Amicus Curiae Brief — Pierre Yassue Nashun Riley, Petitioner v. Pamela Bondi, Attorney General
Supreme Court briefJan 10, 2025
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No. 23-1270
IN THE
Supreme Court of the United States
___________
PIERRE YASSUE NASHUN RILEY,
Petitioner,
v.
MERRICK B. GARLAND, ATTORNEY GENERAL,
Respondent.
___________
On Writ of Certiorari to the U.S. Court of
Appeals for the Fourth Circuit
___________
BRIEF OF AMICI CURIAE
IMMIGRATION LEGAL SERVICE PROVIDERS
SUPPORTING PETITIONER
___________
AIMEE MAYER-SALINS
SAMANTHA HSIEH
AMICA CENTER FOR
IMMIGRANT RIGHTS
1025 Connecticut Ave. NW,
Suite 701
Washington, D.C. 20036
MELISSA CROW
CENTER FOR GENDER &
REFUGEE STUDIES
1121 14th Street NW,
Suite 200
Washington, DC 20005
TOBIAS S. LOSS-EATON
Counsel of Record
SCOTT LOWDER
SIDLEY AUSTIN LLP
1501 K Street NW
Washington, D.C. 20005
(202) 736-8000
tlosseaton@sidley.com
CHARLES ROTH
NATIONAL IMMIGRANT
JUSTICE CENTER
111 W. Jackson Blvd.,
Suite 800
Chicago, IL 60604
ROBERT PAUW
CENTER FOR GENDER &
REFUGEE STUDIES
C/O GIBBS HOUSTON PAUW
1000 Second Ave. #1600
Seattle, WA 98104
January 10, 2025
Counsel for Amici Curiae
TABLE OF CONTENTS
Table of authorities...................................................... ii
Interests of amici curiae .............................................. 1
Summary of argument................................................. 2
Argument ..................................................................... 4
I. The Fourth Circuit’s decision adds to a
complex and demanding procedural scheme. ........ 4
II. The Fourth Circuit’s rule severely burdens
noncitizen
petitioners
by
imposing
counterintuitive and impractical demands. .......... 8
A. Noncitizens would not reasonably expect
that they must seek review of withholdingonly proceedings before those proceedings
end (or even begin). ........................................... 9
B. Noncitizens face significant logistical
barriers to complying with the decision
below. ............................................................... 12
III.The decision below will pointlessly burden the
federal courts. ....................................................... 16
A. Requiring prophylactic petitions for review
will burden the courts of appeals with
unnecessary paperwork. ................................. 16
B. The Fourth Circuit’s rule conflicts with the
statutory venue provisions and Congress’s
intent for efficient removal proceedings......... 18
Conclusion .................................................................. 20
(i)
ii
CASES
TABLE OF AUTHORITIES
Page
Alonzo-Juarez v. Garland, 80 F.4th 1039
(5th Cir. 2023) ...........................................
15
Argueta-Hernandez v. Garland, 87 F.4th
698 (5th Cir. 2023) .................................... 13, 17
Bhaktibhai-Patel v. Garland, 32 F.4th 180
(2d Cir. 2022) ........................................ 8, 9, 16
Cook County v. Wolf, 962 F.3d 208 (7th Cir.
2020) ..........................................................
12
Garland v. Aleman Gonzalez, 596 U.S. 543
(2022) ......................................................... 4, 9
Guerrero-Lasprilla v. Barr, 589 U.S. 221
(2020) .........................................................
20
Johnson v. Guzman Chavez, 594 U.S. 523
(2021) .........................................................
6
Martinez v. Larose, 968 F.3d 555 (6th Cir.
2020) .......................................................... 8, 16
Nasrallah v. Barr, 590 U.S. 573 (2020) .......
5
Niz-Chavez v. Garland, 593 U.S. 155
(2021) .........................................................
12
Padilla v. Kentucky, 559 U.S. 356 (2010) ....
9
Reno v. Am.-Arab Anti-Discrimination
Comm., 525 U.S. 471 (1999) .....................
19
Woodford v. Ngo, 548 U.S. 81 (2006) ...........
16
STATUTES AND REGULATIONS
5 U.S.C. § 704 ............................................... 12, 20
8 U.S.C. § 1228(b) .........................................
4
§ 1231(a)(2) ....................................
10
§ 1231(a)(5) ....................................
6
§ 1231(a)(6) ....................................
10
§ 1231(b)(3)(A) ...............................
5
§ 1252(b)(1) ....................................
13
§ 1252(b)(2) ....................................
18
§ 1252(b)(4)(A) ...............................
16
iii
TABLE OF AUTHORITIES – Continued
Page
§ 1252(b)(9) ....................................
19
§ 1362 .............................................
7
28 U.S.C. § 1291 ...........................................
20
Pub. L. No. 109-13, 119 Stat. 203 ................
20
8 C.F.R. § 208.16 .......................................... 5, 6
§ 208.17 ..........................................
5
§ 208.30(g)(1)(i) ..............................
6
§ 208.31(a) ......................................
5
§ 208.31(b) ...................................... 5, 11
§ 208.31(c) ......................................
