DHS Can Again Remove Criminal Aliens to Third Countries after Supreme Court Ejects D.V.D.

Summary

• A U.S. district court judge in Massachusetts enjoined the Trump administration from removing aliens who have already received final orders of removal to countries other than their home countries without first giving them a new “meaningful opportunity” to seek relief from removal to those countries pursuant to the Convention Against Torture (CAT). While not ruling on the merits of the case, the Supreme Court stayed the injunction while the district court’s decision undergoes appellate review.
• Outraged commentators have proclaimed that the Supreme Court has effectively nullified the Convention Against Torture. The Supreme Court has done nothing of the sort.
  • First, the legislation implementing CAT, as further clarified by Congress, specifically provides that “the sole and exclusive means for judicial review of any cause or claim” arising under CAT is “a petition for review of a final order of removal”. The aliens here did not seek judicial review through such petitions.
  • Second, the Clinton administration’s CAT regulations specifically allow the secretary of State to procure “diplomatic assurances” from foreign nations that removed aliens will not be tortured there. This is exactly what the Trump administration has done, establishing a system under which “the Executive can remove an alien to [a third] country without further process” only if “the United States has received a sufficient assurance from a third country that no aliens will be tortured upon removal there”.
• The aliens here are serious criminals, including murderers. Under long-standing immigration law, alien terrorists and serious criminals are barred from eligibility for asylum and withholding of removal based on claims of persecution. Yet the Clinton administration’s regulations make no alien, no matter the depravity of their crimes, ineligible for CAT relief. As the Ninth Circuit has concluded, “in adopting the regulations, the agencies themselves recognized that even those who assisted in Nazi persecutions, or engaged in genocide, or pose a danger to our own security are not excluded from the protections of CAT”.
• Should the Supreme Court eventually rule against the district court on the merits, the Court will in fact honor and comply with the legislation and regulations implementing CAT. As now Supreme Court Justice Brett Kavanaugh concluded while serving as a judge on the D.C. Circuit, “a claim about conditions in the receiving country [regarding the possibility of torture] may be raised only during review of a final order of removal” and an alien does not have a “habeas corpus or due process right to judicial second-guessing of the executive’s determination that he was not likely to be tortured”.

Introduction

Dahlia Lithwick and Mark Joseph Stern wrote in Slate that the Supreme Court “effectively nullified the Convention Against Torture … as well as multiple federal laws implementing the treaty’s guarantees.” Jonathan Ryan wrote on Substack that the Court “has sanctioned here … an experiment in disappearing people”, “telling future administrations: Do what you want. Break the rules. Break the people. We will have your back.” Further, Ryan railed, “The United States is no longer merely flirting with authoritarianism. In D.H.S. v D.V.D., it embraced it. What SCOTUS has announced is that … the rules don’t matter, the Constitution doesn’t matter, and neither does the life or dignity of the person in the Government’s hands.”

What occasioned such an outpouring of outrage? We need to first go back to April 18, when Judge Brian Murphy of the Massachusetts U.S. District Court certified a class including:

All individuals who have a final removal order issued in proceedings under … the INA [Immigration and Nationality Act] … whom DHS has deported or will deport on or after February 18, 2025, to a country (a) not previously designated as the country or alternative country of removal, and (b) not identified in writing in the prior proceedings as a country to which the individual would be removed.

Judge Murphy also issued a preliminary injunction against DHS:

[T]he Court orders that, prior to removing any alien to a third country, i.e., any country not explicitly provided for on the alien’s order of removal, [DHS] must: (1) provide written notice to the alien … of the third country to which the alien may be removed, in a language the alien can understand; (2) provide meaningful opportunity for the alien to raise a fear of return for eligibility for CAT [Convention Against Torture] protections; (3) move to reopen the proceedings if the alien demonstrates “reasonable fear”; and (4) if the alien is not found to have demonstrated “reasonable fear,” provide meaningful opportunity, and a minimum of 15 days, for that alien to seek to move to reopen immigration proceedings to challenge the potential third-country removal.

On May 16, the First Circuit Court of Appeals denied the Trump administration’s request for an emergency stay of Judge Murphy’s injunction. Then, on June 23, the Supreme Court granted the administration’s request for a stay of the injunction “pending the disposition of the appeal in the United States Court of Appeals for the First Circuit and disposition of a petition for a writ of certiorari, if such writ is timely sought”.

As my colleague Andrew Arthur has written, Judge Murphy has seemingly run amok and decided to flout the Supreme Court’s stay, but his petulance (Murphy’s, not Arthurs’s) is not today’s subject. I am addressing the contention that the Supreme Court has effectively nullified the Convention Against Torture. To make a long story short, the Supreme Court has not nullified CAT. The Court didn’t even issue a ruling on the merits of the case, simply issuing a stay of an injunction. But if the Supreme Court decides to eventually rule against Judge Murphy on the merits, it will in fact honor and comply with the legislation (signed into law by President Clinton) and regulations (sighed by Clinton’s Attorney General Janet Reno) implementing CAT.

