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1 No In the Supreme Court of the United States ELENILSON J. ORTIZ-FRANCO, v. Petitioner, LORETTA E. LYNCH, ATTORNEY GENERAL OF THE UNITED STATES, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit BRIEF OF LAW PROFESSORS AS AMICI CURIAE IN SUPPORT OF PETITIONER William T. Russell, Jr. Simpson Thacher & Bartlett LLP 425 Lexington Avenue New York, New York (212) Andrew W. Lacy Counsel of Record Peter Thomas Counsel for Amici Curiae Janet Whitaker Michelle S. Kallen Simpson Thacher & Bartlett LLP 900 G. Street, N.W. Washington, DC (202) alacy@stblaw.com A (800) (800)

2 i TABLE OF CONTENTS Page TABLE OF CONTENTS...i TABLE OF CITED AUTHORITIES...iii INTEREST OF AMICI CURIAE...1 SUMMARY OF THE ARGUMENT...3 ARGUMENT...4 I. THIS COURT S PRESUMPTION IN FAVOR OF JUDICIAL REVIEW...5 II. JUDICIAL REVIEW IS CRITICAL TO PROPER ADJUDICATION OF CLAIMS FOR DEFERRAL OF REMOVAL UNDER THE CONVENTION AGAINST TORTURE...8 A. The CAT Plays an Integral Role In Protecting Basic Human Rights...9 B. CAT Deferral of Removal Is the Only Form of Immigration Relief Universally Available...12 III. The Second Circuit s Decision Below Deprives Noncitizens of Meaningful Review and Is Inconsistent with the Seventh and Ninth Circuits...15

3 ii Table of Contents Page A. Courts of Appeals Play an Instrumental Oversight Role In Correcting Serious Errors by Immigration Courts...16 B. The Seventh and Ninth Circuits Provide Noncitizens with Vital Review of Factual Errors by Immigration Courts...19 C. The Second Circuit s Decision Deepens a Circuit Split That Deprives Numerous Noncitizens of Meaningful Judicial Review...21 CONCLUSION...23

4 iii TABLE OF CITED AUTHORITIES Federal Cases Page Abbott Labs. v. Gardner, 387 U.S. 136 (1967)...5 Abdisalan v. Holder, 774 F.3d 517 (9th Cir. 2014) Ali v. Achim, 468 F.3d 462 (7th Cir. 2006)...20 Annachamy v. Holder, 733 F.3d 254 (9th Cir. 2012)...12 Benslimane v. Gonzales, 430 F.3d 828 (7th Cir. 2005)...16, 17 Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667 (1986)...5 Califano v. Sanders, 430 U.S. 99 (1977) Chen v. DOJ, 426 F.3d 104 (2d Cir. 2005)...18 Cole v. Att y Gen., 712 F.3d 517 (11th Cir. 2013)...21 Dada v. Mukasey, 554 U.S. 1 (2008)...6, 8

5 iv Cited Authorities Page Daoud v. Gonzales, 191 F. App x 782 (10th Cir. 2006)...19 Eneh v. Holder, 601 F.3d 943 (9th Cir. 2010)...21 Escudero-Arciniega v. Holder, 702 F.3d 781 (5th Cir. 2012)...21 Gourdet v. Holder, 587 F.3d 1 (1st Cir. 2009)...21 Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995) Hu v. Holder, 579 F.3d 155 (2d Cir. 2009)...17 INS v. St. Cyr, 533 U.S. 289 (2001)...6, 7 INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)...6, 8 Jian Zhong Sun v. Bd. of Immigration Appeals, 247 F. App x 275 (2d Cir. 2007)...17 Kadia v. Gonzales, 501 F.3d 817 (7th Cir. 2007)...16

6 v Cited Authorities Page Kang v. Att y Gen., 611 F.3d 157 (3d Cir. 2010)...18 Kucana v. Holder, 558 U.S. 233 (2010)...7, 8 Kyaw Lin Htin v. INS, 181 F. App x 136 (2d Cir. 2006)...17 Lovan v. Holder, 574 F.3d 990 (8th Cir. 2009)...21 McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479 (1991)...6 Moncrieffe v. Holder, 133 S. Ct (2013)...12, 13, 14 Mostafa v. Ashcroft, 395 F.3d 622 (6th Cir. 2005)...16 Negusie v. Holder, 555 U.S. 511 (2009)...12, 13 Ortiz-Franco v. Lynch, 782 F.3d 81 (2d Cir. 2015)...22 Pieschacon-Villegas v. Att y Gen., 671 F.3d 303 (3d Cir. 2011)...21

7 vi Cited Authorities Page Reno v. Catholic Social Servs., Inc., 509 U.S. 43 (1993)...7 Sarhan v. Holder, 658 F.3d 649 (7th Cir. 2011)...20 Tran v. Gonzales, 447 F.3d 937 (6th Cir. 2006)...21 Turkson v. Holder, 667 F.3d 523 (4th Cir. 2012)...21 Vinh Tan Nguyen v. Holder, 763 F.3d 1022 (9th Cir. 2014)...20, 21 Wang v. Att y Gen., 423 F.3d 260 (3d Cir. 2005)...16 Wanjiru v. Holder, 705 F.3d 258 (7th Cir. 2013)...19, 20 Yu Feng Lin v. Bd. of Immigration Appeals, 183 F. App x 54 (2d Cir. 2006)...18 International Cases Aksoy v. Turkey, 23 Eur. H.R. Rep. 553 (1996)...11 Chahal v. United Kingdom, 23 Eur. H.R. Rep. 413 (1996)...11

