Guerrero-Lasprilla v. Barr

(Slip Opinion) OCTOBER TERM, 2019 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
GUERRERO-LASPRILLA v. BARR, ATTORNEY
GENERAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 18–776. Argued December 9, 2019—Decided March 23, 2020*
The Immigration and Nationality Act provides for judicial review of a
final Government order directing the removal of an alien from this
country. 8 U.S. C. §1252(a). Section 1252(a)(2)(C) limits the scope of
that review where the removal rests upon the fact that the alien has
committed certain crimes. And §1252(a)(2)(D), the Limited Review
Provision, says that in such instances courts may consider only “con-
stitutional claims or questions of law.”
Petitioners Guerrero-Lasprilla and Ovalles, aliens who lived in the
United States, committed drug crimes and were subsequently ordered
removed (Guerrero-Lasprilla in 1998 and Ovalles in 2004). Neither
filed a motion to reopen his removal proceedings “within 90 days of the
date of entry of [the] final administrative order of removal.”
§1229a(c)(7)(C)(i). Nonetheless, Guerrero-Lasprilla (in 2016) and
Ovalles (in 2017) asked the Board of Immigration Appeals to reopen
their removal proceedings, arguing that the 90-day time limit should
be equitably tolled. Both petitioners, who had become eligible for dis-
cretionary relief due to various judicial and Board decisions years after
their removal, rested their claim for equitable tolling on Lugo-
Resendez v. Lynch, 831 F.3d 337, in which the Fifth Circuit had held
that the 90-day time limit could be equitably tolled. The Board denied
both petitioners’ requests, concluding, inter alia, that they had not
demonstrated the requisite due diligence. The Fifth Circuit denied
their requests for review, holding that, given the Limited Review Pro-
——————
* Together with No. 18–1015, Ovalles v. Barr, Attorney General, also
on certiorari to the same court.
2 GUERRERO-LASPRILLA v. BARR
Syllabus
vision, it “lack[ed] jurisdiction” to review petitioners’ “factual” due dil-
igence claims. Petitioners contend that whether the Board incorrectly
applied the equitable tolling due diligence standard to the undisputed
facts of their cases is a “question of law” that the Provision authorizes
courts of appeals to consider.
Held: Because the Provision’s phrase “questions of law” includes the ap-
plication of a legal standard to undisputed or established facts, the
Fifth Circuit erred in holding that it had no jurisdiction to consider
petitioners’ claims of due diligence for equitable tolling purposes.
Pp. 3–13.
(a) Nothing in the statute’s language precludes the conclusion that
Congress used the term “questions of law” to refer to the application of
a legal standard to settled facts. Indeed, this Court has at times re-
ferred to the question whether a given set of facts meets a particular
legal standard as presenting a legal inquiry. See Neitzke v. Williams,
490 U.S. 319, 326 (“Rule 12(b)(6) authorizes a court to dismiss a claim
on the basis of a dispositive issue of law”); Mitchell v. Forsyth, 472 U.S.
511, 528, n. 9 (“[T]he appealable issue is a purely legal one: whether
the facts alleged . . . support a claim of violation of clearly established
law”); cf. Nelson v. Montgomery Ward & Co., 312 U.S. 373, 376 (“The
effect of admitted facts is a question of law”). That judicial usage indi-
cates that the statutory term “questions of law” can reasonably encom-
pass questions about whether settled facts satisfy a legal standard.
The Court has sometimes referred to such a question as a “mixed ques-
tion of law and fact.” See, e.g., U. S. Bank N. A. v. Village at Lakeridge,
LLC, 583 U. S. ___, ___. And the Court has often used the phrase
“mixed questions” in determining the proper standard for appellate re-
view of a district, bankruptcy, or agency decision that applies a legal
standard to underlying facts. But these cases present no such question
involving the standard of review. And, in any event, nothing in those
cases, nor in the language of the statute, suggests that the statutory
phrase “questions of law” excludes the application of law to settled
facts. Pp. 4–5.
(b) A longstanding presumption, the statutory context, and the stat-
ute’s history all support the conclusion that the application of law to
undisputed or established facts is a “questio[n] of law” within the
meaning of §1252(a)(2)(D). Pp. 5–11.
(1) A “well-settled” and “strong presumption,” McNary v. Haitian
Refugee Center, Inc., 498 U.S. 479, 496, 498, “favor[s] judicial review
of administrative action,” Kucana v. Holder, 558 U.S. 233, 251. That
presumption, which can only be overcome by “ ‘ “clear and convincing
evidence” ’ ” of congressional intent to preclude judicial review, Reno v.
Catholic Social Services, Inc., 509 U.S. 43, 64, has consistently been
applied to immigration statutes, Kucana, 558 U.S., at 251. And there
Cite as: 589 U. S. ____ (2020) 3
Syllabus
is no reason to make an exception here. Because the Court can rea-
sonably interpret the statutory term “questions of law” to encompass
the application of law to undisputed facts, and given that a contrary
interpretation would result in a barrier to meaningful judicial review,
the presumption indicates that “questions of law” does indeed include
mixed questions. Pp. 6–7.
(2) The Limited Review Provision’s immediate statutory context
belies the Government and the dissent’s claim that “questions of law”
excludes the application of law to settled facts. The Provision is part
of §1252, which also contains §1252(b)(9), the “zipper clause.” The zip-
per clause is meant to “consolidate judicial review of immigration pro-
ceedings into one action in the court of appeals.” INS v. St. Cyr, 533
U.S. 289, 313. The zipper clause’s language makes clear that Con-
gress understood the statutory term “questions of law and fact,” to in-
clude the application of law to facts. One interpretation of the zipper
clause at the very least disproves the Government’s argument that
Congress consistently uses a three-part typology, such that “questions
of law” cannot include mixed questions. And another interpretation—
that “questions of law” in the zipper clause includes mixed questions—
directly supports the holding here and would give the term the same
meaning in the zipper clause and the Limited Review Provision.
Pp. 7–8.
(3) The Provision’s statutory history and relevant precedent also
support this conclusion. The Provision was enacted in response to INS
v. St. Cyr, in which the Court interpreted the predecessor of
§1252(a)(2)(C) to permit habeas corpus review in order to avoid the
serious constitutional questions that would arise from a contrary in-
terpretation, 533 U.S., at 299–305, 314. In doing so, the Court sug-
gested that the Constitution, at a minimum, protected the writ of ha-
beas corpus “ ‘as it existed in 1789.’ ” Id., at 300–301. The Court then
noted the kinds of review that were traditionally available in a habeas
proceeding, which included “detentions based on errors of law, includ-
ing the erroneous application or interpretation of statutes.” Id., at 302
(emphasis added). Congress took up the Court’s invitation to “provide
an adequate substitute [for habeas review] through the courts of ap-
peals,” id., at 314, n. 38. It made clear that the limits on judicial review
in various §1252 provisions included habeas review, and it consoli-
dated virtually all review of removal orders in one proceeding in the
courts of appeals. Congress also added the Limited Review Provision,
permitting review of “constitutional claims or questions of law.” Con-
gress did so, the statutory history strongly suggests, because it sought
an “adequate substitute” for habeas in view of St. Cyr’s guidance. If
“questions of law” in the Provision does not include the misapplication
of a legal standard to undisputed facts, then review would not include
4 GUERRERO-LASPRILLA v. BARR
Syllabus
an element that St. Cyr said was traditionally reviewable in habeas.