11
§ 208.31(e) ...................................... 6, 11
§ 208.31(f)....................................... 6, 11
§ 208.31(g) ...................................... 6, 11
§ 208.31(g)(2) .................................
6
§ 238.1 ............................................
4
§ 238.1(a) ........................................
4
§ 238.1(b) ........................................
4
§ 238.1(b)(2)(i) ................................
10
§ 238.1(c) ........................................ 4, 5
§ 238.1(d) ........................................
5
§ 238.1(g) ........................................
10
§ 241.8(a) ........................................
10
§ 241.8(e) ........................................
10
§ 241.8(f) ........................................
10
§ 1003.20 ........................................
13
§ 1208.16 ........................................
5
§ 1208.17 ........................................
5
RULES
Fed. R. App. P. 24(a)(1)(C) ...........................
Fed. R. Civ. P. 41(b) .....................................
1st Cir. R. 25(c)(3) ........................................
4th Cir. R. 12(d) ............................................
4th Cir. R. 45 ................................................
15
18
18
17
18
iv
TABLE OF AUTHORITIES – Continued
Page
5th Cir. R. 42.3 .............................................
18
9th Cir. R. 42-1 .............................................
18
9th Cir. R. 46-3 .............................................
17
LEGISLATIVE MATERIALS
151 Cong. Rec. H2813 (daily ed. May 3,
2005) ..........................................................
20
INTERNATIONAL MATERIALS
Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment
or Punishment, adopted Dec. 10, 1984, S.
Treaty Doc. No. 20, 100th Cong., 2d Sess.
(1988), 1565 U.N.T.S. 114 ........................
5
SCHOLARLY AUTHORITIES
Andrew Hammond, Pleading Poverty in
Federal Court, 128 Yale L.J. 1478 (2019)
15
OTHER AUTHORITIES
Application to Appeal In Forma Pauperis,
U.S. Court of Appeals for the Fourth Circuit, https://shorturl.at/CiGGu (last visited Jan. 9, 2025) .......................................
Automated Case Information, Exec. Off. for
Immigr.
Rev.,
https://acis.eoir.justice.gov/en/ (last visited Jan. 9, 2025) ......
Court of Appeals Miscellaneous Fee Schedule, U.S. Courts, https://shorturl.at/6CtO4
(last visited Jan. 9, 2025) ..........................
15
15
15
v
TABLE OF AUTHORITIES – Continued
Cut Off: How ICE Detention Facilities Block
Communication, UC San Diego Innovation Law Lab (Aug. 2021), https://
shorturl.at/lZ4VG ......................................
Detention Facilities, U.S. Immigr. & Customs Enf’t, https://shorturl.at/KmSCu
(last updated Mar. 30, 2023) ....................
Ingrid Eagly & Steven Shafer, Access to
Counsel in Immigration Court, Am. Immigr.
Council
(Sept.
2016),
https://shorturl.at/t0ghB ...........................
Emma Lazarus, The New Colossus (1883),
reprinted in America Forever New: A Book
of Poems (John E. Brewton & Sara W.
Brewton eds., 1968) ...................................
Legal Orientation Program, Acacia Ctr. for
Just., https://shorturl.at/wYMeF (last visited Jan. 9, 2025) .......................................
Yuki Noguchi, Unequal Outcomes: Most ICE
Detainees Held in Rural Areas Where Deportation Risks Soar, NPR (Aug. 15,
2019), https://shorturl.at/6Kb6o ...............
Too Few Immigration Attorneys: Average
Representation Rates Fall from 65% To
30%, Transactional Records Access Clearinghouse
(Jan.
24,
2024),
https://shorturl.at/D7kD9 .........................
M. von Werthern et al., The Impact of Immigration Detention on Mental Health: A
Systematic Review, BMC Psychiatry (Dec.
6, 2018), https://shorturl.at/qOop0 ...........
Page
14
7
7
8
7
7
7
10
INTERESTS OF AMICI CURIAE
Amici are nonprofit organizations whose missions
include advocating for and on behalf of immigrants,
refugees, and asylum seekers. 1 Amici frequently assist noncitizens in pursuing appellate review of removal orders—both at the agency level before the
Board of Immigration Appeals and in federal court under 8 U.S.C. § 1252. Because there is no right to government-funded counsel in removal proceedings, amici
also devote significant resources to advising pro se litigants in the immigration appeals process. Drawing
from and informed by their practical litigation experience, amici share an interest in ensuring that noncitizens facing removal from the United States have a fair
and meaningful opportunity to obtain judicial review
of errors made in agency adjudications. Amici include:
•
The Advocates for Human Rights
•
American Gateways
•
Americans for Immigrant Justice
•
Amica Center for Immigrant Rights
•
Black Alliance for Just Immigration (BAJI)
•
Center for Gender and Refugee Studies
•
Co-Counsel NYC
•
Florence Immigrant & Refugee Rights
Project
•
Immigrant Defenders Law Center (ImmDef)
•
Immigrant Legal Defense
1 No counsel for a party authored this brief in whole or in part,
and no entity or person, other than amici curiae, their members,
and their counsel, made a monetary contribution intended to fund
the preparation or submission of this brief.
2
•
La Raza Centro Legal
•
Legal Aid Justice Center
•
Make the Road New York
•
Mission Action
•
National Immigrant Justice Center
•
National Immigration Project of the
National Lawyers Guild (National
Immigration Project)
•
New York Legal Assistance Group (NYLAG)
•
Northwest Immigrant Rights Project
•
Pangea Legal Services
•
Public Counsel
•
Public Law Center
•
Rocky Mountain Immigrant Advocacy
Network
•
Tahirih Justice Center
SUMMARY OF ARGUMENT
Amici agree with petitioner that the Fourth Circuit’s
interpretation of 8 U.S.C. § 1252(b)(1) is erroneous.
Amici write separately to explain that their practical
experience representing noncitizens in removal proceedings further confirms why the judgment below
should be reversed. The Fourth Circuit’s rule creates
an irrational, bifurcated review system that will produce duplicative filings, confuse noncitizens and their
attorneys, and prevent many noncitizens from obtaining judicial review of their reasonable-fear and withholding-only proceedings.
1. Because the Fourth Circuit’s approach is counterintuitive, many noncitizens will lack adequate notice
3
of its requirements. Under the decision below, noncitizens in pending reasonable-fear and withholding-only
proceedings must file petitions for review within thirty
days of their reinstatement or final administrative removal order (FARO). Noncitizens, who are often detained and largely pro se, have no reason to expect that
they must appeal a ruling that has not yet been made
in proceedings that may not even have begun. And
even if they were adequately informed of this strange
requirement, financial and administrative burdens
make it unlikely that many noncitizens will be able to
preserve their rights in this way. The decision below
thus risks foreclosing judicial review for people seeking protection from persecution and torture.
2. The Fourth Circuit’s rule would be highly resource
intensive, requiring unnecessary filings for litigants
and federal courts. To protect their right to judicial
review, noncitizens would be forced to file premature,
prophylactic petitions for review before their claims
are exhausted and pay the required fees. These petitions would clog the courts of appeals with needless
administrative paperwork and may linger for years
until reasonable-fear and withholding-only proceedings are completed. Some cases will be resolved or
abandoned before the completion of these proceedings,
mooting the petition and all subsequent filings.
This approach also turns a generally straightforward determination of proper venue into one that is
inefficient and unpredictable. Instead of following the
statutory provision that links venue to the immigration judge’s decision, the Fourth Circuit’s rule effectively requires the petition to be filed in the circuit
where the FARO or reinstatement order was issued,
regardless of where the immigration judge may be located. The rule thus contradicts the statutory scheme
4
and creates confusion. Experience in the Fourth and
Second Circuits illustrates these problems.
The Court should reverse the decision below.
ARGUMENT
I. The Fourth Circuit’s decision adds to a complex and demanding procedural scheme.
Before considering the myriad problems that the decision below produces, it is important to understand
the procedural requirements and “practical realities”
of the immigration system where the rule applies. See
Garland v. Aleman Gonzalez, 596 U.S. 543, 569 (2022)
(Sotomayor, J., concurring in the judgment in part and
dissenting in part).
Under the Immigration and Nationality Act, a person may be subject to summary administrative removal proceedings if they have been convicted of what
Immigration and Customs Enforcement believes is an
“aggravated felony.” 8 U.S.C. § 1228(b). Despite the
high stakes, the noncitizen does not appear before an
immigration judge and has no right to an administrative appeal to the Board of Immigration Appeals. See
8 C.F.R. § 238.1. Instead, the proceedings are conducted by a Department of Homeland Security immigration officer, often with no opportunity for meaningful participation by the noncitizen. See id. § 238.1(a)–
(c). Within minutes of questioning, the noncitizen is
handed a piece of paper (Form I-851, the Notice of Intent to Issue a Final Administrative Removal Order)
written in English—a language they often do not understand. This form is served alongside dozens of
other documents in the same unfamiliar language.
The noncitizen then has 10 days from the date of the
notice to submit a written response rebutting the allegations in English along with supporting evidence.
5
See id. § 238.1(c). If the officer determines that the
noncitizen’s removability is clearly established by the
evidence in the record, they will issue a FARO, which
is yet another unfamiliar form in an unfamiliar language. Id. § 238.1(d).
A noncitizen who fears persecution or torture if removed to the country named in the removal order may
request to be heard on that issue. They will then receive an interview with an asylum officer. 8 C.F.R.
§ 208.31(a)–(b). During this interview, usually conducted by phone, the officer asks questions to determine whether the noncitizen qualifies for one of two
forms of protection: withholding of removal, 8 U.S.C.
§ 1231(b)(3)(A), or protection under Article 3 of the
Convention Against Torture, see Convention Against
Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment, adopted Dec. 10, 1984, S.
Treaty Doc. No. 20, 100th Cong., 2d Sess. (1988), 1565
U.N.T.S. 114; 8 C.F.R. §§ 208.16–208.17, 1208.16–
1208.17 (implementing regulations).