8 vii Cited Authorities Page Gorki Ernesto Tapia Paez v. Sweden, U.N. Comm. Against Torture, Communication No. 39/1996, U.N. Doc. CAT/C/18/D/39/1996 (1997)...11 Statutes and Regulations Sup. Ct. R C.F.R C.F.R (c) C.F.R (d)(2) C.F.R , 12 8 C.F.R (a)...5, 11, 14 8 C.F.R (a)(1) U.S.C U.S.C , 11 8 U.S.C. 1231(b)(3)(A) U.S.C. 1231(b)(3)(B)(ii) U.S.C. 1252(a)(2) U.S.C. 1252(a)(2)(B)(ii)...7

9 viii Cited Authorities Page 8 U.S.C. 1252(a)(2)(C)...3, 5, U.S.C Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No , div. G, tit. XXII, 2242, 112 Stat (1998)...10 Other Authorities Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States (2006)...2 Charles Gordon, Stanley Mailman, Stephen Yale-Loehr & Ronald Y. Wada, Immigration Law and Procedure (rev. ed. 2014)...9 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations Treaty Collection, ViewDetails.aspx?src=TREATY&mtdsg_ no=iv-9&chapter=4&lang=en (last visited Oct. 20, 2015)...9 Convention Against Torture: Hearing Before the S. Comm. on Foreign Relations, 101st Cong. 18 (1990) (statement of Mark Richard, Deputy Asst. Att y Gen., Crim. Div., Dep t of Justice)...14 Convention Against Torture: Hearing Before

10 ix Cited Authorities Page the S. Comm. on Foreign Relations, 101st Cong. 69 (1990) (statement of James R. Silkenat, Chairman, Section of Int l Law and Practice, Am. Bar Assoc.)...14 Convention Against Torture: Hearing Before the S. Comm. on Foreign Relations, 101st Cong. 7 (1990) (statement of Hon. Abraham D. Sofaer, Legal Adviser, Dep t of State)...11 Deborah E. Anker, Law of Asylum in the United States (2015)...11 Immigration Court Backlog Tool, TRAC Immigration (Sept. 2015), edu/phptools/immigration/court_backlog/ Immigration Outside the Law (2014)...2 Immigration Relief Under the Convention Against Torture for Serious Criminals & Human Rights Violators: Hearing Before the Subcomm. on Immigration, Border Sec., & Claims of the H. Comm. on the Judiciary, 108th Cong. 12 (2003) (statement of C. Stewart Verdery, Asst. Sec y for Border and Transp. Sec. Policy, Dep t of Homeland Sec.)

11 x Cited Authorities Page Immigration Relief Under the Convention Against Torture for Serious Criminals & Human Rights Violators: Hearing Before the Subcomm. on Immigration, Border Sec., & Claims of the H. Comm. on the Judiciary, 108th Cong. 15 (2003) (statement of Eli Rosenbaum, Dir., Office of Special Investigations, U.S. Dep t of Justice)...13, 14 John R.B. Palmer, Stephen W. Yale-Loehr & Elizabeth Cronin, Why Are So Many People Challenging Board of Immigration Appeals Decisions in Federal Court? An Empirical Analysis of the Recent Surge in Petitions for Review, 20 Geo. Immigr. L.J. 1 (2005)...17 Manfred Nowak & Elizabeth McArthur, The United Nations Convention Against Torture (2008)...13 Maximum Average Minutes Available per Matter Received, TRAC Immigration (June 18, 2009, reports/208/include/minutes.html...17 Michele Benedetto, Crisis on the Immigration Bench, 73 Brook. L. Rev. 467 (2008)...17 Pnina Baruh Sharvit, The Definition of Torture in the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, 23 Israel Y.B. Hum. Rts. 147 (1994)...9

12 xi Cited Authorities Page Presidential Statement on United Nations International Day in Support of Victims of Torture, 40 Weekly Comp. Pres. Doc (June 26, 2004)...10 Refugee Law and Policy: An International and Comparative Approach (2015 edition)... S. Comm. on Foreign Relations, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, S. Exec. Rep. No (1990)..10, 11 Treaties U.N. Doc. 571 Leg/SER.E/13.IV.9 (1995)...10 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984, S. Treaty Doc. No (1988), 1465 U.N.T.S

13 1 INTEREST OF AMICI CURIAE Amici are law professors who have a vital interest in ensuring that the development of United States immigration law is consistent with international obligations and norms. Amici come together because of their shared concern that the decision below fails to give proper weight to this Court s strong presumption in favor of judicial review and fails to give proper consideration to the importance of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ( CAT ), particularly in the context of deferral of removal. Amici all agree that, for the reasons set forth in this brief, this Court should grant review and the decision below should be reversed. 1 Deborah Anker is a Clinical Professor of Law and Director of the Harvard Law School Immigration and Refugee Clinical Program. 2 She is the author of the leading treatise on asylum law in the United States and has been cited by this Court, as well as numerous other international and domestic courts. Jonathan Hafetz is an Associate Professor of Law at Seton Hall University School of Law. He has written many 1. Letters of consent have been filed with the Clerk. The parties were notified ten days prior to the due date of this brief of the intention to file. Pursuant to Rule 37.6, amici state that no counsel for a party authored any part of the brief, and no person or entity other than amici and their counsel made a monetary contribution to the preparation or submission of this brief. 2. All institutional affiliations of amici listed herein are for identification purposes only.