Lower court precedent citing St. Cyr and legislative history also sup-
port this conclusion. Pp. 8–11.
(c) The Government’s additional arguments in favor of its contrary
reading are unpersuasive. More than that, the Government’s inter-
pretation is itself difficult to reconcile with the Provision’s basic pur-
pose of providing an adequate substitute for habeas review. Pp. 11–
13.
No. 18–776, 737 Fed. Appx. 230; No. 18–1015, 741 Fed. Appx. 259, va-
cated and remanded.
BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and GINSBURG, SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ.,
joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined
as to all but Part II–A–1.
Cite as: 589 U. S. ____ (2020) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 18–776 and 18–1015
_________________
PEDRO PABLO GUERRERO-LASPRILLA, PETITIONER
18–776 v.
WILLIAM P. BARR, ATTORNEY GENERAL; AND
RUBEN OVALLES, PETITIONER
18–1015 v.
WILLIAM P. BARR, ATTORNEY GENERAL
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[March 23, 2020]
JUSTICE BREYER delivered the opinion of the Court.
Section 242(a) of the Immigration and Nationality Act,
codified as 8 U.S. C. §1252(a), provides for judicial review
of a final Government order directing the removal of an al-
ien from this country. See 66 Stat. 163, as amended, 8
U.S. C. §1101 et seq. A subdivision of that section limits
the scope of that review where the removal rests upon the
fact that the alien has committed certain crimes, including
aggravated felonies and controlled substance offenses.
§1252(a)(2)(C). Another subdivision, §1252(a)(2)(D), which
we shall call the Limited Review Provision, says that in
such instances courts may consider only “constitutional
claims or questions of law.” The question that these two
consolidated cases present is whether the phrase “questions
of law” in the Provision includes the application of a legal
standard to undisputed or established facts. We believe
2 GUERRERO-LASPRILLA v. BARR
Opinion of the Court
that it does.
I
The two petitioners before us, Pedro Pablo Guerrero-
Lasprilla and Ruben Ovalles, are aliens who lived in the
United States. Each committed a drug crime and conse-
quently became removable. App. 33; Record in No. 18–1015,
p. 66. In 1998, an Immigration Judge ordered Guerrero-
Lasprilla removed. Record in No. 18–776, p. 137. In
2004, the Board of Immigration Appeals ordered Ovalles re-
moved, reversing a decision by an Immigration Judge. App.
to Pet. for Cert. in No. 18–1015, pp. 32a–35a. Both removal
orders became administratively final, and both petitioners
left the country.
Several months after their removal orders became final,
each petitioner’s window for filing a timely motion to reopen
his removal proceedings closed. That is because the Immi-
gration and Nationality Act permits a person one motion to
reopen, “a form of procedural relief that asks the Board to
change its decision in light of newly discovered evidence or
a change in circumstances.” Dada v. Mukasey, 554 U.S. 1,
12, 14 (2008) (internal quotation marks omitted). But the
motion must usually be filed “within 90 days of the date of
entry of a final administrative order of removal.” 8 U.S. C.
§1229a(c)(7)(C)(i).
Nonetheless, Guerrero-Lasprilla (in 2016) and Ovalles
(in 2017) asked the Board to reopen their removal proceed-
ings. Recognizing that the 90-day time limit had long since
passed, both petitioners argued that the time limit should
be equitably tolled. Both petitioners, who had become eli-
gible for discretionary relief due to various judicial and
Board decisions years after their removal, rested their
claim for equitable tolling on Lugo-Resendez v. Lynch, 831
F.3d 337 (CA5 2016). In that case, the Fifth Circuit had
held that the 90-day time limit could be “equitably tolled.”
Id., at 344. Guerrero-Lasprilla filed his motion to reopen a
Cite as: 589 U. S. ____ (2020) 3
Opinion of the Court
month after Lugo-Resendez was decided. App. 5. Ovalles
filed his motion to reopen eight months after the decision.
Id., at 35. The Board denied both petitioners’ requests for
equitable tolling, concluding, inter alia, that they had failed
to demonstrate the requisite due diligence. App. to Pet. for
Cert. in No. 18–1015, at 6a; App. to Pet. for Cert. in No. 18–
776, p. 12a.
Guerrero-Lasprilla and Ovalles each asked the Fifth Cir-
cuit to review the Board’s decision. See 8 U.S. C.
§1252(a)(1); 28 U.S. C. §2342; Reyes Mata v. Lynch, 576
U.S. 143, 147 (2015) (“[C]ircuit courts have jurisdiction
when an alien appeals from the Board’s denial of a motion
to reopen a removal proceeding”). The Fifth Circuit denied
their requests for review, concluding in both cases that
“whether an alien acted diligently in attempting to reopen
removal proceedings for purposes of equitable tolling is a
factual question.” Guerrero-Lasprilla v. Sessions, 737 Fed.
Appx. 230, 231 (2018) (per curiam); Ovalles v. Sessions, 741
Fed. Appx. 259, 261 (2018) (per curiam). And, given the
Limited Review Provision, it “lack[ed] jurisdiction” to re-
view those “factual” claims. 737 Fed. Appx., at 231; 741
Fed. Appx., at 261.
Both petitioners claim that the underlying facts were not
in dispute, and they asked us to grant certiorari in order to
determine whether their claims that the Board incorrectly
applied the equitable tolling due diligence standard to the
“undisputed” (or established) facts is a “question of law,”
which the Limited Review Provision authorizes courts of
appeals to consider. We agreed to do so.
II
The Limited Review Provision provides that, in this kind
of immigration case (involving aliens who are removable for
having committed certain crimes), a court of appeals may
consider only “constitutional claims or questions of law.” 8
U.S. C. §1252(a)(2)(D). The issue before us is, as we have
4 GUERRERO-LASPRILLA v. BARR
Opinion of the Court
said, whether the statutory phrase “questions of law” in-
cludes the application of a legal standard to undisputed or
established facts. If so, the Fifth Circuit erred in holding
that it “lack[ed] jurisdiction” to consider the petitioners’
claims of due diligence for equitable tolling purposes. We
conclude that the phrase “questions of law” does include
this type of review, and the Court of Appeals was wrong to
hold the contrary.
