Supreme Court Asked to Resolve Appeals Court Split Over Deportation of Permanent Residents

October 20, 2019 Updated: October 21, 2019

A Lebanese immigrant sentenced to time in prison for a crime he committed after receiving his green card is now challenging his deportation order in a Supreme Court case, arguing that he will face religious persecution if removed to his native land.

The Supreme Court’s decision to hear the case comes after it held in March in Nielsen v. Preap that under the Immigration and Nationality Act (INA) the government is allowed to detain and process for deportation defendants even if they aren’t federally detained immediately after being released from criminal custody.

The case the Supreme Court decided on Oct. 18 to review could help resolve a split between federal appeals courts that have become “deeply and intractably divided” on the legal issue at play here. In the petition filed with the court to appeal an unfavorable ruling by the Atlanta-based 11th Circuit Court of Appeals, petitioner Nidal Khalid Nasrallah stated that issue as whether courts have “jurisdiction to review factual findings underlying the administrative agency’s decision to deny a request for withholding (or deferral) of removal relief.”

The 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,” is removable from the United States. Nasrallah became a lawful permanent resident of the United States in 2007 and entered guilty pleas in 2013 for crimes committed in 2011.

U.S. Solicitor General Noel Francisco stated in a petition filed with the Supreme Court that Nasrallah bought “at least 273 cases of cigarettes, with a total wholesale value of $587,096, in the course of eight separate transactions,” believing “they were obtained from violent thefts in which individuals hijacked trucks and robbed guarded storage facilities.” He was ordered to serve a 12-month prison term.

Nasrallah argues that the likelihood of his facing religious persecution provides grounds for overturning the ruling that he should be deported because of his criminal record.

But eight circuits of the U.S. Court of Appeals have held that federal courts are now allowed to review the factual record in such a case; they are limited to reviewing only constitutional claims or the questions of law underlying rulings in deportation cases involving lawful permanent residents who commit crimes, but the 7th and 9th Circuits have ruled to the contrary.

The United States is party to international treaties that generally prevent deportation when the person concerned will face persecution in his home country.

The petitioner argues that because he is a member of the Druze religious minority he is likely to face persecution in Lebanon from Muslim terrorist groups such as Hezbollah and ISIS if returned there. He claims that when he lived in Lebanon he had suffered serious injuries when he jumped off a cliff to avoid being harmed by terrorists.

Hezbollah is “the most capable and prominent terrorist group in Lebanon,” operating as “an armed militia beyond the control of the state and as a powerful political actor that can hobble or topple the government as it sees fit,” the petition states, citing a 2014 State Department counterterrorism report. Hezbollah “is known to kidnap and harm Lebanese Druze,” the report adds.

An immigration judge granted Nasrallah relief against removal only with respect to Lebanon, stating he could still “be removed at any time to another country where he is not likely to be tortured.”

The government appealed, downplaying Nasrallah’s suffering, which it characterized as arising from a “single incident” that “lasted minutes.” The Board of Immigration Appeals upheld the immigration judge’s decision denying asylum and cleared the way for Nasrallah’s removal. The board found that Nasrallah’s “single encounter with Hezbollah did not constitute past torture and that generalized civil strife in Lebanon did not show” that he would be personally targeted for harm.

On the campaign trail in 2016, presidential candidate Donald Trump vowed to get tough on those who violate U.S. immigration laws and on noncitizens who commit serious crimes in the United States. “Our enforcement priorities will include removing criminals, gang members, security threats, visa overstays, public charges,” Trump said at the time.