14 2 articles on the subject of judicial review in the immigration context and his work has been cited by this Court. Ira Kurzban is an Adjunct Professor of Law at University of Miami School of Law and the author of the most widely used one-volume immigration source in the United States. Hiroshi Motomura is the Susan Westerberg Prager Professor of Law at the University of California, Los Angeles, School of Law. He is the co-author of two widely used casebooks, one on immigration and citizenship law, and the other on refugee and asylum law. He is also the author of two award-winning books: Immigration Outside the Law (2014), and Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States (2006), which was chosen for the Department of State s suggested reading list for foreign service officers. Professor Motomura is an elected life member of the American Law Institute. Karen Musalo is the Bank of America Foundation Chair in International Law at the University of California Hastings College of the Law and Director of the Center for Gender and Refugee Studies. She is a nationallyrecognized pioneer in refugee and humanitarian issues and lead co-author of Refugee Law and Policy: An International and Comparative Approach (2015 edition). She has contributed to the evolving jurisprudence of refugee law through her extensive scholarship, as well as her litigation of landmark cases. Professor Musalo s work also includes international human rights fact-finding and research, particularly in the Northern Triangle countries of Central America Guatemala, El Salvador, and Honduras.

15 3 Stephen I. Vladeck is a Professor of Law at American University Washington College of Law and an expert on federal jurisdiction. He has published numerous articles on judicial review and jurisdictional questions affecting noncitizens. Michael Wishnie is the Deputy Dean for Experiential Education and the William O. Douglas Clinical Professor of Law at Yale Law School. He has written on the topic of judicial review in the immigration context. Stephen W. Yale-Loehr is an expert in the field of immigration law and an Adjunct Professor of Law at Cornell Law School where he co-directs the Asylum and Convention Against Torture Appellate Clinic. He has authored or co-authored over 200 books or articles on immigration law, including a treatise that is considered to be standard reference in the field and he has been cited more than 150 times by federal courts, including four times by this Court. SUMMARY OF THE ARGUMENT The right of a noncitizen to judicial review of an immigration court s decision on the only immigration relief available to him should not depend on the jurisdiction in which he can appeal. Yet, that is the current situation when a noncitizen seeks to appeal the factual determinations of an immigration court in a decision denying deferral of removal under the Convention Against Torture. The Second Circuit s reading of 8 U.S.C. 1252(a)(2)(C) divests federal courts of jurisdiction over appeals contesting immigrations courts denial of deferral of removal on

16 4 factual grounds. Amici will not address the statutory arguments made at length in the petition for certiorari. Amici write separately to underscore two points. First, the Second Circuit s decision is fundamentally inconsistent with this Court s well-established presumption favoring judicial review of agency decisions. The presumption favoring judicial review is particularly important in the context of deferral of removal, where such relief is the only immigration relief available to noncitizens, like Petitioner, who have certain criminal convictions. Second, amici also stress the importance of the CAT and its vital function in guaranteeing that noncitizens, including those with criminal convictions, are not removed to countries where they will face a likelihood of torture. Amici submit that there is an urgent need for this Court to resolve the jurisdictional split acknowledged by the Second Circuit and to ensure fairness and uniformity in this critical area of law. This Court s strong presumption in favor of judicial review of administrative action serves an especially vital function in the context of immigration law, where courts of appeals are often not simply the court of last resort, but also the first meaningful opportunity for judicial review of a noncitizen s claims. ARGUMENT Deferral of removal under the CAT provides a crucial and often the sole avenue of relief to noncitizens facing possible torture or death if returned to their home countries. In this context, judicial review of adverse decisions by the immigration courts is critical. This Court adheres to a presumption in favor of judicial review in general and specifically emphasizes the importance of

17 5 this presumption in the immigration context. Judicial review is paramount where, as here, an error by agency adjudicators means that an individual, like Petitioner, will more likely than not suffer abhorrent acts against his life or bodily integrity upon removal. See 8 C.F.R (a), (a)(1). I. THIS COURT S PRESUMPTION IN FAVOR OF JUDICIAL REVIEW The central question in this case is one of statutory interpretation: Does 8 U.S.C. 1252(a)(2)(C) 3 divest courts of appeals of jurisdiction to review factual claims challenging the denial of deferral of removal under the CAT? Well-established principles favoring judicial review of administrative proceedings, and proceedings where a noncitizen s security and well-being are at stake, dictate that judicial review must be available in deferral of removal cases under the CAT. A key principle of statutory interpretation is the strong presumption that Congress intends judicial review of administrative action. Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986). This Court has held that only upon a showing of clear and convincing evidence of a contrary legislative intent should the courts restrict access to judicial review. Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967) (internal quotation omitted), abrogated on other grounds by Califano v. Sanders, U.S.C. 1252(a)(2)(C) provides in relevant part that no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense listed in the provision.