As an aside, I almost wish that the Supreme Court had effectively nullified CAT. I will explain my reasoning shortly.

The Convention Against Torture

In 1990, the U.S. Senate ratified the United Nations’ “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, article 3 of which provides that “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

As the Supreme Court has explained, because the Senate in ratifying CAT “determined that the first 16 articles of the Convention were not self-executing … those articles required implementing legislation before their obligations could become effective as domestic law”. Thus, Congress passed and President Clinton signed into law implementing legislation (contained in the “Foreign Affairs Reform and Restructuring Act of 1998”, itself contained in appropriations legislation for fiscal year 1999). The legislation set forth “the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture”. However, as now Supreme Court Justice Brett Kavanaugh noted in his 2011 majority opinion in the D.C. Circuit’s decision in Omar v. McHugh, “Congress’s use of the word ‘policy’ … rather than a word such as ‘right’ — reinforces the conclusion that Congress did not intend to create an ‘entitlement’ … that in turn might trigger constitutional habeas or procedural due process protections.”

The CAT Implementing Legislation and Regulations and Criminal Aliens

The implementing legislation required “the heads of the appropriate agencies [to] prescribe regulations to implement the obligations of the United States under Article 3 of [CAT]”. Importantly, the legislation also provided that “To the maximum extent consistent with the obligations of the United States under [CAT] … the regulations … shall exclude from the protection of such regulations aliens [ineligible for withholding of removal].”

What aliens are ineligible for withholding of removal — ineligible for immigration relief even should it be more likely than not that they would be persecuted upon removal? Aliens are ineligible for withholding if they are deportable for having “participated in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing”. An alien is also ineligible if the secretary of Homeland Security decides that:

• “the alien ordered, incited, assisted, or otherwise participated in the persecution of an individual”;
• the alien, “having been convicted … of a particularly serious crime is a danger to the community of the United States”, including, but not limited to, “an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years”;
• “there are serious reasons to believe that the alien committed a serious nonpolitical crime outside the United States”; or
• “there are reasonable grounds to believe that the alien is a danger to the security of the United States”, including that the alien is deportable on terrorism grounds.

And yet, despite the fact that federal law requires the CAT regulations to exclude such bad hombres (as President Trump might say) from their protection “to the maximum extent consistent with” our CAT obligations, the regulations implementing CAT did not exclude any of them! Thus, CAT relief is unique in our immigration law. Alien terrorists and serious criminals are barred from eligibility for asylum and withholding of removal. Yet, the CAT regulations make no alien, no matter the depravity of their crimes, ineligible. As the Ninth Circuit concluded in 2010 in Edu v. Holder, ‘‘in adopting the regulations, the agencies themselves recognized that even those who assisted in Nazi persecutions, or engaged in genocide, or pose a danger to our own security are not excluded from the protections of CAT”.¹

In 2003, Eli Rosenbaum, director of the Department of Justice’s Office of Special Investigations testified before the House Judiciary Committee that “[T]here are no exceptions to protection from removal under [CAT]. A person who has committed the most heinous acts, including Nazi crimes and acts of terrorism, or a person who constitutes a grave danger to the national security of the United States is eligible for protection.”

Similarly, the House Judiciary Committee explained in 2011 that:

[T]he more heinous an alien’s actions, the more likely that they might be subject to torture in their home country. … Among the criminal aliens who have received CAT relief was an alien implicated in a mob-related quintuple homicide in Uzbekistan and an alien who killed a spectator at a Gambian soccer match. Terrorists have received relief from removal under CAT, including an alien involved in the assassination of [Egyptian President] Anwar Sadat. And, yes, even a Nazi war criminal has sought to avoid deportation through CAT.

What have been the consequences of the CAT regulations? The House Judiciary Committee reported in 2005 that “Almost 900 criminal aliens ordered removed have received CAT relief and have subsequently been released into our communities.”

How many more criminal aliens has DHS been forced to release in the two decades since then? How many more crimes have they committed following their release? This is why I almost wish that the Supreme Court had effectively nullified CAT.

