Nasrallah v. Barr
The Supreme Court ruled that federal appeals courts can review the factual basis for a Convention Against Torture ruling, even when the person facing deportation has a criminal conviction that otherwise limits court oversight of their case.
The decision resolves a long-running disagreement among lower courts, ensuring that immigrants with criminal records can still ask a federal court to check whether the government's finding — that they won't be tortured in their home country — is supported by the evidence.
“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.”
The majority explaining why courts cannot extend the factual-review bar to CAT orders when Congress chose not to.
How it got here: An immigration judge granted CAT relief; the Board of Immigration Appeals reversed; the Eleventh Circuit declined to review factual challenges; the Supreme Court granted certiorari to resolve a circuit split.
The Case in Depth
What happened
Nidal Khalid Nasrallah, a Lebanese citizen who had lived in the United States as a lawful permanent resident since 2007, pleaded guilty to receiving stolen property in 2013. The government sought to deport him to Lebanon. He applied for protection under the international Convention Against Torture, claiming he was a member of the Druze religion who had previously been tortured by Hezbollah and would be tortured again if returned. An immigration judge agreed and blocked his removal to Lebanon, but the Board of Immigration Appeals reversed that decision.
The question before the Court
Can a federal appeals court review the factual finding that an immigrant with a criminal record would not be tortured if deported, even though that criminal record normally limits court oversight of deportation orders?
The Court's answer
Yes — federal appeals courts can review the factual basis for a Convention Against Torture (CAT) ruling, even when a noncitizen's criminal conviction otherwise limits judicial review of their deportation case. The Court read the relevant statutes and found that the restriction on factual review applies only to "final orders of removal" — that is, orders concluding that someone is deportable. A CAT order, which only determines where a person may be deported (not whether), is a legally distinct ruling that the statutory bar does not reach. Congress provided separately for appeals courts to review CAT orders, and because those orders never affect the underlying deportation itself, they stand apart from the removal order.
The available review is highly deferential: the agency's factual findings stand unless no reasonable decision-maker could have reached the same conclusion. The Court noted that Congress could easily have extended the bar to CAT orders but did not, and courts cannot rewrite what Congress chose to leave out.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Noncitizens with criminal records who face deportation to countries where they claim they will be tortured can now ask a federal appeals court to review the factual findings behind that determination, regardless of which circuit they are in. Courts must still defer heavily to the immigration agency, but the review avenue can no longer be closed off entirely based solely on a criminal conviction.
What changes now
The case is sent back to the Eleventh Circuit, which must now actually review Nasrallah's factual challenges to the Board of Immigration Appeals' CAT order using the deferential substantial-evidence standard. Other circuits that had previously refused to review such factual challenges will need to align with this ruling. The Court left open, for a future case, whether the same logic extends to "statutory withholding" orders, a related form of deportation relief.
What this does not decide
The ruling does not decide whether factual challenges to "statutory withholding" orders — a related form of protection available to people whose life or freedom would be threatened based on race, religion, or similar grounds — are also subject to judicial review. The Court explicitly reserved that question for another day.
Concurrences and dissents
Dissent — Justice Thomas
Justice Thomas would have ruled that courts cannot review factual challenges to CAT orders for criminal aliens. He argued the majority ignored the statute's 'zipper clause,' which consolidates all questions of law and fact arising from removal proceedings and funnels them through the same limitations that apply to removal orders. In his view, because a CAT claim directly arises from a removal proceeding, it falls within the criminal-alien bar. He also warned that the majority's logic will disrupt settled court practice by equally opening the door to factual review of statutory withholding orders.
How the Court got there
The legal reasoning, step by step
- The statutory criminal-alien bar (8 U.S.C. §1252(a)(2)(C)) strips courts of the ability to review factual challenges to 'final orders of removal.' The starting point was the immigration statute's own definition of that phrase: an order 'concluding that the alien is deportable or ordering deportation.'
- A Convention Against Torture order doesn't fit that definition. A CAT order only determines whether a person can be sent to one specific country — it doesn't determine whether they are deportable. A person who wins CAT relief can still be deported; they simply cannot be sent to the country where they face torture. The CAT order and the removal order are separate legal rulings.
- CAT orders also don't 'merge' into removal orders under the principle that covers rulings affecting a removal order's validity. Only rulings that determine whether someone can be deported affect a removal order's validity and merge into it for review purposes. Because a CAT ruling leaves the removal order completely intact, no merger occurs.
- Three separate statutes — the 1996 immigration reform law, the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), and the REAL ID Act of 2005 — each independently authorize courts of appeals to review CAT orders alongside removal orders. This means court authority to review CAT orders doesn't depend on treating them as part of the removal order itself.
- Because the criminal-alien bar targets only final orders of removal, its restriction on factual review does not extend to CAT orders. The proper standard when courts do review CAT facts is 'substantial evidence' — the most deferential standard available, under which agency factual findings stand unless any reasonable decision-maker would have been compelled to reach the opposite conclusion.
Doctrinal impact
Cases affected by this decision
Distinguishes Foti v. INS (375 U.S. 217)
Foti's broad definition of 'final orders of deportation' no longer applies because Congress later narrowed that definition by statute.