18 6 U.S. 99 (1977). Accordingly, when a statute is reasonably susceptible to more than one interpretation, courts adopt the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 (1995). The presumption in favor of judicial review is particularly crucial in the immigration context where this Court adheres to a longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien. INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987). 4 In McNary v. Haitian Refugee Center, Inc., this Court looked to the well-settled presumption favoring interpretations of statutes that allow judicial review of administrative action to hold that the Immigration Reform and Control Act of 1986 (the Reform Act ) did not preclude judicial review of challenges to the administration of the Special Agricultural Worker ( SAW ) program. 498 U.S. 479, (1991). 5 Recognizing the importance of the freedoms that the program provided and the wellsettled presumption in favor of judicial review, this Court ruled that it was most unlikely that Congress intended to foreclose all forms of meaningful judicial review for those noncitizens. Id. at See also INS v. St. Cyr, 533 U.S. 289, 320 (2001) (quoting Cardoza-Fonseca for this proposition); see also Dada v. Mukasey, 554 U.S. 1, (2008) (quoting this same principle and holding that noncitizens have a right to move to reopen immigration cases even after accepting voluntary departure). 5. The SAW program afforded temporary, and later, permanent residence status to qualifying noncitizen farm laborers.

19 7 Similarly, in Reno v. Catholic Social Services, Inc., this Court rejected a statutory interpretation that would have amounted to the practical equivalent of a total denial of judicial review of numerous claims brought by noncitizens seeking lawful status in the United States. 509 U.S. 43, 64 (1993). In rejecting an Immigration and Naturalization Service ( INS ) policy that would have effectively exclude[d] an applicant from access even to the limited administrative and judicial review procedures established by the Reform Act, this Court invoked the well-settled presumption favoring judicial review and refused to impute to Congress an intent to preclude judicial review of the legality of INS action entirely. Id. at In 2001, this Court again affirmed its strong presumption in favor of judicial review of administrative action when it held that the 1996 amendments to the Immigration and Nationality Act ( INA ) did not bar a noncitizen seeking discretionary relief from a deportation order from habeas jurisdiction available under 28 U.S.C St. Cyr, 533 U.S. at 298. In Kucana v. Holder, this Court reiterated the presumption favoring judicial review of administrative action, noting that it had consistently applied that interpretive guide to legislation regarding immigration, and particularly to questions concerning the preservation of federal court jurisdiction. 558 U.S. 233, 251 (2010). Specifically, this Court examined the text, context, and history of the jurisdictional bars codified at 8 U.S.C. 1252(a)(2), and the character of a reopening motion as a procedural safeguard, to hold that 8 U.S.C. 1252(a) (2)(B)(ii) proscribed judicial review only where the statute itself specified the discretionary character of the agency determination. Id. at Highlighting the

20 8 presumption favoring judicial review of agency action, this Court noted it was unsurprising that Congress would leave in place judicial oversight of this important procedural safeguard designed to ensure a proper and lawful disposition of immigration proceedings. Id. at (quoting Dada, 554 U.S. at 18). The presumption in favor of judicial review is especially important in the CAT context, where a factual error could result in a petitioner being subjected to torture or death in his home country. See Cardoza-Fonseca, 480 U.S. at 449 ( Deportation is always a harsh measure [and] is all the more replete with danger when the alien makes a claim that he or she will be subject to death or persecution if forced to return to his or her home country. ). II. JUDICIAL REVIEW IS CRITICAL TO PROPER ADJUDICATION OF CLAIMS FOR DEFERRAL OF REMOVAL UNDER THE CONVENTION AGAINST TORTURE The presumption favoring judicial review of administrative action is particularly important in evaluating denials of claims for deferral of removal under the CAT, where the potential harm to noncitizens facing removal is so severe as to be universally condemned. Deferral of removal is not only mandatory; in some cases it is also the only form of protection available to noncitizens facing the threat of torture.

21 9 A. The CAT Plays an Integral Role In Protecting Basic Human Rights The CAT is a landmark international human rights treaty that aims to prevent torture and other acts of cruel, inhuman, or degrading treatment or punishment around the world. United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984, S. Treaty Doc. No (1988), 1465 U.N.T.S. 85. The CAT was adopted to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world. Id. at pmbl. 6 It has been adopted by 158 countries 7 and requires that these countries prohibit and prevent torture, investigate all allegations of torture, bring perpetrators of torture to justice, and provide a remedy to victims of torture See generally Pnina Baruh Sharvit, The Definition of Torture in the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, 23 Israel Y.B. Hum. Rts. 147, 147 (1994) ( The prohibition of torture... is one of the most basic principles of human rights, and is compared to the most fundamental rights, such as the right to life or the prohibition of slavery. ); Charles Gordon, Stanley Mailman, Stephen Yale-Loehr & Ronald Y. Wada, Immigration Law and Procedure (rev. ed. 2014). 7. See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations Treaty Collection, aspx?src=treaty&mtdsg_no=iv-9&chapter=4&lang=en (last visited Oct. 20, 2015). 8. Key provisions include: Article 2, which states that [e]ach State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under

