1 (Slip Opinion) OCTOBER TERM, 2019

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

## SUPREME COURT OF THE UNITED STATES

Syllabus

NASRALLAH v. BARR, ATTORNEY GENERAL

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 18–1432. Argued March 2, 2020—Decided June 1, 2020
Under federal immigration law, noncitizens who commit certain crimes

are removable from the United Stat es. During removal proceedings, a noncitizen who demonstrates a likelih ood of torture in the designated country of removal is entitled to relief under the international Conven

tion Against Torture (CAT) and may not be removed to that country. If an immigration judge orders removal and denies CAT relief, the noncitizen may appeal both orders to the Board of Immigration Ap

peals and then to a federal court of appeals. But if the noncitizen has committed any crime specified in 8 U. S. C. §1252(a)(2)(C), the scope of judicial review of the removal orde r is limited to constitutional and legal challenges. See §1252(a)(2)(D).

The Government sought to remove petitioner Nidal Khalid Nasral

lah after he pled guilty to receiving stolen property. Nasrallah applied for CAT relief to prevent his remo val to Lebanon. The Immigration Judge ordered Nasrallah removed and granted CAT relief. On appeal, the Board of Immigration Appeals vacated the CAT relief order and ordered Nasrallah removed to Lebanon . The Eleventh Circuit declined to review Nasrallah’s factual cha llenges to the CAT order because Nasrallah had committed a §1252(a)(2)(C) crime and Circuit precedent precluded judicial review of factual challenges to both the final order of removal and the CAT order in such cases.
Held : Sections 1252(a)(2)(C) and (D) do not preclude judicial review of a

noncitizen’s factual challenges to a CAT order. Pp. 5–13.

(a) Three interlocking statutes es tablish that CAT orders may be re

viewed together with final orders of removal in a court of appeals. The Illegal Immigration Reform and I mmigrant Responsibility Act of 1996 authorizes noncitizens to obtain direct “review of a final order of re

-2 NASRALLAH v. BARR

Syllabus
moval” in a court of appeals, §1252(a)(1), and requires that all chal

lenges arising from the removal proc eeding be consolidated for review, §1252(b)(9). The Foreign Affairs Reform and Restructuring Act of 1998 (FARRA) implements Article 3 of CAT and provides for judicial review of CAT claims “as part of the review of a final order of removal.” §2242(d). And the REAL ID Act of 2005 clarifies that final orders of removal and CAT orders may be reviewed only in the courts of appeals. §§1252(a)(4)–(5). Pp. 5–6.

(b) Sections 1252(a)(2)(C) and (D) preclude judicial review of factual challenges only to final orders of removal. A CAT order is not a final “order of removal,” which in this co ntext is defined as an order “con

cluding that the alien is deport able or ordering deportation,” §1101(a)(47)(A). Nor does a CAT or der merge into a final order of re

moval, because a CAT order does not affect the validity of a final order of removal. See INS v. Chadha, 462 U. S. 919, 938. FARRA provides that a CAT order is reviewable “as part of the review of a final order of removal,” not that it is the same as, or affects the validity of, a final order of removal. Had Congress wished to preclude judicial review of factual challenges to CAT orders, it could have easily done so. Pp. 6– 9. (c) The standard of review for factual challenges to CAT orders is substantial evidence— i.e., the agency’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” §1252(b)(4)(B).

The Government insists that the statute supplies no judicial review of factual challenges to CAT orde rs, but its arguments are unpersua

sive. First, the holding in Foti v. INS, 375 U. S. 217, depends on an outdated interpretation of “final orde rs of deportation” and so does not control here. Second, the Government argues that §1252(a)(1) sup

plies judicial review only of final or ders of removal, and if a CAT order is not merged into that final order, then no statute authorizes review of the CAT claim. But both F ARRA and the REAL ID Act provide for direct review of CAT orders in the courts of appeals. Third, the Gov

ernment’s assertion that Congress would not bar review of factual challenges to a removal order and a llow such challenges to a CAT order ignores the importance of adherence to the statutory text as well as the good reason Congress had for distinguishing the two—the facts that rendered the noncitizen remo vable are often not in serious dis

pute, while the issues related to a CAT order will not typically have been litigated prior to the alien’ s removal proceedings. Fourth, the Government’s policy argument—that judicial review of the factual components of a CAT order would unduly delay removal proceedings— has not been borne out in practice in those Circuits that have allowed factual challenges to CAT orders. Fifth, the Government fears that a3 Cite as: 590 U. S. ____ (2020)

Syllabus

decision allowing factual review of CAT orders would lead to factual challenges to other orders in the cour ts of appeals. But orders denying discretionary relief under §1252(a)(2)(B) are not affected by this deci

sion, and the question whether fact ual challenges to statutory with

holding orders under §1231(b)(3)(A) are subject to judicial review is not presented here. Pp. 9–13. 762 Fed. Appx. 638, reversed.

