Issues
Under the Suspension Clause, is 8 U.S.C. § 1252(e)(2) constitutional as applied to noncitizens who have secretly entered the United States?
This case asks the Supreme Court to decide whether, under the Suspension Clause, 8 U.S.C. § 1252(e)(2) is constitutional as applied to noncitizens who have secretly entered the United States. Petitioner Department of Homeland Security argues that noncitizens entering clandestinely, treated properly as seeking initial admission to the United States, are entitled to no due process protections; that such noncitizens are not entitled to habeas corpus under the Suspension Clause; and that even if the Suspension Clause does apply, the statute’s provision of administrative review and limited judicial review are sufficient. Respondent Thuraissigiam counters that notwithstanding the Government’s misreading of applicable law, clandestinely entering noncitizens within the United States are entitled to due process under the Fifth Amendment; that the Suspension Clause does apply to individuals in immigration proceedings; and that the statute provides an inadequate substitute for habeas corpus. This case has implications for states’ resource spending, revenue collection, and citizen welfare. Additionally, this case’s outcome could impact federal courts’ work load, depending on whether federal courts must open up to a new class of alien-petitioners.
Questions as Framed for the Court by the Parties
Whether, as applied to the respondent, 8 U.S.C. § 1252(e)(2) is unconstitutional under the suspension clause.
Facts
Vijayakumar Thuraissigiam, a Sri Lanka native, is of the Tamil ethnic minority and backed a Tamil political candidate. Thuraissigiam v. USDHS at 11–12. In June 2016, Thuraissigiam fled Sri Lanka to Mexico. Id. at 11. In February 2017, he entered the United States through the Mexico-California border and was arrested by U.S. Customs and Border Patrol (“CBP”) agents four miles west of the San Ysidro border crossing and twenty-five yards north of the border. Id.
The Department of Homeland Security (“DHS”) placed Thuraissigiam in expedited removal proceedings. Id. After Thuraissigiam claimed a fear of persecution in Sri Lanka, CBP referred Thuraissigiam to interview with an asylum officer from the United States Citizenship and Immigration Services (“USCIS”). Id. The USCIS asylum officer concluded that Thuraissigiam had not shown a credible fear of persecution, and a supervisor approved the conclusion. Id. Thuraissigiam requested further review by an immigration judge, but the immigration judge affirmed the conclusion in a “check-box decision” and sent Thuraissigiam’s case back to DHS to proceed with his removal. Id. at 12.
In January 2018, Thuraissigiam filed a petition for habeas corpus in the United States District Court for the Southern District of California (the “District Court”). Id. In his petition, Thuraissigiam recounted how Sri Lankan intelligence officers retaliated against him for supporting a particular political candidate, and how they detained, beat, and tortured him. See id. Thuraissigiam argued that the U.S. expedited removal proceeding violated his rights. Id. at 12–13. Specifically, Thuraissigiam claimed, the USCIS asylum officer failed to properly elicit information necessary to determine the credibility of Thuraissigiam’s fear of persecution because there were several communication problems between the officer, Thuraissigiam, and his translator. Id. Furthermore, he argued that he was unaware that the information he offered at the asylum interview and immigration judge hearing would be shared with the Sri Lankan government. Id.
The District Court noted that when presented with a habeas corpus petition filed by a person in an expedited removal proceeding, 8 U.S.C. § 1252(e)(2) authorizes federal courts jurisdiction to review only three DHS determinations: whether the person is a noncitizen, whether he “was ordered removed” via expedited removal, and whether he is a lawful permanent resident (or some other eligible status) exempting him from expedited removal. See id. at 10. Finding that Section 1252(e)(2) did not permit review of Thuraissigiam’s claims, the District Court dismissed the petition for lack of subject matter jurisdiction. Id. at 13.
Thuraissigiam appealed the dismissal to the United States Court of Appeals for the Ninth Circuit (the “Ninth Court”). Id. at 14. The Ninth Circuit agreed that Section 1252(e)(2) did not authorize subject matter jurisdiction over Thuraissigiam’s habeas corpus petition. Id. at 18. The Ninth Circuit also noted, however, that the Suspension Clause of the U.S. Constitution states, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it” and thus questioned whether Thuraissigiam’s opportunity for habeas corpus review, given Section 1252(e)(2)’s strictures, satisfies the Suspension Clause. Id. Citing Boumediene v. Bush, the Ninth Circuit explained that the Suspension Clause, at a minimum, “entitles the [petitioner] to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation of relevant law.’” Id. at 41.
