Supreme Court Decision Sparks Confusion, Creates New Hurdles for Federal Court Review of Removal Orders

The Supreme Court’s newest immigration-related decision creates a conundrum: certain noncitizens must now appeal their deportation orders before their removal proceedings are even finished. The decision, Riley v. Bondi, is sure to make it more difficult for those noncitizens—all of whom are seeking protection from persecution or torture—to get federal court review of their cases. But it also opens up new technical arguments to get that review.

In Riley,the Court considered two questions about the deadline to seek federal court review of a removal order:

• Is the 30-day deadline to file a petition for review of a removal order with a U.S. court of appeals “jurisdictional?” In other words, if a noncitizen misses the deadline to challenge their deportation order, does that strip the federal appeals court of the ability to review the case?

• When a noncitizen is ordered removed by a Department of Homeland Security (DHS) officer by reinstating a prior removal order or entering an administrative removal order, but the noncitizen then seeks withholding of removal or protection from deportation under the Convention Against Torture (CAT) in immigration court, does the 30-day petition for review clock start with the DHS removal order or when the immigration court proceedings are finished?  

Answer to Question 1: The Petition for Review Deadline Is Not Jurisdictional, It Is a Claims-Processing Rule

The Court’s unanimous answer to the first question was NO—the 30-day petition for review deadline is not jurisdictional. This means that if a noncitizen misses the deadline, the court of appeals is not entirely barred from considering the case.

Instead, the Court found that the deadline is a “claim-processing” rule. Generally, a claim-processing rule is flexible and can be tolled if the petitioner shows that they were being diligent and missed the deadline due to extraordinary circumstances. However, a mandatory claim-processing rule cannot be tolled—it can only be waived or abandoned by the government.

The Supreme Court did not say whether the 30-day petition for review deadline is a mandatory rule. It is now an open question for the courts of appeals to decide.

Answer to Question 2: The 30-Day Deadline Starts Running When DHS Issues a Reinstatement or Administrative Removal Order

The Court’s majority held that DHS-issued reinstatement and administrative removal orders are final orders of removal that trigger the 30-day deadline, even though the person is still seeking protection from removal in immigration court.

This is a dramatic change in the law. The Court’s ruling overturned decisions from every court of appeals except the Second and Fourth Circuits. Even the Department of Justice had agreed with Mr. Riley that the deadline should not begin until there is a final decision on the person’s applications for withholding and CAT protection.

The Impact

Reinstatement of removal (for noncitizens with prior removal orders) and administrative removal proceedings (for noncitizens with certain criminal convictions who are not lawful permanent residents) have fewer protections than traditional removal proceedings. But these fast-track proceedings include key safeguards: (1) the right to apply for fear-based relief (withholding of removal and protection under CAT) and (2) the right to federal court review.

The Riley decision sets up significant obstacles for noncitizens with reinstatement or administrative removal orders to get review of decisions denying them protection. As Justice Sotomayor (joined by Justices Kagan, Jackson, and Gorsuch) explains in her partial dissent: “One should not be required to appeal an order before it exists.”

Now noncitizens must file petitions for review before they even know whether they will be denied withholding or CAT, let alone the basis for any denial. And they must ask the court of appeals to wait to adjudicate those petitions until the immigration court makes a final decision on their applications.

This is a problem for many reasons, including—

• Unrepresented noncitizens will not know that they have to file a petition for review before their cases are even completed. DHS has yet to set up a system to notify them of this new requirement and the Supreme Court did not order them to do so.
  
• There is no right to appointed counsel in removal proceedings and many, if not most, noncitizens will not have an immigration lawyer representing them.
  
• DHS does not always give people copies of their removal orders, so they may not know when the 30-day clock begins.
  
• Courts of appeals may not be willing to wait for a final decision on the immigration case.

The stakes are high. The noncitizens impacted by this new deadline fear persecution, torture, and even death if they are wrongly removed. And now, they face new and confusing hurdles to seek federal court review of their removal orders.

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