K

AVANAUGH , J., delivered the opinion of the Court, in which R OBERTS , C. J., and G INSBURG , B REYER , S OTOMAYOR , K AGAN , and G ORSUCH , JJ., joined. T HOMAS , J., filed a dissenting opinion, in which A LITO , J., joined._________________

_________________ 1 Cite as: 590 U. S. ____ (2020)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other form al errors, in order that corrections may be made before the preliminary print goes to press. 

## SUPREME COURT OF THE UNITED STATES

No. 18–1432

NIDAL KHALID NASRALLAH, PETITIONER v. WILLIAM P. BARR, ATTORNEY GENERAL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
[June 1, 2020]

J USTICE K AVANAUGH delivered the opinion of the Court. Under federal immigration law, noncitizens who commit certain crimes are removable from the United States. Dur

ing removal proceedings, a noncitizen may raise claims un

der the international Conven tion Against Torture, known as CAT. If the noncitizen demonstrates that he likely would be tortured if removed to the de signated country of removal, then he is entitled to CAT re lief and may not be removed to that country (although he st ill may be removed to other countries). If the immigration judge orders removal and denies CAT relief, the noncitizen may appeal to the Board of Immigra

tion Appeals. If the Board of Immigration Appeals orders removal and denies CAT relief, the noncitizen may obtain judicial review in a federal court of appeals of both the final order of removal and the CAT order. In the court of appeals, for cases involving noncitizens who have committed any crime specified in 8 U. S. C. §1252(a)(2)(C), federal law limits the scope of judicial re

view. Those noncitizens may obtain judicial review of con

-2 NASRALLAH v. BARR

Opinion of the Court stitutional and legal challenges to the final order of re

moval, but not of factual challenges to the final order of re

moval. Everyone agrees on all of the above. The dispute here concerns the scope of judicial review of CAT orders for those noncitizens who have committed crimes specified in §1252(a)(2)(C). The Government argues that judicial re

view of a CAT order is analogous to judicial review of a final order of removal. The Government contends, in other words, that the court of appeals may review the noncitizen’s constitutional and legal challe nges to a CAT order, but not the noncitizen’s factual challenges to the CAT order. Nasrallah responds that the court of appeals may review the noncitizen’s constitutional, legal, and factual chal

lenges to the CAT order, although Nasrallah acknowledges that judicial review of factual challenges to CAT orders must be highly deferential. So the narrow question before the Court is whether, in a case involving a noncitizen who committed a crime specified in §1252(a)(2)(C), the court of appeals should review the noncitizen’s factual challenges to the CAT order (i) not at all or (ii) deferentially. Based on the text of the statute, we conclude that the court of appeals should review factual challenges to the CAT order deferentially. We therefore re

verse the judgment of the U. S. Court of Appeals for the Eleventh Circuit.

I
Nidal Khalid Nasrallah is a native and citizen of Leba

non. In 2006, when he was 17 years old, Nasrallah came to the United States on a tourist visa. In 2007, he became a lawful permanent resident. In 2013, Nasrallah pled guilty to two counts of receiving stolen property. The U. S. Dis

trict Court for the Western Dist rict of North Carolina sen

tenced Nasrallah to 364 days in prison.3 Cite as: 590 U. S. ____ (2020)

Opinion of the Court
Based on Nasrallah’s conviction, the Government initi

ated deportation proceedings. See 8 U. S. C. §1227(a)(2)(A)(i). In those proceedings, Nasrallah applied for CAT relief to prevent his removal to Lebanon. See Con

vention Against Torture and Other Cruel, Inhuman or De

grading Treatment or Punishment, Art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100–20, p. 20, 1465 U. N. T. S. 114. Nasral

lah alleged that he was a member of the Druze religion, and that he had been tortured by Hezbollah before he came to the United States. Nasrallah argued that he would be tor

tured again if returned to Lebanon. 1 The Immigration Judge determined that Nasrallah was removable. As to the CAT claim, the Immigration Judge found that Nasrallah had previously suffered torture at the hands of Hezbollah. Based on Nasrallah’s past experience and the current political conditions in Lebanon, the Immi

gration Judge concluded that Nasrallah likely would be tor

tured again if returned to Lebanon. The Immigration Judge ordered Nasrallah removed, but also granted CAT relief and thereby blocked Nasrallah’s removal to Lebanon. On appeal, the Board of Immigration Appeals disagreed that Nasrallah likely would be tortured in Lebanon. The Board therefore vacated the order granting CAT relief and ordered Nasrallah removed to Lebanon. Nasrallah filed a petition for review in the U. S. Court of Appeals for the Eleventh Circuit, claiming (among other things) that the Board of Immigration Appeals erred in finding that he would not likely be tortured in Lebanon. Nasrallah raised factual challenges to the Board’s CAT or

der. Applying Circuit precedent, the Eleventh Circuit de

clined to review Nasrallah’s factual challenges. Nasrallah

v. United States Attorney General , 762 Fed. Appx. 638

——————

1 To qualify as torture, actions must be “inflicted by or at the instiga

tion of or with the cons ent or acquiescence of a public official or other person acting in an official capacity.” 8 CFR §1208.18(a)(1) (2019).4 NASRALLAH v. BARR

