February 25, 2020

Guerrero-Lasprilla v. Barr and Ovalles v. Barr

IMMIGRATION LAW

Is a Request for Equitable Tolling in an Immigration Removal Case a Question of Law or a Question of Fact?

CASE AT A GLANCE

Congress has removed habeas review for aliens with certain criminal histories. However, Congress also passed the REAL ID Savings Clause in 2005 which preserves judicial review “of constitutional claims or questions of law.” The question in these two consolidated cases is whether the Fifth Circuit Court of Appeals correctly determined that it lacked jurisdiction to determine whether the doctrine of equitable tolling provided petitioners with the ability to have their removal cases heard—even though they technically missed administrative deadlines to petition to have their cases reopened. The Fifth Circuit ruled that the question of whether the doctrine of equitable tolling applied was more a question of fact and, thus, the court lacked jurisdiction. Petitioners contend that whether the doctrine applies to their sets of facts does involve a question of law and that the court of appeals has jurisdiction.

Docket Numbers: 18-776 and 18-1015
Argument Date: December 9, 2019
From: The Fifth Circuit
by David L. Hudson Jr.
Belmont Law School, Nashville, TN

ISSUE

Is a request for equitable tolling in an immigration removal case a question of law that provides federal appeals courts with jurisdiction or is it more of a question of fact that is beyond the courts’ jurisdiction?

FACTS

The case concerns the immigration appeals of two different individuals: Pedro Pablo Guerrero–Lasprilla and Ruben Ovalles, petitioners.

Guerrero-Lasprilla

Guerrero-Lasprilla of Colombia entered the United States as a lawful permanent resident in 1986. In 1988, he was convicted of possession of cocaine with intent to distribute and conspiracy. In 1998, the government removed him as a felon who had committed an aggravated felony.

In September, 2016, he filed a motion to reopen his case and challenge his removal. He contended that a Board of Immigration Appeals decision in 2014, Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014), allowed him to seek relief from deportation under a provision of the Immigration and Nationality Act.

An immigration judge denied his motion to reopen, determining that Guerrero-Lasprilla failed to show that he had pursued his rights diligently because he waited two years after the Abdelghany decision to file his motion to reopen.

The Board of Immigration Appeals (BIA) affirmed, writing that “the motion to reopen was untimely because it was not filed within 90 days of the final administrative decision.” The BIA also determined that the doctrine of equitable tolling did not apply.

Guerrero-Lasprilla appealed to the Fifth Circuit Court of Appeals, which ruled that it lacked jurisdiction to hear the case. According to the Fifth Circuit, it lacked “jurisdiction to consider the factual question of whether [Guerrero-Lasprilla] acted with the requisite diligence to warrant equitable tolling.”

Ovalles

Ovalles, a native and citizen of the Dominican Republic, entered the United States as a lawful permanent resident at age 6 in 1985. Many years later—in 2003—he was convicted of attempted drug possession under Ohio law. He only received a sentence of probation.

However, the government sought to remove Ovalles, arguing that he had committed an aggravated felony. An immigration judge determined that Ovalles’s crime was not an aggravated felony and, thus, he was not subject to removal. The immigration judge granted Ovalles a cancellation of the removal based on his “work history and familial connections in the United States.”

However, the government appealed, and the BIA found that Ovalles’s crime was an aggravated felony. The BIA ordered Ovalles removed. Ovalles filed a motion to reopen his case in 2007 based on a 2006 ruling, which was denied.

Based on a 2016 ruling in Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016), Ovalles filed a second motion to reopen his case in 2017. The BIA denied him relief, finding that he did not timely file his second motion reopen after the Lugo-Resendez decision.

On further appeal, the Fifth Circuit ruled that it lacked jurisdiction to entertain Ovalles’s petition, because the BIA’s resolution of whether Ovalles had diligently pursued his rights was an unreviewable fact question instead of a reviewable question of law.

Both individuals filed a petition for certiorari to the Supreme Court, challenging the adverse Fifth Circuit decisions. The Supreme Court granted review.

CASE ANALYSIS

The Immigration and Nationality Act (INA) limits judicial review of a final removal order to “constitutional claims or questions of law.” 8 U.S.C. 1252(a)(2)(D). This “Savings Clause” means that the INA provides a possible avenue for relief for those who assert questions of law but does not provide an avenue of judicial review of questions of fact.

