WASHINGTON, DC – Following today’s decision at the Supreme Court in Riley v. Bondi, a case in which the Supreme Court considered whether the deadline for appealing an immigration removal order is jurisdictional, Constitutional Accountability Center Senior Appellate Counsel Smita Ghosh issued the following reaction:

Immigration law permits the government to seek Final Administrative Removal Orders (FAROs) against noncitizens convicted of certain crimes. While individuals facing FAROs have no right to appeal those orders to an immigration judge or the Board of Immigration Appeals, they can still request relief under an international agreement that prevents the United States from deporting people to a country where they are in danger of being tortured. By holding that FAROs are “final orders of removal,” even when a noncitizen’s Convention Against Torture claim is pending, the Court’s conservative majority undermined the text and history of immigration statutes that sought to ensure that courts hear a noncitizen’s immigration appeals in a single case, rather than piecemeal—an approach that would benefit not only noncitizens seeking judicial review, but also the courts.

In reaching this result, the Court rejected the approach advanced by both the government and Mr. Riley, who argued that a deportation order is not “final” until all of the related immigration proceedings are completed. The majority’s decision, as Justice Sotomayor recognized, puts noncitizens facing torture in the “Kafkaesque” position of filing a potentially unnecessary appeal to ensure access to judicial review of their torture-related claims long before those claims are actually resolved.

As Justice Sotomayor emphasized, the majority’s opinion follows the Roberts Court’s trend of subjecting “politically disfavored” litigants like immigrants to “illogic” and bureaucratic traps while bending over backwards to ensure that regulated businesses do not get treated unfairly.

CAC Appellate Counsel Ana Builes added this reaction:

Although the Court’s decision on the question of when a deportation order is “final” was profoundly disappointing, the Court did get one thing right: it recognized, as we urged in a brief we filed with the National Immigration Litigation Alliance, that § 1252(b)(1) was a nonjurisdictional, claims-processing rule.

In her opinion dissenting in part, Justice Sotomayor noted that, in the future, “courts of appeals should consider applying standard principles of equitable tolling, which are likely available now that the Court has recognized that § 1252(b)(s)’s appeal deadline is not jurisdictional.” These principles will become even more crucial now that the Court has inexplicably placed immigrants like Pierre Riley, the petitioner in this case, in the impossible situation of needing to file their appeal months or even years before the order they seek to challenge even exists.