SCOTUS Opinion: Court Enlarges Scope of Judicial Review of Orders Under the Convention Against Torture

Nidal Khalid Nasrallah received some stolen property, which made him eligible to be removed under federal immigration law. Nasrallah argued to the immigration court that he should not be removed to his home country of Lebanon under the Convention Against Torture because it was likely that, as a member of the Druze religion, he would be tortured upon his return. The immigration court held that Nasrallah was removable, but granted CAT relief as well. On appeal, the Board of Immigration Appeals vacated the grant of CAT relief and ordered Nasrallah removed to Lebanon. Nasrallah disputed the Board’s factual findings and appealed to the Eleventh Circuit, which held that federal immigration law precluded appellate courts from reviewing factual issues.

Resolving a split among the circuits on that issue, the Court, in a 7-2 opinion by Justice Kavanaugh, reversed, holding that federal appellate courts could review factual challenges to a CAT order. While federal law precludes judicial review of factual challenges pertaining to final orders of removal, the majority held that a CAT order was not such a final order and did not merge into a final order. The Court further held that such factual reviews are subject to a deferential standard and should only be overturned if a “reasonable adjudicator would be compelled to conclude to the contrary.” Justice Thomas, joined by Justice Alito, dissented, arguing that the plain language of the law required that CAT orders receive the same review standards as final orders.

A link to the opinion in Nasrallah v. Barr is here: