1 See Kimberly Strawbridge Robinson, Immigration Heavy High Court Docket Mirrors Trump Priorities, Bloomberg Law (Nov. 25, 2019), https://news.bloomberglaw.com/us-law-week/immigration-heavy-high-court-docket-mirrors-trump-priorities?context=article-related; Nathalie Bussemaker & Samuel Parmer, The U.S. Immigration Debate, Council on Foreign Relations (last updated June 23, 2020), https://www.cfr.org/backgrounder/us-immigration-debate-0 (observing that “[t]he justices […] typically hear[] between one and five immigration cases […] But they've agreed to eight” or more in the 2019–2020 court term).

2 See Robinson id. (citing Kevin Johnson, an expert on immigration law regarding “high profile of immigration as a policy issue in this administration,” the “large number of removal cases being processed,” and the “many innovative approaches to immigration enforcement by federal and state governments” as factors contributing to the high salience).

3 Walter R. Means, Supreme Court and Election Returns, Associated Press (Dec. 5, 2000), https://apnews.com/15e6aa984543681dbd5c482ea3f23ce8 (quoting the humorist Finley Peter Dunne to statement attributed to an imaginary Irish-American called Mr. Dooley to the effect that the Supreme Court follows the election returns). In other words, political forces sometimes impact the supposedly constitutional decisions of U.S. Supreme Court judges.

4 See Robinson, supra note 1.

5 Id. (stating that the Court “typically heard between and five immigration cases since the 2009 term,” but, due to the Trump administration's heavy focus on immigration, the justices “have agreed to eight” or more in the 2019–2020 term).

6 590 U.S. ___ (2020), U.S. No. 18-1432 [hereinafter Nasrallah].

7 The large number of amicus briefs in the case affirms this. See Jennifer Chacón, Argument Preview: Do Federal Courts Have Jurisdiction to Review a Challenge to an Administrative Denial of Relief under the Convention Against Torture?, SCOTUSblog (Feb. 24, 2020), https://www.scotusblog.com/2020/02/argument-preview-do-federal-courts-have-jurisdiction-to-review-a-challenge-to-an-administrative-denial-of-relief-under-the-convention-against-torture (stating that “law professors, legal services providers, and former immigration judges […] submitted amici curiae in support of judicial review of findings of fact in these cases). These filers include the National Immigration Justice Center based in Chicago, Illinois. Id.

8 Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), Pub. L. 104–208, 110 Stat. 3009-546 (1996) (notable provisions of the law include institution of a three- or ten-year bar on returning to the United States for immigrants caught without proper documentation, and requiring persons fleeing persecution to apply for asylum status within one year of arriving in the country—failing which they lose the chance to apply).

9 These include the Legal Immigration Family Equity (or LIFE) Act and LIFE Act Amendments, Pub. L. 106-553 and Pub. L. 106-554 (Dec. 21, 2000) (changes amplified the notion of family unity as the bedrock of immigration policy); and the Development, Relief and Education for Alien Minors (or DREAM) Act of 2010 (providing a pathway to citizen for young undocumented Americans).

10 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted and opened for signature, ratification and accession by Gen. Assembly Resolution 39/46 of 10 Dec. 1984, entry into force 26 June 1987), art. 3 (1). It mandates state parties to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction,” id., art. 2(1), as well as to “ensure that all acts of torture” or attempts to commit torture or conspiracy to commit torture, are made a criminal offense,” id. art. 4(1), “punishable by appropriate penalties which take into account their grave nature.” Id. art. 4(2).

11 Kimberly Strawbridge Robinson, Justices to Finally Resolve Immigration Circuit Split, Bloomberg Law (Oct. 18, 2019), https://news.bloomberglaw.com/us-law-week/justices-to-finally-resolve-immigration-circuit-split?context=article-related.

12 Nasrallah, supra note 6, at 9.

13 Id., Thomas J., dissenting (joined by Alito, S.) at 1–8.

14 See Jennifer Chacón, Argument Analysis: Is Judicial Review of a Claim under the Convention Against Torture Completely Barred in Cases Involving Removal Orders on Certain Criminal Grounds? SCOTUSblog (Mar. 2, 2020), https://www.scotusblog.com/2020/03/argument-analysis-is-judicial-review-of-a-claim-under-the-convention-against-torture-completely-barred-in-cases-involving-removal-orders-on-certain-criminal-grounds.

15 In 1996, Congress enacted a number of provisions limiting judicial review of immigration court decisions. The revised provisions of the Immigration and Nationality Act, 8 U.S.C. §1252(a)(4) allow for judicial review of “any cause or claim under the [CAT]” through “a petition for review filed with an appropriate court of appeals.” At the same time, Section 1252(a)(2)(C) bars review of “any final order of removal against” a noncitizen “removable by reason of having committed” a “criminal offense” specified in enumerated sections of the INA. Nasrallah v. Barr sits at the intersection of these two provisions. Chacón, supra note 7.

16 Nasrallah, supra note 6, at 5–9.

17 Id. at 9–12.

18 See Jordan S. Rubin, Trump Administration Loses SCOTUS Torture Deportation Case (2), BLOOMBERG LAW (June 1, 2020), https://news.bloomberglaw.com/us-law-week/immigrant-beats-trump-in-high-court-torture-protection-dispute (quoting Paul Hughes, who represented Nasrallah in this case)

19 Id. (quoting National Immigration Justice Center director of appellate litigation Chuck Roth).

20 Id.

21 Id.

22 Nasrallah, supra note 6, at 12, n.5, indicating that such claims are governed by distinct statutory provisions.

23 Robert McMahon, The Supreme Court's Mixed Signals on International Law, Council on Foreign Relations (Oct. 10, 2008), https://www.cfr.org/interview/supreme-courts-mixed-signals-international-law [interview of Noah Feldman, expert in constitutional law].

24 U.S. Aversion to International Human Rights Treaties, Global Justice Center, https://globaljusticecenter.net/blog/773-u-s-aversion-to-international-human-rights-treaties.

25 McMahon, supra, note 23. The death penalty forms the specific context here.

26 See, e.g., Ken I. Kersch, The Supreme Court and International Relations Theory, 69(3) Albany L. Rev. 771, 774 (Summer 2006) (arguing that, “Over the course of the next half-century,” “broader understandings of foreign policy […] rooted in theories of international relations in an age of globalization, will come to have effects on the development of American constitutional doctrine that are similar in scope and influence to the effects that the social Darwinist vision had on that doctrine in the late nineteenth and early twentieth centuries”). This article draws from numerous sources that include the insights of Stephen Breyer, Assoc. Justice, Supreme Court of the U.S., in a presentation to the American Society of International Law in April 2003 on “The Supreme Court and the New International Law.”

27 Chacón, supra note 7.

28 Jennifer Chacón, Opinion Analysis: Federal Courts Can Review Factual Findings of a Convention Against Torture Claim Raised as a Defense to Crime-Based Removal, SCOTUSblog (June 1, 2020, 6:49 PM), https://www.scotusblog.com/2020/06/opinion-analysis-federal-courts-can-review-factual-findings-of-a-convention-against-torture-claim-raised-as-a-defense-to-crime-based-removal/

29 Robinson, supra note 1.

30 Id.