July 9, 2025 | Volume 32, Issue 18
This Report summarizes opinions issued on June 26, 2025 (Part I).
Opinions
Medina v. Planned Parenthood South Atlantic, 23-1275.
By a 6-3 vote, the Court held that the Medicaid Act’s any-qualified-provider provision does not confer a private right individually enforceable under §1983, thereby defeating a private action challenging the South Carolina Governor’s order deeming Planned Parenthood ineligible to receive state Medicaid funding. The any-qualified-provider provision declares that state Medicaid plans “must” allow “any individual eligible for medical assistance” to obtain “assistance from any [provider] qualified to perform the service . . . who undertakes to provide” it. 42 U.S.C. §1396a(a)(23)(A). The Medicaid Act does not contain an express private cause of action. “[I]f a State fails ‘to comply substantially’ with this (or any) congressionally specified condition, the Secretary [of HHS] may withhold some or all of the State’s federal funding until he is ‘satisfied that there will no longer be any such failure to comply.’”
In July 2018, the South Carolina Governor announced that Planned Parenthood South Atlantic―which operates two clinics in the state―could no longer participate in the state’s Medicaid program. “In response to the State’s announcement, Planned Parenthood and one of its patients, Julie Edwards, sued the director of the State’s Department of Health and Human Services. They argued that South Carolina’s exclusion of Planned Parenthood from its Medicaid program violated the any-qualified-provider provision.” The district court granted summary judgment to the plaintiffs and entered a permanent injunction preventing the state from excluding Planned Parenthood from its Medicaid program. The Fourth Circuit affirmed. Following its decision in Health and Hospital Corporation of Marion Cty. v. Talevski, 599 U.S. 166 (2023), the Court granted the state’s cert petition, vacated, and remanded. On remand, the Fourth Circuit reaffirmed its prior decision. In an opinion by Justice Gorsuch, the Court reversed and remanded.
The Court began by setting out already established principles guiding when federal statutes can be privately enforced through §1983 actions. In Gonzaga Univ. v. Doe, 536 U.S. 273 (2002), the Court declared that §1983 provides a cause of action “only for the deprivation of ‘rights, privileges, or immunities,’” not “‘benefits’ or ‘interests.’” “To prove that a statute secures an enforceable right, privilege, or immunity, and does not just provide a benefit or protect an interest, a plaintiff must show that the law in question ‘clear[ly] and unambiguous[ly]’ uses ‘rights-creating terms.’” “In addition, the statute must display ‘an unmistakable focus’ on individuals like the plaintiff.” The Court has “described this as a ‘stringent’ and ‘demanding’ test.” And, the Court explained, all these limiting principles apply even more strongly to Spending Clause statutes. Such a statute “cannot provide the basis for a §1983 enforcement suit unless Congress ‘speaks with a clear voice, and manifests an unambiguous intent to confer individual rights.’” In Talevski, the Court called this a “demanding bar” and a “significant hurdle” that will be cleared only in the “atypical case.” The Court noted that it had applied a less-demanding approach in Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418 (1987), Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990), and Blessing v. Freestone, 520 U.S. 329 (1997). The Court repudiated those decisions, expressly declaring that lower courts should not rely upon them.
The Court then applied these principles to the any-willing-provider provision, §1396a(a)(23)(A). As noted, the provision declares that state Medicaid plans “must” allow “any individual eligible for medical assistance” to obtain “assistance from any [provider] qualified to perform the service . . . who undertakes to provide” it. The Court found that this “language speaks to what a State must do to participate in Medicaid, and a State that fails to fulfill its duty might lose federal funding. Doubtless, too, this provision seeks to benefit both providers and patients. But missing from §1396a(a)(23)(A) is anything like [the] clear and unambiguous ‘rights-creating language’” that appeared in the statute at issue in Talevski, two provisions of the Federal Nursing Home Reform Act (FNHRA). The Court contrasted §1396a(a)(23)(A) with the FNHRA provisions, which expressly declared in numerous places that they were creating “rights.” The Court found its reading of §1396a(a)(23)(A) bolstered by the fact that a “State need only ‘comply substantially’ with the any-qualified-provider mandate. §1396c. And, as th[e] Court recognized in Gonzaga, that focus on ‘aggregate’ compliance suggests that a statute addresses a State’s obligations to the federal government, not the rights ‘of any particular person.’” The Court added that, “if §1396a(a)(23)(A) did create an individually enforceable right[,] [m]any other Medicaid plan requirements would likely do the same. And instead of remaining ‘atypical’ exceptions, as our cases have said they are, rights-creating provisions might more nearly become the rule.”
