A

We begin by describing the three interlocking statutes that provide for judicial review of final orders of removal and CAT orders.

The first relevant statute is the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. That Act authorizes noncitizens to obtain direct “review of a final order of removal” in a court of appeals. 110 Stat. 3009–607, 8 U. S. C. §1252(a)(1). As the parties agree, in the deportation context, a “final order of removal” is a final order “concluding that the alien is deportable or ordering deportation.” §1101(a)(47)(A); see §309(d)(2), 110 Stat. 3009–627; Calcano-Martinez v. INS, 533 U. S. 348, 350, n. 1 (2001). The Act also states that judicial review “of all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.” 8 U. S. C. §1252(b)(9); see 110 Stat. 3009–610. In other words, a noncitizen's various challenges arising from the removal proceeding must be “consolidated in a petition for review and considered by the courts of appeals.” INS v. St. Cyr, 533 U. S. 289, 313, and n. 37 (2001). By consolidating the issues arising from a final order of removal, eliminating review in the district courts, and supplying direct review in the courts of appeals, the Act expedites judicial review of final orders of removal.

The second relevant statute is the Foreign Affairs Reform and Restructuring Act of 1998, known as FARRA. FARRA implements Article 3 of the international Convention Against Torture, known as CAT. As relevant here, CAT prohibits removal of a noncitizen to a country where the noncitizen likely would be tortured. Importantly for present purposes, §2242(d) of FARRA provides for judicial review of CAT claims “as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act (8 U. S. C. 1252).” 112 Stat. 2681–822, note following 8 U. S. C. §1231.

The third relevant statute is the REAL ID Act of 2005. As relevant here, that Act responded to this Court's 2001 decision in St. Cyr. In St. Cyr, this Court ruled that the 1996 Act, although purporting to eliminate district court review of final orders of removal, did not eliminate district court review via habeas corpus of constitutional or legal challenges to final orders of removal. 533 U. S., at 312–313. The REAL ID Act clarified that final orders of removal may not be reviewed in district courts, even via habeas corpus, and may be reviewed only in the courts of appeals. See 119 Stat. 310, 8 U. S. C. §1252(a)(5). The REAL ID Act also provided that CAT orders likewise may not be reviewed in district courts, even via habeas corpus, and may be reviewed only in the courts of appeals. See 119 Stat. 310, 8 U. S. C. §1252(a)(4).

B

Those three Acts establish that CAT orders may be reviewed together with final orders of removal in a court of appeals. But judicial review of final orders of removal is somewhat limited in cases (such as Nasrallah's) involving noncitizens convicted of crimes specified in §1252(a)(2)(C). In those cases, a court of appeals may review constitutional or legal challenges to a final order of removal, but the court of appeals may not review factual challenges to a final order of removal. §§1252(a)(2)(C)–(D); see Guerrero-Lasprilla v. Barr, 589 U. S. __, __–__ (2020) (slip op., at 11–13).

The question in this case is the following: By precluding judicial review of factual challenges to final orders of removal, does the law also preclude judicial review of factual challenges to CAT orders? We conclude that it does not.

The relevant statutory text precludes judicial review of factual challenges to final orders of removal—and only to final orders of removal. In the deportation context, a final “order of removal” is a final order “concluding that the alien is deportable or ordering deportation.” §1101(a)(47)(A).Footnote ⁴

A CAT order is not itself a final order of removal because it is not an order “concluding that the alien is deportable or ordering deportation.” As the Government acknowledges, a CAT order does not disturb the final order of removal. Brief for Respondent 26. An order granting CAT relief means only that, notwithstanding the order of removal, the noncitizen may not be removed to the designated country of removal, at least until conditions change in that country. But the noncitizen still “may be removed at any time to another country where he or she is not likely to be tortured.” 8 CFR §§1208.17(b)(2), 1208.16(f).