OK, but surely the criminal aliens already ordered removed who are in the class certified by Judge Murphy aren’t so bad! Surely, they have just committed traffic offenses or misdemeanors! Well, U.S. Solicitor General D. John Sauer informed the Supreme Court in his successful “Application for a Stay of the Injunction Issued by the United States District Court for the District of Massachusetts and Request for an Immediate Administrative Stay” (Application for a Stay) that:

These aliens illustrate the government’s urgent and compelling interest in proceeding expeditiously with third-country removals: (1) an alien convicted of armed robbery under a final order of removal for 26 years, who was convicted of additional armed robbery and kidnapping after being ordered removed; (2) an alien subject to a final order of removal for 13 years with convictions for arson, drug trafficking, and other felonies, and who committed attempted first-degree murder by stabbing a victim with a knife after being ordered removed; (3) an alien subject to a final order of removal convicted of the first-degree murder of a German tourist in 1994, and of gravely injuring her husband; (4) an alien subject to a final order of removal for 20 years who was convicted of second-degree murder for stabbing the victim with a knife; (5) an alien convicted of repeatedly sexually assaulting a minor from 2011 to 2017, which began when the victim was approximately seven years old; (6) an alien convicted of the sexual assault of a mentally disabled victim with the mental capacity equal to that of a three-year-old; and (7) an alien convicted of first-degree murder for killing two innocent bystanders in a gang-related shooting.

OK, even if they are serious criminals, how could letting them seek CAT relief after they’ve already been ordered removed have any negative consequences? Well, as Solicitor General Sauer stated in the Application for a Stay:

• This case addresses the government’s ability to remove some of the worst of the worst illegal aliens. … When illegal aliens commit crimes in this country, they are typically ordered removed. But when those crimes are especially heinous, their countries of origin are often unwilling to take them back. As a result, criminal aliens are often allowed to stay in the United States for years on end, victimizing law-abiding Americans in the meantime.

• Convincing third countries to accept some of the most undesirable aliens requires sensitive diplomacy, which involves negotiation and the balancing of other foreign-policy interests. Until recently, those efforts were working.

• The district court’s injunction … prevents DHS from efficiently removing aliens, delaying third-country removal by at least 25 days for every alien who raises a CAT claim, no matter how frivolous. Given practical realities that the court neither appreciated nor acknowledged, the consequence of such delays is that ICE will often need to restart the “entire” removal process afresh, freezing things as the government attempts to rework arrangements with foreign countries. Meanwhile, the very aliens whose removal is most urgent will be allowed to remain — and often will be released, given resource limitations and legal requirements, to the peril of law-abiding Americans.

• Finding third countries willing and able to accept aliens is a delicate diplomatic endeavor. By interjecting itself in that process, and disrupting those carefully negotiated arrangements, the court’s actions have already caused major and irremediable “harm to U.S. foreign policy.”

It is not as if the aliens could not have raised CAT claims during their removal proceedings. Solicitor General Sauer pointed out that:

• [M]any aliens can raise CAT objections to third-country removals in the administrative process — and, in turn, before a court of appeals. On the front end, aliens can raise in their initial removal proceedings the list of countries where they fear removal. [U.S. Citizenship & Immigration Services’ Application for Asylum and for Withholding of Removal asks “[a]re you afraid of being subjected to torture in your home country or any other country to which you may be returned”]; see also 8 C.F.R 1240.10(f ), 1240.11(c). And on the back end, aliens can move to reopen proceedings to assert new fear claims regarding removal to a third country. See, e.g., 8 U.S.C. 1229a(c)(7) (allowing a motion to reopen within 90 days after removal order becomes administratively final); 8 C.F.R. 1003.2(c), 1003.23(b) (allowing a motion to reopen after 90 days under immigration court or [the Board of Immigration Appeal]’s sua sponte authority).

• Nor is it unreasonable to place the burden on the alien to proactively identify where he fears he may be “tortured,[]”… . CAT protection is an extraordinary remedy. … It does not, as [Judge Murphy] seemed to suggest, extend to whenever an alien is removed to a country with a high crime rate, civil unrest, or other risk of private violence. … [I]t is far from unreasonable to expect that an alien with a bona fide CAT claim will be able to say the countries where he faces a genuine threat of torture.

Diplomatic Assurances under the CAT Regulations

The Clinton administration’s implementing regulations (at 8 C.F.R. § 208.18(c)) do allow the secretary of State to procure “diplomatic assurances” that removed aliens will not be tortured:

(1) The Secretary of State may forward to [the Secretary of Homeland Security] assurances that the Secretary has obtained from the government of a specific country that an alien would not be tortured there if the alien were removed to that country.

(2) If the Secretary of State forwards [such] assurances … to the [Secretary of Homeland Security] for consideration … the [Secretary of Homeland Security] shall determine, in consultation with the Secretary of State, whether the assurances are sufficiently reliable to allow the alien’s removal to that country consistent with Article 3 of [CAT] … .

(3) Once assurances are provided … the alien’s claim for protection under [CAT] shall not be considered further by an immigration judge, the Board of Immigration Appeals, or an asylum officer.

