Supreme Court Makes It Easier for Criminal Aliens to Fight Deportation

March 24, 2020 Updated: March 24, 2020

Over the objections of the Trump administration, the Supreme Court has made it easier for federal courts to review deportation orders made against immigrants convicted of serious crimes.

Under federal law, courts of appeal had been allowed to review only constitutional claims or claims involving questions of law, which meant that permanent residents convicted of specific crimes were unable to have federal courts review factual issues related to their removal orders.

The Immigration and Nationality Act (INA) 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.”

During oral arguments before the justices on Dec. 9, 2019, Frederick Liu of the U.S. solicitor general’s office, said it has been the goal of Congress “since 1996 to streamline and expedite the removal of criminal aliens,” yet the immigrants in this case 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 justices didn’t seem sympathetic during that hearing. Justice Elena Kagan suggested at that time that if what the law requires is unclear, “the presumption of reviewability should carry the day.”

As a result of the new opinion, factual matters will now be considered questions of law subject to judicial review.

The Supreme Court’s 7–2 decision March 23 in Guerrero-Lasprilla v. Barr and Ovalles v. Barr, two cases that were consolidated, was written by Justice Stephen Breyer. Justice Clarence Thomas filed a dissenting opinion that Justice Samuel Alito joined.

Pedro Pablo Guerrero-Lasprilla and Ruben Ovalles had asked the courts 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 the question of whether the appeals were timely was one of fact, and so it had no power to review it.

There is a “strong presumption” in favor of judicial review of agency actions that can only be overcome by “clear and convincing” evidence that Congress intended to bar judicial review, Breyer wrote.

The court has consistently applied “the presumption of reviewability to immigration statutes. And we see no reason to make an exception here. … Interpreting the [statute] to exclude mixed questions would effectively foreclose judicial review.”

The fact that the INA statute allows appeals for “questions of law,” he wrote, “does indeed include the application of law to established facts. That is particularly so given that the statutory context and history point to the same result.”

In his dissent, Thomas wrote that the court’s opinion “effectively nullifies a jurisdiction-stripping statute, expanding the scope of judicial review well past the boundaries set by Congress.”

Dan Stein, president of the Federation of Americans for Immigration Reform (FAIR), criticized the Supreme Court ruling.

“This case underscores one more time how difficult it seems to be for Congress to rein in the judiciary’s refusal to respect Congress’s constitutional right to limit elements of judicial review in immigration proceedings,” Stein told The Epoch Times.

“In the case, a lower administrative body had made a factual determination on whether the deportable criminal aliens had exercised due diligence that, notwithstanding, prevented them from making a timely motion to reopen a case. It is clear from the facts of the case that they did not have any reasonable excuse for failing to make a timely Motion to Reopen.

“Instead, the majority opinion of the Supreme Court creates a fiction that there is some mixture of law and fact here, and that this gives a license to allow judicial review where Congress has explicitly sought to prevent it. And in this case, the opinion undermines Congress’ explicit desire to expedite the removal of deportable criminal aliens.

“While the ultimate outcome is unclear once it goes back to the lower court, the decision still blasts a hole in Congressional efforts to curtail impractical and delay-inducing layers of judicial review of immigration proceedings. Apparently, the judiciary just can’t help itself.”