Criminal Aliens Fearing Persecution at Home Have Right to Appeal Deportation, Supreme Court Holds

June 1, 2020 Updated: June 1, 2020

A federal law barring a Lebanese immigrant who committed felonies from challenging a negative asylum ruling before being deported is invalid, the Supreme Court ruled June 1.

The decision is a defeat for the Trump administration, which opposes the man’s bid to stay in the United States. President Donald Trump has vowed to get tough on those who violate U.S. immigration laws and on noncitizens who commit serious crimes in the United States.

The ruling makes it more difficult to deport criminal aliens.

The case dates to 2007, when petitioner Nidal Khalid Nasrallah became a lawful U.S. permanent resident. He later bought almost $600,000 worth of cigarettes he believed were stolen from undercover federal agents. He pleaded guilty to two felony counts of receiving stolen property in 2013 and received one year in prison.

The Immigration and Nationality Act (INA) provides that an alien “convicted of a crime involving moral turpitude committed within five years” of the alien’s admission, for which “a sentence of one year or longer may be imposed,” can be removed from the country.

The INA also strips courts of jurisdiction to review final deportation orders for criminal aliens found guilty of crimes deemed aggravated felonies under the law. The government determined Nasrallah’s convictions qualified as aggravated felonies under the INA and an immigration judge found he was subject to deportation because he had committed crimes involving moral turpitude.

During his deportation proceedings, Nasrallah argued that he couldn’t be removed because he faced probable torture in his homeland and was entitled to relief under the international Convention Against Torture (CAT).

On appeal, the Board of Immigration Appeals vacated the CAT relief order and ordered Nasrallah removed to Lebanon. The 11th Circuit Court of Appeals refused to review the CAT order because Nasrallah had committed a serious crime and because Circuit precedent forbade it.

Nasrallah argued it would be unjust to deport him because he would face religious persecution. Because he is a member of the Druze religious minority, he claims he may be persecuted in Lebanon by Muslim terrorist groups such as Hezbollah if returned there.

Oral arguments in the case, known as Nasrallah v. Barr, on appeal from the 11th Circuit Court of Appeals, were heard in person March 2 by the nation’s highest court.

In the Supreme Court decision written by Justice Brett Kavanaugh, the court ruled 7–2 against the government. Justice Clarence Thomas wrote a dissenting opinion, which Justice Samuel Alito joined (pdf).

According to Kavanaugh, the Illegal Immigration Reform and Immigrant Responsibility Act, Foreign Affairs Reform and Restructuring Act, and REAL ID Act, establish that orders made pursuant to CAT “may be reviewed together with final orders of removal in a court of appeals.”

“It would be easy enough for Congress to preclude judicial review of factual challenges to CAT orders, just as Congress has precluded judicial review of factual challenges to certain final orders of removal,” the Supreme Court’s newest justice wrote. “But Congress has not done so, and it is not the proper role of the courts to rewrite the laws passed by Congress and signed by the President.”

“A statutory withholding order prevents the removal of a noncitizen to a country where the noncitizen’s ‘life or freedom would be threatened’ because of the noncitizen’s ‘race, religion, nationality, membership in a particular social group, or political opinion.’ That question is not presented in this case, and we therefore leave its resolution for another day,” Kavanaugh wrote.

The dissenting opinion by Thomas stated the majority’s decision “will bring about a sea change in immigration law.”

“Though today’s case involves CAT claims, there is good reason to think that the majority’s rule will apply equally to statutory withholding of removal,” he wrote.

The court should only be examining “jurisdiction over certain claims of criminal aliens, instead of looking at larger policy issues.”

“As has been the case for decades now, the decisions of this Court continue to systematically chip away at this statute and other jurisdictional limitations on immigration claims, thus thwarting Congress’ intent,” Thomas wrote.

“Because today’s erroneous result further weakens a duly enacted statute, I respectfully dissent.”