To qualify for withholding, a person must show that
they are likely to be persecuted based on a protected
ground (race, religion, nationality, membership in a
particular social group, or political opinion) if removed
to the designated country. 8 U.S.C. § 1231(b)(3)(A). To
qualify for CAT protection, a person must show that
they are likely to be tortured upon removal to the designated country. Nasrallah v. Barr, 590 U.S. 573, 582
(2020) (citing 8 C.F.R. § 1208.17(b)(2)). There are two
types of CAT protection, withholding and deferral,
which we refer to together as “CAT protection.” See 8
C.F.R. §§ 1208.17 (deferral), 1208.16 (withholding).
The noncitizen must understand the requirements for
these forms of protection, which can be complicated
even for trained attorneys, before the interview begins.
6
If the asylum officer finds that the noncitizen has established a reasonable fear of persecution or torture,
the noncitizen is entitled to seek withholding of removal or CAT protection in proceedings before an immigration judge and, if necessary, to appeal to the
Board. 8 C.F.R. §§ 208.16, .31(e), .31(g)(2). If the asylum officer does not so find, the noncitizen may request
that an immigration judge review the negative decision. Id. § 208.31(f). The review consists of a short
hearing, typically 30 minutes or less, where the immigration judge may question the noncitizen about their
fear, evaluate credibility, and consider relevant documents about conditions in the person’s home country.
See id. § 208.31(g). If the immigration judge reverses
the determination, the person will have withholdingonly proceedings before an immigration judge, where
they can apply for withholding or CAT protection. Id.
But if the immigration judge agrees with the asylum
officer’s negative determination, the noncitizen has
limited options for relief. See id. The person may file
a request for reinterview with the asylum officer in exceptional circumstances, which may be denied in the
exercise of discretion. 8 C.F.R. § 208.30(g)(1)(i). Or
they may file a petition for review in a federal court of
appeals.
These same proceedings also apply to people who are
found to have reentered the country unlawfully after
having been previously removed. For a person in this
situation, the “prior order of removal is reinstated
from its original date and is not subject to being reopened or reviewed” and the person is “not eligible and
may not apply for” asylum—but they may still seek
withholding or CAT protection under the procedures
described here. 8 U.S.C. § 1231(a)(5); see also Johnson
v. Guzman Chavez, 594 U.S. 523 (2021); Pet. 20, Martinez v. Garland, No. 23-7678.
7
In immigration proceedings, there is no right to appointed counsel. 8 U.S.C. § 1362. The representation
rate for noncitizens is very low, particularly for people
in detention. 2 While Legal Orientation Program providers (including some amici) assist pro se detained
noncitizens by sharing basic information, they are not
substitutes for counsel and serve only a limited number of detained people. 3 Moreover, LOP is limited to
providing information about agency proceedings and
does not provide legal information concerning federal
court proceedings such as those regarding petitions for
review. Even finding paid counsel can be challenging
because many ICE detention facilities are located in
rural areas, far from major cities with accessible attorneys or legal service providers. 4
Additionally, throughout these proceedings, language barriers can significantly inhibit a noncitizen’s
ability to understand and comply with filing requirements. Even though interpreters are provided during
immigration court hearings, detained pro se noncitizens otherwise lack meaningful language access and
interpretation services. They therefore may misunderstand immigration law processes that do not occur in
2 See, e.g., Too Few Immigration Attorneys: Average Represen-
tation Rates Fall from 65% To 30%, Transactional Records Access
Clearinghouse (Jan. 24, 2024), https://shorturl.at/D7kD9; Ingrid
Eagly & Steven Shafer, Access to Counsel in Immigration Court,
Am. Immigr. Council (Sept. 2016), https://shorturl.at/t0ghB.
3 Compare Legal Orientation Program, Acacia Ctr. for Just.,
https://shorturl.at/wYMeF (last visited Jan. 9, 2025) (serving 35
detention facilities in-person and providing hotline-only support
in an additional 35), with Detention Facilities, U.S. Immigr. &
Customs Enf’t, https://shorturl.at/KmSCu (last updated Mar. 30,
2023) (listing over 100 total facilities).
4 See Yuki Noguchi, Unequal Outcomes: Most ICE Detainees
Held in Rural Areas Where Deportation Risks Soar, NPR (Aug.
15, 2019), https://shorturl.at/6Kb6o.
8
the courtroom. This is particularly true for the
streamlined removal proceedings described above. For
detained pro se noncitizens who do not speak English,
problems related to language access and interpretation can severely impede their ability to understand,
prepare for, and participate in their removal proceedings and their ability to timely file a prophylactic petition for review.
II. The Fourth Circuit’s rule severely burdens
noncitizen petitioners by imposing counterintuitive and impractical demands.
The Fourth Circuit’s approach is not just legally unsound, as Petitioner explains; it also imposes counterintuitive obstacles to judicial review. Noncitizens often flee to the United States precisely because they
trust in this nation’s historic commitment to protect
those “yearning to breathe free.” Emma Lazarus, The
New Colossus (1883), reprinted in America Forever
New: A Book of Poems (John E. Brewton & Sara W.
