In June, a divided panel of the Eleventh Circuit deepened a circuit split on a jurisdictional issue in immigration law. Judge Brasher, joined by Chief Judge Pryor, agreed with the Ninth Circuit and held that a court of appeals lacks jurisdiction to review the denial of relief under the Convention Against Torture (CAT) unless the immigrant petitions for review of a removal order. Judge Abudu agreed with the Third Circuit that a challenge to the denial of CAT relief is necessarily a challenge to a final order of removal.

An immigration judge denied CAT relief to Winston Hayles, a Jamaican citizen. The Board of Immigration Appeals affirmed. The Department of Homeland Security separately issued an administrative removal order. Hayles filed a pro se petition for review of the CAT decision, but not the removal order. The Eleventh Circuit appointed counsel from the University of Miami and ordered supplemental briefing on the jurisdictional question.

The court’s primary holding rests on three statutes. First, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 permits judicial review of a final removal order on a petition for review. See 8 U.S.C. § 1252(a)(1). The “zipper clause” of the same statute provides that “all questions of law and fact . . . arising from any [removal] action . . . shall be available only in judicial review of a final order under [section 1252(a)(1)].” 8 U.S.C. § 1252(b)(9). Second, the Foreign Affairs Reform and Restructuring Act of 1998 noted that “nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under [the CAT] or this section . . . except as part of the review of a final order of removal pursuant to [section 1252].” 8 U.S.C. § 1231 note. Third, the REAL ID Act reiterated that “a petition for review . . . shall be the sole and exclusive means for judicial review of any cause or claim under [the CAT].” 8 U.S.C. § 1252(a)(4). The REAL ID Act also amended the zipper clause to confirm that, “[e]xcept as otherwise provided in this section, no court shall have jurisdiction . . . to review such an order or such questions of law or fact.” 8 U.S.C. § 1252(b)(9).

The Eleventh Circuit interpreted those statutes to prohibit review of the denial of CAT relief without a petition for review of a final removal order. It rejected Hayles’s argument for a clear-statement rule. The court did not resolve whether a clear statement is necessary in the immigration context. Instead, it held that the statutes were clear. The court also dismissed as lacking precedential effect several Supreme Court decisions that exercised jurisdiction over CAT claims without a challenge to a final removal order.

The Eleventh Circuit also rejected two alternative arguments in favor of jurisdiction. First, it held that, even construing the pro se petition broadly, the CAT claim was not “raised upon [this] petition for review.” 8 U.S.C. § 1252(a)(2)(D). Second, the court held that Hayles’s briefing could not amend his petition and that, even if the court could grant leave to amend, his due-process claim was frivolous. 

Judge Abudu dissented in part. She concluded that a challenge to the denial of CAT relief “is inherently a challenge to the execution of the final order of removal and, thus, triggers our jurisdiction to review that order.” Because a CAT claim only limits the country to which an immigrant may be removed, Judge Abudu reasoned that the CAT claim is inseparable from the underlying removal order. She further reasoned that Congress channeled review of CAT claims into review of final orders of removal.

As things stand, there is a 2-1 circuit split on the issue. A member of the Ninth Circuit has called for an en banc poll, but even if rehearing is granted and the en banc court reverses, the split will remain 2-1. The issue thus may be headed to the Supreme Court.