On February 19, 1999, Attorney General Janet Reno explained in the preamble to the regulations that:

The nature and reliability of such assurances, and any arrangements through which such assurances might be verified, would require careful evaluation before any decision could be reached about whether such assurances would allow an alien’s removal to that country consistent with Article 3. Th[e regulations] set[] out special procedures under which the [Secretary of Homeland Security], in consultation with the Secretary of State, will assume responsibility for assessing the adequacy of any such assurances in appropriate cases. … It is anticipated that these cases will be rare.

In cases in which the Secretary has forwarded assurances under this provision, the procedures for administrative consideration of claims under [CAT] set out elsewhere in this rule will not apply. … [T]he rule ensures that cases involving the adequacy of diplomatic assurances … will receive consideration at senior levels within the Department [of Homeland Security], which is appropriate to the delicate nature of a diplomatic undertaking to ensure that an alien is not tortured in another country.

Solicitor General Sauer in the Application for Stay assured the Supreme Court that “Of course, under the statute and regulations implementing CAT, the Executive will not remove an alien to any country where he is likely to be tortured.” He also set forth DHS’s policy regarding assurances:

• Where the United States has received a sufficient assurance from a third country that no aliens will be tortured upon removal there, DHS policy provides that the Executive can remove an alien to that country without further process. … But for countries where the United States has not received such an assurance, DHS policy provides that the alien is entitled to notice of the third country and an opportunity for a prompt screening of any asserted fear of being tortured there.

• The Secretary is free to conclude that “an alien” would not be tortured upon removal, on the ground that no alien would be treated that way in light of the strength and reliability of the assurance provided by that country. [Emphasis added.]

May Congress Constitutionality Restrict Judicial Review of Torture Claims?

The CAT implementing legislation provided that:

Notwithstanding any other provision of law … nothing in [the implementing legislation] shall be construed as providing any court jurisdiction to consider or review claims raised under [CAT] or this [legislation], or any other determination made with respect to the application of the policy … except as part of the review of a final order of removal pursuant to section 242 of the [INA] (8 U.S.C. 1252).

Additionally, in the “REAL ID Act of 2005”, Congress modified § 242 of the INA, providing that:

Notwithstanding any other provision of law … including section 2241 of Title 28, or any other habeas corpus provision … a petition for review [of a final order of removal] filed with an appropriate court of appeal … shall be the sole and exclusive means for judicial review of any cause or claim” arising under [CAT], except [regarding expedited removal proceedings].

As Judge Kavanaugh concluded in Omar:

[T]he REAL ID Act merely confirmed what the [CAT implementing legislation] said — that only immigration transferees may obtain judicial review of conditions in the receiving country. But even if the REAL ID Act took away a statutory right that the [implementing legislation] had previously granted, that scenario poses no constitutional problem. Congress does not amend the Constitution, or alter the scope of the constitutional writ of habeas corpus, whenever it amends a statutory right that might be available in a habeas case. Congress thus remains generally free to undo a statute that applies in habeas cases, just as it can undo other statutory rights that it has created. [Emphasis in original.]

And as Solicitor General Sauer stated in the Application for a Stay, “the whole point of jurisdictional bars … is, after all, to create at least some situations where judicial review is actually barred”.

So, is all this constitutional?

Munaf v. Geren

In 2008, the Supreme Court decided Munaf v. Geren, a case “involving two American citizens held in the custody of the United States military in Iraq [who] petitioned for writs of habeas corpus, seeking to enjoin the Government from transferring them to Iraqi custody for criminal prosecution in the Iraqi courts” (as the D.C. Circuit described the case in its 2009 decision in Kiyemba v. Obama²). The Supreme Court was faced with the question of “whether United States district courts may exercise their habeas jurisdiction to enjoin our Armed Forces from transferring individuals detained within another sovereign’s territory to that sovereign’s government for criminal prosecution.”

The Court explained, in a decision written by Chief Justice John Roberts, that:

• Petitioners contend that … general principles [that those who commit crimes within a sovereign’s territory may be transferred to that sovereign’s government for prosecution] are trumped in their cases because their transfer to Iraqi custody is likely to result in torture.

• Petitioners here allege only the possibility of mistreatment in a prison facility; this is not a more extreme case in which the Executive has determined that a detainee is likely to be tortured but decides to transfer him anyway. Indeed, the Solicitor General states that it is the policy of the United States not to transfer an individual in circumstances where torture is likely to result. … In these cases the United States explains that, although it remains concerned about torture among some sectors of the Iraqi Government, the State Department has determined that the Justice Ministry — the department that would have authority over [the petitioners] — as well as its prison and detention facilities have “‘generally met internationally accepted standards for basic prisoner needs.’”… The Solicitor General explains that such determinations are based on “the Executive’s assessment of the foreign country’s legal system and … the Executive[’s] … ability to obtain foreign assurances it considers reliable.”