A
Consider the statute’s language. Nothing in that lan-
guage precludes the conclusion that Congress used the term
“questions of law” to refer to the application of a legal stand-
ard to settled facts. Indeed, we have at times referred to
the question whether a given set of facts meets a particular
legal standard as presenting a legal inquiry. Do the facts
alleged in a complaint, taken as true, state a claim for relief
under the applicable legal standard? See Fed. Rule Civ.
Proc. 12(b)(6); Neitzke v. Williams, 490 U.S. 319, 326 (1989)
(“Rule 12(b)(6) authorizes a court to dismiss a claim on the
basis of a dispositive issue of law”). Did a Government offi-
cial’s alleged conduct violate clearly established law? See
Mitchell v. Forsyth, 472 U.S. 511, 528, n. 9 (1985) (“[T]he
appealable issue is a purely legal one: whether the facts al-
leged . . . support a claim of violation of clearly established
law”); cf. Nelson v. Montgomery Ward & Co., 312 U.S. 373,
376 (1941) (“The effect of admitted facts is a question of
law”). Even the dissent concedes that we have sometimes
referred to mixed questions as raising a legal inquiry. See
post, at 3–4 (opinion of THOMAS, J.). While that judicial us-
age alone does not tell us what Congress meant by the stat-
utory term “questions of law,” it does indicate that the term
can reasonably encompass questions about whether settled
facts satisfy a legal standard.
We have sometimes referred to such a question, which
has both factual and legal elements, as a “mixed question
Cite as: 589 U. S. ____ (2020) 5
Opinion of the Court
of law and fact.” See, e.g., U. S. Bank N. A. v. Village at
Lakeridge, LLC, 583 U. S. ___, ___ (2018) (slip op., at 7)
(“[W]hether the historical facts found satisfy the legal test
chosen” is a “so-called ‘mixed question’ of law and fact” (cit-
ing Pullman-Standard v. Swint, 456 U.S. 273, 289, n. 19
(1982))). And we have often used the phrase “mixed ques-
tions” in determining the proper standard for appellate re-
view of a district, bankruptcy, or agency decision that ap-
plies a legal standard to underlying facts. The answer to
the “proper standard” question may turn on practical con-
siderations, such as whether the question primarily “re-
quire[s] courts to expound on the law, particularly by am-
plifying or elaborating on a broad legal standard” (often
calling for review de novo), or rather “immerse[s] courts in
case-specific factual issues” (often calling for deferential re-
view). Village at Lakeridge, 583 U. S., at ___ (slip op., at 8).
But these cases present no such question involving the
standard of review. And, in any event, nothing in those
cases forecloses the conclusion that the application of law
to settled facts can be encompassed within the statutory
phrase “questions of law.” Nor is there anything in the lan-
guage of the statute that suggests that “questions of law”
excludes the application of law to settled facts.
B
The Government, respondent here, argues to the con-
trary. Namely, the Government claims that Congress in-
tended to exclude from judicial review all mixed questions.
We do not agree. Rather, a longstanding presumption, the
statutory context, and the statute’s history all support the
conclusion that the application of law to undisputed or es-
tablished facts is a “questio[n] of law” within the meaning
of §1252(a)(2)(D).
6 GUERRERO-LASPRILLA v. BARR
Opinion of the Court
1
Consider first “a familiar principle of statutory construc-
tion: the presumption favoring judicial review of adminis-
trative action.” Kucana v. Holder, 558 U.S. 233, 251
(2010). Under that “well-settled” and “strong presump-
tion,” McNary v. Haitian Refugee Center, Inc., 498 U.S.
479, 496, 498 (1991), when a statutory provision “is reason-
ably susceptible to divergent interpretation, we adopt the
reading that accords with traditional understandings and
basic principles: that executive determinations generally
are subject to judicial review.” Kucana, 558 U.S., at 251
(quoting Gutierrez de Martinez v. Lamagno, 515 U.S. 417,
434 (1995); internal quotation marks omitted); see McNary,
498 U.S., at 496 (“[G]iven [that] presumption . . . , it is most
unlikely that Congress intended to foreclose all forms of
meaningful judicial review”). The presumption can only be
overcome by “clear and convincing evidence” of congres-
sional intent to preclude judicial review. Reno v. Catholic
Social Services, Inc., 509 U.S. 43, 64 (1993) (quoting Abbott
Laboratories v. Gardner, 387 U.S. 136, 141 (1967); internal
quotation marks omitted); see Cuozzo Speed Technologies,
LLC v. Lee, 579 U. S. ___, ___–___ (2016) (slip op., at 9–10).
We have “consistently applied” the presumption of re-
viewability to immigration statutes. Kucana, 558 U.S., at
251. And we see no reason to make an exception here. The
dissent’s “doubts” about the presumption, see post, at 6–9,
do not undermine our recognition that it is a “well-settled”
principle of statutory construction, McNary, 498 U.S., at
496. Notably, even the Government does not dispute the
soundness of the presumption or its applicability here. See
Brief for Respondent 47–48 (arguing only that the presump-
tion is overcome).
As discussed above, we can reasonably interpret the stat-
utory term “questions of law” to encompass the application
of law to undisputed facts. See supra, at 4–5. And as we
explain further below, infra, at 13, interpreting the Limited
Cite as: 589 U. S. ____ (2020) 7
Opinion of the Court
Review Provision to exclude mixed questions would effec-
tively foreclose judicial review of the Board’s determina-
tions so long as it announced the correct legal standard.
The resulting barrier to meaningful judicial review is thus
a strong indication, given the presumption, that “questions
of law” does indeed include the application of law to estab-
lished facts. That is particularly so given that the statutory
context and history point to the same result.
2
Consider next the Limited Review Provision’s immediate
statutory context. That context belies the Government and
the dissent’s claim that “questions of law” refers only to
“pure” questions and necessarily excludes the application of
law to settled facts. See Brief for Respondent 19–26; post,
at 3–6. The Limited Review Provision forms part of §1252,
namely, §1252(a)(2)(D). The same statutory section con-
tains a provision, §1252(b)(9), which we have called a “ ‘zip-
per clause.’ ” INS v. St. Cyr, 533 U.S. 289, 313 (2001). We
have explained that Congress intended the zipper clause to
“consolidate judicial review of immigration proceedings into
one action in the court of appeals.” Ibid. (internal quotation
marks omitted). The zipper clause reads in part as follows:
“Judicial review of all questions of law and fact, includ-
ing interpretation and application of constitutional
and statutory provisions, arising from any action taken
. . . to remove an alien from the United States under
this subchapter shall be available only in judicial re-
view of a final order under this section.” §1252(b)(9)
(emphasis added).