Even though CAT orders are not the same as final orders of removal, a question remains: Do CAT orders merge into final orders of removal in the same way as, say, an immigration judge's evidentiary rulings merge into final orders of removal? The answer is no. For purposes of this statute, final orders of removal encompass only the rulings made by the immigration judge or Board of Immigration Appeals that affect the validity of the final order of removal. As this Court phrased it in INS v. Chadha, review of a final order of removal “includes all matters on which the validity of the final order is contingent.” 462 U. S. 919, 938 (1983) (internal quotation marks omitted). The rulings that affect the validity of the final order of removal merge into the final order of removal for purposes of judicial review. But the immigration judge's or the Board's ruling on a CAT claim does not affect the validity of the final order of removal and therefore does not merge into the final order of removal.

To be sure, as noted above, FARRA provides that a CAT order is reviewable “as part of the review of a final order of removal” under 8 U. S. C. §1252. §2242(d), 112 Stat. 2681– 822; see also 8 U. S. C. §1252(a)(4). Likewise, §1252(b)(9) provides that “[j]udicial review of all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.” §1252(b)(9). But FARRA and §1252(b)(9) simply establish that a CAT order may be reviewed together with the final order of removal, not that a CAT order is the same as, or affects the validity of, a final order of removal.

Consider an analogy. Suppose a statute furnishes appellate review of convictions and sentences in a single appellate proceeding. Suppose that the statute also precludes appellate review of certain factual challenges to the sentence. Would that statute bar appellate review of factual challenges to the conviction, just because the conviction and sentence are reviewed together? No. The same is true here. A CAT order may be reviewed together with the final order of removal. But a CAT order is distinct from a final order of removal and does not affect the validity of the final order of removal. The CAT order therefore does not merge into the final order of removal for purposes of §§1252(a)(2)(C)– (D)’s limitation on the scope of judicial review. In short, as a matter of straightforward statutory interpretation, Congress's decision to bar judicial review of factual challenges to final orders of removal does not bar judicial review of factual challenges to CAT orders.

It would be easy enough for Congress to preclude judicial review of factual challenges to CAT orders, just as Congress has precluded judicial review of factual challenges to certain final orders of removal. But Congress has not done so, and it is not the proper role of the courts to rewrite the laws passed by Congress and signed by the President.

C

Although a noncitizen may obtain judicial review of factual challenges to CAT orders, that review is highly deferential, as Nasrallah acknowledges. See Reply Brief 19–20; Tr. of Oral Arg. 5. The standard of review is the substantial-evidence standard: The agency's “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” §1252(b)(4)(B); see Kenyeres v. Ashcroft, 538 U. S. 1301, 1306 (2003) (Kennedy, J., in chambers); INS v. Elias-Zacarias, 502 U. S. 478, 481, n. 1, 483–484 (1992).

But the Government still insists that the statute supplies no judicial review of factual challenges to CAT orders. The Government advances a slew of arguments, but none persuades us.

First, the Government raises an argument based on precedent. In Foti v. INS, 375 U. S. 217 (1963), this Court interpreted the statutory term “final orders of deportation” in the Immigration and Nationality Act of 1952, as amended in 1961, to encompass “all determinations made during and incident to the administrative proceeding” on removability. Id., at 229. The Government points out (correctly) that the Foti definition of a final order—if it still applied here—would cover CAT orders and therefore would bar judicial review of factual challenges to CAT orders. But Foti’s interpretation of the INA as it existed as of 1963 no longer applies. Since 1996, the INA has defined final “order of deportation” more narrowly than this Court interpreted the term in Foti. A final order of deportation is now defined as a final order “concluding that the alien is deportable or ordering deportation.” 8 U. S. C. §1101(a)(47)(A); Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1277; see §309(d)(2) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009–627. And as we have explained, an order denying CAT relief does not fall within the statutory definition of an “order of deportation” because it is not an order “concluding that the alien is deportable or ordering deportation.” Therefore, Foti does not control here.

