McDermott Litigation Team Succeeds in Decade-Long Immigration Case


The Supreme Court of the United States handed down a victory on March 23, 2020 for international law firm McDermott Will & Emery clients Pedro Pablo Guerrero-Lasprilla and Ruben Ovalles in Guerrero-Lasprilla v. Barr and Ovalles v. Barr. The decision will have far-reaching implications on questions of judicial review of the application of law to undisputed or established facts.  

The seven-Justice majority opinion, written by Justice Stephen Breyer, reversed two decisions from the Fifth Circuit that had rejected petitions for review for lack of jurisdiction. In a decision of sweeping importance to a range of immigration litigation in federal courts, the Supreme Court held that the Immigration and Nationality Act (INA) permits courts of appeals to review the Board of Immigration Appeals’ (BIA) application of law to undisputed or established historical facts.

“This decision will reach beyond immigration and will be cited across administrative law for those seeking broad judicial review of agency actions,” said Paul Hughes, co-chair of McDermott’s Supreme Court and Appellate Practice Group who argued the cases. “This victory further cements McDermott’s leadership and commitment to excellence in administrative law at the highest level,” he added.

“Outside of the immigration context, this opinion will provide substantial assistance to members of the regulated public who, after having received an adverse agency decision, wish to argue that action is within the scope of issues subject to judicial review,” added Michael Kimberly, a member of the McDermott team and co-chair of the Firm’s Supreme Court and Appellate Practice Group.

Guerrero-Lasprilla and Ovalles are noncitizens who lived in the United States, but were subsequently ordered to leave after convictions for drug crimes. They later sought to reopen their removal proceedings, invoking the doctrine of equitable tolling to extend the normal 90-day time limit for such filings. The BIA denied their requests, concluding that neither had satisfied the elements of equitable tolling and the clients’ petitioned for review, but the Fifth Circuit dismissed the petitions on jurisdictional grounds. It held that the INA’s restriction of judicial review to “questions of law” for noncitizens convicted of certain crimes excludes mixed questions of law and fact, and that equitable tolling is such a mixed question.

The Supreme Court rejected the Fifth Circuit’s reading of the INA and held that “questions of law” includes the application of a legal standard to undisputed or established facts, including whether a noncitizen has satisfied the legal elements of equitable tolling. The Court first noted that the statutory term is certainly capable of encompassing the application of law to undisputed facts. The Court rested its decision on a strong restatement of the presumption in favor of judicial review over agency decisions, as well as the statutory history indicating that the statute was intended to preserve as much judicial review as was available in habeas corpus actions at the time of the founding—which the McDermott team’s exhaustive historical research had demonstrated included the application of law to undisputed facts. In a complete win for McDermott clients, the Court reversed and remanded for the Fifth Circuit to review the question of equitable tolling on the merits.

The Court’s decision—which broadly permits judicial review of the application of law to undisputed or established facts, not limited to the equitable tolling context—will have major implications beyond these two cases, expanding review over a significant category of removal proceedings.  

The official cases are Guerrero-Lasprilla v. Barr (No. 18-776) and Ovalles v. Barr (No. 18-1015) in the Supreme Court of the United States.

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