Timing rules for reviewing deportation decisions concerning persecution or torture risk

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

The Supreme Court has taken a lot of action on relisted cases since our last installment. The court granted review of three cases concerning the appropriate venue for challenges to certain kinds of Environmental Protection Agency decisions, as well as one case addressing the factors a sentencing judge can consider when revoking a defendant’s term of supervised release and ordering that person incarcerated. The court also denied review in one relisted case involving the constitutionality of restrictions on the president’s authority to remove commissioners of the Consumer Product Safety Commission. And the court denied review of a case asking whether the takings clause is violated when the reason for taking property is a pretext for blocking an owner’s intended plans for another use, although Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh voted to review it.

All the rest of the relisted cases have been relisted again. And in the process, Hamm v. Smith hit a historic milestone by being relisted for the 23rd time, thus becoming the most-relisted case ever – or at least the most-relisted case in the 15 years I’ve been closely watching relists. Hamm was first relisted after the Jan. 5, 2024 conference. Even more impressively, the court rescheduled the case five times before that. The case was first distributed for the conference of Oct. 27, 2023, just over one year ago. I have no idea what is taking so long, but I have to imagine whatever is happening is interesting. Hamm unseated the previous relist king, Ryan v. Hurles, which topped out at 22 relists just over 10 years ago.

That now brings us to the newly relisted cases. There are three of them: Riley v. Garland, Martinez v. Garland, and Sanchez v. Garland. All concern the same basic issue of immigration law. When a noncitizen reenters the country after being deported, U.S. Immigrations and Customs Enforcement can summarily reinstate the deportation order. But noncitizens may resist deportation to a particular country by demonstrating that they will be persecuted or tortured if sent there. If an asylum officer determines that such a fear is reasonable, noncitizens may enter proceedings that would protect them from being deported that country (but would allow them to be sent to some other country that would accept them).

But because of agency backlogs, those administrative proceedings often last long periods of time –sometimes months or even years. The asylum officer’s decision to reinstate the deportation order can be reviewed by an immigration judge, whose ruling in turn is reviewed by the Board of Immigration Appeals, which in turn is subject to review by the regional federal court of appeals. The review provision states that the noncitizen’s “petition for review must be filed not later than 30 days after the date of the final order of removal.”

There are two circuit splits here. First: Most courts of appeals have held that they can review the BIA’s decision to deny withholding deportation if the petition for review is filed within 30 days of the immigration judge’s decision upholding the reinstated deportation. But two appeals courts have held that the 30-day period runs from when the asylum officer determines that the prior deportation order should be reinstated, well before the immigration judge’s review.

Second: The courts of appeals are divided about whether the 30-day limit is a constraint that they are powerless to disregard, or if it is instead simply a “claims processing rule” to which exceptions can sometimes be made.

The government concedes that the there are splits on both issues, and it argues that the noncitizens here are correct both that the 30-day period runs from BIA’s final affirmance and that it is a claims processing rule subject to exceptions. It nonetheless argues that the court does not need to grant review now because the justices recently held in Harrow v. Department of Defense that a similar filing deadline is not jurisdictional, noting that “ ‘most time bars are nonjurisdictional,’ even when ‘framed in mandatory terms.’”

In addition, the government argues that review would be premature because the courts that have held that the 30-day period runs from the asylum officer’s decision to reinstate deportation appear to be reconsidering that rule, and the government promises to “waive the application of the 30-day deadline” in those cases anyway. Thus, the government maintains it would be enough to grant the petitions, vacate the adverse court of appeals judgments below, and remand for further consideration in light of Harrow.

The three noncitizens seeking Supreme Court review argue that the court should take up these issues notwithstanding the government’s concessions, and two explicitly argue that their cases would be the best vehicle if the Supreme Court decides to do so. But all agree that the court at minimum should follow the government’s advice and GVR.

We should know more soon. Tune in next time!

New Relists

Riley v. Garland, 23-1270
Issues: (1) Whether 8 U.S.C. § 1252(b)(1)’s 30-day deadline is jurisdictional, or merely a mandatory claims-processing rule that can be waived or forfeited; and (2) whether a person can obtain review of the Board of Immigration Appeals’ decision in a withholding-only proceeding by filing a petition within 30 days of that decision.
(Relisted after the Oct. 18 conference.)

Martinez v. Garland, 23-7678
Issues: (1) Whether 8 U.S.C. § 1252(b)(1)’s 30-day deadline runs from the end of any fear-based proceedings, rather than the date when a reinstatement order is entered and fear-based proceedings can begin; and (2) whether Section 1252(b)(1)’s 30-day deadline is a claim-processing rule rather than a jurisdictional limit.
(Relisted after the Oct. 18 conference.)

Sanchez v. Garland, 24-11
Issue: Whether federal courts of appeals have jurisdiction to review a denial by the Board of Immigration Appeals of withholding-only relief.
(Relisted after the Oct. 18 conference.)

Returning Relists

Hamm v. Smith, 23-167
Issues: (1) Whether Hall v. Florida and Moore v. Texas mandate that courts deem the standard of “significantly subaverage intellectual functioning” for determining intellectual disability in Atkins v. Virginia satisfied when an offender’s lowest IQ score, decreased by one standard error of measurement, is 70 or below; and (2) whether the court should overrule Hall and Moore, or at least clarify that they permit courts to consider multiple IQ scores and the probability that an offender’s IQ does not fall at the bottom of the lowest IQ score’s error range.
(Relisted after the Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, March 1, March 15, March 22, March 28, April 12, April 19, April 26, May 9, May 16, May 23, May 30, June 6, June 13, June 20, July 1, Sept. 30, Oct. 11 and Oct. 18 conferences.)