22 10 The United States ratified the CAT in 1994, 9 and Congress implemented it through the Foreign Affairs Reform and Restructuring Act of 1998 ( FARRA ). Pub. L. No , div. G, tit. XXII, 2242, 112 Stat. 2681, (1998) (codified as note to 8 U.S.C. 1231). In recommending ratification of the CAT, the Senate Committee on Foreign Relations referred to the common understanding of torture as an extreme practice which is universally condemned, and emphasized that ratification will demonstrate clearly and unequivocally U.S. opposition to torture and U.S. determination to take steps to eradicate it. S. Comm. on Foreign Relations, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, S. Exec. Rep. No at 3, 13 (1990) (hereinafter Senate Report). 10 The United States played an active role in drafting the its jurisdiction; Article 3, which requires that [n]o 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; and Article 4, which provides that [e]ach State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. CAT arts See U.N. Doc. 571 Leg/SER.E/13.IV.9 (1995). 10. See also Presidential Statement on United Nations International Day in Support of Victims of Torture, 40 Weekly Comp. Pres. Doc. 1167, (June 26, 2004) ( Freedom from torture is an inalienable human right.... America stands against and will not tolerate torture.... Torture is wrong no matter where it occurs, and the United States will continue to lead the fight to eliminate it everywhere. ).

23 11 CAT, 11 which, through the implementing legislation, establishes a binding duty on the United States not to return individuals to a country where they may be subject to torture. See 8 U.S.C note; 8 C.F.R (c), (a). Reflecting the absolute nature of the prohibition on torture, the CAT and the implementing regulations provide no exceptions to this duty. See 8 C.F.R ; Aksoy v. Turkey, 23 Eur. H.R. Rep. 553, (1996) ( Article 3 makes no provision for exceptions and no derogation from it is permissible... even in the event of a public emergency threatening the life of the nation. ). 12 For noncitizens facing removal from the United States, deferral of removal under the CAT is the only form of immigration relief that does not have any criminal bar that is, it is the only form of relief available to individuals with certain criminal convictions. 11. E.g., Senate Report at 2 ( The Convention itself was the product of 7 years of intense negotiations, in which the United States played an active part. ); Convention Against Torture: Hearing Before the S. Comm. on Foreign Relations, 101st Cong. 7 (1990) (hereinafter Senate Hearing) (statement of Hon. Abraham D. Sofaer, Legal Adviser, Dep t of State) ( The United States contributed significantly to the development of the Convention. We did so with broad bipartisan support. ). 12. See also Chahal v. United Kingdom, 23 Eur. H.R. Rep. 413, (1996) ( The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the [CAT] prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim s conduct. ); Gorki Ernesto Tapia Paez v. Sweden, U.N. Comm. Against Torture, Communication No. 39/1996, at 14.5, U.N. Doc. CAT/C/18/D/39/1996 (1997) ( The Committee considers that the test of article 3 of the Convention is absolute. ); Deborah E. Anker, Law of Asylum in the United States 685 (2015) ( [T]he Torture Convention s Article 3 non-return provision is absolute. ).

24 12 B. CAT Deferral of Removal Is the Only Form of Immigration Relief Universally Available A noncitizen who fears persecution or torture in his home country has the option to seek asylum, 8 U.S.C. 1158, withholding of removal, 8 U.S.C. 1231(b)(3)(A), 8 C.F.R , and/or deferral of removal under the CAT. 8 C.F.R ; see also Moncrieffe v. Holder, 133 S. Ct. 1678, 1682 n.1 (2013). Some noncitizens, however, are ineligible for asylum and withholding of removal because certain criminal convictions bar them from such relief. 8 U.S.C. 1231(b)(3)(B)(ii); 8 C.F.R (d)(2). 13 CAT relief is limited to those who are more likely than not to be subjected to acts inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity, while asylum and withholding of removal are available to victims of harm inflicted by private actors, without regard to state involvement[.] Negusie, 555 U.S. at 536 n.6 (Stevens, J., concurring in part and dissenting in part) (internal 13. See also Negusie v. Holder, 555 U.S. 511, 514 (2009) (the socalled persecutor bar, which bars a noncitizen who fears persecution in his homeland from obtaining refugee status if he has persecuted others, applies to those seeking asylum or withholding of removal, but does not disqualify an alien from receiving a temporary deferral of removal under the [CAT]. ); id. at 541 n.1 (Thomas, J., dissenting) ( Deferral of removal was created to accommodate Congress direction to exclude those who fall within the INA persecutor bar [t]o the maximum extent consistent with the obligations of the United States under the [CAT] to not return an alien to a country in which he or she will be tortured. ); Annachamy v. Holder, 733 F.3d 254, 258 (9th Cir. 2012) ( An alien who has engaged in terrorist activities is ineligible for asylum [and] withholding of removal..., but remains eligible for deferral of removal under CAT. ), overruled on other grounds by Abdisalan v. Holder, 774 F.3d 517 (9th Cir. 2014).

