Nasrallah v. Barr (18-1432)

argument 18-1432

Nasrallah v. Barr

Supreme Court of the United States 1h 0m 5 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the central legal issue in Nasrallah v. Barr regarding CAT relief and final orders of removal?

Brett M. Kavanaugh 0:00

We'll hear argument

Unknown 0:00

first this morning, case eighteen fourteen thirty two, Nasrallah versus Barr. Mr Hughes? Mr Chief Justice, and may it please the court. When Congress enacted the jurisdiction stripping provision in two C, it expressly defined the key term order of removal. It is an order that finds an individual deportable or orders deportation. A cat order does neither, and the government does not disagree. Cat relief is temporary, applicable only to the country where an individual is likely to be tortured or killed. If cat relief is granted, the removal order remains enforceable. As the government says, quote, a grant of withholding or deferral leaves the final order of removal undisturbed. When Congress enacted two C, it also stripped jurisdiction of expedited removal orders.

Unknown 0:59

This is Section two A, reprinted in the government's brief at page four A. It bars judicial review of quote any individual determination or any other cause or claim arising from or relating to the implementation or operation of an expedited order of removal. That broader language expanded jurisdiction stripping beyond the removal order itself, but Congress did not use that broader language in two C. If none of this carries the day and if some ambiguity remains, the presumption in favour of judicial review of administrative agency action would do the work. Judicial review of administrative agencies is an essential part of the Constitution's separation of powers. Congress designed cat relief to be available when all else is stripped away.

Unknown 1:52

Congress knowingly rendered those with criminal convictions eligible for protection from likely torture or death. By its plain terms, two C does not bar a review of a CAT claim. Ultimately the CAT claim does not qualify as an order of removal. Again, the government doesn't contend that it fits within the clear statutory definition, and I don't think it can, because the CAT relief comes temporarily the order of removal is entered. Do you agree that Uh assuming Um That review of the of BIA fact finding, assuming that it's available. Wouldn't that review be highly deferential? To the BIA. Yes, Your Honor, it would be for the substantial evidence review that would govern in circumstances when two C does not apply.

Unknown 2:49

So I agree there is deference to the BIA, but deference doesn't mean there's no judicial review. It just is the appropriate deferential standard that would apply across the Board of Judicial Review of Administrative Agency fact finding.

Samuel A. Alito 3:04

Do you agree that your CAT claim is covered by the so called zipper clause?

Unknown 3:12

So I think there is an open question, Your Honor, if the zipper clause extends here uh Footnote two of Jennings suggests that the zipper clause might not apply in context of asylum, and I think this would would be similarly qualified. But I'm willing to assume for a moment, even if the court were to think that the zipper clause of B9 applies to the CAT claim, I I don't think that's any problem for our position. Uh I think the zipper clause can be thought of doing two potentially different things. The first thing it can do is consistent with other provisions, both in FAR and A four, underscore that the various limitations of Section twelve fifty two can be said to apply. That's one thing

Samuel A. Alito 3:52

Well what about the language of the Zipper clause and a comparison of the language of the Zipper clause with the language of the criminal alien bar? The zipper clause says that all questions of law in fact arising from an action taken or proceeding brought to remove an alien from the United States under this sub chapter shall be available, and this is what may be important, only in judicial review of a final order under this section. So if your CAT claim is covered by the zipper clause, that claim can be reviewed only in judicial review of a final order under this section. And the criminal alien bar says that no court has jurisdiction to review any final order of removal. So if you put those two things together, why isn't the conclusion that the criminal alien bar uh prohibits review of your CAT claim?