In reviewing the process for the expedited removal proceedings, the Ninth Circuit highlighted several procedural deficiencies, such as their extremely rushed nature, the lack of opportunity to seek meaningful assistance, and the fact that the immigration judge can simply check a box on a form in lieu of providing a reasoned decision. See id. at 45–46. These deficiencies, the Ninth Circuit reasoned, are “compounded” by Section 1252(e)(2)’s bar on any judicial review of whether DHS even complied with the already-inadequate procedures. See id. at 46. Therefore, the Ninth Circuit concluded, Section 1252(e)(2) deprived Thuraissigiam of a “meaningful opportunity” for review, violating the Suspension Clause. Id. at 47.
The Ninth Circuit reversed and remanded. Id. at 48. The Supreme Court of the United States granted DHS certiorari on October 18, 2019. Id.
Analysis
ARE CLANDESTINELY ENTERING NONCITIZENS ENTITLED TO PROCEDURAL DUE PROCESS?
Petitioners DHS, CBP, USCIS, and others (“Government”) argue that Thuraissigiam, having entered clandestinely, lacks “meaningful ties” to the United States and is therefore properly classified as “seeking initial entry.” Brief for Petitioner, Department of Homeland Security at 21–25. Because the Supreme Court held in Landon v. Plasencia that noncitizens seeking initial entry do not have constitutional rights regarding their entry, the Government continues, Thuraissigiam lacks due process rights related to his removal proceedings. Id. The Government contends that Congress approved this distinction by rapidly removing noncitizens who entered the United States unlawfully and who have resided in the United States for less than two years. Id. at 25. The Government further points to warrantless immigration searches within 100 miles of the border that Congress has sanctioned and courts have upheld. Id. If recent clandestinely entering noncitizens can receive less robust constitutional protections in the search-and-seizure context, the Government concludes, then there is a constitutional basis in the expedited-removal context for extending fewer due process protections to clandestinely entering noncitizens. Id. at 26–27.
Respondent Thuraissigiam counters that the Fifth Amendment’s text extends due process to all persons within the United States, regardless of how they entered. Brief for Respondent, Vijayakumar Thuraissigiam at 38. Thuraissigiam further contests the Government’s basis for denying due process protection under the “entry fiction” doctrine to those entering at the border. Id. at 38. Thuraissigiam explains that the “entry fiction” doctrine treats noncitizens stopped at ports as being outside the country for due process purposes. Id. Thuraissigiam argues that the doctrine does not apply to him because it only concerns those stopped at ports. Id. Even the Government, Thuraissigiam contends, has consistently taken the position that those within the country receive greater due process protection than those stopped at the border. Id. at 39. Thuraissigiam points out that treating clandestine entrants as “seeking initial admission” can be traced to the Illegal Immigration Reform and Immigration Responsibility Act (“IIRIRA”). Id. at 40–41. Thus, Thuraissigiam continues, the Government has impermissibly read the definition of “seeking initial admission” into the constitutional holding of Plasencia because that case predates the statute. Id. Thuraissigiam concludes that the Government fails to root its argument that clandestine entrants lack due process protections in solid constitutional ground. Id.
DOES THE SUSPENSION CLAUSE ENTITLE CLANDESTINELY ENTERING NONCITIZENS TO HABEAS CORPUS REVIEW?
The Government defends the expedited removal process on the ground that the Suspension Clause does not require courts to review cases like Thuraissigiam’s on habeas corpus petitions. Brief for Petitioner at 20–21. The Government maintains that habeas corpus review is a procedural device meant to enforce due process protections. Id. at 22–23. But if clandestine entrants are not constitutionally entitled to due process, the Government argues, then they cannot avail themselves of habeas corpus review. Id. In other words, the Government argues that if the substantive right (due process) underlying the procedural right (habeas corpus) is absent, the procedural right is also unavailable. Id. Additionally, the Government argues that while the Suspension Clause’s guarantee of habeas corpus review may have broadened since the Constitution’s ratification, the Court has still only recognized habeas corpus jurisdiction when there was at least some historical basis. Id. at 28. The Government contends that neither the alleged deprivation of liberty nor the remedy sought in this case are within the historical understanding of habeas corpus. Id. at 28–30. Habeas corpus at common law was a means of contesting executive detention, and the Government maintains that there is simply no basis in the writ’s history for challenges to immigration proceedings. Id. at 29, 32. As to remedy, the Government contrasts habeas corpus petitioners in immigration cases with the petitioners in Boumediene v. Bush—Guantanamo detainees whom the Court held were entitled to habeas corpus review—in that unlike those Guantanamo detainees, Thuraissigiam may return to his home country at any time. Id. at 37. Thuraissigiam, the Government argues, seeks a remedy outside the historical scope of habeas corpus by seeking renewed asylum determinations rather than the typical remedy of release from custody. Id.
