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When, if ever, must the federal court door be open to an asylum-seeker facing expedited removal who claims that the government violated his statutory, regulatory and constitutional rights? In less than a month, this question will be argued before the Supreme Court. At stake are the fates of noncitizens being forced to return to the persecution they fled, the government’s ability to administer an important part of the immigration system, and the judiciary’s role in holding the executive accountable.
This term, the Supreme Court granted the government’s petition for certiorari in Department of Homeland Security v. Thuraissigiam, a case about how much judicial review is constitutionally required for immigrants facing expedited removal. The court agreed to review the U.S. Court of Appeals for the Ninth Circuit’s holding that 8 U.S.C. § 1252(e)(2), the provision of the Immigration and Nationality Act governing habeas proceedings, is unconstitutional under the Suspension Clause as applied to the respondent, Vijayakumar Thuraissigiam. The case implicates contentious debates about the constitutional rights of asylum-seekers and carries practical consequences for government regulation of expedited deportation.
Vijayakumar Thuraissigiam is from Sri Lanka and is Tamil, an ethnic minority in Sri Lanka. He escaped Sri Lanka to Mexico in June 2016 and in February 2017 crossed the border and entered the United States. After Thuraissigiam entered the U.S., a Customs and Border Protection (CBP) officer arrested him and the Department of Homeland Security placed him in expedited removal proceedings per 8 U.S.C. § 1252(b)(1). This statute provides for a fast-track deportation system that authorizes removal of eligible noncitizens “without further hearing or review.” A noncitizen who is inadmissible because she lacks required documentation or misrepresents a material fact in the process of seeking admission, and has been continuously present in the United States for less than two years, is subject to expedited removal. The only exception to expedited removal is if the noncitizen indicates a fear of persecution to a CBP officer, as Thuraissigiam did, in which case an asylum officer must interview the noncitizen and determine if the fear of persecution is credible. If the officer finds there is a credible fear of persecution, the noncitizen escapes expedited removal and is able to apply for asylum or other forms of relief.
In Thuraissigiam’s case, the asylum officer found Thuraissigiam’s account factually credible but ultimately decided that Thuraissigiam’s claim did not satisfy the legal elements necessary for a credible fear of persecution. Thuraissigiam testified that he was detained and beaten by Sri Lankan officials on more than one occasion for supporting a Tamil political candidate. The asylum officer didn’t find the requisite nexus between the persecution and a protected statutory ground (there are five grounds: race, religion, nationality, political opinion or membership in a particular social group). A supervisor later approved the officer’s decision. After Thuraissigiam requested further review, an immigration judge affirmed the officer’s conclusion, without offering further explanation.
Thuraissigiam then filed a habeas petition in the U.S. District Court for the Southern District of California, arguing that he was not given a “meaningful right to apply for asylum,” in violation of 8 U.S.C. § 1252(b)(1) and related regulations, and did not have a “meaningful opportunity to establish his claims” in violation of his rights under the Due Process Clause of the Fifth Amendment. Thuraissigiam’s factual allegations included claims that the asylum officer didn’t elicit all relevant information, the officer didn’t consider relevant country conditions evidence, and there were communication problems between Thuraissigiam, the translator, and the officer—all of which violated applicable statutes and regulations. The district court dismissed Thuraissigiam’s habeas petition, concluding that it lacked subject matter jurisdiction under 8 U.S.C. § 1252(e)(2), which limits habeas review to three issues. The only three issues that can be reviewed in habeas proceedings under the statute are (a) the petitioner is an alien; (b) the petitioner was ordered removed under § 1252(b)(1); and (c) the petitioner can prove she is lawfully admitted, has been admitted as a refugee under § 1157, or has been granted asylum under § 1158. Moreover, the statute expressly states in § 1252(e)(5) that “[t]here shall be no review of whether the alien is actually inadmissible or entitled to any relief from removal.” Because Thuraissigiam did not raise any of these issues in his habeas petition, and instead argued that his regulatory, statutory, and constitutional rights were violated, the district court found it lacked subject matter jurisdiction—because it was statutorily barred—to adjudicate Thuraissigiam’s claims.
