The U.S. Supreme Court has opened the door to appeals of removal orders involving denials of adjustment to permanent residency, cancellation of removal, removability for having committed certain crimes and other issues in removal proceedings. The US Supreme Court made clear that the federal courts of appeals have jurisdiction over appeals of removal orders where the BIA (Board of Immigration Appeals) or the IJ (Immigration Judge) incorrectly applied the law to undisputed facts.
The U.S. Supreme Court’s holding in Guerrero Lasprilla v. Barr, No. 18-776 (Sup Ct Mar 23, 2020) seems simple – that federal courts of appeal have jurisdiction over questions of law which includes the application of the law to undisputed facts, in removal proceedings. This decision in a removal case in the context of whether the time limit to file a motion to reopen is subject to equitable tolling, can be applied to many decisions by the BIA and Immigration Judges formerly considered discretionary or “factual”, and not within the jurisdiction of the federal courts of appeals.
This means that if your applications for permanent residency or cancellation of removal are denied in removal proceedings, you can appeal your removal and deportation to the federal courts of appeals, and the court will have jurisdiction over the question of whether the Immigration Judge and the Board of Immigration Appeals (BIA) properly applied the law to the established facts in your case.
Justice Breyer, in a decision joined by all the justices except Thomas and Alito, discussed the meaning of the Limited Review Provision of the INA (Immigration and Nationality Act), 8 USC 1252(a)(2)(D), which provides that the federal courts can only review “constitutional claims and questions of law” in appeals of a final removal order. The Court held that “questions of law” includes application of the law to undisputed or established facts, and that the Fifth Circuit erred when it held that it lacked jurisdiction to review the petitioners’ claims of due diligence regarding equitable tolling of the time limits to file a motion to reopen. The Fifth Circuit had incorrectly labeled the dispute a “factual” issue, whereas the facts were not disputed. Whether a given set of facts meets a legal standard does present a legal inquiry. The federal courts of appeals have jurisdiction over “mixed questions of law and fact” in a removal proceeding. There is a presumption of judicial review in administrative actions, said the Court, citing Kucana v. Holder, 558 U.S. 233 (2010). Executive determinations are generally subject to judicial review. This presumption can only be overcome by clear and convincing evidence that Congress intended to preclude judicial review. The Government’s argument that the Limited Review Provision forbids judicial review of mixed questions of law and fact would be a barrier to any meaningful judicial review. The Court reviewed the Congressional history, and found that Congress enacted the Limited Review Provision in order to preserve federal court jurisdiction over removal orders as an effective alternative to habeas corpus, in response to the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001).
Thus, people with removal or deportation orders can now appeal certain issues to the federal court of appeals that they formerly were not able to.
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