Brewton eds., 1968). This rule in effect asks refugees
to assume error or unfairness on the part of immigration authorities even before they have lost.
Under the decision below (and the Second Circuit’s
parallel holding in Bhaktibhai-Patel v. Garland, 32
F.4th 180, 192 (2d Cir. 2022)), the 30-day deadline to
file a petition seeking review of the denial of withholding or CAT protection would run from the issuance of
a FARO or reinstatement order—even if the fearbased proceedings to adjudicate these claims will continue for months or years after that date. See, e.g.,
Martinez v. Larose, 968 F.3d 555, 558 (6th Cir. 2020)
(noncitizen detained for over twenty-eight months
while awaiting withholding-only eligibility determination). In the vast majority of cases, the decision below
will require a noncitizen to file a petition challenging
9
the results of fear-based proceedings before those proceedings have even begun. See, e.g., Bhaktibhai‐Patel,
32 F.4th at 185–86 (asylum officer did not conduct reasonable-fear interview until three months after reinstatement order issued).
Applying this rule to vulnerable noncitizens, who are
mostly detained and pro se, “risks depriving many . . .
of any meaningful opportunity to protect their rights.”
Aleman Gonzalez, 596 U.S. at 569 (Sotomayor, J., concurring in the judgment in part and dissenting in
part). Noncitizens would need to navigate a system
that—contrary to the normal judicial process and basic
intuition—requires appeals to be filed before the challenged ruling has even been issued. Indeed, they
would need to file petitions very quickly after a cursory
interaction with a Homeland Security immigration officer, well before they present their fear claims. Even
trained attorneys are likely to be confused and misled
by this illogical dual-track approach. For unrepresented noncitizens, who often face language barriers,
administrative and financial burdens in detention,
and educational limitations, this procedural maze may
well prevent access to review. Given that “[i]mmigration law can be complex, and . . . a legal specialty of its
own,” Padilla v. Kentucky, 559 U.S. 356, 369 (2010),
the Fourth Circuit’s rule adds a needless hurdle to an
already opaque process.
A. Noncitizens would not reasonably expect
that they must seek review of withholding-only proceedings before those proceedings end (or even begin).
The decision below treats the beginning of withholding-only proceedings for these noncitizens as the final
order for purposes of 1252(b)(1)’s thirty-day deadline—
however long that process will continue thereafter.
FARO and reinstatement orders are usually issued
10
soon after a noncitizen arrives in ICE detention, when
they are shocked, traumatized, and confused. See M.
von Werthern et al., The Impact of Immigration Detention on Mental Health: A Systematic Review, BMC Psychiatry (Dec. 6, 2018), https://shorturl.at/qOop0; 8
C.F.R. § 238.1(g) (authorizing detention for FARO proceedings); 8 U.S.C. § 1231(a)(2), (6) (authorizing detention for noncitizens subject to reinstatement); 8 C.F.R.
§ 241.8(f) (same). Even noncitizens fortunate enough
to eventually obtain counsel often lack representation
at such an early stage. See 8 C.F.R. § 238.1(b)(2)(i)
(specifying that a “Notice of Intent” starts removal proceedings for FAROs); id. § 241.8(a), (e) (discussing reinstatement orders).
Nor can other officials involved in the removal process be expected to explain the Fourth Circuit’s rule.
Homeland Security immigration officers—non-lawyers with adverse interests—are poorly situated to explain the need to simultaneously prosecute fear-based
claims and file a petition for review that may be held
in abeyance for months or years, see infra § III.A. And
without proper notice, many noncitizens will fail to understand this illogical system. There is also no reason
to suppose that the small number of noncitizens who
will understand the system are those most likely to
merit immigration relief. To the contrary, noncitizens
who have suffered the most at the hands of their persecutors are the most likely to suffer from PTSD and
other physical or mental challenges that inhibit their
ability to proactively appeal before losing their case.
For those noncitizens who receive a reasonable-fear
interview, many will not have concluded their proceedings within thirty days of a FARO or reinstatement order. To do so, they must first be referred for a reasonable-fear interview, undergo the reasonable-fear interview, and then be referred to the immigration judge
11
(whether for full withholding-only proceedings or for
review of a negative reasonable-fear determination).
See 8 C.F.R. § 208.31(b) (noncitizens should receive
reasonable-fear determination within ten days of
Homeland Security’s referral after FARO or reinstatement order is issued absent exceptional circumstances); id. § 208.31(e) (providing for immigration
judge adjudication of withholding-only proceedings after noncitizen is found to have reasonable fear without
mention of deadline); id. § 208.31(g) (providing for immigration judge review of negative reasonable-fear determination within ten days after Notice of Referral is
filed absent exceptional circumstances).
U.S. Citizenship and Immigration Services asylum
officers, who conduct reasonable-fear interviews, id.
§ 208.31(c), are also not well-situated to inform noncitizens of the need to file prophylactic petitions for review; many are not attorneys, and as neutral arbiters,
they are not in a position to give legal advice to the
individuals appearing before them. The nature of the
asylum officer’s role would make this information even
more confusing: The officer, having found that a
noncitizen has a plausible protection claim, would advise the noncitizen to file an appeal in federal court in
case an immigration judge or the Board later denies
the claim.