Chief Justice Roberts concluded that:

The Judiciary is not suited to second-guess such determinations — determinations that would require federal courts to pass judgment on foreign justice systems and undermine the Government’s ability to speak with one voice in this area. … In contrast, the political branches are well situated to consider sensitive foreign policy issues, such as whether there is a serious prospect of torture at the hands of an ally, and what to do about it if there is.

The Court ruled that “[h]abeas corpus does not require the United States to shelter such fugitives from the criminal justice system of the sovereign with authority to prosecute them” and that “petitioners state no claim in their habeas petitions for which relief can be granted”.

In the D.C. Circuit’s 2011 decision in Omar regarding subsequent litigation by one of the Munaf petitioners, then Circuit Court Judge Brett Kavanaugh explained that in Munaf, the petitioner had contended that “he had a right under ‘the substantive component of the [Constitution’s] Due Process Clause’ against ‘transfers to likely torture,’ and that the courts had the authority and duty to enforce that right by inquiring into his likely treatment in the receiving country”, but that the Supreme Court had “unanimously rejected [this] argument” and had “conclude[ed] that [he] did not have a habeas corpus or due process right to judicial second-guessing of the executive’s determination that he was not likely to be tortured in Iraqi custody”.

Kiyemba v. Obama

The D.C. Circuit’s 2009 decision in Kiyemba involved “Uighurs held at Guantanamo Bay … [who] petitioned the district court for a writ of habeas corpus. … [a]sserting that they feared being transferred to a country where they might be tortured or further detained”.

The D.C. Circuit explained that:

• The detainees here seek to prevent their transfer to any country where they are likely to be subjected … to torture. Our analysis of their claims is controlled by the Supreme Court’s recent decision in Munaf … [which] precludes a court from issuing a writ of habeas corpus to prevent a transfer on the grounds asserted by the petitioners here.

• Like the detainees here, the petitioners in Munaf asked the district court to enjoin their transfer because they feared they would be tortured in the recipient country. The Court recognized the petitioners’ fear of torture was “of course a matter of serious concern,” but held “in the present context that concern is to be addressed by the political branches, not the judiciary.” The context to which the Court referred was one in which — as here — the record documents the policy of the United States not to transfer a detainee to a country where he is likely to be tortured. Indeed … the Government does everything in its power to determine whether a particular country is likely to torture a particular detainee … .

  The upshot is that the detainees are not liable to be cast abroad willy-nilly without regard to their likely treatment in any country that will take them.

• The Supreme Court’s ruling in Munaf precludes the district court from barring the transfer of a Guantanamo detainee on the ground that he is likely to be tortured … in the recipient country. The Government has declared its policy not to transfer a detainee to a country that likely will torture him, and the district court may not second-guess the Government’s assessment of that likelihood.

Then D.C. Circuit Court Judge Kavanaugh wrote a concurring opinion in Kiyemba stating that “the fundamental issue raised in this appeal [was] whether the Constitution’s Due Process Clause … requires judicial reassessment of the Executive’s determination that a detainee is not likely to be tortured by a foreign nation”. Kavanaugh “agree[d] with and join[ed] the persuasive opinion of the Court” and concluded that:

Under current law, the U.S. Government may transfer Guantanamo detainees to the custody of foreign nations without judicial intervention — at least so long as the Executive Branch declares, as it has for the Guantanamo detainees, that the United States will not transfer “an individual in circumstances where torture is likely to result.” [quoting Munaf]

Kavanaugh noted that:

[T]he detainees argue that they have a constitutional due process right against “transfer to torture” — and, therefore, to judicial reassessment of the Executive’s conclusion that transfer to a foreign nation’s custody is unlikely to result in torture. But both Munaf and the deeply rooted “rule of non-inquiry” in extradition cases require that we defer to the Executive’s considered judgment that transfer is unlikely to result in torture. Those precedents compel us to reject the detainees’ argument that the court second-guess the Executive’s conclusion in this case.

In Munaf, in response to a similar due process claim, the Supreme Court unanimously held that the Judiciary may not “second-guess” the Executive’s assessment that transferred detainees are unlikely to be tortured by the receiving nation. … The Munaf decision applies here a fortiori: That case involved transfer of American citizens, whereas this case involves transfer of alien detainees with no constitutional or statutory right to enter the United States.

Similarly, the longstanding rule of non-inquiry in extradition cases undermines the detainees’ argument. When the Executive seeks extradition pursuant to a request from a foreign nation, the Judiciary does not inquire into the treatment or procedures the extradited citizen or alien will receive in that country. “It is the function of the Secretary of State to determine whether extradition should be denied on humanitarian grounds.” [quoting the Second Circuit’s 1990 decision in Ahmad v. Wigen³] … .