Because it is meant to consolidate judicial review, the zip-
per clause must encompass mixed questions. Indeed, the
clause by its very language includes the “application of [a]
statutory provisio[n].” Ibid.
The zipper clause accordingly makes clear that Congress
8 GUERRERO-LASPRILLA v. BARR
Opinion of the Court
understood the statutory term “questions of law and fact”
to include the application of law to facts. Reread the zipper
clause: It uses the terms “[(1)] questions of law and [(2)]
fact, including” the “application of ” statutes, i.e., the appli-
cation of law to fact. Ibid. (emphasis added). Thus, there
are three possibilities: Congress either used (1) “questions
of law,” (2) “fact,” or (3) the combination of both terms to
encompass mixed questions. Even the Government does
not argue that Congress used “questions of fact” alone to
cover mixed questions. Congress thus either meant the
term “questions of law” alone to include mixed questions, or
it used both “questions of law” and questions of “fact” to en-
compass mixed questions. The latter interpretation at the
very least disproves the Government’s argument that Con-
gress consistently uses a three-part typology, referring to
mixed questions separately from questions of law or ques-
tions of fact (such that “questions of law” cannot include
mixed questions). See Brief for Respondent 21; see also
post, at 3 (arguing that this Court has often used that three-
part typology and thus “questions of law” must exclude
mixed questions). And the former interpretation directly
supports the conclusion that “questions of law” includes
mixed questions. That interpretation gives “questions of
law” the same meaning across both provisions. Notably,
when Congress enacted the Limited Review Provision, it
added language to the end of the zipper clause (following
the language quoted above) to clarify that, except as pro-
vided elsewhere in §1252, “ ‘no court shall have jurisdic-
tion’ ” to “ ‘review . . . such questions of law or fact.’ ” §106,
119 Stat. 311. There is thus every reason to think that Con-
gress used the phrase “questions of law” to have the same
meaning in both provisions.
3
Consider also the Limited Review Provision’s statutory
history and the relevant precedent. The parties agree that
Cite as: 589 U. S. ____ (2020) 9
Opinion of the Court
Congress enacted the Limited Review Provision in response
to this Court’s decision in St. Cyr. See Brief for Respondent
16, 27–31; Brief for Petitioners 31–33. In that case, the
Court evaluated the effect of various allegedly jurisdiction-
stripping provisions, including the predecessor to
§1252(a)(2)(C). That predecessor (which today is modified
by the Limited Review Provision) essentially barred judicial
review of removal orders based on an alien’s commission of
certain crimes. See St. Cyr, 533 U.S., at 298, 311 (citing
§1252(a)(2)(C) (1994 ed., Supp. V)). This Court interpreted
that predecessor and the other purportedly jurisdiction-
stripping provisions as not barring (i.e., as permitting) re-
view in habeas corpus proceedings, to avoid the serious con-
stitutional questions that would be raised by a contrary
interpretation. See St. Cyr, 533 U.S., at 299–305, 314.
In doing so, the Court suggested that the Constitution, at
a minimum, protected the writ of habeas corpus “ ‘as it ex-
isted in 1789.’ ” Id., at 300–301. The Court then noted the
kinds of review that were traditionally available in a ha-
beas proceeding, which included “detentions based on er-
rors of law, including the erroneous application or interpre-
tation of statutes.” Id., at 302 (emphasis added). And it
supported this view by citing cases from the 18th and early
19th centuries. See id., at 302–303, and nn. 18–23. English
cases consistently demonstrate that the “erroneous applica-
tion . . . of statutes” includes the misapplication of a legal
standard to the facts of a particular case. See, e.g., Hol-
lingshead’s Case, 1 Salk. 351, 91 Eng. Rep. 307 (K. B. 1702);
King v. Nathan, 2 Str. 880, 93 Eng. Rep. 914 (K. B. 1724);
King v. Rudd, 1 Cowp. 331, 334–337, 98 Eng. Rep. 1114,
1116–1117 (K. B. 1775); King v. Pedley, 1 Leach 325, 326,
168 Eng. Rep. 265, 266 (1784). The Court ultimately made
clear that “Congress could, without raising any constitu-
tional questions, provide an adequate substitute [for habeas
review] through the courts of appeals.” St. Cyr., 533 U.S.,
at 314, n. 38.
10 GUERRERO-LASPRILLA v. BARR
Opinion of the Court
Congress took up this suggestion. It made clear that the
limits on judicial review in various provisions of §1252 in-
cluded habeas review, and it consolidated virtually all re-
view of removal orders in one proceeding in the courts of
appeals. See §106(a), 119 Stat. 310–311 (inserting specific
references to 28 U.S. C. §2241 and “ ‘any other habeas cor-
pus provision’ ”). At the same time, Congress added the
Limited Review Provision, which permits judicial review of
“ ‘constitutional claims or questions of law,’ ” the words di-
rectly before us now. 119 Stat. 310.
This statutory history strongly suggests that Congress
added the words before us because it sought an “adequate
substitute” for habeas in view of St. Cyr’s guidance. See
supra, at 9. If so, then the words “questions of law” in the
Limited Review Provision must include the misapplication
of a legal standard to undisputed facts, for otherwise review
would not include an element that St. Cyr said was tradi-
tionally reviewable in habeas.
We reach the same conclusion through reference to lower
court precedent. After we decided St. Cyr, numerous Courts
of Appeals held that habeas review included review of the
application of law to undisputed facts. See Cadet v. Bulger,
377 F.3d 1173, 1184 (CA11 2004) (“[W]e hold that the scope
of habeas review available in [28 U.S. C.] §2241 petitions
by aliens challenging removal orders . . . includes . . . errors
of law, including both statutory interpretations and appli-
cation of law to undisputed facts or adjudicated facts”); Og-
budimkpa v. Ashcroft, 342 F.3d 207, 222 (CA3 2003)
(same); Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143 (CA2
2003) (same); Singh v. Ashcroft, 351 F.3d 435, 441–442
(CA9 2003) (“[O]ther courts have rejected the Government’s
argument that only ‘purely legal questions of statutory in-
terpretation’ permit the exercise of habeas jurisdiction. . . .
We agree with those rulings”). We normally assume that
Congress is “aware of relevant judicial precedent” when it
enacts a new statute. Merck & Co. v. Reynolds, 559 U. S.
Cite as: 589 U. S. ____ (2020) 11
Opinion of the Court
633, 648 (2010). Thus, we should assume that Congress,
aware of this precedent (and wishing to substitute review
in the courts of appeals for habeas review), would have in-
tended the phrase “questions of law” to include the applica-
tion of a legal standard to established or undisputed facts.
