One of the most striking components of the United Nations Convention against Torture1 (CAT) is Article 3—the nonrefoulement provision2—which has been adopted into US domestic law. Signatories commit to not removing or extraditing noncitizens to countries where those individuals are likely to be tortured.3 Article 3 asserts that despite the fact that some applicants may be undocumented and some may have committed terrible crimes, no one deserves to be tortured.4 The story of Elenilson Ortiz-Franco is instructive here. Ortiz-Franco is a native of El Salvador who entered the United States in 1987 without legal permission.5 In the early 1990s, he was convicted of various criminal offenses, making him subject to removal.6 Ortiz-Franco was also a member of MS-13, a prominent Salvadoran gang; while his removal hearings were pending, he spoke with the US government about MS-13’s activities.7 He applied for CAT protection, fearing gang retaliation and torture if removed.8 Ortiz-Franco may not be the kind of resident that this country would choose, but the CAT commitment places an individual’s life and safety above other considerations.

There are two forms of relief available for CAT petitioners: withholding of removal and deferral of removal. Withholding of removal is a temporary form of relief that can be revoked upon a positive change in circumstances in the petitioner’s home country.9 Deferral of removal is similarly temporary and revocable.10 It is also a slightly less generous form of relief; the recipient can be held in a detention center for the duration of the deferred removal.11 To qualify for withholding of removal, however, the applicant must not have certain criminal convictions. By contrast, deferral of removal is available to everyone—even those with criminal convictions that bar them from receiving withholding of removal. Therefore, for Ortiz-Franco (and anyone similarly situated), deferral of removal was the only means of relief from removal.12 Despite being the last option for relief for a class of petitioners, CAT claims have not been very successful in front of immigration judges (IJs). In fiscal year 2014, immigration courts heard 26,394 CAT claims. Out of those, only 415 applicants received withholding of removal and 121 received deferral of removal.13

Although fact finders often receive a great deal of deference, there is strong evidence that such deference is less appropriate for IJ decisions. Judge Richard Posner, for one, has been highly critical of IJ decisions—“[a]mong other rebukes, he has labeled [them] arbitrary, unreasoned, irrational, inconsistent, and uninformed.”14 Federal appellate courts, however, disagree as to whether they have the jurisdiction to review factual findings from denials of deferral of removal. Most circuits hold that review is not available, based primarily on statutory language that bars appellate review of final orders of removal from applicants with criminal convictions unless the claim is limited to a question of law.15 This approach was taken by the Second Circuit when Ortiz-Franco appealed the Board of Immigration Appeals’ (BIA) denial of deferral of removal.16 Because deferral of removal is the only relief available to noncitizens with criminal convictions, this reading means that for a class of individuals like Ortiz-Franco, there is no opportunity for appellate court review.

Other circuits, however, have adopted a broader reading of the statutes and found that they do have jurisdiction to review questions of fact.17 Thus, if Ortiz-Franco had resided in California or Illinois, as opposed to New York, he would have been able to receive appellate review of questions of fact. Appellate court review of questions of fact does not necessarily mean that an IJ’s factual findings will be overturned. Even if the Second Circuit had found it had jurisdiction to review Ortiz-Franco’s factual claims, it might have upheld the IJ’s determination. Appellate review would, however, ensure that a vulnerable individual is not returned to a country where he or she faces torture and death due to an IJ’s inadequate and inaccurate factual evaluations.

This Comment agrees with the latter group of circuit courts and expands on their reasoning about the finality of judgments. Finality is traditionally conceived of as an on/off switch. If there is final judgment, the order is reviewable.18 If there is not final judgment, the order is not reviewable. This Comment argues that finality is not black and white, but instead exists on a spectrum. Essentially, different levels of finality exist, and they should not all be treated equally. As such, denials of deferral of removal can be final for the purposes of the final judgment rule while simultaneously not qualifying as a final order of removal, thereby not triggering the jurisdictional bar for reviewing questions of fact.19 While this may seem like a significant departure from traditional understandings of finality, this Comment draws on analogies to consent decrees, bankruptcy, and patents, three contexts in which there is often more flexibility in defining finality. This Comment asserts that CAT deferral-of-removal claims belong to the class of cases for which there can be appellate review of orders that do not qualify as traditional final judgments.