Therefore, with respect to international transfers of individuals in U.S. custody, Munaf and the extradition cases have already struck the due process balance between the competing interests of the individual and the Government. That balance controls here. The detainees’ interest in avoiding torture or mistreatment by a foreign nation is the same “matter of serious concern” at issue in Munaf and the extradition cases. … And on the other side of the ledger, the Government’s interest in transferring these detainees to foreign nations without judicial second-guessing is at least as compelling as in those cases.

While Kiyemba did not involve removal under the immigration laws, Kavanaugh observed that:

[E]ven if this were just a standard immigration case involving inadmissible aliens at the U.S. border, the governmental interest in transfer would be compelling. Like Guantanamo detainees, inadmissible aliens at the border or a U.S. port of entry have no constitutional right to enter the United States. … In those cases, the United States has a very strong interest in returning the aliens to their home countries or safe third countries so that they will not be detained indefinitely in facilities run by the United States — a scenario that can trigger a host of security, foreign policy, and domestic complications.

Omar v. McHugh

In the D.C. Circuit’s 2011 decision in Omar, Judge Kavanaugh (again!) concluded in his majority opinion that “In Munaf, the Supreme Court held that habeas corpus and due process do not give a transferee … a right to judicial review of conditions in the receiving country.”

In conclusion, it thus appears clear that, as then Judge Kavanaugh concluded, a person does not have a “habeas corpus or due process right to judicial second-guessing of the Executive’s determination that he was not likely to be tortured”. However, there are two caveats. First, the Supreme Court appears to have left open the possibility of a habeas corpus or due process right in the “more extreme case in which the Executive has determined that a detainee is likely to be tortured but decides to transfer him anyway”. Second, these cases were not “standard immigration case[s]”, and while then Judge Kavanaugh opined that the government’s interest (in transfer or removal) would be just as compelling in the case of an alien apprehended at the border, he did not address the government’s interest in the case of a resident alien apprehended in the interior of the United States. However, I would certainly consider the government’s interest in the latter case to be just as compelling.

What of Statutory Claims for Relief Under CAT’s Implementing Legislation?

In Munaf, the Supreme Court noted that the “Petitioners briefly argue that their claims of potential torture may not be readily dismissed … because the [CAT implementing legislation] prohibits transfer when torture may result.” However, “Neither petitioner asserted a [CAT] claim in his petition for habeas, and [CAT relief] was not raised in any of the certiorari filings before this Court. Even in their merits brief in this Court, the habeas petitioners hardly discuss the issue.” The Court concluded that “Under such circumstances we will not consider the question.”

However, the Court opined that “[e]ven if” it were to consider the merits of CAT claims, “several issues … would have to be addressed”, one of which being that “claims under the [implementing legislation] may be limited to certain immigration proceedings” (referring to the legislation’s bar to judicial review of claims not brought as part of the review of a final order of removal).

In Kiyemba, Judge Kavanaugh wrote that:

The detainees seek to distinguish Munaf on the ground that the habeas petitioners in that case did not raise a claim under [CAT]. … That distinction is of no help to them, however, because the Congress limited judicial review under [CAT] to claims raised in a challenge to a final order of removal.

Kavanaugh concluded that “Here the detainees are not challenging a final order of removal. As a consequence, they cannot succeed on their claims under the [implementing legislation], and Munaf controls.”

And in Omar, Kavanaugh concluded that, while in Munaf the Supreme Court had declined to reach the CAT claim, “[t]he Court, in any event, expressed doubt that [the petitioners] would have a claim” under the implementing legislation.

Kavanaugh also concluded in Omar that:

• Subject to the constraints of Article II, Congress remains free … to impose broader responsibilities on the Executive, beyond those required by the Constitution, while declining to provide judicial review of the Executive’s compliance with those additional statutory responsibilities.

• Because Omar has no constitutional right at stake here (as Munaf made clear), Congress has no obligation to provide judicial review for the extra-constitutional responsibilities the [CAT implementing legislation] imposes on the Executive Branch. Omar suggests that Congress cannot express a policy for the Executive Branch to follow without also creating a right to judicial enforcement of that policy. No case has ever said that.

Kavanaugh noted in Omar that “Consistent with our decision in Kiyemba … several other courts of appeals have similarly concluded that a claim about conditions in the receiving country may be raised only during review of a final order of removal.” Kavanaugh cited the Third Circuit’s 2008 decision in Khouzam v. Attorney General of the U.S.⁴, the Seventh Circuit’s 2005 decision in Hamid v. Gonzales, and the Eighth Circuit’s 2009 decision in Lovan v. Holder.⁵

The most recent of such appellate decisions subsequent to Omar was the Second Circuit’s March 26 decision in Kapoor v. DeMarco,⁶ in which the court stated that “The questions before us … are whether section 1252(a)(4) [enacted as part of the REAL ID Act] specifically and unambiguously precludes a court from exercising habeas jurisdiction over Kapoor’s CAT claim, and if so, whether the statute unconstitutionally suspends the writ of habeas corpus.”