Those who deem legislative history a useful interpretive
tool will find that the congressional history of the Limited
Review Provision supports this analysis. The House Con-
ference Report refers to St. Cyr and adds that Congress’
amendments are designed to “provide an ‘adequate and ef-
fective’ alternative to habeas corpus” in the courts of ap-
peals. H. R. Conf. Rep. No. 109–72, p. 175 (2005) (citing St.
Cyr, 533 U.S., at 314, n. 38). The Report adds that the
amendments “would not change the scope of review that
criminal aliens currently receive.” H. R. Conf. Rep. No.
109–72, at 175. And as we know, that “scope of review” in-
cluded review of decisions applying a legal standard to un-
disputed or established facts. That is what this Court, in
St. Cyr, had said was traditionally available in habeas; and
it was how courts of appeals then determined the scope of
habeas review. Notably, the legislative history indicates
that Congress was well aware of the state of the law in the
courts of appeals in light of St. Cyr. See H. R. Conf. Rep.
No. 109–72, at 174 (discussing issues on which the Courts
of Appeals agreed and those on which they had split after
St. Cyr). The statutory history and precedent, as well as
the legislative history, thus support the conclusion that the
statutory term “questions of law” includes the application
of a legal standard to established facts.
III
The Government makes two significant arguments that
we have not yet discussed. First, it points out that
§1252(a)(2)(C) forbids (subject to the Limited Review Provi-
sion) review of a removal order based on an alien’s commis-
12 GUERRERO-LASPRILLA v. BARR
Opinion of the Court
sion of certain crimes. If the words “questions of law” in-
clude “mixed questions,” then for such aliens, the Limited
Review Provision excludes only (or primarily) agency fact-
finding from review. But if Congress intended no more than
that, then why, the Government asks, did it not just say so
directly rather than eliminate judicial review and then re-
store it for “constitutional claims or questions of law?” Brief
for Respondent 49–50.
One answer to this question is that the Limited Review
Provision applies to more of the statute than the immedi-
ately preceding subparagraph. See §1252(a)(2)(D) (apply-
ing notwithstanding “subparagraph (B) or (C), or in any
other provision of this chapter (other than this section)”).
Another answer is that Congress did not write the Limited
Review Provision on a blank slate. Rather, subparagraph
(C) initially forbade judicial review, and Congress then
simply wrote another subparagraph reflecting our descrip-
tion in St. Cyr of the review traditionally available in ha-
beas (or a substitute for habeas in the courts of appeals).
See supra, at 8–10. That statutory history also illustrates
why the dissent errs in relying so significantly on language
in subparagraph (C) proscribing judicial review. See post,
at 5–6, 9 (referring to the “sweeping” and “broad” language
of subparagraph (C)). A broad and sweeping reading of sub-
paragraph (C) was precisely what this Court rejected in St.
Cyr, and Congress enacted subparagraph (D) in response to
that opinion. Subparagraph (C)—constrained as it is by
subparagraph (D)—must thus be read in that context.
Second, the Government argues that our interpretation
will undercut Congress’ efforts to severely limit and stream-
line judicial review of an order removing aliens convicted of
certain crimes. See Brief for Respondent 29–30; see also
post, at 11, n. 5 (noting that the legislative history indicates
that Congress intended to streamline removal proceedings
by limiting judicial review). The Limited Review Provision,
Cite as: 589 U. S. ____ (2020) 13
Opinion of the Court
however, will still forbid appeals of factual determina-
tions—an important category in the removal context. And
that Provision, taken together with other contemporaneous
amendments to §1252, does streamline judicial review rel-
ative to the post-St. Cyr regime, by significantly curtailing
habeas proceedings in district courts.
More than that, the Government’s interpretation is itself
difficult to reconcile with the Provision’s basic purpose of
providing an adequate substitute for habeas review. That
interpretation would forbid review of any Board decision
applying a properly stated legal standard, irrespective of
how mistaken that application might be. By reciting the
standard correctly, the Board would be free to apply it in a
manner directly contrary to well-established law. The Gov-
ernment, recognizing the extreme results of its interpreta-
tion, suggested at oral argument that the courts of appeals
might still be able to review certain “categori[es]” of appli-
cations, such as whether someone being in a coma always,
sometimes, or never requires equitable tolling. See Tr. of
Oral Arg. 38. The Government, however, left the nature
and rationale of this approach unclear. The approach does
not overcome the problem we have just raised, and seems
difficult to reconcile with the language and purposes of the
statute.
* * *
For these reasons, we reverse the Fifth Circuit’s “juris-
dictional” decisions, vacate its judgments, and remand
these cases for further proceedings consistent with this
opinion.
It is so ordered.
Cite as: 589 U. S. ____ (2020) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 18–776 and 18–1015
_________________
PEDRO PABLO GUERRERO-LASPRILLA, PETITIONER
18–776 v.
WILLIAM P. BARR, ATTORNEY GENERAL; AND
RUBEN OVALLES, PETITIONER
18–1015 v.
WILLIAM P. BARR, ATTORNEY GENERAL
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[March 23, 2020]
JUSTICE THOMAS, with whom JUSTICE ALITO joins as to
all but Part II–A–1, dissenting.
We granted certiorari to decide whether a denial of equi-
table tolling for lack of due diligence is reviewable as a
“question of law” under 8 U.S. C. §1252(a)(2)(D). Not con-
tent with resolving that narrow question, the Court cate-
gorically proclaims that federal courts may review immi-
gration judges’ applications of any legal standard to
established facts in criminal aliens’ removal proceedings.
Ante, at 1–2. In doing so, the majority effectively nullifies
a jurisdiction-stripping statute, expanding the scope of ju-
dicial review well past the boundaries set by Congress. Be-
cause this arrogation of authority flouts both the text and
structure of the statute, I respectfully dissent.
I
Under §1252(a)(2)(C), “[n]otwithstanding any other pro-
vision of law (statutory or nonstatutory), . . . no court shall
have jurisdiction to review any final order of removal
2 GUERRERO-LASPRILLA v. BARR
THOMAS, J., dissenting
against an alien who is removable by reason of having
committed [certain] criminal offense[s].” This broad
jurisdiction-stripping provision is known as the “criminal-alien
bar.” The only exceptions to the provision’s otherwise all-
encompassing language are found in §1252(a)(2)(D), which
states that “[n]othing in subparagraph . . . (C) . . . shall be
construed as precluding review of constitutional claims or
questions of law.” Thus, under the criminal-alien bar, any
claim that neither is constitutional nor raises a question
of law is unreviewable. Because petitioners raise no con-
stitutional claim and due diligence in the equitable-tolling
context is not a “question of law,” their claims are
unreviewable.