There is a real need for an exploration of this issue. The Supreme Court recently denied certiorari in Ortiz-Franco’s case.20 Despite the fact that the government won at the Second Circuit, the solicitor general agreed with Ortiz-Franco that the Court should review the petition. The solicitor general argued that “this case presents a recurring question of substantial importance on which there is direct conflict among the courts of appeals. This Court should grant certiorari.”21 The Court’s refusal to resolve the circuit split leaves petitioners in the Seventh and Ninth Circuits with access to factual review and petitioners in the rest of the country without. The need for further exploration of finality, however, is not driven by only this discrete issue. The exploration of finality provided here offers a framework that is not limited to the specific question addressed in this Comment. As a result, the concept of flexible finality articulated in this Comment may be applicable to other areas of law, and it is ripe for further exploration by other scholars.

This Comment proceeds in three parts. Part I explores both the history and the current statutory regime of removal proceedings and CAT relief. Part II details the reasoning used by the courts of appeals in analyzing whether there is jurisdiction to review CAT questions of fact. Part III argues for a new conception of finality to allow for appellate review of questions of fact.

  • 1. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85, 113 (Dec 10, 1984, entered into force June 26, 1987) (“CAT”).
  • 2. CAT, 1465 UNTS at 114.
  • 3. CAT, 1465 UNTS at 114.
  • 4. See Wanjiru v Holder, 705 F3d 258, 267 (7th Cir 2013) (explaining that “the CAT does not exist only for persons with an unblemished record” and that “deferring removal rather than withholding it altogether exists for people . . . who might be undesirables at some level but who are entitled not to be sent to a country where they will experience torture”).
  • 5. See Ortiz-Franco v Holder, 782 F3d 81, 83 (2d Cir 2015).
  • 6. Id at 83–84.
  • 7. Id at 83.
  • 8. Id at 84–85.
  • 9. See 8 CFR § 1208.24(b)(1) (allowing termination of withholding of removal if there is “a fundamental change in circumstances relating to the original claim” such that “the alien’s life or freedom no longer would be threatened”).
  • 10. See 8 CFR § 1208.17(d) (describing the procedures for the termination of deferral of removal).
  • 11. See 8 CFR § 1208.17(c) (“Nothing in this section shall alter the authority of the Service to detain an alien whose removal has been deferred under this section and who is otherwise subject to detention.”). However, this interpretation is not universally accepted. See Marogi v Jenifer, 126 F Supp 2d 1056, 1064 (ED Mich 2000) (noting that the “[CAT’s] explanation [of] deferral . . . implies that withholding provides greater protection,” but nonetheless concluding that “withholding [ ] does not preclude removal to another country, and by implication does not otherwise improve a removable alien’s status”).
  • 12. In Ortiz-Franco’s case, the immigration judge ultimately denied the CAT claim, holding that there was insufficient evidence that he would be tortured. Ortiz-Franco, 782 F3d at 85.
  • 13. US Department of Justice, Executive Office for Immigration Review, Office of Planning, Analysis, & Technology, FY 2014 Statistics Yearbook *M1 (Mar 2015), archived at
  • 14. Adam B. Cox, Deference, Delegation, and Immigration Law, 74 U Chi L Rev 1671, 1679–80 (2007) (citations omitted).
  • 15. See 8 USC § 1252(a)(2)(C)–(D).
  • 16. Ortiz-Franco, 782 F3d at 86.
  • 17. See, for example, Wanjiru, 705 F3d at 265; Lemus-Galvan v Mukasey, 518 F3d 1081, 1084 (9th Cir 2008).
  • 18. See 28 USC § 1292(a)(1).
  • 19. See 28 USC § 1292(a)(1) (requiring a final judgment to allow for appellate review); 8 USC § 1252(a)(2)(C) (barring appellate review of questions of fact from a petitioner with a final order of removal stemming from criminal convictions).
  • 20. Ortiz-Franco v Lynch, 136 S Ct 894 (2016).
  • 21. Brief for the Respondent, Ortiz-Franco v Lynch, Docket No 15-362, *9–10 (US filed Dec 2, 2015) (available on Westlaw at 2015 WL 7774500).