As to the first question, Second Circuit concluded that:

• By its explicit reference to both 28 U.S.C. § 2241 and “any other habeas corpus provision,” [the REAL ID Act’s restriction on judicial review] plainly bars habeas review of CAT claims. … The statute makes clear that a petition for review of a final order of removal is the “sole and exclusive means for judicial review” for “any” CAT claim.

• “[T]he word ‘any’ has an expansive meaning…. Here, ‘any’ means that the provision applies to [claims] ‘of whatever kind.’” [quoting the Supreme Court’s 2022 decision in Patel v. Garland] This broad language encompasses CAT claims … made in the extradition context and therefore bars habeas review of those claims.

• The D.C. [in Omar] and Fourth Circuits [in its 2007 decision in Mironescu v. Costner] have both held that extraditees do not have the right to habeas review of CAT claims, while the Ninth Circuit has allowed for the barest review of such claims.

  We agree with the D.C. Circuit that the REAL ID Act bars habeas review of an extraditee’s CAT claims. … [T]hen-Judge Kavanaugh [in Omar] emphasized that section 1252(a)(4) plainly “states that only immigration transferees have a right to judicial review of conditions in the receiving country, during a court’s review of a final order of removal.”… The D.C. Circuit thus held that military transferees … and extradites … possess no statutory right to judicial review of conditions in a receiving country.

• On the other hand, the Ninth Circuit sitting en banc [in the 2012 decision in Trinidad y Garcia v. Thomas⁷] could not agree on a coherent approach. In a short per curiam opinion that generated five lengthy concurrences and dissents, that Circuit held that the REAL ID Act could be “construed as being confined to addressing final orders of removal, without affecting federal habeas jurisdiction,” and therefore allows for exceedingly narrow habeas review of CAT claims brought by extradites.… [W]e are unpersuaded by the Ninth Circuit’s interpretation of the REAL ID Act. We read the plain language of section 1252(a)(4) to unequivocally bar any habeas review of CAT claims in extradition proceedings. [Emphasis in original.]

Then, the court in Kapoor considered the constitutional question:

Our inquiry then becomes whether … [the] bar [to] habeas review of CAT claims in the extradition context violates the Suspension Clause of the Constitution [“[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const., art I, § 9, cl. 2].

Kapoor argues that judicial consideration of the CAT claim in her habeas petition is guaranteed by the Suspension Clause. … Section 1252(a)(4) would violate the Constitution if it precluded the type of habeas review historically protected by the Suspension Clause. We find no such violation arises because fugitives like Kapoor facing extradition have not traditionally been able to maintain a habeas claim based on their anticipated treatment in a receiving country under the rule of noninquiry.

Most recently in Munaf v. Geren, the Supreme Court reaffirmed this point. …

The Supreme Court’s reasoning in Munaf applies with equal force in the extradition context, where nearly all transfers occur pursuant to bilateral treaties signed by the President and ratified by two-thirds of the Senate. In approving extradition treaties, the political branches have made a determination that extradition to specific treaty partners is generally warranted and appropriate while still reserving the Secretary of State’s ability to withhold extradition based on any number of considerations, such as the United States’ need to comply with its obligations under the Convention.

Because Kapoor’s use of the writ of habeas corpus would not have been cognizable historically, there is no constitutional rule that would bar Section 1252(a)(4)‘s divestment of our habeas jurisdiction to hear her extradition-based CAT claim.

It is true that in the Supreme Court’s 2001 decision in INS v. St. Cyr, the Court concluded that “a serious Suspension Clause issue would be presented if we were to accept the INS’s submission that [Congress has] withdrawn [habeas corpus] power from federal judges and provided no adequate substitute for its exercise” in the context of an “alleg[ation] that the restrictions on discretionary relief from deportation contained in the 1996 statutes do not apply to removal proceedings brought against an alien who pled guilty to a deportable crime before their enactment”. However, the Court in St. Cyr never actually ruled on that “serious Suspension Clause issue”, and the Court concluded later in Munaf, per then Judge Kavanaugh, that “a person does not have a “habeas corpus or due process right to judicial second-guessing of the Executive’s determination that he was not likely to be tortured”.