Opinion of the Court (2019). The court explained that Nasrallah had been con

victed of a crime specified in 8 U. S. C. §1252(a)(2)(C). Noncitizens convicted of §1252(a)(2)(C) crimes may not ob

tain judicial review of factual challenges to a “final order of removal.” §§1252(a)(2)(C)–(D). Under Eleventh Circuit precedent, that statute also pr ecludes judicial review of fac

tual challenges to the CAT order. 2 Nasrallah contends that the Eleventh Circuit should have reviewed his factual challenges to the CAT order be

cause the statute bars review only of factual challenges to a “final order of removal.” According to Nasrallah, a CAT order is not a “final order of removal” and does not affect the validity of a final order of removal. Therefore, Nasral

lah argues, the statute by its terms does not bar judicial review of factual challenges to a CAT order. The Courts of Appeals are divided over whether §§1252(a)(2)(C) and (D) preclude judicial review of factual challenges to a CAT order. Most Courts of Appeals have sided with the Government; the Seventh and Ninth Circuits have gone the other way. Compare Gourdet v. Holder , 587 F. 3d 1, 5 (CA1 2009); Ortiz-Franco v. Holder , 782 F. 3d 81, 88 (CA2 2015); Pieschacon-Villegas v. Attorney General of U. S. , 671 F. 3d 303, 309–310 (CA3 2011); Oxygene v. Lynch , 813 F. 3d 541, 545 (CA4 2016); Escudero-Arciniega

v. Holder , 702 F. 3d 781, 785 (CA5 2012); Tran v. Gonzales

, 447 F. 3d 937, 943 (CA6 2006); Lovan v. Holder , 574 F. 3d 990, 998 (CA8 2009); Cole v. United States Attorney Gen

eral , 712 F. 3d 517, 532 (CA11 2013), with Wanjiru v. Holder , 705 F. 3d 258, 264 (CA7 2013); Vinh Tan Nguyen v. Holder , 763 F. 3d 1022, 1029 (CA9 2014). In light of the Circuit split on this important question of federal law, we granted certiorari. 589 U. S. ___ (2019). 3

——————

2 This opinion uses the term “noncitize n” as equivalent to the statutory term “alien.” See 8 U. S. C. §1101(a)(3).

3 This case comes to us on the premise that Nasrallah committed a crime specified in §1252(a)(2)(C). That said, courts are divided on the5 Cite as: 590 U. S. ____ (2020)

Opinion of the Court

II
When a noncitizen is removable because he committed a crime specified in §1252(a)(2)(C), immigration law bars ju

dicial review of the noncitizen’s factual challenges to his fi

nal order of removal. In the Government’s view, the law also bars judicial review of the noncitizen’s factual chal

lenges to a CAT order. Nasrallah disagrees. We conclude that Nasrallah has the better of the statutory argument.

A We begin by describing the three interlocking statutes that provide for judicial review of final orders of removal and CAT orders. The first relevant statute is the Illegal Immigration Re

form and Immigrant Responsibility Act of 1996. That Act authorizes noncitizens to obtain direct “review of a final or

der of removal” in a court of appeals. 110 Stat. 3009–607, 8 U. S. C. §1252(a)(1). As the parties agree, in the deporta

tion context, a “final order of removal” is a final order “con

cluding that the alien is deportable or ordering deporta

tion.” §1101(a)(47)(A); see §309(d)(2), 110 Stat. 3009–627; Calcano-Martinez v. INS , 533 U. S. 348, 350, n. 1 (2001). The Act also states that judicial review “of all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.” 8 U. S. C. §1252(b)(9); see 110 Stat. 3009–610. In other words, a noncitizen’s various challenges arising from the removal proceeding must be

—————— question whether §§1252(a)(2)(C)–(D)’s limitation on judicial review ap

plies when a noncitizen has committed only a single crime of moral tur

pitude. But that issue is not the qu estion presented in this Court, and we do not address it. Compare Keungne v. United States Attorney Gen

eral , 561 F. 3d 1281, 1283 (CA11 2009), with Yeremin v. Holder , 738 F. 3d 708, 713 (CA6 2013); Wanjiru v. Holder , 705 F. 3d 258, 262–263 (CA7 2013); Lee v. Gonzales , 410 F. 3d 778, 781–782 (CA5 2005).6 NASRALLAH v. BARR

Opinion of the Court “consolidated in a petition for review and considered by the courts of appeals.” INS v. St. Cyr , 533 U. S. 289, 313, and

n. 37 (2001). By consolidating the issues arising from a fi

nal order of removal, eliminating review in the district courts, and supplying direct review in the courts of appeals, the Act expedites judicial review of final orders of removal. The second relevant statute is the Foreign Affairs Reform and Restructuring Act of 1998, known as FARRA. FARRA implements Article 3 of the international Convention Against Torture, known as CAT . As relevant here, CAT prohibits removal of a noncitizen to a country where the noncitizen likely would be to rtured. Importantly for pre

sent purposes, §2242(d) of FARRA provides for judicial re

view of CAT claims “as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act (8 U. S. C. 1252).” 112 Stat. 2681–822, note following 8 U. S. C. §1231. The third relevant statute is the REAL ID Act of 2005. As relevant here, that Act re sponded to this Court’s 2001 decision in St. Cyr . In St. Cyr , this Court ruled that the 1996 Act, although purporting to eliminate district court re

view of final orders of removal, did not eliminate district court review via habeas corpus of constitutional or legal challenges to final orders of removal. 533 U. S.