The district court also rejected Thuraissigiam’s argument that the statute that limits habeas review, § 1252(e)(2), violates the Suspension Clause of the Constitution. The Suspension Clause states that the writ of habeas corpus “shall not be suspended, unless when in Cases of Rebellion or Invasion the public [s]afety may require it.” According to the district court, the limitations on judicial review of habeas petitions in § 1252(e)(2) did not suspend the writ of habeas corpus as to make it unconstitutional. Although the court determined that the Suspension Clause applies to Thuraissigiam, it concluded that § 1252(e)(2) did not violate the Suspension Clause because § 1252(e)(2), despite its strong limitations on habeas review, still allowed some review—which the court found sufficient in light of higher court precedents and persuasive authority from other circuit courts of appeals, such as the Third Circuit.
Thuraissigiam appealed, and the U.S. Court of Appeals for the Ninth Circuit reversed the district court’s decision. It ruled that in Thuraissigiam’s case, § 1252(e)(2) does violate the Suspension Clause. To reach its decision, the Ninth Circuit applied the framework in Boumediene v. Bush (2008), the only Supreme Court ruling so far that found a statute in violation of the Suspension Clause. From this analysis, the Ninth Circuit concluded that § 1252(e)(2) violates the Suspension Clause by preventing judicial review of whether Homeland Security followed the law.
In advance of oral argument before the Supreme Court scheduled for March 2, this post examines key arguments and points of contention in this case, explains the interests at stake and offers predictions for how the Supreme Court will rule.
This case raises the following question: What does the habeas writ mean for immigrants facing expedited removal? In its narrower construction, the writ enables individuals to challenge unlawful detention. More broadly, it is a tool for the judiciary to check the executive’s power to restrain a person’s liberty. The Suspension Clause is a guardian of the habeas writ: It prohibits Congress from passing a law that suspends habeas review absent an emergency situation such as rebellion or invasion. The answer to the core issue in this case, whether the limitations in § 1252(e)(2) effectively suspend the habeas writ in violation of the Suspension Clause, turns on conflicting views about the rights of immigrants like Thuraissigiam to access the habeas writ.
Lacking direct guidance, the Ninth Circuit applied the principles established in Boumediene v. Bush and its predecessors to conclude that § 1252(e)(2) contravenes the Suspension Clause as applied to Thuraissigiam. In Boumediene, the Supreme Court held that Section 7 of the Military Commissions Act of 2006, which prohibited judicial review of habeas petitions filed by Guantanamo Bay detainees, violated the Suspension Clause. In reaching that ruling, the court used a two-step process: First, the court considered whether the Guantanamo detainees could invoke the Suspension Clause; and if so, second, the court assessed whether there was another procedure that provided the kind of review habeas does—an “adequate substitute” for habeas.
The reasoning the Supreme Court applied in evaluating each of the two questions was important to the Ninth Circuit’s analysis. For Boumediene step one, the court looked at early precedents on the scope of the habeas writ. The court focused on precedents concerning extraterritoriality because the Guantanamo detainees were enemy aliens imprisoned abroad. In prior cases, the court held that, at a minimum, the Suspension Clause protected the habeas writ as it existed in 1789 when the Constitution was ratified. From 1789-era cases, the court discerned at least three factors that were relevant to the scope of habeas review under the Suspension Clause regarding extraterritoriality. These specific factors didn’t apply to Thuraissigiam because his case doesn’t concern extraterritoriality, given that Thuraissigiam was apprehended and detained in the United States. But the Ninth Circuit did borrow the general interpretive approach of the court in Boumediene: Examine 1789-era habeas cases to determine if individuals like Thuraissigiam could invoke the Suspension Clause.
For Boumediene step two—whether there was an adequate substitute for the habeas writ—the court needed to determine if the Detainee Treatment Act of 2005 provided procedures that sufficed as substitutes for habeas review. The court identified two baseline requirements from its precedents for procedures to be “adequate substitutes,” the first of which is most relevant here: that the prisoner has a “meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law.’” Boumediene, 553 U.S. at 729 (quoting I.N.S. v. St. Cyr (2001)) (emphasis added). The court also stated that the rigor of earlier proceedings is relevant—more thorough habeas review is needed when the earlier proceedings are less rigorous. The Ninth Circuit took the same approach in Thuraissigiam’s case and asked whether § 1252(e)(2) gave Thuraissigiam a “meaningful opportunity” to challenge his removal and whether the nature of his credible fear proceedings require more. For the reasons that follow, it determined that § 1252(e)(2) failed to give Thuraissigiam such an opportunity and that the limited procedural safeguards in his earlier proceedings supported more thorough habeas review.