A
Equitable tolling’s due-diligence requirement presents a
mixed question of law and fact. A litigant will qualify for
equitable tolling only if he “has pursued his rights dili-
gently but some extraordinary circumstance prevents him
from bringing a timely action.” Lozano v. Montoya Alvarez,
572 U.S. 1, 10 (2014). To determine whether a litigant
has exercised due diligence, judges must conduct what
this Court has characterized as an “ ‘equitable, often fact-
intensive’” inquiry, considering “in detail” the unique facts of
each case to decide whether a litigant’s efforts were reason-
able in light of his circumstances. Holland v. Florida, 560
U.S. 631, 653–654 (2010) (BREYER, J., for the Court). In
other words, courts ask “whether the historical facts found
satisfy the legal test,” which, as this Court recently (and
unanimously) recognized, is a quintessential “ ‘mixed ques-
tion’ of law and fact.” U. S. Bank N. A. v. Village at Lake-
ridge, LLC, 583 U. S. ___, ___ (2018) (slip op., at 7) (quoting
Pullman-Standard v. Swint, 456 U.S. 273, 289, n. 19
(1982)); but see ante, at 4–5.
Cite as: 589 U. S. ____ (2020) 3
THOMAS, J., dissenting
B
The text of §1252(a)(2)(D) authorizes courts to review
only “constitutional claims or questions of law.” It does not
refer to mixed questions of law and fact, and cannot be di-
vined to do so. As the statute’s plain language and struc-
ture demonstrate, “questions of law” cannot reasonably be
read to include mixed questions.
Although the statute does not define “questions of law,”
longstanding historical practice indicates that the phrase
does not encompass mixed questions of law and fact. For
well over a century, this Court has recognized questions of
law, questions of fact, and mixed questions of law and fact
as three discrete categories. See, e.g., Pullman-Standard,
supra, at 288 (distinguishing between a “question of law,” a
“mixed question of law and fact,” and a “pure question of
fact”); Ross v. Day, 232 U.S. 110, 116 (1914) (distinguishing
between “a mere question of law” and “a mixed question of
law and fact”); Bates & Guild Co. v. Payne, 194 U.S. 106,
109 (1904) (distinguishing between “mixed questions of law
and fact” and questions “of law alone”); Jewell v. Knight,
123 U.S. 426, 432 (1887) (distinguishing between “ques-
tions of law only,” “questions of fact,” and questions “of
mixed law and fact”); Republican River Bridge Co. v. Kan-
sas Pacific R. Co., 92 U.S. 315, 318–319 (1876) (distin-
guishing between a “mixed question of law and fact,” a “law
question,” and a “fact [question]”). A leading civil procedure
treatise at the time of §1252(a)(2)(D)’s enactment confirms
this understanding. See 9A C. Wright & A. Miller, Federal
Practice and Procedure §§2588–2589 (2d ed. 1995) (distin-
guishing between conclusions and questions of law, and
“mixed questions of law and fact”).
The majority resists this conclusion by pointing to cases
in which the Court has characterized mixed questions as
either legal or factual. But this occasional emphasis on ei-
ther law or fact does not change the reality that many ques-
tions include both. This Court sometimes uses these two
4 GUERRERO-LASPRILLA v. BARR
THOMAS, J., dissenting
categories because “[m]ixed questions are not all alike” and,
in certain contexts, this Court must distinguish between
them by determining whether they present primarily legal
or primarily factual inquiries. Village at Lakeridge, supra,
at ___–___ (slip op., at 8–9) (whether a creditor is a nonstat-
utory insider presents a factual inquiry); see also Neitzke v.
Williams, 490 U.S. 319, 326 (1989) (whether a complaint
fails to state a claim presents a legal inquiry).1
The Court often uses these labels in contexts that lend
themselves to a fact/law dichotomy. For example, it asks
whether a question is primarily legal or primarily factual
when it needs to determine the appropriate standard of ap-
pellate review. See, e.g., Village at Lakeridge, supra, at ___
(slip op., at 9). A similar dichotomy arises when the Court
considers whether an issue is one for the judge or jury. See,
e.g., United States v. Gaudin, 515 U.S. 506, 512 (1995) (“the
application-of-legal-standard-to-fact sort of question . . . ,
commonly called a ‘mixed question of law and fact,’ has typ-
ically been resolved by juries” as a fact issue).
But these considerations are irrelevant in the context of
a statutory judicial-review provision such as §1252(a)(2),
which contains text that refers only to “questions of law.”
The federal appellate judges who review claims under this
provision are competent to review legal, factual, and mixed
questions alike; their authority is constrained only by the
statutory text. Our task, therefore, is simply to interpret
the words of the statute, which invoke no forced dichotomy
——————
1 The majority also cites Mitchell v. Forsyth, 472 U.S. 511 (1985), for
the proposition that “whether a given set of facts meet a particular legal
standard . . . present[s] a legal inquiry.” Ante, at 4. But that case in-
volved a motion for summary judgment, so the inquiry was limited to
whether “a given proposition of law was not clearly established at the
time the defendant committed the alleged acts.” 472 U.S., at 529, n. 10.
It did not concern the application of facts to a legal standard, such as
whether “the defendant’s actions were in fact unlawful.” Ibid.
Cite as: 589 U. S. ____ (2020) 5
THOMAS, J., dissenting
because Congress could have easily included mixed ques-
tions in the text if it wanted to do so. See, e.g., 38 U.S. C.
§7292(d) (referring to a “challenge to a law . . . as applied to
the facts of a particular case” as distinct from “questions
of law”). Accordingly, there is no need to place the due-
diligence inquiry into either category here.2
Moreover, conflating “questions of law” with mixed ques-
tions would lead to absurd results in light of the statute’s
structure. The criminal-alien bar, which directly precedes
8 U.S. C. §1252(a)(2)(D), is an unequivocally broad
jurisdiction-stripping provision, barring review “[n]otwith-
standing any other provision of law (statutory or nonstatu-
tory).” §1252(a)(2)(C). That is the default rule. Section
1252(a)(2)(D) merely delineates two narrow exceptions to
this criminal-alien bar—“constitutional claims” and “ques-
tions of law.”
Reading “questions of law” to include all mixed questions
would turn §1252(a)(2)’s structure on its head. It would
transform §1252(a)(2)(D)’s narrow exception into a broad
provision permitting judicial review of all criminal aliens’
challenges to their removal proceedings except the precious
few that raise only pure questions of fact. Because those
questions are already effectively unreviewable under the
Immigration and Nationality Act’s (INA’s) extremely defer-
ential standard, §1252(b)(4)(B) (Board’s “findings of fact are
conclusive unless any reasonable adjudicator would be com-
pelled to conclude to the contrary”), this interpretation
would reduce the jurisdiction-stripping provision to a near
nullity. Put another way, the exception would all but swal-
low the rule.3 The logical reading of §1252(a)(2) is that the
——————
2 Even if this statute were interpreted in terms of a fact/law dichotomy,
the majority offers no explanation as to why the due-diligence inquiry
would fall on the “primarily legal” side of the line.