Justice Thomas filed a concurring opinion. He wrote separately to state that the Court “should reassess §1983’s bounds, including its application in the spending context and our understanding of the ‘rights’ enforceable under §1983.” On the former point, Justice Thomas reiterated his dissent in Talevski, where he argued that “legislation enacted under Congress’s spending power cannot ‘secure’ rights as required by §1983.” On the latter point, he asserted (among other things) that “[c]ase law from the period surrounding §1983 emphasized a distinction between rights and mere government benefits.” Justice Thomas doubts the Court has correctly construed §1983 in allowing “§1983 actions that stem[] from plaintiffs’ efforts to enforce so-called rights conferred through entitlement programs.”
Justice Jackson filed a dissenting opinion, which Justices Sotomayor and Kagan joined. Justice Jackson maintained that “Medicaid’s free-choice-of-provider provision easily satisfies the unambiguous-conferral test. To start, the text of the provision is plainly ‘phrased in terms of the persons benefited’—namely, Medicaid recipients.” “Congress also used rights-creating language in the heading of the provision when it enacted the original session law. The provision was entitled: ‘FREE CHOICE BY INDIVIDUALS ELIGIBLE FOR MEDICAL ASSISTANCE,’ 81 Stat. 903 (emphasis added).” And, Justice Jackson said, “[t]he provision’s history confirms what the text makes evident: that Congress intended the provision to be binding. . . . To prevent States from interfering with Medicaid recipients’ freedom to choose their own providers, Congress adopted nearly identical language from a provision of the Medicare Act that—in both purpose and effect—had guaranteed that right to Medicare beneficiaries.” Justice Jackson criticized the Court for spending so much time distinguishing §1396a(a)(23)(A) from the FNHRA provisions at issue in Talevksi. “Nowhere in our opinion did we single out FNHRA as the sole or definitive model for conferring individual rights.” Justice Jackson rejected the majority’s concern that finding an enforceable private right here would open the floodgates. She noted that the lower “courts have recognized only a tiny handful of the nearly 90 provisions contained in the Medicaid Act’s list of state-plan requirements as actually conferring individual rights.” Justice Jackson closed by criticizing the Court for “weak[ening] the landmark civil rights protections that Congress enacted during the Reconstruction Era.”
Gutierrez v. Saenz, 23-7809.
By a 5-4 vote, the Court held that petitioner Gutierrez had standing to bring a §1983 action alleging that Texas’s post-conviction DNA statute (Article 64)―which a Texas District Attorney applied to deny post-conviction DNA testing―violates due process. A jury convicted Ruben Gutierrez in 1998 with capital murder for the killing of Escolastica Harrison at her mobile home in Brownsville, Texas. Under Texas law, the death sentence may be imposed only if “the defendant actually caused the death of the deceased[,] . . . intended to kill the deceased or . . . anticipated that a human life would be taken.” A jury sentenced Gutierrez to death, rejecting his contention that “he thought his accomplices would merely rob Harrison’s empty mobile home and that no one would be harmed during the robbery.” “Since 2010, Gutierrez has sought DNA testing of crime-scene evidence, including Harrison’s nail scrapings, a loose hair, and various blood samples, to help him prove it was his accomplices, not Gutierrez, in Harrison’s home on the night of her murder.” He has sought DNA testing under Texas’ Article 64, which provides for DNA testing when a convicted person shows that he “would not have been convicted if exculpatory results had been obtained through DNA testing” and that the request was timely made. The Texas courts denied his 2010 motion and his 2019 motion, which was based on some new evidence. In affirming the denial in 2019, the Texas Court of Criminal Appeals “reiterated that DNA testing was not available to show ineligibility for the death penalty and that, ‘even if it [were],’ Gutierrez ‘still would not be entitled to testing.’”
Gutierrez then filed the instant §1983 action against the district attorney with custody of the evidence Gutierrez would like tested. Gutierrez argued that Article 64, as construed by the Texas courts, violates his due process rights in three ways: (1) by “deeming a prisoner ineligible as long as the record contains any evidence, no matter how minor, that he committed the crime”; (2) “that it was unfair for the TCCA not to consider new evidence he had proffered since his trial”; and (3) “by forbidding DNA testing when its sole purpose is to establish that a defendant is ineligible for the death penalty.” The district court agreed with Gutierrez’s third contention. “[A] divided panel of the Fifth Circuit vacated the District Court’s declaratory judgment, reasoning that Gutierrez’s claimed injury was not redressable because the declaratory judgment would be unlikely to cause the prosecutor to ‘reverse course and allow testing.’” That is so, held the court, because “the TCCA ‘effectively anticipated an unfavorable federal court ruling’ when it held that, even if Article 64 applied to claims affecting death eligibility, the facts in the trial record would still not entitle Gutierrez to DNA testing.” In an opinion by Justice Sotomayor, the Court reversed and remanded.