25 13 citations omitted). Furthermore, CAT relief requires a showing of a greater likelihood of persecution or torture at home than is necessary for asylum. Moncrieffe, 133 S.Ct. at 1682 n.1. Notwithstanding these limitations, deferral of removal under the CAT, which addresses concerns different from those addressed by asylum and withholding of removal, sets forth no exceptions to protection from removal. Negusie, 555 U.S. at 536 n.6 (Stevens, J., concurring in part and dissenting in part); Immigration Relief Under the Convention Against Torture for Serious Criminals & Human Rights Violators: Hearing Before the Subcomm. on Immigration, Border Sec., & Claims of the H. Comm. on the Judiciary, 108th Cong. 15 (2003) (hereinafter House Hearing) (statement of Eli Rosenbaum, Dir., Office of Special Investigations, U.S. Dep t of Justice). 14 As the Department of Justice has emphasized, [t]he strong policy reflected in the implementation of the [CAT] is that no person, regardless of his or her past conduct, should 14. See also House Hearing at 12 (statement of C. Stewart Verdery, Asst. Sec y for Border and Transp. Sec. Policy, Dep t of Homeland Sec.) ( Because the obligation to refrain from removing an alien who faces torture is absolute, [the Department of Homeland Security] ha[s] always been mindful of the fact that there would be situations where criminal aliens ineligible for other forms of immigration relief or protection might qualify for [CAT] protection. ); Manfred Nowak & Elizabeth McArthur, The United Nations Convention Against Torture 129 (2008) ( Article 3 [of the] CAT guarantees an absolute right which is not subject to any exclusion or limitation clause. In other words, even if the host State where a dangerous terrorist is seeking protection against persecution refuses to grant him or her asylum, the authorities are prevented from returning him or her to the country of origin or any other country where there exists a serious risk of torture. ).

26 14 be deported to another country to face torture. House Hearing at 15 (Rosenbaum statement). Therefore, deferral of removal is the last and only hope for some noncitizens facing a likelihood of torture upon their removal from the United States. See Moncrieffe, 133 S. Ct. at 1682 n.1 (noting that, while a noncitizen who has been sentenced to an aggregate term of imprisonment of at least five years for any aggravated felony would be ineligible for withholding of removal, [a] conviction of an aggravated felony has no effect on CAT eligibility ). Reflecting its importance, CAT deferral relief is mandatory. Accordingly, if a noncitizen can make the objective showing required to establish a claim for CAT deferral, the government has no discretion to deny relief to that noncitizen. Id.; see also 8 C.F.R (a) (noncitizen who satisfies the CAT standard shall be granted deferral of removal ) (emphasis added). 15 Such protection codifies the purpose of Article 3 to afford the greatest possible protection against torture. Senate Hearing at 69 (statement of James R. Silkenat, Chairman, Section of Int l Law and Practice, Am. Bar Assoc.) ( [T]he negotiating record is clear that the purpose of Article 3, not surprisingly, was to afford the greatest possible protection against torture and that the evidentiary requirement should not be too rigorous and 15. By contrast, the government has discretion to deny asylum relief to those who qualify. See Senate Hearing at 18 (statement of Mark Richard, Deputy Asst. Att y Gen., Crim. Div., Dep t of Justice) ( Because Article 3 does not permit any discretion or provide for any exceptions, it is not completely analogous to current immigration law where withholding of deportation allows exceptions... and the granting of asylum provides discretion to those who meet the threshold requirements ).

27 15 should be kept to a minimum. 35 U.N. ESCOR para. 44, U.N. Doc. E/CN.4/1347 (1979). ). Because the CAT provides the only form of immigration relief without a criminal bar, a noncitizen regardless of any criminal convictions is eligible to apply for CAT deferral and to obtain a ruling on the merits of his claim. For noncitizens with criminal pasts who fear torture, like Petitioner, CAT relief is the only immigration relief available. III. The Second Circuit s Decision Below Deprives Noncitizens of Meaningful Review and Is Inconsistent with the Seventh and Ninth Circuits Where immigration judges ( IJs ) and the Board of Immigration Appeals ( BIA ) commit error in adjudicating factual issues, which occurs not infrequently, courts of appeals are the first meaningful opportunity of judicial review for noncitizens. On numerous occasions, courts of appeals have corrected factual errors by immigration courts. In so doing, courts of appeals have expressed concern across a range of immigration cases, including CAT cases, where they repeatedly reverse and remand decisions of immigration courts, and in some cases even grant relief themselves. These cases illustrate why the presumption in favor of judicial review particularly in the CAT context where individuals face the risk of torture is a necessary cornerstone of our jurisprudence. However, the Second Circuit s decision below effectively strips many noncitizens of the only opportunity for this kind of meaningful judicial review.

28 16 A. Courts of Appeals Play an Instrumental Oversight Role In Correcting Serious Errors by Immigration Courts Circuit courts have often expressed frustration about IJs and the BIA s failure to issue carefully considered, well-reasoned decisions. See, e.g., Benslimane v. Gonzales, 430 F.3d 828, (7th Cir. 2005) (collecting statements of severe judicial criticism of the BIA and noting that adjudication of these cases... has fallen below the minimum standards of legal justice ); Mostafa v. Ashcroft, 395 F.3d 622, 626 (6th Cir. 2005) (collecting cases in which courts of appeals remanded claims where the BIA utterly failed to consider record evidence on the likelihood of torture); Wang v. Att y Gen., 423 F.3d 260, 268 (3d Cir. 2005) ( A disturbing pattern of IJ misconduct has emerged notwithstanding the fact that some of our sister circuits have repeatedly echoed our concerns. ); see also Kadia v. Gonzales, 501 F.3d 817, 821 (7th Cir. 2007) ( Repeated egregious failures of the Immigration Court and the Board to exercise care commensurate with the stakes in an asylum case can be understood, but not excused, as consequences of a crushing workload ). 16 In one year, the 16. The availability of judicial review as a check in immigration cases is especially important in light of the extreme backlogs, time pressures, resource constraints, and capacity issues that plague the immigration courts. Currently, the immigration courts have a backlog of over 450,000 pending cases or an average of over 1,800 cases per judge. Immigration Court Backlog Tool, TRAC Immigration (Sept. 2015), court_backlog/ (noting backlog for FY2015 of 456,644 pending immigration cases). In 2009, when the backlog was less than half its current volume, or around 224,000 pending cases, immigration judges had on average only 72 minutes to deal with each matter

