Master Supreme Court held that courts of appeals may review factual challenges to CAT orders because those orders are not final orders of removal subject to the criminal-alien review bar. with this comprehensive case brief.
Nasrallah v. Barr is a landmark immigration and federal courts decision clarifying the scope of judicial review available to noncitizens seeking protection under the Convention Against Torture (CAT). The case addresses a recurring and consequential question: when Congress restricts judicial review of final orders of removal for certain criminal aliens, does that bar sweep away all review of factual challenges to a CAT protection order issued in the same proceeding? The Supreme Court answered no, holding that a CAT order is distinct from a final order of removal and therefore remains reviewable for factual error in the courts of appeals.
The decision is significant for at least three reasons. First, it preserves meaningful appellate review of life-or-death factual determinations about the likelihood of torture, even for noncitizens with disqualifying criminal convictions. Second, it resolves a circuit split and clarifies the term final order of removal, an anchor concept in the immigration review scheme. Third, it illustrates the Court's contemporary approach to jurisdiction-stripping statutes, hewing closely to statutory text and structure while cabining broad readings that would silently extinguish traditional avenues of judicial review.
Nasrallah v. Barr, 140 S. Ct. 1683 (U.S. 2020)
Nidal Khalid Nasrallah, a Lebanese national, was found removable based on a Florida conviction that qualified as a crime involving moral turpitude under the immigration laws. In removal proceedings, he sought protection under the Convention Against Torture, alleging that if returned to Lebanon he would more likely than not be tortured by nonstate actors with government acquiescence. The immigration judge found him removable and ineligible for certain discretionary relief, but granted deferral of removal under CAT, which would bar the government from removing him to Lebanon while leaving the underlying removal order intact. The Board of Immigration Appeals vacated the CAT deferral, concluding the record did not establish the requisite likelihood of torture. On petition for review, the Eleventh Circuit treated the CAT ruling as part of the final order of removal and held that the criminal-alien review bar in 8 U.S.C. § 1252(a)(2)(C) deprived it of jurisdiction to consider Nasrallah's factual challenges to the CAT determination. The Supreme Court granted certiorari to decide whether courts of appeals may review factual challenges to CAT orders notwithstanding the criminal-alien bar.
Whether 8 U.S.C. § 1252(a)(2)(C), which bars judicial review of final orders of removal for certain criminal aliens (subject to limited exceptions), precludes courts of appeals from reviewing factual challenges to a CAT order issued in the same removal proceeding.
Under the Immigration and Nationality Act's judicial review provisions, a court of appeals may review a noncitizen's CAT claims only via a petition for review of a final order of removal, see 8 U.S.C. § 1252(a)(4), but a CAT order is not itself a final order of removal because it does not determine removability or order removal within the meaning of 8 U.S.C. § 1101(a)(47)(A). Therefore, the criminal-alien bar in § 1252(a)(2)(C) applies to review of the final order of removal but does not strip jurisdiction to review a separate CAT order. Factual challenges to CAT determinations are reviewable under the substantial evidence standard provided in § 1252(b)(4)(B).
Courts of appeals retain jurisdiction to review factual challenges to CAT orders because such orders are distinct from final orders of removal. The criminal-alien review bar in § 1252(a)(2)(C) does not preclude review of the factual basis for a CAT determination. The judgment of the Eleventh Circuit was vacated and the case remanded.