Second, the Government puts forward a structural argument. As the Government sees it, if a CAT order is not merged into a final order of removal, then no statute would authorize a court of appeals to review a CAT order in the first place. That is because, in the Government's view, the only statute that supplies judicial review of CAT claims is the statute that provides for judicial review of final orders of removal. See §1252(a)(1). The premise of that argument is incorrect. Section 2242(d) of FARRA, enacted in 1998, expressly provides for judicial review of CAT claims together with the review of final orders of removal. Moreover, as a result of the 2005 REAL ID Act, §1252(a)(4) now provides for direct review of CAT orders in the courts of appeals. See also 8 U. S. C. §1252(b)(9). In short, our decision does not affect the authority of the courts of appeals to review CAT orders.

Third, the Government asserts a congressional intent argument: Why would Congress bar review of factual challenges to a removal order, but allow factual challenges to a CAT order? To begin with, we must adhere to the statutory text, which differentiates between the two kinds of orders for those purposes. In any event, Congress had good reason to distinguish the two. For noncitizens who have committed crimes that subject them to removal, the facts that rendered the noncitizen removable are often not in serious dispute. The relevant facts will usually just be the existence of the noncitizen's prior criminal convictions. By barring review of factual challenges to final orders of removal, Congress prevented further relitigation of the underlying factual bases for those criminal convictions—a point that Senator Abraham, a key proponent of the statutory bar to judicial review, stressed back in 1996. See 142 Cong. Rec. 7348–7350 (1996).

By contrast, the issues related to a CAT order will not typically have been litigated prior to the alien's removal proceedings. Those factual issues may range from the noncitizen's past experiences in the designated country of removal, to the noncitizen's credibility, to the political or other current conditions in that country. Because the factual components of CAT orders will not previously have been litigated in court and because those factual issues may be critical to determining whether the noncitizen is likely to be tortured if returned, it makes some sense that Congress would provide an opportunity for judicial review, albeit deferential judicial review, of the factual components of a CAT order.

Fourth, the Government advances a policy argument—that judicial review of the factual components of a CAT order would unduly delay removal proceedings. But today's decision does not affect whether the noncitizen is entitled to judicial review of a CAT order and does not add a new layer of judicial review. All agree that a noncitizen facing removal under these provisions may already seek judicial review in a court of appeals of constitutional and legal claims relating to both the final order of removal and the CAT order. Our holding today means only that, in that same case in the court of appeals, the court may also review the noncitizen's factual challenges to the CAT order under the deferential substantial-evidence standard. For many years, the Seventh and Ninth Circuits have allowed factual challenges to CAT orders, and the Government has not informed this Court of any significant problems stemming from review in those Circuits.

Fifth, what about the slippery slope? If factual challenges to CAT orders may be reviewed, what other orders will now be subject to factual challenges in the courts of appeals? Importantly, another jurisdiction-stripping provision, §1252(a)(2)(B), states that a noncitizen may not bring a factual challenge to orders denying discretionary relief, including cancellation of removal, voluntary departure, adjustment of status, certain inadmissibility waivers, and other determinations “made discretionary by statute.” Kucana v. Holder, 558 U. S. 233, 248 (2010). Our decision today therefore has no effect on judicial review of those discretionary determinations.Footnote ⁵

The Government suggests that our decision here might lead to judicial review of factual challenges to statutory withholding orders. A statutory withholding order prevents the removal of a noncitizen to a country where the noncitizen's “life or freedom would be threatened” because of the noncitizen's “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U. S. C. §1231(b)(3)(A). That question is not presented in this case, and we therefore leave its resolution for another day.

* * *

In cases where a noncitizen has committed a crime specified in 8 U. S. C. §1252(a)(2)(C), §§1252(a)(2)(C) and (D) preclude judicial review of the noncitizen's factual challenges to a final order of removal. A CAT order is distinct from a final order of removal and does not affect the validity of a final order of removal. Therefore, §§1252(a)(2)(C) and (D) do not preclude judicial review of a noncitizen's factual challenges to a CAT order. We reverse the judgment of the U. S. Court of Appeals for the Eleventh Circuit.