Compounding these problems is the fundamentally
counterintuitive nature of the Fourth Circuit’s rule.
No U.S. court requires a criminal defendant to notice
an appeal immediately after they are charged with a
crime, before they have an opportunity to consult with
counsel and before they know if they want to go to
trial. Nor does the Administrative Procedure Act require (or allow) a party to seek review of an interlocutory agency decision to preserve the ability to challenge a later ruling that ends the agency proceedings.
12
See 5 U.S.C. § 704. Yet that is what the decision below
requires for noncitizens. Even people who are “[]familiar with English and the habits of American bureaucracies,” Niz-Chavez v. Garland, 593 U.S. 155, 170
(2021), would not expect a requirement to appeal before any claims for relief have been developed, let alone
adjudicated—and many noncitizens are not so familiar, see id.
With no one to explain the process, many noncitizens—who often do not understand what it means to
have a prior removal order reinstated or to receive a
FARO—will fail to understand the Fourth Circuit’s
rule and the consequences of noncompliance. As a result, many noncitizens are likely to unknowingly forfeit the opportunity for judicial review of their fearbased claims. Cf. Cook County v. Wolf, 962 F.3d 208,
228 (7th Cir. 2020) (rejecting the government’s interpretation of an immigration statute in part because it
“set[s] a trap for the unwary” that “many immigrants
are not sophisticated enough” to avoid).
B. Noncitizens face significant logistical
barriers to complying with the decision
below.
Even if noncitizens were adequately apprised of the
Fourth Circuit’s rule, longstanding procedural hurdles
would frequently prevent judicial review of withholding-only proceedings.
Lack of necessary information. At the moment
when noncitizens must file a prophylactic petition for
review under the decision below, they will lack information necessary to do so. Since no fear-based claims
will yet be adjudicated, noncitizens cannot advise the
court of the issues on appeal. They also may not know
which circuit to file in. A withholding‐only proceeding
may conclude in a different immigration court than
13
where it started, making it impossible to predict which
circuit will ultimately serve as the proper venue for review. See 8 C.F.R. § 1003.20 (permitting change of
venue from one immigration court to another); infra
section III.B. And people in this situation cannot yet
know if agency officials or the Board will ultimately
deny relief or commit reversible error at all. See Argueta-Hernandez v. Garland, 87 F.4th 698, 706 n.5
(5th Cir. 2023). Requiring an appeal at this early stage
and “without a full administrative record” makes no
sense and would have “disastrous consequences on the
immigration and judicial systems.” Id. at 706.
Delayed service of process and documents lost
in transfer. The text of § 1252(b)(1) focuses on “the
date of the final order of removal,” rather than the date
of service or receipt. See 8 U.S.C. § 1252(b)(b1). Yet in
amici’s experience, FAROs and reinstatement orders
are often served late, with some arriving months after
being issued. For example, amici know of one FARO
that was dated March 9, 2024. However, the Notice of
Intent to Issue was dated April 12, 2024, and the Certificate of Service was dated October 15, 2024. The
noncitizen subject of the FARO reports that she received a copy only after requesting it at her immigration judge hearing. 5
Under the Fourth Circuit’s rule, noncitizens who receive their FARO or reinstatement order more than
thirty days after issuance have already missed the
deadline to preserve their right to judicial review of
their CAT or withholding claims. Noncitizens who are
pro se typically do not know to ask for a copy of their
FARO or reinstatement order and do not have an attorney to request it for them. Similarly, noncitizens
5 A copy of these documents are on file with counsel.
14
who receive their orders late are likely unaware of the
implications.
What’s more, ICE frequently transfers noncitizens
from one detention facility to another in the middle of
the night, without any advance notice. Noncitizens
are woken up and forced to quickly gather their belongings in a disoriented state, and they often leave
behind important legal documents like FAROs or reinstatement orders. Even if a noncitizen realizes that
they have left important documents at a prior facility,
in amici’s experience, the prior facility is extremely
unlikely to forward the documents to the noncitizen at
the new facility. See Cut Off: How ICE Detention Facilities Block Communication, UC San Diego Innovation Law Lab, at 10–11 (Aug. 2021), https://shorturl.at
/lZ4VG (“Transfers cause confusion, loss of information, and isolation from family, lawyers, and advocates who could help migrants’ legal cases.”).
Without a copy of the order, immigration attorneys
and pro se litigants cannot tell when the 30-day deadline ends or in which circuit to file a prophylactic petition; noncitizens frequently do not remember the date
of the order or the location of issuance. Compounding
this problem, FAROs and reinstatement orders are
sometimes incomplete, omitting the date of service,
date of issuance, and name of the deportation officer
who allegedly served the document. These details are
nearly impossible to confirm before the expiration of
the 30-day deadline without such orders. Unlike removal proceedings in immigration court, there is no
website where counsel or a noncitizen’s family members can review the status of FARO proceedings, including the notice of intent to issue the FARO or even
the dates of such orders. See Automated Case Information,
Exec.
