Pierre Riley, a citizen of Jamaica, was processed for removal under the streamlined procedure for people convicted of aggravated felonies. On 26 January 2021 the Department of Homeland Security issued a final administrative removal order directing his removal to Jamaica. He did not contest removal from the United States but sought protection under the Convention Against Torture, telling an immigration officer that a Jamaican drug kingpin who had killed two of his cousins would likely kill him if he was returned. An immigration judge found him credible and granted deferral of removal to Jamaica. The Board of Immigration Appeals vacated that grant on 31 May 2022, and he filed a petition for review three days later. The Fourth Circuit dismissed the petition as filed too late, treating the 30-day deadline as running from the 2021 order and as jurisdictional. The Supreme Court vacated that judgment. On the first question it held “that a BIA order in a withholding-only proceeding is not a ‘final order of removal,’ and therefore the 30-day filing deadline cannot be satisfied by filing a petition for review within 30 days of the BIA’s withholding-only order.” Relying on Nasrallah v. Barr and Johnson v. Guzman Chavez, it stated: “An 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.” On the second question it held “that the 30-day filing deadline is not jurisdictional.” Because the government did not press the deadline, the Court wrote, “it does not preclude this case from proceeding on remand.” Answering the government’s concern that people might lose review of a later denial of protection, the Court said that “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.” Justice Thomas, concurring, wrote that “the Fourth Circuit may nevertheless lack jurisdiction over this suit for a different reason,” because Riley sought review only of the order on his claim under the Convention and not of a final order of removal. Justice Sotomayor, dissenting in part for four Justices, wrote: “One should not be required to appeal an order before it exists.” In Part IV, joined by Justices Kagan and Jackson, she added that “the Government is obligated by the Fifth Amendment’s Due Process Clause to provide noncitizens with adequate notice about the need for an immediate appeal to preserve the right to judicial review of CAT claims.”
Caution The Court did not decide whether Riley is entitled to protection under the Convention. It decided only which order starts the 30-day period for a petition for review and that the period is not jurisdictional, and it returned the case to the Fourth Circuit, where Justice Thomas flagged a separate jurisdictional question. The holding on finality (Part II-A) was joined by five Justices and opposed by four; the holding that the deadline is not jurisdictional (Part II-B) was joined by all nine. Riley faced removal to his country of nationality, not to a third country. The text read is the preliminary print of volume 606, which the Reporter of Decisions states is subject to formal revision before the bound volume is published. The statement on notice in Part IV of the partial dissent is not part of the opinion of the Court.
CAT deferral Withholding-only proceedings Petition for review Judicial review Jurisdiction Notice
The court's own text
Public copy Copy held by the Coalition
Read in full from the preliminary print of the United States Reports, volume 606, part 1, pages 259 to 304, published by the Supreme Court of the United States. The copy on the site is identical to the Supreme Court’s file.
This entry describes a court decision. It is a summary for readers who are learning how these cases work, not legal advice, and it does not tell anyone what to do in their own case. A decision may have been appealed, stayed, or superseded since this entry was written.