What about the Ninth Circuit’s decision in Trinidad? I am also unpersuaded by the court’s rationale. The Ninth Circuit explained that:

A statute must contain “a particularly clear statement” before it can be construed as intending to repeal habeas jurisdiction. [quoting the Supreme Court’s 2003 decision in Demore v. Kim] Even if a sufficiently clear statement exists, courts must determine whether “an alternative interpretation of the statute is ‘fairly possible’” before concluding that the law actually repealed habeas relief. [quoting St. Cyr (quoting the Supreme Court’s earlier 1932 decision in Crowell v. Benson)]

Applying these principles, the Ninth Circuit concluded that the CAT implementing legislation’s judicial review bar “lacks sufficient clarity to survive the ‘particularly clear statement’ requirement”. This is a fair point because the implementing legislation’s bar neglected to even mention habeas corpus proceedings. However, the court then concluded that “the REAL ID Act[’s bar] can be construed as being confined to addressing final orders of removal, without affecting federal habeas jurisdiction [citing the Ninth Circuit’s 2006 decision in Nadarajah v. Gonzales]” and that “Given a plausible alternative statutory construction, we cannot conclude that the REAL ID Act actually repealed the remedy of habeas corpus.”

In Nadarajah, the Ninth Circuit had concluded that:

[The REAL ID Act’s] provision only applies to federal habeas corpus jurisdiction over “final orders of removal.”… By its terms, the jurisdiction-stripping provision does not apply to federal habeas corpus petitions that do not involve final orders of removal. … Therefore, in cases that do not involve a final order of removal, federal habeas corpus jurisdiction remains in the district court, and on appeal to this Court.

Here, the Ninth Circuit got it completely wrong. First, as the Second Circuit concluded in Kapoor, the REAL ID Act’s bar “unequivocally bar[s] any habeas review of CAT claims in extradition proceedings”! Second, the Supreme Court in St. Cyr and Crowell were talking about “constitutional avoidance”, explaining in St. Cyr that “if an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is ‘fairly possible,’ [quoting Crowell], we are obligated to construe the statute to avoid such problems.” But there is no constitutional problem to avoid in the context of a bar to judicial review of CAT decisions, as the Supreme Court had already concluded that in Monaf! As Judge Kavanaugh wrote in Omar:

Omar … invokes the constitutional avoidance doctrine. But the [CAT implementing legislation] and REAL ID Act are clear and, in light of Munaf, Omar lacks a credible constitutional argument. “A clear statute and a weak constitutional claim are not a recipe for successful invocation of the constitutional avoidance canon.” [quoting Kavanaugh’s (again!) majority opinion in the D.C. Circuit’s 2011 decision in Empresa Cubana Exportadora De Alimentos Y Productos Varios v. United States Department of the Treasury]

And even more recently, on May 1, the U.S. District Court for the Southern District of Texas in J.A.V. v. Trump concluded (in a decision ruling against President Trump’s ability to utilize the Alien Enemies Act [AEA] to remove members of a Venezuelan criminal cartel) that:

• The Fifth Circuit does not appear to have addressed a similar issue, and certainly not one involving the interplay between the AEA, the INA, and [CAT]. The Second Circuit, however, in a case [Kapoor] analogous to the present lawsuit, recently agreed that Section 1252(a)(4) barred a consideration of a [CAT]-based arguments in a habeas proceeding.

• The Court finds the reasoning of these decisions persuasive. Section 1252(a)(4) leaves no room for discretion, and divests this Court of considering in this habeas action whether removal under the AEA would violate the Convention [because of the risk of torture].

The district court noted that “Petitioners’ counsel attempted to distinguish Kapoor on the grounds that it concerns extradition.” But [Kapoor] concluded that “that distinction does not narrow the reach of Section 1252(a)(4)” and “[a]s a result, the Court … does not possess jurisdiction to consider Petitioners’ challenges to the [AEA] Proclamation based on [CAT].”

Conclusion

Should the Supreme Court decide to eventually rule against Judge Murphy on the merits, it will in fact honor and comply with the legislation and regulations implementing CAT (especially as subsequently clarified by the REAL ID Act). As now Supreme Court Justice Brett Kavanaugh concluded while serving as a judge on the D.C. Circuit, “a claim about conditions in the receiving country [regarding the possibility of torture] may be raised only during review of a final order of removal” and an alien does not have a “habeas corpus or due process right to judicial second-guessing of the Executive’s determination that he was not likely to be tortured”.

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End Notes

¹ 624 F.3d 1137, 1145 (9th Cir. 2010).

² 561 F.3d 509 (D.C. Cir. 2009).

³ 910 F.2d 1063, 1067 (2nd Cir. 1990).

⁴ 549 F.3d 235, 245 (3rd Cir. 2008).

⁵ 574 F.3d 990, 998 (8th Cir. 2009).

⁶ 132 F.4th 595, 608 (2nd Cir. 2025).

⁷ 683 F.3d 952, 956-57 (9th Cir. 2012).