Off.
for
Immigr.
Rev.,
https://acis.eoir.justice.gov/en/ (last visited Jan. 9,
15
2025). Detainees or their counsel may seek a copy from
busy government officials, if they happen to return a
voicemail message; but in amici’s experience, it is often difficult or impossible to obtain such copies
promptly.
Financial burdens of prophylactic filings. The
current petition filing fee of $600 6 is cost prohibitive
for many noncitizens—especially if two separate filings are required. See Alonso-Juarez v. Garland, 80
F.4th 1039, 1053 (5th Cir. 2023). They would need to
seek in forma pauperis status to preserve judicial review. Yet the pauperis rules require an indigent person to describe, under penalty of perjury, the “issues
that the party intends to present on appeal,” Fed. R.
App. P. 24(a)(1)(C); again, a pro se noncitizen can
hardly swear to the issues or errors in adjudicating her
withholding-only case when those proceedings have
not ended, or even started, when the pauperis filing is
due. 7
6 Court of Appeals Miscellaneous Fee Schedule, U.S. Courts,
https://shorturl.at/6CtO4 (last visited Dec. 13, 2024).
7 For that matter, the in forma pauperis application is very detailed and often confusing even for noncitizens who can read English. See Application to Appeal In Forma Pauperis, U.S. Ct. of
Appeals for the Fourth Circuit, https://shorturl.at/CiGGu (last
visited Jan. 9, 2025); Andrew Hammond, Pleading Poverty in Federal Court, 128 Yale L.J. 1478, 1503–04 (2019). And in some circuits, it is difficult to qualify as in forma pauperis even if the $600
filing fee would cause significant financial hardship to the petitioner. Cf. Hammond, supra, at 1501.
16
III. The decision below will pointlessly burden
the federal courts.
A. Requiring prophylactic petitions for review will burden the courts of appeals
with unnecessary paperwork.
The Fourth Circuit’s rule creates an irrational, counterintuitive system of judicial review that undermines
the immigration laws’ goal of “promot[ing] efficiency.”
Woodford v. Ngo, 548 U.S. 81, 89 (2006). Its requirements will lead to an influx of unnecessary filings with
no countervailing benefit.
As explained, the 30-day deadline to file a petition
almost always expires before the withholding and CAT
claims are ripe—and sometimes before the claims are
even raised—and the petition must be filed whether or
not the petitioner wants to challenge the underlying
FARO or reinstatement order. The court of appeals
receiving the petition must then open a case that it is
unable to adjudicate pending the outcome of proceedings before an immigration judge or the Board. See 8
U.S.C. § 1252(b)(4)(A) (requiring the petition to be decided “only on the administrative record on which the
order of removal is based” and thus precluding courts
of appeals from reviewing until withholding-only proceedings conclude). If the immigration judge or Board
ultimately grants withholding or CAT protection, the
court of appeals—after potentially having spent
months to years with the petition on its docket—must
simply dismiss the case. See, e.g., Larose, 968 F.3d at
558; Bhaktibhai-Patel, 32 F.4th at 185–86. If withholding or CAT protection is denied, the noncitizen
will have to seek review of that decision by taking the
dormant case out of abeyance.
The decision below does not explain how the courts
of appeals should proceed after the agency reaches a
17
reasonable fear review/withholding-only determination. In practice, petitioners in different circuits may
take varying approaches. Some might move to supplement the administrative record or move to return a
prophylactic petition to the active docket. Others seeking to challenge the reasonable fear/withholding-only
decision may file a second petition that supersedes the
first filing.
At each juncture, the courts will be inundated with
needless administrative paperwork. While cases are
held in abeyance, courts frequently require regular
status reports. E.g., 4th Cir. R. 12(d) (“During the period of time a case is held in abeyance the appeal remains on the docket” and “[t]he parties will be required to make periodic status reports”). That means
for the entire duration of reasonable-fear and withholding-only proceedings, petitioners and/or the government may need to file status reports, which the
courts will have to process—even for cases that are
later resolved or abandoned. See Argueta-Hernandez,
87 F.4th at 706 n.5 (noting that the Fourth Circuit’s
rule “‘would require [the] court to dedicate resources
to tracking and closing moot or abandoned petitions’
and ‘to establish a system of holding petitions for review in abeyance for years at a time.’” (quoting AlonsoJuarez, 80 F.4th at 1053)). This is a tedious waste of
resources for noncitizens, the executive, and the judiciary.
And as previously discussed, the government often
transfers people from one detention facility to another.
If a person is transferred while their petition is held in
abeyance, the courts will face more administrative
headaches. For example, the noncitizen must send a
notification each time they are moved. E.g., 9th Cir.
R. 46-3 (requiring pro se litigants to update the court
with any change in address); 1st Cir. R. 25(c)(3) (same
18
for ECF filers). If the address change is not reflected
in the court’s system, the noncitizen will not receive
notice of any deadlines. As noncitizens lose and regain
contact with the court after transfers and while withholding-only proceedings are ongoing, they risk dismissal of their cases for failure to prosecute. See, e.g.,
Fed. R. Civ. P. 41(b); 4th Cir. R. 45; 5th Cir. R. 42.3;
9th Cir. R. 42-1. And so on. All this back-and-forth
burdens parties and courts alike and serves no purpose.