The Court ruled that Reed v. Goertz, 598 U.S. 230 (2023), “plainly establishes” that Gutierrez has Article III standing. In Reed, another Texas prisoner argued that Article 64’s “stringent chain-of-custody requirement” violated due process. The prosecutor argued to the Court that Reed lacked Article III standing because “a federal court’s ‘declaration that the statutory provision [he] attack[s] is unconstitutional’ would not ‘likely’ cause the district attorney to turn over the physical evidence in his possession.” The Court rejected that argument, holding that “if a federal court concludes that Texas’s post-conviction DNA testing procedures violate due process, that court order would eliminate the state prosecutor’s justification for denying DNA testing” and thereby remove the barrier between Reed and the requested DNA test. The Court held here that “[t]he same is true of Gutierrez’s suit.”
The Court disagreed with the Fifth Circuit, respondents, and the dissent that “Gutierrez lacks standing because the District Court’s reason for declaring part of Article 64 unconstitutional ‘was only one of several independent state-law grounds supporting District Attorney Saenz’s decision to deny access to the requested evidence.’” That contention, held the Court, “gloss[es] over the substance of Gutierrez’s complaint, which is the proper focus of the standing inquiry here.” “Gutierrez’s complaint takes issue not just with Article 64’s limitation to actual innocence claims, but with the barrier Article 64 erects between Gutierrez and DNA testing. At bottom, Gutierrez asserts that, to the extent Texas law precludes him from obtaining the requested evidence, it violates his rights under the Due Process Clause.” The Court also criticized the Fifth Circuit for “transforming the redressability inquiry into a guess as to whether a favorable court decision will in fact ultimately cause the prosecutor to turn over the evidence.” Here again, the Court found no basis to distinguish Reed. As there, “[a] declaratory judgment in Gutierrez’s favor would [] redress his injury by removing the allegedly unconstitutional barrier Article 64 erected between Gutierrez and the requested testing.” And “[t]hat a prosecutor might eventually find another reason, grounded in Article 64 or elsewhere, to deny a prisoner’s request for DNA testing does not vitiate his standing to argue that the cited reasons violated his rights under the Due Process Clause.”
Justice Barrett filed a one-paragraph opinion concurring in part and concurring in the judgment. She criticized the Court for going beyond Gutierrez’s complaint and invoking “administrative-law procedural injury cases . . . in the unique context of requests for DNA evidence from Texas prosecutors.”
Justice Thomas filed a dissenting opinion. He wrote “separately to emphasize that th[e] Court has no business intervening in this case in the first place. The Constitution does not require any State to establish procedures for state prisoners to challenge the validity of their convictions after trial.” More precisely, “[t]he Fourteenth Amendment does not protect Gutierrez’s asserted ‘liberty interest.’ As originally understood, ‘liberty’ in the Fourteenth Amendment likely referred only to freedom from physical restraint. It did not include entitlements to government-created benefits. This Court’s contrary precedent stems from a conscious, policy-based rejection of the Due Process Clause’s original meaning.” Justice Thomas added that extending that mistaken approach to the DNA-testing context “seriously undermines States’ interests in finality and in providing relief to compelling claims of actual innocence.”
Justice Alito filed a dissenting opinion, which Justices Thomas and Gorsuch joined. Justice Alito read Reed as holding that if Reed “got the declaratory judgment he wanted, it was ‘substantially likely’ that the district attorney would order testing.” He said that “[t]he Fifth Circuit faithfully applied this test in its decision below, taking into account the particular facts of Gutierrez’s case.” Critical among those facts was that the TCCA had found that Gutierrez “would still be death-penalty eligible even if DNA testing provided the results he wanted.” Justice Alito emphasized that the state courts rejected Gutierrez’s Article 64 claim for multiple reasons, only one of which (that the Article doesn’t apply to death sentences) the district court addressed. Those other reasons remain, meaning there’s no basis to believe Gutierrez can obtain relief in state court. “Gutierrez argues, however, that even if the declaratory judgment would not lead the Texas courts to grant DNA testing, respondent Saenz would still have discretion to turn over the items and might do so. But Gutierrez does not spell out why Saenz might do that. His argument is based on rank speculation, and that is not enough to support redressability.” (Citation omitted.)