29 17 Seventh Circuit alone reversed BIA decisions in whole or in part 40 percent of the time. Benslimane, 430 F.3d at 829. Judges and commentators alike have lamented that the BIA increasingly affirms IJ decisions without opinion, reflecting that many noncitizens are thus denied meaningful review of their claims until they reach the circuit courts. See generally Michele Benedetto, Crisis on the Immigration Bench, 73 Brook. L. Rev. 467 (2008); John R.B. Palmer, Stephen W. Yale-Loehr & Elizabeth Cronin, Why Are So Many People Challenging Board of Immigration Appeals Decisions in Federal Court? An Empirical Analysis of the Recent Surge in Petitions for Review, 20 Geo. Immigr. L.J. 1 (2005). The Second Circuit itself has corrected ill-reasoned and speculative factual decisions by immigration courts. See, e.g., Hu v. Holder, 579 F.3d 155, 158 (2d Cir. 2009) (finding that the IJ s adverse credibility determination relied on a flawed factfinding process, impermissible speculation, and flawed reasoning ); Jian Zhong Sun v. Bd. of Immigration Appeals, 247 F. App x 275, 276 (2d Cir. 2007) (concluding that the IJ s decision was speculative and conjectural, was not supported by substantial evidence and [t]he IJ s findings [were] a product of the IJ s own beliefs about what is and is not plausible in China, without any record support for these conclusions ); Kyaw Lin Htin v. INS, 181 F. App x 136, 138 (2d Cir. 2006) (finding that the IJ erred in summarily dismissing Htin s CAT claim, without addressing the detailed evidence in the record regarding the Burmese government s deplorable received. Id.; Maximum Average Minutes Available per Matter Received, TRAC Immigration (June 18, 2009), immigration/reports/208/include/minutes.html.

30 18 human rights record ); Yu Feng Lin v. Bd. of Immigration Appeals, 183 F. App x 54, 56 (2d Cir. 2006) (finding the BIA s denial of asylum, withholding of removal, and relief under the CAT was based on the IJ s construction of the evidence [which] is wholly speculative, and indeed borders on mystifying ); Chen v. DOJ, 426 F.3d 104, 115 (2d Cir. 2005) (remanding where the IJ s reasoning, affirmed by the BIA, was grounded solely on speculation and conjecture ). Other courts of appeals have also corrected conspicuous factual errors in the CAT context. In Kang v. Attorney General, the Third Circuit overturned the BIA s denial of CAT relief and found the error so egregious that, rather than remanding the case, it granted withholding of removal under the CAT outright. 611 F.3d 157 (3d Cir. 2010). The Third Circuit determined that, contrary to the finding of the BIA: The record compels the conclusion that if Kang is remanded to China, it is more likely than not that she will be beaten, suffocated, deprived of sleep, shocked with electrical current and/or forced to stand for long periods of time, and that this would be done with the purpose of causing her severe pain and suffering. Id. at ; see also id. at 168 (explaining that grant of relief outright was appropriate in lieu of remand because the record evidence overwhelmingly supports and indeed, compels the conclusion that Kang s petition for withholding of removal under CAT should be granted, and no amount of reconsideration by the BIA would change that ).

31 19 In Daoud v. Gonzales, the Tenth Circuit held that the BIA had erroneously affirmed the IJ s denial of CAT relief to a native citizen of Iraq who presented unrefuted evidence [ ] that U.S. citizens and others working for or suspected of being associated with coalition forces are specifically targeted by insurgents or terrorists. 191 F. App x 782, 786 (10th Cir. 2006). The Tenth Circuit concluded that the IJ s reasoning that I think they just kidnap whoever they can and whoever is available and that the situation is hopefully going to get better because the American military is [in Iraq] was unsupported by substantial evidence. Id. at These cases reflect the crucial role that courts of appeals play in correcting immigration courts significant factual errors. B. The Seventh and Ninth Circuits Provide Noncitizens with Vital Review of Factual Errors by Immigration Courts Appreciating the importance of the CAT and of judicial review over agency decisions, the Seventh and Ninth Circuits have found in favor of jurisdiction over not only legal errors but also factual errors in denying deferral of removal. In exercising this jurisdiction, both circuits have encountered and corrected serious factual errors by IJs and the BIA, underscoring the critical need for judicial review of these determinations. In Wanjiru v. Holder, the Seventh Circuit found the BIA s denial of deferral of removal was entirely unsupported by the evidence. 705 F.3d 258 (7th Cir. 2013). Contrary to the BIA s findings, the Seventh Circuit

