McDermott Appellate Team Secures US Supreme Court Victory In Nasrallah V. Barr

Overview


International law firm McDermott Will & Emery achieved victory on behalf of client Nidal Nasrallah in Nasrallah v. Barr, decided by the US Supreme Court on June 1, 2020.

The case centered around a provision of the Immigration and Nationality Act that bars courts from reviewing the immigration agencies’ factual conclusions during judicial review of certain noncitizens’ removal orders. The overwhelming majority of federal courts of appeals had read this provision to also bar factual challenges to agency orders denying relief under the statutes and regulations implementing the U.N. Convention against Torture (CAT), an international treaty that prohibits countries from deporting any individual to a country where they are likely to be tortured.

“This decision guarantees full judicial review of these administrative agency decisions that carry life-or-death consequences,” said Paul Hughes, co-chair of McDermott’s Supreme Court and Appellate Practice Group who argued the case. “Now, overworked administrative agencies will not have the final word when an individual claims that he or she is likely to be tortured or murdered following deportation.”

Nasrallah had sought relief from deportation under the CAT. Nasrallah was forced to flee from his native Lebanon after he was persecuted by Hezbollah for his religious minority status, and escaped from armed pursuers by jumping off a cliff, breaking his back. The immigration judge in the client’s case credited Nasrallah’s testimony and agreed that this history of persecution precluded his deportation to Lebanon under the CAT, but that factual determination was reversed by the Board of Immigration Appeals. On a petition for judicial review of that decision, the Court of Appeals for the Eleventh Circuit declined to address the factual question – whether Nasrallah was likely to be tortured if deported to Lebanon – relying on circuit precedent holding that factual review was barred by the statute.

In a 7-2 opinion, the US Supreme Court reversed, holding that courts may review the immigration agencies’ orders denying CAT relief for factual errors, as well as legal ones. The McDeremott team advanced a novel legal theory which was adopted wholesale, contending that every court to have considered the question had actually overlooked the key statutory language.

Hughes argued the case in the US Supreme Court, with litigation partner Michael B. Kimberly and associate Andrew A. Lyons-Berg joining on the briefs.

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