Hewitt v. United States, 23-1002.
By a 5-4 vote, the Court held that the First Step Act’s sentencing reduction provisions apply to a defendant (such as petitioners) originally sentenced before the First Step Act’s enactment where that original sentence was judicially vacated and the defendant was resentenced to a new term of imprisonment after the First Step Act’s enactment. Before Congress enacted the First Step Act in 2018, a person convicted multiple times under 18 U.S.C. §924(c) of using or possessing a firearm during and in relation to a crime of violence or drug-trafficking offense received 25 years of imprisonment on top of the 5-year mandatory minimum for the offense. And in Deal v. United States, 508 U.S. 129 (1993), the “Court interpreted that recidivism-related language to require an enhanced penalty for each and every §924(c) count of conviction beyond a defendant’s first—even if those convictions were part of the same criminal prosecution. As a result, a first-time offender convicted of two §924(c) counts would receive a mandatory 25-year sentence on the second count, ‘stacked’ upon (i.e., running consecutively to) the first count’s mandatory 5-year sentence, for a total of 30 years of imprisonment. And each additional §924(c) count would add another 25 years to that defendant’s total term of incarceration.” (Footnote omitted.) Section 403(a) of the First Step Act “’clarif[ied]’ that district court judges are not required to impose stacked 25-year sentences when sentencing first-time §924(c) offenders. Abrogating th[e] Court’s decision in Deal, the statute established instead that, for first-time offenders, 5-year mandatory minimums apply to each count of conviction.” The Act addressed retroactivity as follows: “This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.” §403(b).
“In 2009, petitioners Tony Hewitt, Corey Duffey, and Jarvis Ross were convicted of multiple counts of bank robbery and conspiracy to commit bank robbery, along with corresponding §924(c) offenses for use of a firearm during a crime of violence. Each petitioner received a mandatory 5-year sentence as to their first §924(c) count of conviction. And, despite being first-time offenders, each received 25-year mandatory sentences on every §924(c) count beyond their first. Thus, in total, each petitioner’s sentence exceeded 325 years. Roughly 25 of those years were due to the robbery offenses themselves, while the rest were attributable to stacked §924(c) counts.” The Fifth Circuit vacated their sentences. “In 2012, the District Court resentenced each petitioner to between 285 and 305 years on the counts that remained—sentences that the Fifth Circuit affirmed on direct review. Petitioners also filed post-conviction motions under 28 U.S.C. §2255, which were each denied.” Some time after Congress enacted the First Step Act, the district court again vacated petitioners’ sentence because an intervening Supreme Court decision held that the “crime of violence” definition used to support some of their §924(c) convictions was unconstitutionally vague. When the district court resentenced them, it applied pre-First Act law; and so each petitioner “received sentences of 130 years or more—105 years of which were attributable to stacked §924(c) penalties.” The Fifth Circuit affirmed, holding that “[b]ecause each petitioner had been sentenced (twice) prior to the Act’s enactment, . . . petitioners were not eligible for the First Step Act’s more lenient mandatory minimums.” In an opinion by Justice Jackson, the Court reversed and remanded.
Recall again that the First Step Act’s provision applies to an offense committed before enactment “if a sentence for the offense has not been imposed as of such date of enactment.” The Court concluded, “based on the text of §403(b) and the nature of vacatur, . . . that a sentence has been imposed for purposes of that provision if, and only if, the sentence is extant—i.e., has not been vacated.” The Court emphasized that “Congress employed the present-perfect tense—thereby requiring evaluation of whether ‘a sentence . . . has . . . been imposed’ upon the defendant.” Quoting the Chicago Manual of Style, the Court explained that “the past-perfect tense can refer to either (1) ‘an act, state, or condition that is now completed’ or (2) ‘a past action that comes up to and touches the present.’” Under either definition, said the Court, “the tense simultaneously ‘involves reference to both past and present.’ . . . Thus, one might employ the present-perfect tense to describe situations ‘involv[ing] a specific change of state’ that produces a ‘continuing result.’” Put another way, “the present-perfect tense conveys to a listener that the event in question continues to be true or valid.” “The natural inference, then, is that Congress meant what it said, and, thus, that §403(b) covers only past sentences with continued legal validity, not those that have been vacated.” The Court found this interpretation consistent with the background “presumption [] that vacated court orders are void ab initio and thus lack any prospective legal effect.”