The other key case the Ninth Circuit relied on for its approach to the Thuraissigiam case is I.N.S. v. St. Cyr (2001). The Supreme Court ruled that the statutes at issue in that case did not repeal the jurisdiction of courts to review habeas petitions, including for individuals like Enrico St. Cyr, a lawful permanent resident who was at risk of deportation after pleading guilty to a criminal charge. The court stated that because of the Suspension Clause, “some ‘judicial intervention in deportation cases’ is unquestionably ‘required by the Constitution.’” 533 U.S. at 300 (quoting Heikkila v. Barber (1953)). Importantly, the court studied “finality era” cases—the period from 1891 to 1952 when federal statutes precluded judicial intervention in immigration enforcement except as constitutionally required. Even during that era, habeas review of “questions of law”—questions on what the law is or the interpretation of law, as opposed to questions of fact—was allowed. Some other cases during the finality era also featured habeas review of mixed questions of law and fact, such as regarding the application of law to facts. (For those interested, see Mahler v. Eby (1924), which held that the government violated the statute by failing to make a finding that the petitioners were undesirable residents, a necessary condition for deportation.) The court’s analysis of these finality-era cases led it to affirm the availability of habeas review for nonenemy aliens and for claims alleging detention based on the “erroneous application or interpretation of statutes.” St. Cyr, 533 U.S. at 302.
The Ninth Circuit applied the St. Cyr and “finality era” analysis to inform their application of the Boumediene two-step framework and determined that Thuraissigiam can invoke the Suspension Clause. The Ninth Circuit came to that conclusion examining precedents that support the availability of the habeas writ to noncitizens facing expedited removal. Crucial to the Ninth Circuit’s analysis were cases from the finality era that held that immigrants were still entitled to habeas review. For example, in Shaughnessy v. United States ex rel. Mezei (1953), the Supreme Court affirmed that an alien can use the habeas writ to challenge his exclusion. Because these cases derived the right to habeas review from the Suspension Clause, per the Ninth Circuit, Thuraissigiam possesses “Suspension Clause rights” to the habeas writ.
At Boumediene step two, the Ninth Circuit concluded that the limited judicial review allowed in § 1252(e)(2) fails to be an adequate substitute for habeas review. As a reminder, Thuraissigiam’s claim is that the government failed to comply with and misapplied the relevant law in deciding whether he had a credible fear of persecution as to merit reconsidering his expedited removal order. Relying again on finality-era cases, the Ninth Circuit determined that the Suspension Clause requires review of claims of legal error related to removal, including claims regarding the application of law to a specific fact-pattern. The procedural laxity of Thuraissigiam’s earlier proceedings—“meager procedural protections” as the Ninth Circuit put it—further supported the need for habeas review. 917 F.3d at 118. Given this, the Ninth Circuit stated it was “obvious” § 1252(e)(2) failed to meet this “constitutional minimum” of judicial review. Id.
The government’s counterargument in its merits brief to the Supreme Court presents the theory that because Thuraissigiam has no constitutional right to be admitted into the United States, the Suspension Clause does not require judicial review beyond what § 1252(e)(2) allows. The government casts Thuraissigiam’s case as a due process issue: Because Thuraissigiam’s claims concern the denial of his application for admission into the country, and because he has no constitutional right, due process or otherwise, to admission, he has no constitutional right to habeas review beyond § 1252(e)(2). In other words, the government is arguing to the Supreme Court that the Suspension Clause does not apply to Thuraissigiam because he lacks due process rights. In contrast, the Ninth Circuit drew a distinction between due process and the Suspension Clause: Thuraissigiam can lack due process rights and still have a Suspension Clause right to habeas review. The government’s theory highlights a central tension in this case: whether Thuraissigiam’s access to habeas is contingent on his access to due process rights and, if so, whether he possesses any due process rights.
To make its argument, the government distinguishes Thuraissigiam from noncitizens who already have substantial ties to the United States and from detainees like the Guantanamo prisoners in two vital respects: First, unlike noncitizens who have already entered the United States, the government argues Thuraissigiam is an alien seeking initial admission and therefore he has no constitutional rights regarding his application; and second, the primary relief Thuraissigiam seeks is not release from detention, which is what habeas is historically concerned with, but rather additional proceedings related to his asylum application.