Thuraissigiam responds that the Government misrepresents habeas corpus by casting it as a prisoner’s invocation of the prisoner’s own rights rather than a challenge to the lawfulness of the detention. Brief for Respondent at 34. The correct understanding of habeas corpus, Thuraissigiam argues, is that the writ is a separation-of-powers-based prerogative of the judiciary to ensure that the Executive complies with applicable law when detaining individuals. Id. at 35, 47. Thus, Thuraissigiam contends, his access to habeas corpus review does not depend on whether or not he is entitled to due process, but rather whether he is entitled to challenge the Government’s compliance with the law. Id. Thuraissigiam further argues that the Court’s precedent establishes a constitutional minimum for habeas corpus review of administrative decisions. Id. at 11–12. In support of his position, Thuraissigiam invokes the “finality era” cases from a period when Congress sought to eliminate judicial review of immigration cases by making administrative orders “final.” Id. at 13. Because Congress made administrative orders “final” during this period, Thuraissigiam maintains, the Court could only decide cases when it was constitutionally required to do so. Id. at 14. Thus, Thuraissigiam contends, because the Court during this period extended habeas corpus review to noncitizen petitioners who had entered the United States illegally, habeas corpus review of such cases is constitutionally required. Id. at 14–16. Thuraissigiam also contests the Government’s reading of Boumediene, arguing that if noncitizen detainees imprisoned outside the United States were able to file for habeas corpus, then so should noncitizens imprisoned within the United States. Id. at 24–25. Thuraissigiam further disputes the Government’s historical arguments by arguing that the common law embraced habeas corpus challenges to government attempts to force a person to leave the country. Id. at 27. Thuraissigiam also contends, because he is in fact in confinement and is seeking conditional release pending lawful adjudication of his immigration status, the remedy he seeks falls within the writ’s historical scope. Id. at 29–30.
IS THE EXPEDITED-REMOVAL PROCEDURE AN ADEQUATE SUBSTITUTE FOR HABEAS CORPUS?
The Government argues that even if the Suspension Clause protects clandestine entrants in immigration proceedings, the expedited-removal process is consistent with the Suspension Clause’s protections. Id. at 40. The Government asserts that the Mathews v. Eldridge balancing test should apply to determine the extent of the process mandated by the Suspension Clause. Id. at 41. The Mathews test, the Government notes, requires courts to balance the likelihood of an erroneous deprivation of liberty against the likely benefit of additional procedural protection and the government’s interest. Id. Under that test, the Government continues, Thuraissigiam’s interest in contesting his immigration proceedings is marginal because he is free to travel to his home country and has no meaningful ties to the United States. Id. at 42. On the other side of the balance, the Government argues, lies Congress and the Executive’s weighty interest in protecting the border. Id. Additionally, the Government contends that its interest in efficiency in administering immigration controls should weigh in its favor. Id. at 46. Measured against these interests, the Government argues, expedited removal process provides adequate procedural protection by allowing independent, “credible fear” determinations by up to three government officials, including the opportunity to testify before an immigration judge. Id. at 42–46. The opportunity for some limited judicial review, the Government argues, further evidences the procedures’ adequacy under the Suspension Clause. Id. at 44. In any event, the Government claims, insofar as Thuraissigiam disputes the “credible fear” determination, a habeas corpus court need not review the decision because the Suspension Clause under Mathews does not call for review of factual questions or mixed factual and legal questions. Id. at 45.
Thuraissigiam responds that in effectively removing any judicial oversight of the Executive’s compliance with the law pertaining to detention, Section 1252(e)(2) is inconsistent with the Suspension Clause. Brief for Respondent at 47. By leaving review in the hands of agency officials and beyond the reach of the Judiciary, Thuraissigiam asserts, Section 1252(e)(2) allows the Executive to ignore the law when detaining individuals. See id. Moreover, Thuraissigiam argues, the Government’s balancing approach is inconsistent with the specific, narrow text of the Suspension Clause allowing for suspension of habeas corpus only in cases of invasion or rebellion. Id. at 48. Even if the Suspension Clause calls for a balancing approach, Thuraissigiam continues, the Government fails to recognize that asylum seekers face potential violence, persecution, or torture if forced to return to their countries of origin, and thus asylum seekers have significant interest in robust procedure. Id. at 49. Finally, Thuraissigiam counters the Government’s suggestion that his claims involve only factual questions by arguing that asylum officers failed to “elicit all relevant and useful information” as regulations require. Id. at 51. As an example, Thuraissigiam offers that the asylum officers failed to ask why he thought he had been arrested, and failed to ask him for the color of the van that abducted him, knowing that white vans were associated with the Sri Lankan government. Id. at 51. And even if these questions are not purely legal issues, Thuraissigiam argues, the Supreme Court’s habeas corpus precedent requires court review of erroneous application of law to facts and therefore obliges federal courts to review the alleged failure of asylum officers to elicit information. Id. at 50.