3 The majority claims we must read §1252(a)(2)(C) “in th[e] context” of
the purported legislative intent behind §1252(a)(2)(D). Ante, at 12. As
explained below, atextual legislative intent is not an appropriate tool for
6 GUERRERO-LASPRILLA v. BARR
THOMAS, J., dissenting
exception is narrower than the rule and covers only what is
stated in the text: constitutional claims and questions of
law.4
II
Undeterred by the statute’s text and structure, the ma-
jority concludes that criminal aliens are entitled to judicial
review of any question involving the application of estab-
lished facts to a legal standard. Ante, at 1–2. Even a fact-
intensive mixed question like due diligence, which requires
“[p]recious little” “legal work,” Village at Lakeridge, 583
U. S., at ___ (slip op., at 10), is a “question of law” according
to the majority. To justify its erroneous reading of the text,
the majority resorts to the presumption favoring judicial re-
view and to legislative intent. Neither interpretive tool is
appropriate for, or helpful to, the majority’s analysis.
A
The majority relies heavily on the presumption favoring
judicial review of agency action as set out in our modern
cases. Ante, at 5–7. Even accepting those precedents,
which no party asks us to reconsider, the presumption does
no work here because the statute’s text and structure
plainly preclude review of mixed questions.
1
As an initial matter, I have come to have doubts about
——————
interpreting a statute. See infra, at 8. But even if it were, the purported
legislative intent here supports a narrow reading of §1252(a)(2)(D) that
leaves much of §1252(a)(2)(C) intact. See infra, at 10–12.
4 The majority makes much of the phrase “questions of law and fact” in
another subsection of §1252, known as the “zipper clause,” which consol-
idates judicial review of immigration proceedings. Ante, at 7–8 (discuss-
ing 8 U.S. C. §1252(b)(9)). But that language is most naturally read to
encompass all three categories—“questions of law,” “questions of . . .
fact,” and “questions of law and fact.” §1252(b)(9). At a minimum, the
meaning of the zipper clause’s text is ambiguous and cannot overcome
the plain text of §§1252(a)(2)(C)–(D).
Cite as: 589 U. S. ____ (2020) 7
THOMAS, J., dissenting
our modern cases applying the presumption of reviewabil-
ity. Courts have long understood that they “generally have
jurisdiction to grant relief ” when individuals are injured by
unlawful administrative action. American School of Mag-
netic Healing v. McAnnulty, 187 U.S. 94, 108 (1902). Ap-
plying this well-settled principle, we have refused to read a
statute’s “silence . . . as to judicial review” to preclude such
review. Stark v. Wickard, 321 U.S. 288, 309 (1944); see
also Board of Governors, FRS v. Agnew, 329 U.S. 441, 444
(1947). But the modern presumption of reviewability relied
on by the majority today goes far beyond this traditional
approach.
The modern presumption developed against the backdrop
of the Administrative Procedure Act (APA). See Abbott La-
boratories v. Gardner, 387 U.S. 136, 140–141 (1967); see
also Weyerhaeuser Co. v. United States Fish and Wildlife
Serv., 586 U. S. ___, ___ (2018) (slip op., at 11). In that stat-
ute, Congress created a general right of judicial review for
individuals injured by agency action. 5 U.S. C. §702. No-
tably, however, Congress also specified that this right did
not apply when “statutes preclude judicial review.”
§701(a)(1).
Rather than recognize that courts should give the words
of both the APA and agencies’ organic statutes their natural
meaning, the Court relied on “[t]he spirit of [legislators’]
statements” in Committee Reports and the “broadly reme-
dial purposes of the [APA]” to craft a strong presumption of
reviewability. Heikkila v. Barber, 345 U.S. 229, 232 (1953).
The Court ultimately concluded that statutory text alone,
even that which “appears to bar [judicial review],” is “not
conclusive.” Id., at 233. Under this approach, a court will
yield its jurisdiction “only upon a showing of ‘clear and con-
vincing evidence,’ ” drawn from a statute’s purpose and leg-
islative history, that Congress “intended” as much. Abbott
Laboratories, supra, at 139, 141; see also ante, at 6.
There are at least three reasons to doubt the soundness
8 GUERRERO-LASPRILLA v. BARR
THOMAS, J., dissenting
of this modern presumption. First, it elevates the supposed
purpose or “spirit” of the APA over the statute’s text. The
“spirit” of a law is nothing more than “the unhappy inter-
pretive conception of a supposedly better policy than can be
found in the words of [the] authoritative text.” A. Scalia &
B. Garner, Reading Law: The Interpretation of Legal Texts
344 (2012). Its invocation represents a “bald assertion of an
unspecified and hence unbounded judicial power to ignore
what the law says.” Id., at 343. And it is especially prob-
lematic to rely on the “spirit” of the APA in actions arising
under a separate substantive statute with a judicial-review
provision that is entirely distinct from the APA, such as the
INA.
Second, the Court’s test for rebutting the presumption re-
lies heavily on legislative intent, inviting courts to discern
the mental processes of legislators through legislative his-
tory. But “[e]ven assuming a majority of Congress read the
[legislative history], agreed with it, and voted for [the stat-
ute] with the same intent, ‘we are a government of laws, not
of men, and are governed by what Congress enacted rather
than by what it intended.’ ” Digital Realty Trust, Inc. v.
Somers, 583 U. S. ___, ___ (2018) (THOMAS, J., concurring
in part and concurring in judgment) (slip op., at 1) (quoting
Lawson v. FMR LLC, 571 U.S. 429, 459–460 (2014)
(Scalia, J., concurring in principal part and concurring in
judgment)).
Finally, the clear-and-convincing-evidence requirement
appears to conflict with the text of the Constitution. Under
Articles I and III, Congress has the authority to establish
the jurisdiction of inferior federal courts and to regulate the
appellate jurisdiction of this Court. See Art. I, §8, cl. 9;
Art. III, §2, cl. 2; see also Patchak v. Zinke, 583 U. S. ___,
___–___ (2018) (slip op., at 7–10). It occasionally wields this
power to prevent federal courts from reviewing certain ac-
tions through jurisdiction-stripping statutes. See, e.g., 12
U.S. C. §§1818(i)(1), 4208; 15 U.S. C. §719h(c)(3); 31
Cite as: 589 U. S. ____ (2020) 9
THOMAS, J., dissenting
U. S. C. §3730(e)(4)(A). Using this modern presumption,
however, the Court has reached the opposite result, despite
a statute’s plain text. See, e.g., INS v. St. Cyr, 533 U.S. 289
(2001); see also ante, at 6–7. By placing heightened require-
ments on statutes promulgated under Congress’ exclusive
authority rather than simply giving effect to their ordinary
meaning, courts upset the delicate balance of power re-
flected in the Constitution’s text.
