Jersey City, New Jersey – On June 1, 2020, the United States Supreme Court issued a major decision in Nasrallah v. Barr holding the federal courts may review factual findings in Convention Against Torture cases. Prior to this decision, only two Courts of Appeals allowed such review. This decision will open the door to many people who were denied relief by the Board of Immigration Appeals in Convention Against Torture (“CAT”) cases.
A person may be granted CAT relief if s/he is more likely than not to be tortured in the country of removal. A CAT order bars removal to that country, but not removal to a different country. Thus, an order of removal is still in place for a person granted CAT relief. Because review of a denial of CAT relief does not affect the underlying order of removal, the Supreme Court held the federal courts may review the factual findings in an order denying CAT relief.
The ability of federal Courts of Appeal to review factual findings in CAT relief is an important positive change. However, the review is still subject to a highly deferential standard of review preventing the Courts of Appeal from reversing fact findings unless any reasonable adjudicator would be compelled to conclude differently than the BIA or immigration judge did.
Importantly, this decision may also open the door to Courts of Appeal review of factual findings in Withholding of Removal denials, as well. While the Supreme Court did not answer this question, the rationale that Withholding of Removal is not a final order of removal is the same for Withholding as it is for CAT.