Justices To Review 30-Day Appeal Window In Removal Case

By Britain Eakin

Law360 (November 4, 2024, 11:37 AM EST)  –The U.S. Supreme Court on Monday accepted a case that could resolve a circuit split on whether noncitizens with final removal orders must appeal to courts within 30 days of the order, or 30 days after administrative appeals conclude.

The justices will review the Fourth Circuit’s conclusion that the judiciary lacks power to review whether a Jamaican man, who missed a 30-day deadline to appeal a final removal order, has a credible fear of being deported.

The Fourth Circuit ruled in April that it lacked jurisdiction to consider whether the Board of Immigration Appeals erred in ordering Pierre Yassue Nashun Riley removed after an immigration judge found he had a credible fear of returning to Jamaica, and was eligible for deferral of removal under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The circuit court held that the BIA’s order denying CAT relief doesn’t qualify as a final order of removal. Instead, it said Riley should have appealed the final removal order that the U.S. Department of Homeland Security issued in January 2021, shortly after he was released from federal prison for drug and firearm charges.

In urging the justices to take up the petition, Riley pointed to “the intractable split” among circuits about what, exactly, constitutes a final removal order.

“These problems recur frequently in the mass of immigration adjudications, and the issue is extraordinarily grave,” Riley said. “Even when the United States declines under domestic policies to allow a noncitizen to stay, the CAT protects the person from torture and death at the hands of the person’s original government.”

The Fourth Circuit has excluded from judicial review the very people who most need CAT protection, Riley said.

In addition to the Fourth Circuit, the Second Circuit has adopted the same approach. Other circuits, meanwhile, have held that they can review BIA decisions denying withholding of removal if noncitizens appeal within 30 days of the board’s final decision.

The Biden administration had urged the justices to reject the petition, while noting that Riley “is correct” that the Fourth Circuit erred in finding that the 30-day deadline in Section 1252(b)(1) of the Immigration and Nationality Act is jurisdictional, meaning it strips courts of the authority to hear appeals like his.

In briefing, the federal government pointed the justices to their May ruling in Harrow v. Department of Defense , which held that “an analogous statutory filing deadline is not jurisdictional.”

Because that ruling came down after the Fourth Circuit’s decision, the U.S. Department of Justice advised the justices to vacate the ruling below and send it back to the Fourth Circuit for a second look in light of Harrow’s guidance on when time limits might be jurisdictional.

The case was one of several pending before the justices concerning Section 1252(b)(1)’s 30-day time bar, all revolving around the jurisdictional question at issue in Riley’s case.

According to court documents, Riley came to the U.S. on a tourist visa in 1995 and has lived in the country since. In 2011, a jury convicted him of drug trafficking and firearm offenses, but a district court granted him compassionate release in 2021.

U.S. Immigration and Customs Enforcement took him into custody immediately, and DHS ordered him removed in January 2021 for being convicted of an aggravated felony.

An asylum officer was not persuaded by Riley’s assertion that he would be harmed if he returned to Jamaica, but an immigration judge disagreed and granted him withholding of removal. The federal government appealed that decision, and the BIA overruled the immigration judge on appeal.

Riley argued in court documents that he will likely be killed by “an influential local figure” who has already murdered several of his family members, if he is deported back to Jamaica.

Counsel for Riley declined to comment. The DOJ did not immediately return a request for comment.

Riley is represented by Keith Bradley of Squire Patton Boggs.

The federal government is represented by Elizabeth B. Prelogar of the U.S. Department of Justice.

The case is Riley v. Garland, case number 23-1270, in the Supreme Court of the United States.

–Editing by Alyssa Miller.