Petitioners first assert that the Court should decide this case on narrow grounds—that petitioners contended that the Fifth Circuit applied the wrong legal standard in determining whether equitable tolling saved their late-filed petitions to reopen their cases. Petitioners cite then-Judge Neil Gorsuch’s statement in a Tenth Circuit decision that appeals courts “possess jurisdiction to review [an alien’s] petition to the extent it contends the BIA applied an incorrect legal rule to his case.”

For example, petitioner Ovalles contends that the Board should have applied the “reasonable diligence” test to determine whether the doctrine of equitable tolling saved his late-filed petition. However, the Fifth Circuit applied a “maximum feasible diligence test” instead. Ovalles contends that this difference in legal standards ensures that the case falls within the REAL Savings Clause of the INA.

Petitioner Guerrero-Lopez argued that the BIA erred in failing to determine the import of a subsequent Fifth Circuit decision that made him eligible to file a petition to reopen his case. “This question—which requires assessing the status of Fifth Circuit and BIA precedent—is a legal one,” petitioners write.

After this threshold argument, petitioners contend that the Savings Clause provides appeals courts with “jurisdiction to resolve the application of a legal standard to settled historical facts. When a court resolves the legal significance of undisputed historical facts, it reviews a question of law.”

Respondent counters, however, that the Savings Clause only applies to pure questions of law. “The phrase ‘questions of law’ in Section 1252(a)(2)(D) encompasses questions of law only—not questions of fact or mixed questions of law and fact,” respondent explains.

Respondent contends that relevant Congressional records indicate that the Savings Clause was meant to give possible relief to aliens who had pure questions of law, not mixed questions of fact and law. “Whether petitioners exercised reasonable diligence for purposes of equitable tolling of the deadline for filing a motion to reopen is not a pure question of law,” respondent explains. “Rather, it is a mixed question of law and fact, involving the application of a legal standard to the particular facts of a case. It therefore is not a ‘question[] of law’ under [the Savings Clause].”

Respondent argues that the legal issues in these consolidated cases are “primarily factual.” According to respondent, whether an alien reasonably pursued his case with diligence “requires the decision maker to become immersed in the facts and procedural history of the case as well as the circumstances of the litigant.”

SIGNIFICANCE

The case is significant because the Court could use the decision to explain the reach of the REAL ID’s Savings Clause. Obviously, such a ruling will impact countless individuals who have been removed from the country and seek to reopen their cases—often because the law changes.

The American Immigration Council and several other related groups contend in their amicus brief in support of petitioners that “[a]bsent access to equitable tolling, noncitizens with compelling claims based on newly available evidence will face removal without any adjudicator considering the merits of those claims.”

Furthermore, the case is significant because the Court may explain any possible differences between pure questions of law, mixed questions of law and fact, and purely factual questions. How the Court interprets these consolidated cases and the meaning of the language of the REAL ID Savings Clause could impact its interpretation of other federal laws with similar language.

Obviously, the Constitution and federal statutes provide that some form of judicial review in deportation cases is required. However, the Court’s decision could sharply circumscribe the number of potential cases that fall within the federal appeals courts’ ambit if it narrowly interprets “questions of law.”

David L. Hudson Jr. is a visiting associate professor of legal practice at Belmont Law School in Nashville, Tennessee. He is also the author, coauthor, or coeditor of more than 40 books, including a coeditor of The Encyclopedia of the Fourth Amendment (2013). He can be reached at davidlhudsonjr@gmail.com.

PREVIEW of United States Supreme Court Cases 47, no. 3 (December 2, 2019): 26–28. © 2019 American Bar Association

ATTORNEYS FOR THE PARTIES

  • For Petitioners Pedro Pablo Guerrero-Lasprilla and Ruben Ovalles (Paul Whitfield Hughes, 202.756.8981)
  • For Respondent William P. Barr, Attorney General (Noel J. Francisco, Solicitor General, 202.514.2217)

AMICUS BRIEFS

  • In Support of Petitioners Pedro Pablo Guerrero-Lasprilla and Ruben Ovalles
  • American Civil Liberties Union (Lee Gelernt, 212.549.2616)
  • American Immigration Council (Mark Christopher Fleming, 617.526.6000)
  • Scholars of Habeas Corpus Law (Joshua Seth Lipshutz, 202.955.8500)