The Supreme Court’s latest immigration-related decision creates challenges. Certain non-citizens must appeal the deportation order before the removal proceedings are completed. This decision was Rileyv. Bondi ensures that it will make it more difficult for those non-citizens seeking protection from persecution and torture to receive federal court review of their cases. But it also opens up new technical discussions to get that review.
In Riley, the court considered two questions regarding the deadline for a federal court review of the removal order.
Is there a 30-day deadline for filing a “jurisdiction” and removal order review petition with the US Court of Appeals? In other words, if a non-citizen misses the deadline to challenge the deportation order, does it strip the federal court of appeals from their ability to consider the case? If a non-citizen is removed by a Department of Homeland Security (DHS) officer by restoring a prior removal order or issuing an administrative removal order, the non-citizen is seeking removal from or withholding protection from the withholding (CAT) of a 30-day case in the immigration court to commence a 30-day retirement petition in the immigration court when the 30-day retirement order is launched when the 30-day retirement order is completed.
Answer to Question 1: Petitions for the deadline for review are not jurisdictions, but are billing rules.
The court’s unanimous answer to the first question was no. A 30-day petition for review deadline is not a jurisdiction. This means that if a non-citizen misses the deadline, the appeal court is not entirely prohibited from considering the case.
Instead, the court found that the deadline was a “claim processing” rule. Generally, billing rules are flexible and can pass if the petitioner shows that he is hardworking, if he misses the deadline due to extraordinary circumstances. However, mandatory billing rules cannot be exempted. This can only be exempted or waived by the government.
The Supreme Court did not say whether the 30-day petition for the deadline for review is a mandatory rule. Currently, the Court of Appeals decides is an open question.
Answer to Question 2: When DHS issues a recovery or management removal order, a 30-day deadline begins
A majority of the courts held that the restoration of the DHS and the administrative removal order was a final removal order that would result in a 30-day deadline, despite still seeking protection from removal in immigration courts.
This is a dramatic change in the law. The court’s decision overturned decisions from all courts of appeal except the second and fourth circuits. Even the Justice Department had agreed to Riley that the deadline would not begin until there was a final decision on the person’s application for withholding and cat protection.
Impact
Revival of removal (for non-citizens with prior removal orders) and administrative removal procedures (for certain criminally convicted non-citizens who are not legal permanent residents) provide less protection than traditional removal procedures. However, these expedited litigation includes major safeguards. (1) the right to apply for fear-based relief (withholding tax on removal and protection under cats) and (2) the right to review federal courts.
Riley’s decision sets a significant obstacle for non-citizens with reinstatement or administrative removal orders to be reviewed for decisions that refuse protection. Justice Sotomayor (who was joined by Kagan, Jackson and Gorsuch Justices Jostices) explained in her partial dissent:
Currently, non-citizens must file petitions for review before they know whether withholding or whether the cat is denied or denied. They must then ask the Court of Appeals to wait for them to award those petitions until the immigration court has finalized their applications.
This is a problem for many reasons.
Non-represented non-citizens will not know that they must file a petition for review before the case is completed. The DHS has not yet set up a system to inform this new requirement, and the Supreme Court has not ordered them to do so.
Many, if not most, if not most, non-citizens do not represent immigration lawyers.
DHS doesn’t always provide people with copies of deleted orders, so you may not know when the 30-day clock will start.
The appeals court may be willing to await a final decision on an immigration case.
The stakes are high. Non-citizens affected by this new deadline fear persecution, torture, or even death if they are accidentally deleted. And now they face new, confused hurdles to seek federal court review of their removal order.