Discussion
WILL PERMITTING HABEAS CORPUS REVIEW HARM OR BENEFIT THE STATES?
The State of Arizona and other states (“Arizona”), in support of the Government, argue that the Ninth Circuit’s decision will upend the process of expedited removal, resulting in significant harms to the federal government and the states who lack resources to manage immigration. Brief of the States of Arizona et al., in Support of Petitioner at 3–4. Arizona highlights that in recent years, expedited removals have removed hundreds of thousands of noncitizens, yet still accounted for only 30 to 40 percent of all removals of inadmissible noncitizens. Id. at 5. Arizona argues that the federal government is still strained of facilities and resources necessary to detain the entering noncitizens. Id. at 6–7. With the federal government so strained of resources, Arizona explains, the states have been forced to share the burden, expending extraordinary resources in an attempt to manage the negative consequences. See id. at 9–11. Arizona cites a study to show that states and local governments often spend more money and resources on unauthorized noncitizens than they collect in tax revenues from that same population. Id. at 11–12.
The State of Illinois and other states (“Illinois”), in support of Thuraissigiam, counter by claiming that reversing the Ninth Circuit’s decision would actually harm several states and their citizens. Brief of the State of Illinois et al., in Support of Respondent at 20. Illinois notes that millions of U.S. citizens’ children either live with a family member who is unauthorized to be in the United States or have an unauthorized family member. Id. Children whose family members are detained or deported, Illinois explains, tend to perform worse in school, resort to self-harm, and experience severe emotional trauma. See id. at 20–21. Additionally, Illinois argues, wrongful deportations of a household’s breadwinner threaten the family’s source of food, home stability, and other basic economic needs. Id. at 21. Illinois suggests that immigrants are also economically beneficial to the country: nationwide, undocumented immigrants pay over $11 billion in taxes each year. Id. at 25. Finally, in response to the report that Arizona cites to in arguing how costly immigrants are, Illinois emphasizes that the same report concludes that the collective tax revenue from immigrants exceeds the cost of the services they use. Id. at 25.
WILL PERMITTING HABEAS CORPUS REVIEW OVERLY BURDEN FEDERAL COURTS?
Arizona argues that federal courts should not be required to review clandestine entrants’ habeas corpus proceedings because federal courts’ dockets are already congested. See Brief of Arizona et al. at 12. As evidence, Arizona cites the fact that in the last 12 months, 86 percent of all administrative agency appeals came from the Board of Immigration Appeals. Id. Arizona points to the Ninth Circuit in particular, which already has a workload that exceeds the amount of five other federal circuits combined. Id. at 13. Arizona further highlights the Ninth Circuit’s excessive workload by noting that it already takes 30 percent longer to dispose of appeals than the average of other circuits—a problem that will only exacerbate by requiring federal courts to review habeas corpus petitions by clandestine entrants. See id. Overall, Arizona concludes, allowing asylum seekers who failed in the three levels of review to petition federal courts for habeas corpus review would significantly delay the entire removal process. Id. at 14. Arizona maintains that such excessive delay would undermine the very purpose of the process. Id. at 4.
The immigration and human rights organizations (“IHRO”), in support of Thuraissigiam, reject the premise that judicial habeas corpus review could be superfluous, contending that the procedures of the expedited removal proceedings are often misapplied or ignored. See Brief of the Immigration and Human Rights Organization, in Support of Respondent at 13–14. Furthermore, the American Bar Association (“ABA”), also in support of Thuraissigiam, explains that the burdens that accompany judicial review—such as time and resources—have never justified and cannot justify diluting the protections of habeas corpus. Brief of the American Bar Association, in Support of Respondent at 18–19. The ABA emphasizes habeas corpus’s important role in protecting liberty and insists that delays incident to the protection should be tolerated. See id. at 20. If Congress wishes to address such delays, the ABA concludes, Congress should “streamline” the procedures, as opposed to eliminating habeas corpus relief entirely. Id. at 21.