Supreme Court Considers Whether Deportation of Criminal Aliens Can Be Reviewed

December 10, 2019 Updated: December 10, 2019
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WASHINGTON—Judicial review of the deportation orders of permanent residents with criminal records who miss statutory deadlines should be limited, the Trump administration told a skeptical Supreme Court.

The justices heard oral arguments Dec. 9 in two cases that were consolidated, Ovalles v. Barr and Guerrero-Lasprilla v. Barr.

The cases are important because if the Supreme Court rules in favor of the deported permanent residents, there could be legal ramifications for other individuals previously deported from the United States.

If the Supreme Court sides with the petitioners, Pedro Pablo Guerrero-Lasprilla and Ruben Ovalles, they would gain the right to have a federal court consider whether they are entitled to reopen their deportation cases. Ovalles was deported in 2004, Guerrero-Lasprilla in 1998.

The Board of Immigration Appeals found that both men had waited too long to try to have their cases reconsidered. The 5th Circuit Court of Appeals ruled that question of whether the appeals were timely was one of fact, and so it had no power to review it.

The Supreme Court was asked by the petitioner’s lawyer, Paul W. Hughes, to consider the doctrine of equitable tolling, which would allow his clients to get their day in court.

Equitable tolling, a legal principle evolved from the common law of equity, allows a claim, in this case an appeal, to move forward if the party made reasonable and diligent efforts to pursue the case despite the lapse of a statute of limitations.

The Immigration and Nationality Act bars judicial review of “any final order of removal against an alien who is removable by reason of having committed a criminal offense,” except where there are “constitutional claims or questions of law.”

Frederick Liu, a lawyer with the U.S. solicitor general’s office, told the justices that it’s been the goal of Congress “since 1996 to streamline and expedite the removal of criminal aliens,” yet the petitioners would have criminal and non-criminal aliens alike receive “judicial review of all constitutional claims, of all questions of law, and of all mixed questions.”

The courts, Liu argued, should examine whether an immigration judge employed the correct legal standard when rendering a decision, not whether that judge applied the standard correctly.

The justices seemed to resist that strict interpretation of the law.

Justice Neil Gorsuch asked Liu if the Trump administration was arguing that “only pure questions of law are reviewable, or is it also the government’s position that there can be some applications that are so egregious that they would rise to the level of being questions of law?”

Liu replied it was “only pure questions.”

Gorsuch suggested that could prevent any meaningful “judicial review” if all the Board of Immigration Appeals had to do was recite “the correct legal standard” and “we become a rubber stamp.”

“And no matter how unreasonable, no matter how crazy the application is, we have to provide a judicial imprimatur to that decision,” the justice said.

Justice Elena Kagan suggested that if what the law requires is unclear, “the presumption of reviewability should carry the day.”

Justice Stephen Breyer said there’s a “presumption that assures every person in the United States of America that this government will not harm that person in ways that are unlawful, unfair, arbitrary, capricious, unconstitutional, or an abuse of discretion.

“If you want to have a country that has a government that is under control, there is no better way,” Breyer added.

Gorsuch added that the presumption of reviewability was “pretty ancient law.”

“It goes back to the common law that the king can’t act arbitrarily without some check, some review, some opportunity to be heard by citizens. Isn’t that where the presumption really comes from? And isn’t that pretty fundamental to the separation of powers and due process and those considerations?”