It is so ordered.

Thomas, J., dissenting

SUPREME COURT OF THE UNITED STATES

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No. 18–1432

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NIDAL KHALID NASRALLAH, PETITIONER v. WILLIAM P. BARR, ATTORNEY GENERAL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

[June 1, 2020]

Justice Thomas, with whom Justice Alito joins, dissenting.

The majority holds that the federal courts of appeals have jurisdiction to review factual challenges to orders resolving claims brought under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Because I disagree with this interpretation of the relevant immigration laws, I respectfully dissent.

A

This case concerns whether CAT claims brought during a criminal alien's removal proceeding are covered by the criminal-alien bar in §1252(a)(2)(C). The most important provision for determining whether these CAT orders are subject to §1252(a)(2)(C) is the zipper clause. If orders deeming a criminal alien ineligible for CAT relief fall within that clause, then the bar in §1252(a)(2)(C) prevents review; if they do not, then the courts have jurisdiction to review factual challenges related to these orders. I would conclude that CAT orders fall within the zipper clause.

The zipper clause states that “all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien . . . shall be available only in judicial review of a final order under this section.” §1252(b)(9) (emphasis added). To “arise” means “to originate from a specified source” or “to come into being.” Webster's Third New International Dictionary 117 (1976). And “from” most naturally refers here to the “ground, reason, or basis” for something. Id., at 913. Thus, §1252(b)(9) covers all “questions of law and fact” that an immigration judge must decide as a result of the Government's decision to initiate removal proceedings against an alien. See also Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 482 (1999) (stating that the zipper clause applies to the “many . . . decisions or actions that may be part of the [removal] process”).Footnote ⁷

The plain text clearly covers CAT claims such as the one petitioner raised. The Government initiated removal proceedings, alleging that petitioner had been convicted of a “crime involving moral turpitude.” See §1227(a)(2)(A)(i). As a direct result, petitioner applied for CAT relief to prevent his removal. He was denied CAT withholding because the Immigration Judge, during the removal proceeding, determined that petitioner had been convicted of a “particularly serious crime.” §1158(b)(2)(A)(ii). On appeal, the Board of Immigration Appeals likewise denied CAT deferral in that selfsame removal proceeding. It is beyond dispute that petitioner's eligibility for CAT relief involved “questions of law and fact” that directly “ar[ose] from” the Government's initiation of removal proceedings against him. §1252(b)(9). The very forms of relief for which petitioner applied—withholding of removal and deferral of removal—confirm that this relief arose directly from the Government-initiated removal proceeding.

Because the CAT claim falls within the zipper clause, all of §1252's other limitations and procedural requirements imposed on final orders of removal, including §1252(a)(2)(C)’s criminal-alien bar, also apply. Accordingly, courts have no jurisdiction to review factual challenges to CAT claims brought in the course of a criminal alien's removal proceeding.

B

My analysis would begin and end with the plain meaning of the zipper clause. Rather than focusing on that clause, however, the majority bases its textual analysis almost exclusively on the fact that Congress has defined an “‘order of [removal]’” as an order “concluding that the alien is deportable or ordering deportation.” §1101(47)(A). The majority correctly notes that a CAT order does not fall within this definition. See ante, at 7. But it uses that definition to alter the scope of the zipper clause, asserting that the provision only consolidates “[t]he rulings that affect the validity of the final order of removal.” Ante, at 8.

As just explained, this conclusion contradicts the statute's plain text. The zipper clause does not consolidate all questions of law and fact that “affect the validity of the final order of removal.” Ibid. It instead consolidates “all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien.” §1252(b)(9) (emphasis added). “Arising from” covers a broader category of claims than those that simply impact the validity of the order, including petitioner's claim. Thus, the majority's overreliance on the definition of final order of removal is misplaced.