The Court began with statutory text. A final order of removal is defined as an order concluding that the noncitizen is removable or ordering removal. A CAT order does neither: it neither determines removability nor orders removal; it merely prohibits removal to a particular country while leaving the government free to remove the noncitizen to another country. Accordingly, a CAT order is not a final order of removal. Congress channeled CAT claims into the petition-for-review process through § 1252(a)(4), but that provision prescribes the forum and timing of review and does not transform a CAT order into a final removal order. Structural cues confirmed this reading. The statutory scheme differentiates between the adjudication of removability and the adjudication of collateral protection from removal to a specific country. Treating a CAT determination as distinct avoids collapsing these categories and maintains coherence with the definition in § 1101(a)(47)(A). The government's broader reading would expand the criminal-alien bar beyond its text by sweeping in orders that are not final orders of removal. The Court rejected reliance on pre-IIRIRA precedent, such as Foti, that had treated denials of discretionary relief as reviewable together with final orders of deportation. Those cases concerned the proper vehicle for review, not the definition of a final order of removal under the current statute. Congress's post-IIRIRA framework expressly routes CAT claims to the courts of appeals but does not declare them to be final removal orders. Moreover, review of factual challenges to agency decisions in petitions for review is the default, and § 1252 supplies the governing substantial-evidence standard for findings of fact. Nothing in § 1252(a)(2)(C) displaces that default for CAT orders, which are distinct from the final removal order. Finally, the Court emphasized that allowing factual review of CAT determinations does not undercut the criminal-alien bar with respect to the final removal order itself; the bar still forecloses review of the order of removal, while leaving intact review of the separate CAT protection decision. A dissent contended that a CAT determination merges into the final order of removal and thus falls within the criminal-alien bar. The majority disagreed, reiterating that text and structure draw a line between an order determining removability and an order restricting the country of removal, and it is only the former that § 1252(a)(2)(C) withdraws from plenary factual review.
Nasrallah preserves meaningful appellate oversight of CAT determinations by confirming that courts of appeals may review factual challenges to those decisions under the substantial-evidence standard. It clarifies the scope of the final order of removal and the reach of the criminal-alien review bar, resolving a circuit split. For law students, the case is an instructive example of textual statutory interpretation, the interaction between administrative adjudication and judicial review, and how jurisdiction-stripping provisions are narrowly read to avoid silently eliminating review of high-stakes factual determinations.
A CAT order implements the United States' obligations under the Convention Against Torture by prohibiting removal to a country where the noncitizen is more likely than not to be tortured. It does not determine whether the person is removable from the United States, nor does it order removal. Instead, it restricts the destination country for removal. A final order of removal, by contrast, determines removability and authorizes removal from the United States.
No. The decision preserves the criminal-alien bar with respect to the final order of removal. Courts of appeals still lack jurisdiction to review most challenges to the final order of removal itself for covered criminal aliens, except for constitutional claims or questions of law under § 1252(a)(2)(D). Nasrallah holds only that courts may review factual challenges to the separate CAT order.
Factual challenges to CAT determinations are reviewed under the substantial-evidence standard specified in 8 U.S.C. § 1252(b)(4)(B). Under that deferential standard, the agency's findings are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.
Nasrallah's holding concerns CAT orders in general, and its reasoning rests on the distinction between an order determining removability and an order restricting removal to a particular country. While the opinion specifically addresses CAT relief, the textual logic suggests that protection orders that merely bar removal to a particular country are distinct from final orders of removal. Practitioners should, however, consult circuit precedent on how courts apply Nasrallah to other protection forms.
It ensured that courts of appeals can assess whether the agency's CAT denial is supported by substantial evidence, even for noncitizens with disqualifying criminal convictions. That preserves an avenue to correct erroneous factual determinations about the likelihood of torture. The decision also standardizes review across circuits by rejecting approaches that foreclosed factual review of CAT orders under the criminal-alien bar.
By drawing a sharp line between final orders of removal and CAT protection orders, Nasrallah v. Barr safeguards appellate review of the factual predicates underlying claims that a noncitizen faces torture if removed to a particular country. The decision reflects a textual, structural understanding of the INA that resists expanding jurisdictional bars beyond their terms.
For students of immigration and federal courts, Nasrallah is a model of statutory interpretation in a complex administrative setting and a reminder that jurisdictional limitations are construed with precision. It ensures that, even in the shadow of criminal convictions, the judiciary retains a role in reviewing life-or-death factual determinations embedded in CAT claims.
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