Legal Docket - Deportation and the Convention Against Torture

NICK EICHER, HOST: It’s Monday morning and we are back for another week of The World and Everything in It. Today is the 30th of March, 2020. Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. With all the stay-home orders around the country, I sure hope you’re doing well and redeeming the time.

Whether you’re reading some good books, watching some good movies, reading your Bible more, learning another language … however you’re spending the time, I hope it’ll prove profitable to you.

You know, even with a lot of sad news we hear and frightening news out there, we always want to find ways to lift one another up. 

By the way, you know, it’s encouraging to all of us to hear the intros to the program, the prerolls, telling us how you’re coping with the lockdown. They’ve been great. Keep ’em coming.

EICHER: Right, I love hearing those! 

It’s amazing how starved we are for connection. I’ve lived in my neighborhood for two decades, and this weekend the weather was particularly nice, so we went out on a walk. And although we stayed socially distanced, I enjoyed half a dozen or more nice conversations with people I’d never met. CONVERSATIONS LIKE THIS! But conversations nonetheless.

Social life is being taken from us and I hope we don’t forget these days and take it for granted once again when this whole thing is over.

REICHARD: I’m also grateful that we can do our work remotely, even with the little bit of cabin fever I’m experiencing, too! It’s such a balm to keep doing this every day, to have something normal to do, and be an encouragement to you.

EICHER: And, yes, so far, so good. We have no cases among our staff (that we’re aware of), so we haven’t lost our ability to talk. That’s important. We’re grateful to be able to keep our lines of communication open, and we’re grateful for you, too, listening to WORLD, reading WORLD, and sharing with friends.

REICHARD: Well, Nick, the Supreme Court is still on hiatus from oral arguments until further notice. We do, however, expect opinions this morning. Those I will summarize tomorrow.

No surprise, the COVID-19 shutdown is causing all sorts of disruptions in the legal system. The American Bar Association has called upon the federal government to deem legal services “essential” and keep operations going.

Meantime, the Department of Justice reopened some immigration courts in bigger cities. And that move caused lawyers to have to scramble to file documents to meet deadlines that came and went while those courts had been closed!

EICHER: As for the Supreme Court, Mary, 20 oral arguments left to hear. Those cases are certainly in limbo. 

Any word on rescheduling?

REICHARD: Not yet. You know, there’s no rule that dictates what the court has to do. It’s not called the Supreme Court for nothing. I suppose the justices could simply decide the cases without argument. They do that already in some cases.

Another possibility is putting off arguments until next fall. They could hear arguments with just the lawyers in the courtroom and otherwise close it off.

EICHER: Alright, well, we still have a few oral arguments in our pipeline to tell you about: One is a terribly sad story of two teenagers chased to the edge of a cliff in Lebanon.

The case involves a boy named Nidal Nasrallah. He lived with his family in a mountainous region around Beirut. That’s where most of the country’s Druze live. The Druze are a religious minority that makes up about 5 percent of the population. 

Nasrallah’s parents warned him to avoid the terrorists of Hezbollah. To them, he’d be considered an infidel.

In 2005, Nasrallah was 16 years old. He was out hiking with a friend, when they ran into uniformed Hezbollah. The militants were armed, of course. 

They yelled at the boys, fired their weapons, and chased them to the edge of a cliff. 

Out of better options, they jumped. Nasrallah broke his back. He recovered, and a year later came to the United States on a tourist visa.

REICHARD: Eventually he became a lawful permanent resident, found a job, and earned a college degree.

But he did get into some trouble. He pleaded guilty to receiving stolen cigarettes, worth over a half-million dollars in resale. For that, he served a year in prison. But the BIA, the Board of Immigration Appeals, deemed Nasrallah’s crime one of “moral turpitude,” and ordered him deported. 

Nasrallah points to a treaty called the Convention Against Torture that protects him from deportation. That treaty says if someone is more likely than not to be persecuted or tortured upon return, then deportation can be deferred.

But when he appealed the BIA decision, he ran into another obstacle.

The appeals court said it lacked authority to review the BIA’s version of the facts: crucially, that Nasrallah would not be in danger if immigration authorities returned him to Lebanon.

So that’s the legal question now: Do the federal courts have jurisdiction to review the BIA’s fact-finding?

Assistant to the US Solicitor General Matthew Guarnieri argued they do not. You’ll hear Justice Brett Kavanaugh ask Guarnieri about the Convention Against Torture treaty by using the acronym “CAT.”

KAVANAUGH: Why would Congress have wanted to preclude judicial review of those highly important factual components of a CAT claim?

GUARNIERI: Justice Kavanaugh, the same could be said with respect to an alien’s claims for asylum or to statutory withholding of removal.

The lawyer argued the law is clearly on the government’s side. It says, “No court shall have jurisdiction to review any final order of removal against an alien who is removable.” 

But Justice Neil Gorsuch was skeptical. He even invoked Christian doctrine in this exchange with Guarnieri:

GORSUCH: Once the government concedes, as I think it must, right, that a CAT order … is not the same thing as a final order of removal, why isn’t that seriously problematic …?

GUARNIERI: Justice Gorsuch, we think it is part of the final order of removal, It is an integral and constituent part of the final order of removal. That—

GORSUCH: Part of and integral to, but distinct from. How is that?

GUARNIERI: It’s distinct from the order of removal in the legal sense.

GORSUCH: Sounds pretty metaphysical, counsel. I mean, it’s integral to and part of but distinct from. It’s like the Holy Trinity. (Laughter)

Justice Ruth Bader Ginsburg asked whether Nasrallah could be deported somewhere else, somewhere other than Lebanon. 

Guarnieri said yes, he could, but Justice Samuel Alito had concerns with that.

ALITO: Does it matter whether he’s, where he is, uh, his country of citizenship, where he was born, where he has a residence? Would any of those apply to Mr. Nasrallah?

GUARNIERI: I—I don’t know that there have been any administrative proceedings in this particular case to identify an alternative country of removal, but—

ALITO: So it would have to be—

GUARNIERI: … certainly that would be in the analysis.

ALITO: — a country that would accept him? Some country with which he has no connection would have to accept him.

GUARNIERI: That’s correct. That’s correct.

Nasrallah’s lawyer argued this isn’t that hard: Deportation is one thing, the CAT treaty, the Convention Against Torture, is another. His client ought to be able to stay.

My read here, based on the justices’ questions, I think the court’s leaning in favor of Nasrallah.

The tension here is between the government’s power quickly to deport asylum seekers without court review, versus due-process guarantees.

The circuit courts of appeals around the country have different views. It’s a classic circuit split that the high court really needs to clear up.

And that’s this week’s Legal Docket.

(AP Photo/Patrick Semansky) In this March 16, 2020 photo, a tree blooms outside the Supreme Court in Washington, Monday, March 16, 2020. 

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