WASHINGTON—Today, the Immigration Reform Law Institute (IRLI) filed a brief in the Supreme Court in a case about whether the 30-day deadline for appealing a removal order, set forth in a statute, is jurisdictional, or only a claims processing rule that can be extended while ancillary matters, such a petition for withholding of removal, are eventually decided.
The alien petitioner in the case, who had been convicted of an aggravated felony, argues that the deadline is not jurisdictional. In taking this position, he is joined by the nominal respondent, the federal government, in briefs filed under the Biden Administration. They both argue that an earlier Supreme Court case, which ruled that a deadline outside the immigration context was not jurisdictional, should be extended to cover this case.
IRLI shows in its brief, however, that this earlier case depended on a presumption of reviewability, meant to protect constitutional rights, that is inapplicable in the immigration context. Aliens such as petitioner do not have the same constitutional rights as U.S. citizens. In fact, they only have such procedural rights as Congress chooses to give them. And Congress’s purposes in the statutes providing for the 30-day deadline were to limit illegal immigration and expedite removals. For these reasons, the 30-day deadline should be recognized as a serious, jurisdictional bar to further appeals.
“The petitioner’s—and, shockingly—the government’s position is calculated to clog up the system with meritless appeals and keep aggravated felons in the country indefinitely,” said Dale L. Wilcox, executive director and general counsel of IRLI. “Since these results are flatly against the purposes of immigration law, it is exceedingly doubtful that Congress intended the appeal deadline to do anything other than end the jurisdiction of the courts, and thus keep the removal process going. We hope the Court recognizes that jurisdiction is lacking, and reaches a decision that protects the immigration system.”
The case is Riley v. Bondi, No. 23-1270 (Supreme Court).