The government relies on Landon v. Plasencia (1982) to support its first point. The respondent in that case was Maria Antonieta Plasencia, a permanent resident who left the United States and tried to reenter, and was denied reentry after an exclusion hearing. Plasencia made two claims in challenging her exclusion: She argued that instead of an exclusion hearing, she was entitled to a deportation hearing, which accorded more procedural safeguards than an exclusion hearing; and she argued that even if it was proper for her to have an exclusion hearing, she was denied due process in her exclusion hearing. On her argument for a deportation hearing, the Supreme Court held that the government had authority based on the language and history of the Immigration and Nationality Act to use an exclusion hearing regardless of the legal status (permanent resident or alien seeking initial admission) of the noncitizen. However, on Plasencia’s claim that she was denied due process in her exclusion hearing, the court distinguished between returning residents like Plasencia and aliens seeking initial admission. The court determined that Plasencia could “invoke the Due Process Clause” given the “ties that go with permanent residence.” 459 U.S. at 32. Importantly, the court did not extend this right to aliens seeking initial admission, stating that “an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.” Id. (emphasis added).
Based on Plasencia, the government argues that immigrants seeking initial admission into the United States, like Thuraissigiam, have no due process rights regarding their application for admission. The government points out that the language in Plasencia—“no constitutional rights”—necessarily includes no Suspension Clause rights. As a result, Thuraissigiam is not entitled to habeas review beyond what § 1252(e)(2) already provides. Moreover, the government argues that habeas review is merely a means of addressing due process claims, and because Thuraissigiam lacks due process rights, he has no right to habeas review of his claims. The case law supports this assertion to some extent: In cases involving immigrants seeking initial admission making constitutional claims, including some of the finality-era cases mentioned above (Mezei, for example) that the Ninth Circuit relied on, the Supreme Court heard the noncitizens’ habeas petitions challenging their admissions decisions but never held they had due process rights and deferred to the government in deciding the merits of the habeas claims.
The government’s reasoning has support in a recent Third Circuit case, Castro v. United States Department of Homeland Security (2016). Castro involved a similar challenge to § 1252(e) as in Thuraissigiam, but unlike the Ninth Circuit, the Third Circuit held that § 1252(e) does not violate the Suspension Clause as applied to the asylum-seekers in Castro. Similar to the government, the Third Circuit relied on Plasencia and ruled that because the petitioners were aliens seeking initial admission, and because Plasencia stated that such aliens have no constitutional rights regarding their application, the petitioners could not invoke the Suspension Clause, failing Boumediene step one.
The Ninth Circuit and Thuraissigiam, as explained in his merits brief to the Supreme Court, reject the Third Circuit and the government’s reliance on Plasencia. They argue it falsely conflates due process rights and habeas rights. The “no constitutional rights” in Plasencia referred to the due process rights of immigrants seeking initial admission to the United States, and did not involve any question about habeas review or the Suspension Clause. In fact, Judge Thomas Hardiman of the Third Circuit wrote in his concurring opinion in Castro that Plasencia did not “purport to resolve a jurisdictional question raising the possibility of an unconstitutional suspension of the writ of habeas corpus.” 835 F.3d at 450.
In support of their claim that habeas and due process have entirely distinct functions, the Ninth Circuit and Thuraissigiam point out that in Boumediene, the Supreme Court held that the statute violated the Suspension Clause without addressing if the Guantanamo detainees had due process rights. Peter Margulies has argued that Boumediene erred in delinking habeas and due process, but that some form of due process nonetheless protects aliens seeking initial admission. The Ninth Circuit, however, relied on Boumediene’s disaggregation of the habeas writ and due process rights to justify its point that access to habeas does not hinge on the availability of due process rights. A group of habeas scholars who submitted an amicus brief to the Supreme Court in support of Thuraissigiam agree with the distinction between habeas and due process: “[A]ccess to habeas corpus does not turn on access to other specific constitutional guarantees but, rather, exists so that a person can challenge, and the judiciary may review, the legal basis for the government’s restraint of his or her liberty.”