, at 312–313. The REAL ID Act clarified that final orders of removal may not be reviewed in district co urts, even via habeas corpus, and may be reviewed only in the courts of appeals. See 119 Stat. 310, 8 U. S. C. §1252(a)(5). The REAL ID Act also pro

vided that CAT orders likewise may not be reviewed in dis

trict courts, even via habeas corpus, and may be reviewed only in the courts of appeals. See 119 Stat. 310, 8 U. S. C. §1252(a)(4).

B Those three Acts establish that CAT orders may be re

viewed together with final orders of removal in a court of7 Cite as: 590 U. S. ____ (2020)

Opinion of the Court appeals. But judicial review of final orders of removal is somewhat limited in cases (such as Nasrallah’s) involving noncitizens convicted of crimes specified in §1252(a)(2)(C). In those cases, a court of appeals may review constitutional or legal challenges to a final order of removal, but the court of appeals may not review factual challenges to a final order of removal

. §§1252(a)(2)(C)–(D); see Guerrero-Lasprilla v. Barr , 589 U. S. ___, ___–___ (2020) (slip op., at 11–13). The question in this case is the following: By precluding judicial review of factual challenges to final orders of re

moval, does the law also preclude judicial review of factual challenges to CAT orders? We conclude that it does not. The relevant statutory text precludes judicial review of factual challenges to final orders of removal—and only to final orders of removal. In the deportation context, a final “order of removal” is a final order “concluding that the alien is deportable or ordering deportation.” §1101(a)(47)(A). 4 A CAT order is not itself a final order of removal because it is not an order “concluding that the alien is deportable or ordering deportation.” As the Government acknowledges,

——————

4 Title 8 U. S. C. §1252(a)(2)(C) provides: “Notwithstanding any other provisio n of law (statutory or nonstatu

tory), including section 2241 of title 28, or any other habeas corpus pro

vision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title fo r which both predicate offenses are, without regard to their date of commission, otherwise covered by section 1227(a)(2)(A)(i) of this ti tle.” (Emphasis added.)

Section 1252(a)(2)(D) provides: “Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.” (Emphasis added.)8 NASRALLAH v. BARR

Opinion of the Court

a CAT order does not disturb the final order of removal. Brief for Respondent 26. An order granting CAT relief means only that, notwithstanding the order of removal, the noncitizen may not be removed to the designated country of removal, at least until conditions change in that country. But the noncitizen still “may be removed at any time to an

other country where he or she is not likely to be tortured.” 8 CFR §§1208.17(b)(2), 1208.16(f ). Even though CAT orders are not the same as final orders of removal, a question remains: Do CAT orders merge into final orders of removal in the same way as, say, an immi

gration judge’s evidentiary rulin gs merge into final orders of removal? The answer is no. For purposes of this statute, final orders of removal encompass only the rulings made by the immigration judge or Board of Immigration Appeals that affect the validity of the final order of removal. As this Court phrased it in INS v. Chadha , review of a final order of removal “includes all matters on which the validity of the final order is contingent.” 462 U. S. 919, 938 (1983) (inter

nal quotation marks omitted). The rulings that affect the validity of the final order of removal merge into the final order of removal for purposes of judicial review. But the immigration judge’s or the Board’s ruling on a CAT claim does not affect the validity of the final order of removal and therefore does not merge into the final order of removal. To be sure, as noted above , FARRA provides that a CAT order is reviewable “as part of the review of a final order of removal” under 8 U. S. C. §1252. §2242(d), 112 Stat. 2681– 822; see also 8 U. S. C. §1252(a)(4). Likewise, §1252(b)(9) provides that “[j]udicial review of all questions of law and fact . . . arising from any action taken or proceeding broughtto remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.” §1252(b)(9). But FARRA and §1252(b)(9) simply establish that a CAT order may be re

viewed together with the final order of removal, not that a9 Cite as: 590 U. S. ____ (2020)

Opinion of the Court CAT order is the same as, or affects the validity of, a final order of removal. Consider an analogy. Suppose a statute furnishes appel

late review of convictions and sentences in a single appel

late proceeding. Suppose that the statute also precludes appellate review of certain factual challenges to the sen

tence. Would that statute bar appellate review of factual challenges to the conviction, just because the conviction and sentence are reviewed together? No. The same is true here. A CAT order may be reviewed together with the final order of removal. But a CAT order is distinct from a final order of removal and does not affect the validity of the final order of removal. The CAT order therefore does not merge into the final order of removal for purposes of §§1252(a)(2)(C)– (D)’s limitation on the scope of ju dicial review. In short, as a matter of straightforward statutory interpretation, Con

gress’s decision to bar judicial review of factual challenges to final orders of removal does not bar judicial review of fac

tual challenges to CAT orders. It would be easy enough for Congress to preclude judicial review of factual challenges to CAT orders, just as Congress has precluded judicial review of factual challenges to cer

tain final orders of removal. But Congress has not done so, and it is not the proper role of the courts to rewrite the laws passed by Congress and signed by the President.