32 20 concluded that both the documentary evidence and Wanjiru s testimony (which... the IJ found credible) support the conclusion that the Mungiki will probably murder [Petitioner] with the acquiescence of Kenyan government officials, if he is returned. Id. at 267. In Ali v. Achim, the Seventh Circuit reversed the agency s denial of Petitioner Ali s claim for deferral of removal under the CAT on factual grounds. 468 F.3d 462, 471 (7th Cir. 2006). The Seventh Circuit examined the record as a whole and concluded that [w]hen all the relevant evidence is properly considered, the record compels the conclusion that Ali would more likely than not face torture if removed to Somalia. Id. at Similarly, in Vinh Tan Nguyen v. Holder, the Ninth Circuit found that the IJ and BIA incorrectly concluded that torture was uncommon in Vietnam and that Vietnamese authorities were unaware of Petitioner Nguyen s political activities. 763 F.3d 1022 (9th Cir. 2014). The Ninth Circuit held that, contrary to the findings of the agency below, the record compels the conclusion that because the Vietnamese authorities have become aware of Nguyen s public activities in opposition to the Vietnamese 17. The Seventh Circuit found remarkable the BIA s overall conclusion that Ali did not present evidence of past harm which is necessarily linked to his clan membership and which bolsters the belief he will be tortured in the future given Ali s presentation of evidence of the murder (following the attempted rape) of Ali s sister, and violence Ali endured personally (including clan-based violence at the hands of the militia). Ali, 468 F.3d at 472 (internal quotations omitted); see also Sarhan v. Holder, 658 F.3d 649, 660 (7th Cir. 2011) (reversing agency s factual conclusion that the government of Jordan would not acquiesce in an honor killing in a CAT case, noting [w]e are at a loss to understand how [the IJ and BIA] came to this conclusion in light of the evidence we have just reviewed ).

33 21 regime, Nguyen is likely to be arrested, detained and tortured in Vietnam. Id. at 1032 (internal alterations omitted). Because its decision rested on factual grounds, the Ninth Circuit remanded with instructions to the agency to grant deferral of removal under the CAT. See id. at 1033 ( Where the BIA got the law right, but failed to recognize that the record compels a particular finding of fact, we need not remand for further factfinding. ); see also Eneh v. Holder, 601 F.3d 943, (9th Cir. 2010) (remanding denial of deferral of removal under the CAT in part because the BIA s factual conclusions about the Nigerian government s treatment of people with HIV/ AIDS when denying CAT relief were not supported by substantial evidence). C. The Second Circuit s Decision Deepens a Circuit Split That Deprives Numerous Noncitizens of Meaningful Judicial Review The cases above reflect that judicial review of factual determinations in CAT cases is essential to ensure that IJs and the BIA make thorough, well-reasoned assessments of the factual claims before them. In the Second Circuit and seven other circuits, the immigration courts factual errors in denying deferral of removal go unchecked. 18 The Second 18. See also Cole v. Att y Gen., 712 F.3d 517, 532 (11th Cir. 2013) (applying 8 U.S.C. 1252(a)(2)(C) to CAT claims and holding that its review is limited to legal and constitutional claims ); Lovan v. Holder, 574 F.3d 990, 998 (8th Cir. 2009) ( agency s factual determinations regarding CAT deferral relief are beyond our jurisdiction in light of 1252(a)(2)(C)); see also Gourdet v. Holder, 587 F.3d 1, 5 (1st Cir. 2009); Pieschacon-Villegas v. Att y Gen., 671 F.3d 303, (3d Cir. 2011); Turkson v. Holder, 667 F.3d 523, (4th Cir. 2012); Escudero-Arciniega v. Holder, 702 F.3d 781, 785 (5th Cir. 2012); Tran v. Gonzales, 447 F.3d 937, 943 (6th Cir. 2006).

34 22 Circuit s holding below directly conflicts with holdings in the Seventh and Ninth Circuits. This jurisdictional split creates an inequitable disparity in the rights afforded to noncitizens seeking review of an immigration court s denial of deferral of removal. As it now stands, noncitizens rights to appeal factual errors turn upon the jurisdiction under which they fall. As Judge Lohier noted below: [T]he state of play today is that noncitizens with criminal convictions who appeal the Government s denial of deferral of removal under the CAT will have access to federal court in a wide geographic swath of the Nation (the Seventh and Ninth Circuits), while similarly situated men and women in other parts of the country (including, now, this Circuit) will not. This is not a sustainable way to administer uniform justice in the area of immigration. Ortiz-Franco v. Lynch, 782 F.3d 81, 93 (2d Cir. 2015) (Lohier, J., concurring). In light of the strong presumption favoring judicial review of immigration cases, the importance of the CAT, and the current Circuit split, the Court s review is warranted and the petition for a writ of certiorari should be granted.

35 23 CONCLUSION For the foregoing reasons, amici respectfully urge this Court to grant the petition for writ of certiorari. Respectfully submitted, William T. Russell, Jr. Simpson Thacher & Barltett LLP 425 Lexington Avenue New York, New York (212) Dated: October 23, 2015 Andrew W. Lacy Counsel of Record Peter Thomas Janet Whitaker Counsel for Amici Curiae Michelle S. Kallen Simpson Thacher & Bartlett LLP 900 G. Street, N.W. Washington, DC (202)