Supreme Court Takes Up Case That Could Affect Deportation Appeals Of Illegal Immigrants

Authored by Tom Ozimek via The Epoch Times,

The U.S. Supreme Court has agreed to review a key deadline affecting some noncitizens, specifically, illegal immigrants who seek protection from deportation to countries where they say they fear persecution or torture.

The decision could resolve conflicting interpretations among lower courts on how strictly the timing of deportation appeals should be enforced.

The high court agreed on Nov. 4 to hear a case brought by Pierre Riley, a Jamaican national who overstayed his visa to the United States in 1995.

In 2006, he was sentenced to 25 years in prison for possessing and intending to distribute more than 2,000 pounds of marijuana, as well as for possessing a firearm related to the drug offense.

After receiving compassionate release in 2021, Riley was taken into custody by immigration officials. The Department of Homeland Security (DHS) promptly issued a deportation order, known as a final administrative removal order, based on Riley’s aggravated felony conviction.

Saying he feared violence if returned to Jamaica, Riley applied for relief from the removal order under the Convention Against Torture (CAT), citing a credible fear of persecution or torture at the hands of a criminal who had already harmed members of his family.

Although an initial review by an asylum officer found that Riley had not shown a reasonable fear, an immigration judge later granted him protection under the CAT, deferring his deportation. DHS appealed the immigration judge’s decision to the Board of Immigration Appeals (BIA), which overturned the immigration judge’s order in May 2022 and ordered Riley’s removal to Jamaica.

Riley then appealed the BIA’s decision to the U.S. Court of Appeals for the Fourth Circuit. However, the appeals court dismissed his petition, citing lack of jurisdiction and concluding that Riley had missed the 30-day deadline mandated by immigration law. The Fourth Circuit held that the 30-day clock began with the original final administrative removal order issued in January 2021, not with the later BIA decision.

Under the Fourth Circuit’s interpretation, only the original removal order triggers the 30-day appeal period. This decision prompted Riley to appeal to the Supreme Court.

In his appeal to the high court, filed on May 31, Riley’s attorneys highlighted a split among federal circuits on two key issues.

The first is about when the 30-day deadline begins.

Some circuits, including the Fourth Circuit, require appeals to be filed within 30 days of the initial removal order. Other circuits permit illegal immigrants and other noncitizens to appeal within 30 days of the BIA’s final decision, especially when that decision is the last step in the administrative process.

The second question before the Supreme Court is whether the 30-day deadline is a strict, jurisdictional requirement, or merely a procedural “claims-processing” rule that can be interpreted flexibly under certain circumstances. If the deadline is jurisdictional, courts lack the authority to hear late appeals, but if it’s deemed to be a claims-processing rule, exceptions may be possible in some cases.

The Supreme Court’s Nov. 4 docket entry confirms that the justices will limit their review to these two questions, as framed by the Department of Justice, which is representing the government in the case.

The docket entry reads:

“The petition for a writ of certiorari is granted limited to the questions presented by the respondent’s brief.

1. Whether the 30-day deadline in 8 U.S.C. 1252(b)(1) for filing a petition for review of an order of removal is jurisdictional.

2. Whether a noncitizen satisfies the deadline in Section 1252(b)(1) by filing a petition for review challenging an agency order denying withholding of removal or protection under the Convention Against Torture within 30 days of the issuance of that order.”

It’s unclear when the Supreme Court will finalize its review.

The outcome of the case has the potential to set a nationwide standard for deportation appeals, influencing how cases involving claims of risk of harm resulting from deportation are handled across federal courts.

A decision by the Supreme Court to treat the 30-day deadline as nonjurisdictional would provide flexibility in deportation appeals, allowing some cases to be heard even if the deadline was missed.

Conversely, if the high court rules that the 30-day period is strictly jurisdictional, illegal immigrants and some other types of noncitizens facing deportation—such as those who have been granted asylum or refugee status but committed crimes that make them deportable—would face limits in accessing judicial review.