C Although a noncitizen may obtain judicial review of fac

tual challenges to CAT orders, that review is highly defer

ential, as Nasrallah acknowledges. See Reply Brief 19–20; Tr. of Oral Arg. 5. The standard of review is the substan

tial-evidence standard: The agency’s “findings of fact are conclusive unless any reasonable adjudicator would be com

pelled to conclude to the co ntrary.” §1252(b)(4)(B); see Kenyeres v. Ashcroft , 538 U. S. 1301, 1306 (2003) (Kennedy, J., in chambers); INS v. Elias-Zacarias , 502 U. S. 478, 481,10 NASRALLAH v. BARR

Opinion of the Court n. 1, 483–484 (1992). But the Government still insists that the statute supplies no judicial review of factual challenges to CAT orders. The Government advances a slew of arguments, but none per

suades us. First , the Government raises an argument based on prec

edent. In Foti v. INS , 375 U. S. 217 (1963), this Court in

terpreted the statutory term “fi nal orders of deportation” in the Immigration and Nationality Act of 1952, as amended in 1961, to encompass “all determinations made during and incident to the administrative proceeding” on removability. Id., at 229. The Government poin ts out (correctly) that the Foti definition of a final order—if it still applied here— would cover CAT orders and th erefore would bar judicial review of factual challenges to CAT orders. But Foti ’s in

terpretation of the INA as it existed as of 1963 no longer applies. Since 1996, the INA has defined final “order of de

portation” more narrowly than this Court interpreted the term in Foti. A final order of deportation is now defined as a final order “concluding that the alien is deportable or or

dering deportation.” 8 U. S. C. §1101(a)(47)(A); Antiterror

ism and Effective Death Penalty Act of 1996, 110 Stat. 1277; see §309(d)(2) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009–627. And as we have explained, an order denying CAT relief does not fall within the statutory definition of an “order of depor

tation” because it is not an order “concluding that the alien is deportable or ordering deportation.” Therefore, Foti does not control here. Second , the Government puts forward a structural argu

ment. As the Government sees it, if a CAT order is not merged into a final order of removal, then no statute would authorize a court of appeals to review a CAT order in the first place. That is because, in the Government’s view, the only statute that supplies judicial review of CAT claims is the statute that provides for ju dicial review of final orders11 Cite as: 590 U. S. ____ (2020)

Opinion of the Court of removal. See §1252(a)(1). The premise of that argument is incorrect. Section 2242(d) of FARRA, enacted in 1998, expressly provides for judici al review of CAT claims to

gether with the review of final orders of removal. Moreover, as a result of the 2005 REAL ID Act, §1252(a)(4) now pro

vides for direct review of CAT orders in the courts of ap

peals. See also 8 U. S. C. §1252(b)(9). In short, our decision does not affect the authority of the courts of appeals to re

view CAT orders. Third , the Government asserts a congressional intent ar

gument: Why would Congress bar review of factual chal

lenges to a removal order, but allow factual challenges to a CAT order? To begin with, we must adhere to the statutory text, which differentiates between the two kinds of orders for those purposes. In any event, Congress had good reason to distinguish the two. For noncitizens who have commit

ted crimes that subject them to removal, the facts that ren

dered the noncitizen removable are often not in serious dis

pute. The relevant facts will usually just be the existence of the noncitizen’s prior criminal convictions. By barring review of factual challenges to final orders of removal, Con

gress prevented further relitigation of the underlying fac

tual bases for those criminal convictions—a point that Sen

ator Abraham, a key proponent of the statutory bar to judicial review, stressed back in 1996. See 142 Cong. Rec. 7348–7350 (1996). By contrast, the issues related to a CAT order will not typically have been litigated prior to the alien’s removal proceedings. Those factual issues may range from the noncitizen’s past experiences in the designated country of removal, to the noncitizen’s credibility, to the political or other current conditions in that country. Because the fac

tual components of CAT orders will not previously have been litigated in court and because those factual issues may be critical to determining whet her the noncitizen is likely12 NASRALLAH v. BARR

