth Circuit’s rule, there would be no

way to attach the relevant “decision” or “order,” because

the CAT application would still be pending. Likewise,

the Hobbs Act requires the agency to certify the administrative “record on review.” 28 U.S.C. 2346. But the

agency would only just be starting the development of

the administrative record on the CAT claim, so there

would be no way for the agency to certify the relevant

“record” until the underlying proceedings are complete.

The Hobbs Act’s requirements thus weigh heavily

against the Fourth Circuit’s rule.

Contrary to the Fourth Circuit’s ruling, this Court’s

decision in Nasrallah v. Barr, 590 U.S. 573 (2020), does

not render these background principles inapplicable to

the INA. In Nasrallah, this Court held that “a CAT order is distinct from a final order of removal and does not

affect the validity of the final order of removal,” and that

a “CAT order therefore does not merge into the final order of removal” for purposes of the “limitation on the

scope of judicial review” set forth in 8 U.S.C.

1252(a)(2)(C) and (D). Id. at 583. But that reasoning

does not require the clock for reviewing a CAT order to

start ticking when the agency enters the FARO and has

started but not yet completed withholding-only proceedings. Although ongoing withholding-only proceedings do

not “affect the validity” of the FARO—because the order

of removal will remain in place no matter the outcome

of those proceedings—withholding-only proceedings

plainly affect the finality of the order for purposes of

starting the clock to initiate judicial review. Ibid. (emphasis added). The order of removal must be reviewed

together with the CAT order in a single appellate proceeding, see 8 U.S.C. 1252(a)(4), but the CAT proceedings are still ongoing and indeed will only have just begun. Because both orders must be reviewed together,

neither order is yet final for purposes of appellate review.

In Nasrallah, the Court gave a hypothetical of a statute that “furnishes appellate review of convictions and

sentences in a single appellate proceeding,” but limits

review of certain factual challenges to the sentence. 590

U.S. at 583. The Court explained that such a statute

would not bar review of factual challenges to the conviction “just because the conviction and sentence are reviewed together.” Ibid. Such a statute similarly would

not require the defendant who wants to challenge only

his sentence to file a notice of appeal after he has pled

guilty, but before he has been sentenced. The sentence

would not affect the validity of the conviction, because

the conviction would remain valid regardless of the sentence. But the ongoing sentencing proceedings would

render the conviction non-final for purposes of starting

the clock for seeking appellate review, because the sentence and conviction must be reviewed together and the

sentencing proceedings would not yet be complete.

As petitioner and the government explain, see Pet.

Br. 25–30, U.S. Br. 38–40, the definition in 8 U.S.C.

1101(a)(47)(B) does not apply here because a FARO is

not appealable to the BIA and thus could never become

“final” within the meaning of that provision. Rather, the

relevant definition of finality comes from background

principles of finality in administrative law and civil procedure. And under those principles, as set forth above,

the order does not become “final” for purposes of appellate review until the end of the withholding-only proceedings, when the BIA affirms the order denying CAT

relief.

* * *

Congress explicitly provided for judicial review of

CAT orders together with the underlying order of removal. Congress also explicitly required noncitizens to

exhaust their administrative remedies before pursuing

such relief. This Court should hold that the time for initiating review of a CAT order begins after both the removal order and the final CAT order have been entered,

thus at the conclusion of the administrative process and

giving the individual the opportunity to exhaust, as

Congress has required.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.