Thuraissigiam’s case ultimately tests the relationship between habeas and due process, and the position that wins—the government’s view that habeas hinges on due process, or Thuraissigiam and the Ninth Circuit’s view that it does not—is crucial to the outcome of the suit. If the Supreme Court accepts the Ninth Circuit and Thuraissigiam’s claim that the Suspension Clause is independent of due process, the government will need to devote more attention to convincing the court why the Suspension Clause doesn’t apply to Thuraissigiam. One way the government can do this is by emphasizing a point it already made in its merits brief: that Thuraissigiam’s habeas petition challenging the denial of his credible fear claim falls outside of the traditional use of the habeas writ to challenge unlawful detention. Although Thuraissigiam was detained for two years and will be detained again if his removal order is executed, Thuraissigiam’s detention is incidental to his removal, and so his habeas petition is not focused on release from detention like it was for the Guantanamo prisoners in Boumediene. However, Thuraissigiam responded to this point in his merits brief with cases affirming that risk of deportation is a type of restraint on liberty, which is what the habeas writ has always protected.
On the other hand, if the Supreme Court agrees to analyze Thuraissigiam’s right to habeas review as a due process issue, per the government’s argument, Thuraissigiam will need to show that he is entitled to due process in challenging his removal. The government has argued in its merits brief that Thuraissigiam is properly classified as an alien seeking initial admission because, based on language in Yamataya v. Fisher (1903) and subsequent cases, Thuraissigiam is a “clandestine entrant” with no real connection or ties to the United States—he was apprehended 25 yards from the U.S.-Mexico border shortly after he entered the United States illegally. Thuraissigiam countered in his merits brief that he is entitled to due process because he did in fact enter the United States, and as a person who entered and is inside the United States, he has due process rights. The only exception to the general rule that all persons within the United States have due process rights is the “entry fiction” doctrine, which holds that those stopped at a port before entering the United States are deemed to be “outside” the country and thus lack due process rights. Thuraissigiam has argued that the entry fiction doctrine does not apply to him because it applies only to those stopped before entering, whereas he was stopped after entering. Many of the amici for Thuraissigiam, including 79 immigration law scholars, agree that the Due Process Clause protects Thuraissigiam.
There is an additional option the Supreme Court might consider: Thuraissigiam argued in his merits brief that he was entitled to habeas review not just for the due process claim but also for review of what he alleges is the government’s failure to comply with and/or misapplication of 8 U.S.C. § 1252(b)(1) and related regulations. For example, he stated that “courts must be able to ensure compliance with the governing statutes and regulations even when individuals lack due process rights.” Boumediene, St. Cyr, and finality-era cases support the view that the Suspension Clause requires review of legal claims and claims regarding the application of statutory law to a specific fact pattern. In Boumediene, the court held, “the habeas privilege entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law.” Thuraissigiam can focus on this point at oral argument if the court accepts the government’s position that Thuraissigiam lacks any rights under the Due Process Clause to make a due process-based habeas claim. Even if he lacks due process rights, Thuraissigiam can underscore the point he made in his merits brief that he can use the habeas writ to claim statutory and regulatory violations.
In the situation where Thuraissigiam and the court focus on his regulatory and statutory claims, the government could lean on its other reasons for denying Thuraissigiam a Suspension Clause right to habeas review. For example, the government can emphasize at oral argument or in its reply brief that Thuraissigiam’s statutory claims are outside the traditional scope of the habeas writ—his habeas petition is not principally about him “being held” as a “prisoner,” which is what habeas has traditionally been concerned with, and explains why the most common remedy for habeas is release from detention. The government would also benefit from highlighting that in the finality-era cases where the court entertained habeas petitions from noncitizens seeking initial admission, the Supreme Court was exceedingly deferential to the government on the merits of the petitioners’ claims, including claims on whether the government complied with the law. For example, in Nishimura Ekiu v. United States (1892), the court held that the inspector of immigration acted in conformity with the statute and his decision was “final and conclusive.” Id. at 663 (for more examples, see pages 39-40 of the government’s merits brief). In other words, in this case, the government can point out that even if the court were to allow habeas review of Thuraissigiam’s statutory and regulatory claims, access to habeas for these claims would prove meaningless because he would most likely lose on the merits given the court’s well-established practice of giving immense deference in this area.