The majority nevertheless contends that its reading is supported by §1252(a)(4). That provision states that CAT claims may be reviewed through a petition for review. According to the majority, this paragraph “provides for direct review of CAT orders in the courts of appeals.” Ante, at 11. That is, the majority views §1252(a)(4) as a specific grant of jurisdiction over CAT claims. Working from that interpretation, the majority contends that the zipper clause and FARRA merely confirm that CAT orders “may be reviewed together with the final order of removal.” Ante, at 8.

This is incorrect. Jurisdiction over CAT claims comes from FARRA §2242(d), which states that courts cannot review CAT claims “except as part of the review of a final order of removal pursuant to . . . (8 U. S. C. §1252).” In other words, a final order of removal is required if a court is to review a CAT order at all. The CAT order then becomes reviewable “as part of ” that final order of removal through the zipper clause. And, because FARRA funnels exclusive review of CAT orders through §1252, all of that section's limitations on final orders of removal apply equally to CAT orders, including §1252(a)(2)(C).

Section 1252(a)(2)(4), on the other hand, serves a far simpler function. That provision simply confirms that, because CAT claims can be reviewed only as part of a final order of removal, and final orders of removal can be reviewed only if a petitioner files a petition for review, a CAT claim likewise can be reviewed only if petitioner files a petition for review. See Ortiz-Franco v. Holder, 782 F. 3d 81, 88–89 (CA2 2015); Lovan v. Holder, 574 F. 3d 990, 998 (CA8 2009). My reading of the statute makes sense of §1252(a)(4), while still giving the zipper clause its ordinary meaning.Footnote ⁸

C

The majority's interpretation will bring about a sea change in immigration law. Though today's case involves CAT claims, there is good reason to think that the majority's rule will apply equally to statutory withholding of removal. Statutory withholding, a frequently sought form of relief, is available if “the alien's life or freedom would be threatened . . . because of the alien's race, religion, nationality, membership in a particular social group, or political opinion.” §1231(b)(3)(A); see also 8 CFR §208.16(b) (2020). Like CAT withholding, statutory withholding is unavailable to aliens who have committed certain crimes. §1231(b)(3)(B)(ii). And like CAT relief, statutory withholding seeks to prevent removability and is considered after the alien has been deemed removable. See, e.g., Kouambo v. Barr, 943 F. 3d 205, 210 (CA4 2019). Thus, statutory withholding claims also do not affect the validity of the underlying removal order and, in the majority's view, would not be subject to §1252(a)(2)(C).

The Government persuasively argues that adopting petitioner's rule will disturb the courts of appeals’ longstanding practice of subjecting criminal aliens’ statutory withholding claims to §1252(a)(2)(C). See, e.g., Rendon v. Barr, 952 F. 3d 963, 970 (CA8 2020); Pierre-Paul v. Barr, 930 F. 3d 684, 693–694 (CA5 2019); Gutierrez v. Lynch, 834 F. 3d 800, 804 (CA7 2016); Jeune v. United States Atty. Gen., 810 F. 3d 792, 806, nn. 3, 12 (CA11 2016); Pechenkov v. Holder, 705 F. 3d 444, 448 (CA9 2012). And at oral argument, petitioner all but conceded that the Government is correct on that score. See Tr. of Oral Arg. 20–21. Whistling past the graveyard, the majority attempts to avoid confronting this result by simply stating that the question is not currently before us. Ante, at 13. But the Court cannot evade the implications of its decision so easily. We have been presented with two competing statutory interpretations—one of which makes sense of all relevant provisions without upending settled practice, and one of which significantly undermines §1252(a)(2)(C) by removing a vast swath of claims from its reach. If the majority insists on choosing the latter interpretation, it should justify that choice and candidly confront its implications.