Opinion of the Court
to be tortured if returned, it makes some sense that Con

gress would provide an opportuni ty for judicial review, al

beit deferential judicial review, of the factual components of a CAT order. Fourth , the Government advances a policy argument— that judicial review of the factual components of a CAT or

der would unduly delay remova l proceedings. But today’s decision does not affect whether the noncitizen is entitled to judicial review of a CAT order and does not add a new layer of judicial review. All agree that a noncitizen facing re

moval under these provisions may already seek judicial re

view in a court of appeals of constitutional and legal claims relating to both the final order of removal and the CAT or

der. Our holding today means only that, in that same case in the court of appeals, the court may also review the noncitizen’s factual challenges to the CAT order under the deferential substantial-evidence standard. For many years, the Seventh and Ninth Circuits have allowed factual challenges to CAT orders, and the Government has not in

formed this Court of any significant problems stemming from review in those Circuits. Fifth , what about the slippery slop e? If factual challenges to CAT orders may be reviewed , what other orders will now be subject to factual challenges in the courts of appeals? Importantly, another jurisdiction-stripping provision, §1252(a)(2)(B), states that a noncitizen may not bring a fac

tual challenge to orders denyin g discretionary relief, includ

ing cancellation of removal, voluntary departure, adjust

ment of status, certain inadmissibility waivers, and other determinations “made discretionary by statute.” Kucana v. Holder , 558 U. S. 233, 248 (2010). Our decision today there

fore has no effect on judicial review of those discretionary determinations. 5

——————

5 In expedited removal proceedings, the immigration laws do not pro

vide for any judicial review of CAT claims. See 8 U. S. C.13 Cite as: 590 U. S. ____ (2020)

Opinion of the Court The Government suggests that our decision here might lead to judicial review of factual challenges to statutory withholding orders. A statutory withholding order pre

vents the removal of a noncitizen to a country where the noncitizen’s “life or freedom would be threatened” because of the noncitizen’s “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U. S. C. §1231(b)(3)(A). That question is not presented in this case, and we therefore leave its resolution for another day.

* * * In cases where a noncitizen has committed a crime spec

ified in 8 U. S. C. §1252(a)(2)(C), §§1252(a)(2)(C) and (D) preclude judicial review of the noncitizen’s factual chal

lenges to a final order of removal. A CAT order is distinct from a final order of removal and does not affect the validity of a final order of removal. Therefore, §§1252(a)(2)(C) and (D) do not preclude judicial review of a noncitizen’s factual challenges to a CAT order. We reverse the judgment of the U. S. Court of Appeals for the Eleventh Circuit.

It is so ordered.

—————— §§1225(b)(1)(B)(iii), 1252(a)(2)(A), an d 1252(e). Our ruling today does not affect that law._________________ 1 Cite as: 590 U. S. ____ (2020)

T HOMAS , J., dissenting 

## SUPREME COURT OF THE UNITED STATES

_________________ No. 18–1432

NIDAL KHALID NASRALLAH, PETITIONER v. WILLIAM P. BARR, ATTORNEY GENERAL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
[June 1, 2020]

J USTICE T HOMAS , with whom J USTICE A LITO joins, dis

senting. The majority holds that the federal courts of appeals have jurisdiction to review factual challenges to orders resolving claims brought under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punish

ment. Because I disagree with this interpretation of the relevant immigration laws, I respectfully dissent.

I The Convention Against Torture and Other Cruel, Inhu

man or Degrading Treatment or Punishment (CAT or Con

vention) is an international human rights treaty that, as its name implies, obligates signator ies to work to eradicate tor

ture. The Convention was sent to the Senate for its advice and consent in 1990. Although the Senate ultimately rati

fied the treaty, it also determined that the first 16 articles of the Convention were not sel f-executing. See S. Exec. Rep. No. 101–30, p. 31 (1990). As such, those articles required implementing legislation before their obligations could be

come effective as domestic law. See Medellín v. Texas , 552 U. S. 491, 505, n. 2 (2008). After the treaty was ratified, Congress enacted legisla

tion implementing Article III of the Convention by means of the Foreign Affairs Reform and Restructuring Act of 19982 NASRALLAH v. BARR

T HOMAS , J., dissenting (FARRA). See §2242, 112 Stat. 2681–822, note following 8 U. S. C. §1231. Article III of the Convention prohibits its signatories from “expel[ling], return[ing] or extradit[ing] a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” S. Treaty Doc. No. 100–20, p. 20, 1465 U. N. T. S. 114. Rather than providing detailed guidance on the United States’ Article III obligations, FARRA merely restated the treaty’s language and perfunctorily declared that “the heads of the appropriate agencies shall prescribe regulations to implement the obligations of the United States under Article 3.” §2242(b). 1 Congress also provided that no court would have “jurisdiction to consider or review claims raised under the Convention . . . except as part of the review of a final order of removal pursuant to . . . (8 U. S. C. §1252).” §2242(d). Section 1252, in turn, grants federal courts of appeals ju

risdiction to review final orders of removal. 8 U. S. C. §1252(a)(1). It also specifies that “the sole and exclusive means for judicial review of an order of removal” is through “a petition for review filed . . . in accordance with this sec

tion.” §1252(a)(5). Section 1252 also contains a “zipper clause,” which states that “all questions of law or fact . . . arising from any action taken or proceeding brought to re

move an alien” shall be consolidated and “available only in judicial review of a final order under this section.” §1252(b)(9). At the same time, petitions for review are subject to a

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1 In spite of the weighty interests in not returning aliens to countries where they would likely be tortured or killed, Congress largely left the relevant issues—most notably, th e interaction between CAT and re

moval orders—to be resolved by agency regulations. See ante , at 8. These important questions also includ e the definition of torture, 8 CFR §1208.18 (2020); available forms of relief, §§1208.16(c), 1208.17; and the standards that immigration judges sh ould use to decide whether an ap

plicant has carried his burden, §1208.16(c).3 Cite as: 590 U. S. ____ (2020)

T HOMAS , J., dissenting number of limitations, one of which is in §1252(a)(2)(C). That provision—often referre d to as the “criminal-alien bar”—states that “no court shall have jurisdiction to review any final order of removal against an alien who is remova

ble by reason of having committed” certain criminal of

fenses.