A plurality found further support for that interpretation in the “context and enactment history of the First Step Act and §403(b).” Section 403(b) reflected a “middle-ground” approach to the problem of stacked sentences. “By leaving intact §924(c) sentences that judges had already imposed, Congress reinforced its interest in finality and avoided burdening district courts with additional litigation. But it also substantially advanced its goal of returning a significant amount of sentencing discretion to district court judges moving forward, by giving retroactive effect to the Act’s more lenient penalties for those first-time §924(c) offenders who had yet to be sentenced.” Next, the plurality said “it is not clear what distinguishing between previously sentenced and never-before-sentenced offenders would accomplish.” Finally, the plurality maintained that its interpretation is more administrable than the alternative.
Justice Alito filed a dissenting opinion, which Justices Thomas, Kavanaugh, and Barrett joined. Justice Alito maintained that, “[o]n one hand, the phrase ‘a sentence . . . has . . . been imposed as of [the Act’s] date of enactment’ could refer to the historical fact that a district court imposed a sentence before the Act’s passage, regardless of whether that sentence remains legally valid in the future. This ‘historical-fact interpretation’ plainly forecloses relief for petitioners because, as no one disputes, the District Court first imposed their sentences well before the Act’s passage. On the other hand, ‘a sentence . . . has . . . been imposed as of [the Act’s] date of enactment’ could mean that a defendant was subject to a legally valid sentence that continued to be in force on the Act’s enactment date. But again, petitioners did have legally valid sentences ‘as of [the Act’s] date of enactment,’ so they lose under this ‘legal-validity interpretation of the Act too.” (Footnote omitted.) Justice Alito next concluded that the historical-fact interpretation is the “most plausible” one because Congress used the word “imposed” and the phrase “a sentence”―not “a legally valid sentence.” Justice Alito then rejected the Court’s void ab initio reasoning, stating that “a more careful reading of our precedents and other provisions in Title 18 indicates that vacatur does not erase the historical fact of a previously imposed conviction or sentence.”
Riley v. Bondi, 23-1270.
Under 8 U.S.C. §1252(b)(1), a petition for review of a “final order of removal” must be filed within 30 days of that order. The Court held by a 5-4 vote that in a “withholding-only” proceeding (i.e., one in which removal from the United States is not at issue) the 30-day deadline does not run from the date the Board of Immigration issues an order denying deferral of removal. Rather, it runs from the date of the initial final order of removal. The Court next held unanimously that the 30-day deadline is not jurisdictional, but rather is a mandatory claim-processing rule that can be forfeited.
“In 1995, Pierre Riley, a citizen of Jamaica, entered the United States on a B–2 tourist visa that allowed him to stay for six months, but he did not depart when that time was up. He became a member of ‘a far-reaching and well-organized’ drug trafficking gang and was convicted in 2008 for conspiracy to distribute and to possess with intent to distribute more than 1,000 kilograms of marijuana, as well as for possession of a firearm in furtherance of a drug-trafficking crime.” (Citation omitted.) Immigration authorities then sought Riley’s removal. On January 26, 2021, the Department of Homeland Security (DHS) issued a “final administrative review order” (FARO). “Riley did not contest his removal from the United States, but he resisted return to Jamaica under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention or CAT)[.]” Regulations implementing CAT “prohibit the removal of an alien to a country where torture is likely.” An immigration “officer concluded that Riley did not demonstrate reasonable fear of persecution, but an Immigration Judge (IJ) disagreed and therefore sent Riley’s case to what is called a ‘withholding-only’ proceeding—that is, a proceeding at which the only issue is whether the alien may be removed to his home country.” The Bureau of Immigration Appeals (BIA) reversed the IJ, finding that Riley’s claim was “not supported by sufficient objective evidence.” The BIA thus vacated the IJ’s order and allowed the FARO to be enforced. “Three days after the issuance of that order, Riley filed a petition for review in the [] Fourth Circuit, but the court dismissed the petition for lack of jurisdiction. It held that the final order of removal in Riley’s case was the FARO issued on January 26, 2021, not the later BIA order denying CAT relief. This meant that Riley’s petition had not been filed on time, and because the court thought that the 30-day filing deadline in §1252(b)(1) is jurisdictional, it dismissed Riley’s petition.” In an opinion by Justice Alito, the Court vacated and remanded (agreeing with the Fourth Circuit in part and disagreeing with it in part).