B. The Fourth Circuit’s rule conflicts with
the statutory venue provisions and Congress’s intent for efficient removal proceedings.
The Fourth Circuit mandates filing a petition for review before an immigration judge has finished adjudicating a case. But § 1252(b)(2) requires a petition to be
“filed with the court of appeals for the judicial circuit
in which the immigration judge completed the proceedings.” 8 U.S.C. § 1252(b)(2) (emphasis added). In
other words, Congress explicitly made venue dependent on the immigration judge’s location. This is strong
evidence that a petition should not be filed until there
is an immigration judge order—that is, a withholdingonly/reasonable-fear determination from an immigration judge. Indeed, it would be strange for Congress to
require filing a petition in a specific venue before it is
clear what that venue is.
But the Fourth Circuit requires precisely that. Under the decision below, a petitioner must file a petition
before withholding-only/reasonable-fear proceedings
have ended. Yet at that point, it is at best unclear
where the final immigration judge will sit. As explained above, immigration detainees are frequently
transferred between different detention facilities, and
such transfers often affect which immigration court
19
adjudicates their cases. Often, a FARO or reinstatement order will be entered in one state, while immigration court proceedings arise in another state, including states in a different federal circuit. To preserve
jurisdiction under the decision below, a noncitizen
must first file a petition in the circuit where their
FARO or reinstatement order was issued. Then,
months or years later, an immigration judge may deny
protection, and the BIA may affirm that denial. The
statute mandates that the withholding-only proceeding be considered as part of the earlier-filed appeal.
See 8 U.S.C. § 1252(b)(9) (reflecting congressional intent to channel all challenges into one consolidated
proceeding rather than multiple separate proceedings).
But proceeding on that earlier-filed petition seems
inconsistent with Congress’s venue choice. While the
parties could move to transfer the case to the circuit
where the immigration judge completed the proceedings, this workaround does not address the impropriety of the initial filing.
The lower court’s approach is not only wasteful; it
also contravenes Congress’s intent to promote judicial
efficiency in removal proceedings. Section 1252(b)(9)
requires that “[j]udicial review of all questions of law
and fact . . . arising from any action taken or proceeding brought to remove [a noncitizen ] . . . shall be available only in judicial review of a final order under this
section” (emphasis added). This language makes clear
Congress’s intent to consolidate review of the final
agency decision into one appeal, which tracks the general principles of appellate review in civil matters. See
Reno v. Am.-Arab Anti-Discrimination Comm., 525
U.S. 471, 482–83 (1999) (emphasizing that
§ 1252(b)(9)’s “zipper clause” is meant to consolidate
20
all judicial review of removal proceedings into one action in the court of appeals); Guerrero-Lasprilla v.
Barr, 589 U.S. 221, 230 (2020) (same); 28 U.S.C. § 1291
(requiring a final judgment for civil appellate review);
5 U.S.C. § 704 (requiring final agency action for judicial review).
Moreover, Congress explicitly rejected bifurcated review of removal proceedings in passing the REAL ID
Act, which eliminated all habeas review of final orders
of removal. See Pub. L. No. 109-13, 119 Stat. 231
(2005). Courts of appeals previously reviewed threshold issues regarding criminal grounds of removability
separately from claims for discretionary relief from removal, which were decided in habeas proceedings. See
151 Cong. Rec. H2813, H2873 (daily ed. May 3, 2005).
Congress criticized this bifurcated review system as
“result[ing] in piecemeal review, uncertainty, lack of
uniformity, and a waste of resources both for the judicial branch and Government lawyers—the very opposite of what Congress tried to accomplish in 1996.” Id.
The decision below recreates similar problems by
splintering review of removal cases and requiring appeals before the agency proceedings are over.
CONCLUSION
For the reasons above and in Petitioner’s briefs, the
Court should reverse the judgment below.
21
Respectfully submitted,
AIMEE MAYER-SALINS
SAMANTHA HSIEH
AMICA CENTER FOR
IMMIGRANT RIGHTS
1025 Connecticut Ave.
NW, Suite 701
Washington, D.C. 20036
MELISSA CROW
CENTER FOR GENDER &
REFUGEE STUDIES
1121 14th Street NW,
Suite 200
Washington, DC 20005
TOBIAS S. LOSS-EATON
Counsel of Record
SCOTT LOWDER
SIDLEY AUSTIN LLP
1501 K Street NW
Washington, D.C. 20005
(202) 736-8000
tlosseaton@sidley.com
CHARLES ROTH
NATIONAL IMMIGRANT
JUSTICE CENTER
111 W. Jackson Blvd.,
Suite 800
Chicago, IL 60604
ROBERT PAUW
CENTER FOR GENDER &
REFUGEE STUDIES
C/O GIBBS HOUSTON PAUW
1000 Second Ave. #1600
Seattle, WA 98104
Counsel for Amici Curiae
January 10, 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.