II A This case concerns whether CAT claims brought during a criminal alien’s removal proceeding are covered by the criminal-alien bar in §1252(a)(2)(C). The most important provision for determining whether these CAT orders are subject to §1252(a)(2)(C) is the zipper clause. If orders deeming a criminal alien ineligible for CAT relief fall within that clause, then the bar in §1252(a)(2)(C) prevents review; if they do not, then the courts have jurisdiction to review factual challenges related to these orders. I would conclude that CAT orders fall within the zipper clause. The zipper clause states that “all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien . . . shall be available only in judicial re

view of a final order under this section.” §1252(b)(9) (em

phasis added). To “arise” means “to originate from a speci

fied source” or “to come into being.” Webster’s Third New International Dictionary 117 ( 1976). And “from” most nat

urally refers here to the “gro und, reason, or basis” for some

thing. Id. , at 913. Thus, §1252(b)(9) covers all “questions of law and fact” that an immigration judge must decide as a result of the Government’s decision to initiate removal proceedings against an alien. See also Reno v. AmericanArab Anti-Discrimination Comm. , 525 U. S. 471, 482 (1999) (stating that the zipper clause applies to the “many . . . de

-4 NASRALLAH v. BARR

T HOMAS , J., dissentingcisions or actions that may be part of the [removal] process”). 2 The plain text clearly covers CAT claims such as the one petitioner raised. The Gove rnment initiated removal pro

ceedings, alleging that petitioner had been convicted of a “crime involving moral turpitude.” See §1227(a)(2)(A)(i). As a direct result, petitioner applied for CAT relief to pre

vent his removal. He was denied CAT withholding because the Immigration Judge, during the removal proceeding, de

termined that petitioner had been convicted of a “particu

larly serious crime.” §1158(b)(2)(A)(ii). On appeal, the Board of Immigration Appeals likewise denied CAT defer

ral in that selfsame removal proceeding. It is beyond dis

pute that petitioner’s elig ibility for CAT relief involved “questions of law and fact” that directly “ar[ose] from” the Government’s initiation of removal proceedings against him. §1252(b)(9). The very forms of relief for which peti

tioner applied—withholding of removal and deferral of re

moval—confirm that this relief arose directly from the Gov

ernment-initiated removal proceeding. Because the CAT claim falls within the zipper clause, all of §1252’s other limitations and procedural requirements imposed on final orders of removal, including §1252(a)(2)(C)’s criminal-alien bar, also apply. Accordingly, courts have no jurisdiction to review factual challenges to CAT claims brought in the course of a criminal alien’s re

moval proceeding.

B My analysis would begin and end with the plain meaning of the zipper clause. Rather than focusing on that clause,

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2 As I have previously explained, the zipper clause is actually far broader, covering all claims “r elated to” removal proceedings. Jennings

v. Rodriguez , 583 U. S. ___, ___ (2018) (opini on concurring in part and concurring in judgment) (slip op., at 3).5 Cite as: 590 U. S. ____ (2020)

T HOMAS , J., dissenting
however, the majority bases it s textual analysis almost ex

clusively on the fact that Congress has defined an “ ‘order of [removal]’ ” as an order “concluding that the alien is deportable or ordering deportation.” §1101(47)(A). The majority correctly notes that a CAT order does not fall within this definition. See ante , at 7. But it uses that definition to alter the scope of the zipper clause, asserting that the provision only consolidates “[t]he rulings that affect the validity of the final order of removal.” Ante , at 8. As just explained, this conclusion contradicts the stat

ute’s plain text. The zipper clause does not consolidate all questions of law and fact that “affect the validity of the final order of removal.” Ibid. It instead consolidates “all ques

tions of law and fact . . . arising from any action taken or proceeding brought to remove an alien.” §1252(b)(9) (em

phasis added). “Arising from” covers a broader category of claims than those that simply impact the validity of the or

der, including petitioner’s claim. Thus, the majority’s overreliance on the definition of final order of removal is mis

placed. The majority nevertheless contends that its reading is supported by §1252(a)(4). That provision states that CAT claims may be reviewed through a petition for review. Ac

cording to the majority, this paragraph “provides for direct review of CAT orders in the courts of appeals.” Ante , at 11. That is, the majority views §1252(a)(4) as a specific grant of jurisdiction over CAT claims. Working from that interpre

tation, the majority contends that the zipper clause and FARRA merely confirm that CAT orders “may be reviewed together with the final order of removal.” Ante , at 8. This is incorrect. Jurisdiction over CAT claims comes from FARRA §2242(d), which stat es that courts cannot re

view CAT claims “ except as part of the review of a final or

der of removal pursuant to . . . (8 U. S. C. §1252).” In other words, a final order of removal is required if a court is to review a CAT order at all. The CAT order then becomes6 NASRALLAH v. BARR