To repeat, under 8 U.S.C. §1252(b)(1), a petition for review of a “final order of removal” must be filed within 30 days of that order. The Court first addressed whether “Riley’s petition was filed on time because it was filed within 30 days of the BIA order denying deferral of removal.” The Court concluded it was not. The Court pointed to the definition of “order of deportation,” which is an order “concluding that the alien is deportable or ordering deportation.” §1101(a)(47)(A). It ruled that the FARO which DHS issued on January 26, 2021 is such an order, for it “held that Riley was deportable and directed that he be removed from the United States.” And that order was final. “Because an alien in streamlined removal proceedings cannot seek review of his FARO before an IJ or the BIA, the period to seek review ‘expir[es]’ as soon as the FARO is issued—meaning that the order becomes final immediately upon issuance.” The Court found support for its interpretation in Nasrallah v. Barr, 590 U.S. 573 (2020), and Johnson v. Guzman Chavez, 594 U.S. 523 (2021), which teach that “[a]n order denying relief under the CAT is not a final order of removal and does not affect the validity of a previously issued order of removal or render that order non-final.”
The Court acknowledged the practical concerns with its interpretation, namely, “that aliens like Riley who wish only to contest removal to their native country will not file a petition for review until their request for withholding of removal to that destination is denied. And if an alien files a petition for review before the question of withholding-only relief is settled, . . . the proceeding in the court of appeals may be wrapped up before the BIA denies withholding-only relief, and the alien may thus be deprived of any judicial review of that denial.” The Court stated that “[t]hese are legitimate practical concerns, but we must nevertheless follow the statutory text and our prior precedents. And in any event, these problems are not unavoidable. In a case like this, the Government can inform aliens of the need to file a petition within 30 days after the issuance of a FARO, and it can alert the court of appeals to the pendency of a withholding-only proceeding so that review there can wait until that issue is decided.”
The Court next addressed whether §1252(b)(1)’s 30-day deadline for filing a petition for review is “jurisdictional.” This matters because “even if the parties fail to spot a jurisdictional issue or agree that the court has jurisdiction, the court cannot proceed unless it makes an independent determination that it has jurisdiction.” The Court concluded that the “demanding requirement[s]” for a deadline being jurisdictional were not met here. Section 1252(b)(1)’s “language tells aliens what they must do if they want judicial review, but it provides no directives to courts. It makes no reference to jurisdiction and lacks any language ‘demarcat[ing] a court’s power.’” Nor, observed the Court, did Congress house the provision in a jurisdictional section of the statute. Finally, the Court found that its precedents support the conclusion that the provision is not jurisdictional. This holding mattered to Riley because the Government did not press the 30-day deadline and so the case can proceed on remand.
Justice Thomas filed a concurring opinion. He wrote separately to state that “the Fourth Circuit should consider whether it has jurisdiction to review a CAT order when the court is not conducting that review ‘as part of the review of a final order of removal.’”
Justice Sotomayor filed an opinion dissenting in part, which Justices Kagan and Jackson joined in full and Justice Gorsuch joined in part. Justice Sotomayor argued that it makes no sense to say that Riley should have appealed more than a year before he lost his case in the BIA. In short, “[o]ne should not be required to appeal an order before it exists.” The key question, the dissent said, was when Riley’s order of removal became final. Justice Sotomayor concluded that “Riley’s order of removal did not became final, for purposes of appeal, until the Board issued its order denying CAT relief.” After an extensive analysis of the immigration statute and finality principles, Justice Sotomayor concluded: “Because a statute ties appeals of the CAT order to appeals of the removal order, their finality should be tied together, too. Accordingly, the order of removal in this case should become final, for purposes of appeal, only after the Board issued its order denying CAT relief.” Justice Sotomayor further pointed out that just because “the agency’s removability finding is final [] does not mean that the order containing it is final for purposes of appeal. . . . Every interlocutory order finally determines the limited question it decides, but of course that does not mean every order becomes instantly final for purposes of appeal.” Justice Sotomayor then noted the practical problem with the Court’s ruling: “Noncitizens facing expedited removal will be forced to file immediate appeals of their removal orders in every case, simply to protect their right to judicial review in the event they lose their ongoing withholding-only proceedings.”
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
The views and opinions of authors expressed in this newsletter do not necessarily state or reflect those of the National Association of Attorneys General (NAAG). This newsletter does not provide any legal advice and is not a substitute for the procurement of such services from a legal professional. NAAG does not endorse or recommend any commercial products, processes, or services. Any use and/or copies of the publication in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in the publications.