2
Even assuming that the modern presumption is justified
and can properly be applied to actions outside the APA con-
text, it does no work in these cases. First, as explained
above, “questions of law” cannot reasonably be read to in-
clude mixed questions. See supra, at 3–6; cf. Kucana v.
Holder, 558 U.S. 233, 251 (2010). But even if it could, the
sweeping language of §1252(a)(2)(C) provides clear and con-
vincing evidence that judicial review of mixed questions is
barred. The broad language of that provision leaves no
room for ambiguity as to Congress’ design. In erecting the
criminal-alien bar, Congress unequivocally precluded judi-
cial review of wide swaths of claims. The presumption,
to the extent it should apply here at all, is thus firmly
rebutted.
The Court nevertheless concludes that the presumption
of reviewability dictates today’s result. It bases this conclu-
sion on the observation that “interpreting [§1252(a)(2)(D)]
to exclude mixed questions would effectively foreclose judi-
cial review of the Board’s determinations so long as it an-
nounced the correct legal standard.” Ante, at 6–7. But
“[t]he resulting barrier to meaningful judicial review” is not
a problem in need of a judicial solution, ante, at 7—it is ev-
idence of Congress’ design, which is precisely the sort of
“clear and convincing evidence” that should “dislodge the
presumption,” Kucana, supra, at 252 (internal quotation
marks omitted). By using Congress’ preclusive design to
10 GUERRERO-LASPRILLA v. BARR
THOMAS, J., dissenting
justify rather than dislodge the presumption, the majority
dramatically expands the presumption, rendering it effec-
tively irrebuttable.
B
The majority next relies on the purported purpose of
§1252(a)(2)(D) to justify its reading of the text. It claims
that Congress intended to provide an “ ‘adequate substitute’
for habeas in view of St. Cyr’s guidance” regarding the scope
of the Suspension Clause. Ante, at 10. As explained above,
legislative intent, to the extent it exists independent of the
words in the statute, is unhelpful to the proper interpreta-
tion of a statute’s text. See supra, at 8. But its invocation
is especially unhelpful to the majority here. Even assuming
Congress looked to St. Cyr when drafting §1252(a)(2)(D),
the limited “guidance” provided in that opinion supports my
reading of the statute, not the majority’s.
As an initial matter, the Court in St. Cyr expressly de-
clined to resolve “the difficult question of what the Suspen-
sion Clause protects.” St. Cyr, 533 U.S., at 301, n. 13. Re-
spondent in that case argued that §1252(a)(2)(C) would
violate the Suspension Clause if it were read to preclude
review of all questions of law in habeas proceedings. But
rather than affirm that position, the Court concluded that
it was enough to merely identify that “substantial constitu-
tional questio[n]” to warrant rejection of the Government’s
interpretation. Id., at 300. Indeed, the meaning of the Sus-
pension Clause and its applicability to removal proceedings
remain open questions. See Department of Homeland Se-
curity v. Thuraissigiam, post, p. ___ (2019) (granting certi-
orari). In explaining its decision, the Court in St. Cyr
merely asserted that the Suspension Clause “protects the
writ as it existed in 1789” and noted that “there is substan-
tial evidence . . . that pure questions of law” were generally
covered by the common-law writ. 533 U.S., at 301, 304–
305 (emphasis added; internal quotation marks omitted).
Cite as: 589 U. S. ____ (2020) 11
THOMAS, J., dissenting
The decision said nothing about mixed questions or the ap-
plication of settled facts to a legal standard.
The majority relies on one sentence of dicta in St. Cyr,
which states that the common-law writ addressed “the er-
roneous application or interpretation of statutes.” Id., at
302; see ante, at 9. But the application of a statute does not
always involve applying facts to a legal standard, nor is it
necessarily analogous to the equitable and fact-intensive
due-diligence inquiry.
The majority next suggests that Congress was familiar
with the underlying details of common-law cases cited in St.
Cyr, ante, at 9, or the lower court decisions expanding on
St. Cyr’s dicta, ante, at 10. But such a “fanciful presump-
tion of legislative knowledge” cannot justify the majority’s
position. Scalia, Reading Law, at 324.5 And if Congress
were presumed to have such a robust knowledge of our prec-
edents, one would certainly expect it to be familiar with our
historical practice of using “questions of law” and “mixed
questions” as distinct terms. See supra, at 3.
The only guidance provided by St. Cyr’s dicta concerned
——————
5 To support its reliance on this presumption, the majority cites Merck
& Co. v. Reynolds, 559 U.S. 633 (2010). But that case presumed that
when Congress used a specific term it imported a particular meaning
that courts had given the term through uniform interpretation. See id.,
at 647–648. The majority goes much further here, claiming that Con-
gress’ “intent” was to give effect to lower courts’ interpretations of this
Court’s dicta. Ante, at 11. Contrary to the majority’s suggestion, nothing
in the legislative history indicates that Congress relied on lower courts’
interpretations of St. Cyr in enacting §1252(a)(2)(D). Congress merely
highlighted the “confusion in the federal courts” as one of “the many
problems caused by St. Cyr.” H. R. Conf. Rep. No. 109–72, pp. 173–174
(2005). Notably, the Report also stated that “the most significant [prob-
lem]” was “that [the] decision allow[ed] criminal aliens to delay their ex-
pulsion from the United States for years.” Id., at 173. Thus, even if one
could divine a shared legislative intent by reading this Conference Re-
port, it would appear that Congress intended to streamline removal pro-
ceedings by limiting judicial review to the greatest extent possible under
St. Cyr.
12 GUERRERO-LASPRILLA v. BARR
THOMAS, J., dissenting
“pure questions of law.” 533 U.S., at 305; see also id., at
314, n. 38 (“this case raises only a pure question of law . . . ,
not . . . an objection to the manner in which discretion was
exercised”). So even if it were appropriate to assume that
Congress enacted §1252(a)(2)(D) with the collective inten-
tion of following St. Cyr’s guidance (which it is not), that
statutory purpose supports reading “questions of law” to
mean just that: “questions of law.”
* * *
Ironically, the majority refers to §1252(a)(2)(D) as the
“Limited Review Provision.” Ante, at 1. But according to
the majority’s interpretation, it is anything but “limited”—
nearly all claims are reviewable. That reading contradicts
the plain text and structure of §1252(a)(2), which was en-
acted to strip federal courts of their jurisdiction to review
most criminal aliens’ claims challenging removal proceed-
ings. The Constitution gives the Legislative Branch the au-
thority to curtail that jurisdiction. We cannot simply in-
voke this presumption of reviewability to circumvent
Congress’ decision. Doing so upsets, not preserves, the sep-
aration of powers reflected in the Constitution’s text. I re-
spectfully dissent.