The government argued in its merits brief that, should the Supreme Court find that Thuraissigiam can invoke the Suspension Clause, his claim still fails because § 1252(e)(2) is an adequate substitute for habeas review. As a preliminary matter, the government and Thuraissigiam disagree over whether any balancing of interests is required at all. The government argues that the balancing test in Mathews v. Eldridge (1976) should be used to determine if § 1252(e)(2) is adequate. Mathews v. Eldridge established a three-factor balancing test for determining if the Due Process Clause demands more procedural safeguards than what it currently provided. The three Mathews factors are the private interest at stake (in this case, Thuraissigiam’s), the government’s interest and cost to the government in having more procedural safeguards, and the risk of erroneous deprivation if more elaborate procedures are not used. Thuraissigiam rejects the claim that the Mathews balancing test has to be used at all, arguing again that habeas is separate from due process and that Boumediene and St. Cyr affirm that balancing is not required when the minimum condition, a meaningful opportunity to challenge his expedited removal, hasn’t been met. Both sides, as expected, strongly disagree on the results of a balancing test in Thuraissigiam’s case, with each side feeling differently about the potential harm to Thuraissigiam’s interest versus the potential increased burdens on the government of expanded habeas review for noncitizens facing expedited removal. Their exchange in the merits briefs demonstrates the various conflicting interests at stake.
The government contended in its merits brief that Thuraissigiam’s interest is limited and that the three-step administrative procedure suffices to protect his interest. Thuraissigiam, unlike the Guantanamo detainees in Boumediene, is not primarily concerned about prolonged detention. Instead, his detention is only pursuant to adjudication of his application for admission. As the government notes, Thuraissigiam is “free to go” if he likes; and if his petition is denied, he won’t be detained but rather be removed to Sri Lanka. Moreover, the government argues that Thuraissigiam had three chances to establish a credible fear: the asylum officer interview, the supervisor’s review and appeal to the immigration judge. In the government’s view, the added value of more procedure, such as habeas review beyond § 1252(e)(2), is minimal. In contrast, the government argues its interest is significant: A ruling in favor of Thuraissigiam would “impose a severe burden on the immigration system and would threaten to defeat the purposes of expedited removal.” If the estimated 1 million immigrants apprehended near the borders can all file habeas petitions beyond § 1252(e)(2), the expedited removal system functionally ceases to exist. The federal government is not alone in this argument. Eleven states filed an amicus brief in support of the government’s position, claiming that expeditiously removing inadmissible aliens is “vital to keeping both Amici States and the federal courts from folding under the burdens generated by the evergrowing immigration crisis.”
Thuraissigiam unsurprisingly disagrees. On his own interest, Thuraissigiam emphasizes that his future hangs in the balance: If he is deported, he faces the risk of being beaten, tortured and killed in Sri Lanka. He argues in his brief that he so desires avoiding having to return to Sri Lanka that he spent two years in detention rather than be returned to his home country. In addition, in Thuraissigiam’s view, the government overstates its projected burdens. Not all immigrants in expedited removal will file habeas petitions—many will be deported before they get the chance and many are unrepresented, which means they may not have the knowledge and/or means to file a habeas petition challenging their removal order. Similarly, he argues that the legal claims in the petitions won’t create prolonged litigation. Thuraissigiam notes that, if anything, further judicial guidance might help decrease errors. Moreover, allowing habeas review does not guarantee a stay of removal for each habeas petitioner, so theoretically, the government can still remove those aliens with pending habeas petitions. Nineteen states plus the District of Columbia support Thuraissigiam, claiming that the current “inadequate procedures place their residents at risk of erroneous deportations.”
Neither the debate over whether Thuraissigiam’s right to habeas review hinges on his due process rights nor the debate over balancing the competing interests at stake has a simple solution. Whichever way it rules, the Supreme Court’s decision will influence the larger debates concerning expedited removal and the rights of asylum-seekers. If the Supreme Court elects to rule in favor of Thuraissigiam, it will undoubtedly affect the functioning of the expedited removal system, but the extent of the increased burdens that would result from a favorable ruling for Thuraissigiam is far from certain. Alternatively, if the Supreme Court decides against Thuraissigiam, it will raise pressing questions about the scope of judicial review available to noncitizens challenging expedited deportation and, more broadly, the lauded function of the habeas writ as a means to check executive power.