T HOMAS , J., dissenting reviewable “as part of ” that final order of removal through the zipper clause. And, because FARRA funnels exclusive review of CAT orders through §1252, all of that section’s limitations on final orders of removal apply equally to CAT orders, including §1252(a)(2)(C). Section 1252(a)(2)(4), on the other hand, serves a far sim

pler function. That provision simply confirms that, because CAT claims can be reviewed only as part of a final order of removal, and final orders of removal can be reviewed only if a petitioner files a petition for review, a CAT claim like

wise can be reviewed only if petitioner files a petition for review. See Ortiz-Franco v. Holder , 782 F. 3d 81, 88–89 (CA2 2015); Lovan v. Holder , 574 F. 3d 990, 998 (CA8 2009). My reading of the statute makes sense of §1252(a)(4), while still giving the zipper clause its ordinary meaning. 3

C The majority’s interpretati on will bring about a sea change in immigration law. Though today’s case involves CAT claims, there is good reas on to think that the major

ity’s rule will apply equally to statutory withholding of re

moval. Statutory withholding, a frequently sought form of relief, is available if “the alien’s life or freedom would be threatened . . . because of the alien’s race, religion, nation

ality, membership in a particular social group, or political opinion.” §1231(b)(3)(A); see also 8 CFR §208.16(b) (2020). Like CAT withholding, statutory withholding is unavaila

ble to aliens who have committed certain crimes. §1231(b)(3)(B)(ii). And like CAT relief, statutory withhold

ing seeks to prevent removability and is considered after the alien has been deemed removable. See, e.g. , Kouambo

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3 Reading §1252(a)(4) as a grant of jurisdiction would also require read

ing §1252(a)(5), which contains very similar language to §1252(a)(4), as a grant of jurisdiction ov er “order[s] of removal.” But that interpretation would render §1252(a)(5) superfluous, since §1252(a)(1) already grants jurisdiction over such orders.7 Cite as: 590 U. S. ____ (2020)

T HOMAS , J., dissenting

v. Barr , 943 F. 3d 205, 210 (CA4 2019). Thus, statutory withholding claims also do not affect the validity of the un

derlying removal order and, in the majority’s view, would not be subject to §1252(a)(2)(C). The Government persuasively argues that adopting peti

tioner’s rule will disturb the courts of appeals’ longstanding practice of subjecting criminal aliens’ statutory withholding claims to §1252(a)(2)(C). See, e.g. , Rendon v. Barr

, 952 F. 3d 963, 970 (CA8 2020); Pierre-Paul v. Barr , 930 F. 3d 684, 693–694 (CA5 2019); Gutierrez v. Lynch , 834 F. 3d 800, 804 (CA7 2016); Jeune v. United States Atty. Gen. , 810 F. 3d 792, 806, nn. 3, 12 (CA11 2016); Pechenkov v. Holder , 705 F. 3d 444, 448 (CA9 2012). And at oral argument, peti

tioner all but conceded that the Government is correct on that score. See Tr. of Oral Arg. 20–21. Whistling past the graveyard, the majority attemp ts to avoid confronting this result by simply stating that the question is not currently before us. Ante , at 13. But the Court cannot evade the im

plications of its decision so easily. We have been presented with two competing statutory interpretations—one of which makes sense of all relevant provisions without up

ending settled practice, and one of which significantly un

dermines §1252(a)(2)(C) by removing a vast swath of claims from its reach. If the majority insists on choosing the latter interpretation, it should justify that choice and candidly confront its implications.

III At bottom, petitioner’s argument is largely driven by pol

icy considerations. He contends that the United States has obligated itself not to return any alien, even a criminal al

ien, to a country where he may be tortured or killed. Ac

cording to petitioner, if CAT claims cannot be reviewed by courts of appeals, then a vital check on erroneous re

foulement will be lost. Petitioner’s arguments are not with

out rhetorical and emotional force. But, like so many other8 NASRALLAH v. BARR

T HOMAS , J., dissenting questions related to CAT obligations, Congress chose not to address them through the legislation involved here. What Congress has done is enact §1252(a)(2)(C), which strips jurisdiction over certa in claims of criminal aliens. That is what is before us, not the broader policy considera

tions. As has been the case for decades now, the decisions of this Court continue to systematically chip away at this statute and other jurisdictional limitations on immigration claims, thus thwarting Congress’ intent. See GuerreroLasprilla v. Barr , 589 U. S. ___, ___ (2020) (T HOMAS , J., dis

senting) (slip op., at 1); INS v. St. Cyr , 533 U. S. 289, 328– 330 (2001) (Scalia, J., dissenting). Because today’s errone

ous result further weakens a duly enacted statute, I re

spectfully dissent.