Boston Parent Coalition for Academic Excellence Corp v. The School Committee for the City of Boston, 23-1137
Issue: Whether an equal protection challenge to facially race-neutral admission criteria is barred simply because members of the racial groups targeted for decline still receive a balanced share of admissions offers commensurate with their share of the applicant pool.
(Relisted after the Sept. 30, Oct. 11 and Oct. 18 conferences.)

G-Max Management, Inc. v. New York, 23-1148
Issues: (1) Whether New York’s rent-regulation laws, and in particular its new restrictions on owner reclamation and condo/co-op conversions, effect physical takings; and (2) whether this court should overrule Penn Central Transportation Co. v. City of New York, or at least clarify the standards for determining when a regulatory taking occurs.
(Relisted after the Sept. 30, Oct. 11 and Oct. 18 conferences.)

Kerr v. Planned Parenthood South Atlantic, 23-1275
Issues: (1) Whether the Medicaid Act’s any-qualified provider provision unambiguously confers a private right upon a Medicaid beneficiary to choose a specific provider; and (2) what the scope of a Medicaid beneficiary’s alleged right is to choose a provider that a state has deemed disqualified.
(Relisted after the Sept. 30, Oct. 11 and Oct. 18 conferences.)

Andrew v. White, 23-6573
Issues: (1) Whether clearly established federal law as determined by this court forbids the prosecution’s use of a woman’s plainly irrelevant sexual history, gender presentation, and role as a mother and wife to assess guilt and punishment; and (2) whether this court should summarily reverse in light of cumulative effect of the errors in this case at guilt and sentencing, including the introduction of a custodial statement made without the warnings required by Miranda v. Arizona.
(Rescheduled before the March 28, April 5, April 12, April 19, April 26, May 9, May 16, May 23, May 30, June 6, June 13, June 20, and July 1 conferences; relisted after the Sept. 30, Oct. 11 and Oct. 18 conferences.)

Gordon v. Massachusetts, 23-7150
Issues: (1) Whether the confrontation clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute forensic expert conveying testimonial statements of a non-testifying forensic analyst on the grounds that the testifying expert offers a purportedly “independent opinion;” and (2) whether the Sixth Amendment right to counsel precludes a criminal defendant’s trial counsel from suggesting to a jury that trial counsel does not believe the testimony of the defendant.
(Relisted after the Sept. 30 and Oct. 11 conferences.)

Wilson v. Hawaii, 23-7517
Issue: Whether the test of New York State Rifie & Pistol Association, Inc. v. Bruen determines when a state’s criminal prosecution for carrying a handgun without a license violates the Second Amendment.
(Relisted after the Sept. 30, Oct. 11 and Oct. 18 conferences.)

Building and Reality Institute of Westchester and Putnam Counties, Inc. v. New York, 23-1220
Issue: Whether the changes made by New York’s Housing Stability and Tenant Protection Act effect physical takings, and as applied takings, and violate both the due process and contract clauses of the Constitution.
(Relisted after the Oct. 11 and Oct. 18 conferences.)

Smith v. Stillie, 23-1316
Issues: (1) Whether Alaska’s requirement that individual donors must file duplicative reports of their political contributions within 24 hours of making them violates the First Amendment; and (2) whether Alaska’s extensive on-ad disclosure requirements violate the First Amendment.
(Relisted after the Oct. 11 and Oct. 18 conferences.)

Diamond Alternative Energy LLC v. Environmental Protection Agency, 24-7
Issues: (1) Whether a party may establish the redressability component of Article III standing by relying on the coercive and predictable effects of regulation on third parties; and (2) whether EPA’s preemption waiver for California’s greenhouse-gas emission standards and zero emission-vehicle mandate is unlawful.
(Relisted after the Oct. 11 and Oct. 18 conferences.)

Ohio v. Environmental Protection Agency, 24-13
Issue: Whether Congress may pass a law under the commerce clause that empowers one state to exercise sovereign power that the law denies to all other states.
(Relisted after the Oct. 11 and Oct. 18 conferences.)

Louisiana v. Callais, 24-109
Issues: (1) Whether the majority of the three-judge district court in this case erred in finding that race predominated in the Louisiana legislature’s enactment of S.B. 8; (2) whether the majority erred in finding that S.B. 8 fails strict scrutiny; (3) whether the majority erred in subjecting S.B. 8 to the preconditions specified in Thornburg v. Gingles; and (4) whether this action is non-justiciable.
(Relisted after the Oct. 11 and Oct. 18 conferences.)

Robinson v. Callais, 24-110
Issues: (1) Whether the three-judge district court erred in concluding that race predominated in the design of Louisiana’s Congressional District 6 based on the state legislature’s stated intent to comply with the rulings of Robinson v. Ardoin without presuming the good faith of the legislature, attempting to disentangle the legislature’s racial and political considerations, or requiring an alternative map that satisfied both Section 2 of the Voting Rights Act and the legislature’s political objectives, as required by Alexander v. S.C. State Conference of NAACP; (2) whether the district court erred when it disregarded the rulings of the courts in Robinson that preconditions specified in Thornburg v. Gingles could be (and had been) satisfied and instead required that the state’s enacted map satisfy the first Gingles precondition to survive strict scrutiny; (3) whether the district court erred in failing to accord the Louisiana Legislature sufficient breathing room to account for political considerations that resulted in a less compact district than necessary to satisfy Section 2 of the Voting Rights Act; (4) whether the district court erred in relying on extrarecord evidence and ignoring the evidence in the record on S.B. 8’s respect for communities of interest in concluding that S.B. 8 failed to satisfy strict scrutiny; and (5) whether the district court abused its discretion by unnecessarily expediting the proceedings and limiting the evidence presented in this complex, fact-intensive case.
(Relisted after the Oct. 11 and Oct. 18 conferences.)