Courts & Litigation Criminal Justice & the Rule of Law

The Supreme Court Rules Against Judicial Review of Expedited Removal

Aditi Shah
Thursday, July 2, 2020, 12:26 PM

The decision carries implications for the rights of asylum-seekers facing expedited removal, the purpose of the writ of habeas corpus and the judiciary’s role in checking executive power.

The U.S.-Mexico border in Jacumba Springs, California. (Anthony Albright,; CC BY SA 2.0,

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On June 25, the Supreme Court ruled 7-2 that Vijayakumar Thuraissigiam, an asylum-seeker, does not have a constitutional right to habeas corpus review in federal court of his claims that the government violated his constitutional, statutory and regulatory rights in issuing an order for his expedited removal. The decision carries important consequences for noncitizens seeking to ensure the government complies with statutory immigration law and regulations, for the meaning of the habeas writ at large and for the judiciary’s role in holding the executive accountable.

In a sweeping opinion, Justice Samuel Alito, joined by four other justices, decided that the limitations on habeas review in 8 U.S.C. § 1252(e)(2) of the Immigration and Nationality Act do not violate the Suspension Clause in Article I of the Constitution or the Due Process Clause of the Fifth Amendment. Specifically, Alito concluded Thuraissigiam lacked a constitutional right to habeas review because he did not request release from detention—the act at the historical core of the habeas writ—and because as an immigrant seeking initial admission, Thuraissigiam’s due process rights are limited to the rights provided by statute, not by the Constitution. Justice Sonia Sotomayor, joined by Justice Elena Kagan, penned a dissenting opinion opposing Alito’s framing of Thuraissigiam’s claims. Sotomayor and Kagan instead interpreted the case law to support Thuraissigiam’s rights under the Suspension Clause and the Due Process Clause to habeas review. In a concurring opinion, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, agreed with the outcome but attempted to cabin the decision’s reach and justify it on narrower grounds.

Thuraissigiam is from Sri Lanka and is Tamil, an ethnic minority in Sri Lanka. In June 2016, Thuraissigiam escaped from Sri Lanka and entered the United States in February 2017. Shortly after he entered, a Customs and Border Protection (CBP) officer arrested Thuraissigiam about 25 yards from the U.S.-Mexico border and placed Thuraissigiam in expedited removal proceedings per 8 U.S.C. § 1252(b)(1). Expedited removal is a fast-track deportation procedure. It authorizes removal “without further hearing or review” of noncitizens who are inadmissible because they lack required documentation or misrepresent a material fact in seeking admission and have been continuously present in the United States for less than two years. Noncitizens are exempt from expedited removal only if they indicate to a CBP officer that they are afraid of returning to their home country. In that case, an asylum officer must interview the noncitizen and determine if the fear of persecution is credible, and if the officer so finds, the noncitizen avoids expedited removal and is able to apply for asylum and other forms of relief.

Thuraissigiam expressed fear of persecution if he were to return to Sri Lanka and an asylum officer interviewed him to evaluate that claim. Thuraissigiam testified that he was detained and beaten by Sri Lankan officials more than once for supporting a Tamil political candidate. The asylum officer found Thuraissigiam’s account factually credible but decided his claim did not satisfy the legal elements necessary for a credible fear of persecution, specifically the nexus between the persecution and a protected statutory ground such as race, political opinion and membership in a particular social group. A supervisor approved the officer’s decision, and an immigration judge later affirmed it without offering further explanation.

Out of further administrative review options, Thuraissigiam filed a habeas petition in the U.S. District Court for the Southern District of California. He argued 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. In his petition to the court, Thuraissigiam alleged that the asylum officer failed to consider all relevant information—as the statute requires. Relevant information that he alleged the officer neglected to consider included country conditions evidence and factual reports and documentation on policies and practices in the noncitizen’s home country relevant to the individual’s fear of persecution. In Thuraissigiam’s case, relevant evidence would have been the record of violence and persecution against people of Tamil ethnicity in Sri Lanka. Thuraissigiam also alleged that there were communication problems between him, the translator, and the officer that caused misunderstanding during the interview and impeded Thuraissigiam’s ability to “participate effectively” as regulations require.

I described in greater detail the lower court decisions in this case in an earlier Lawfare piece before oral argument took place, but to summarize the procedural history briefly: The district court dismissed Thuraissigiam’s petition for lack of jurisdiction under 8 U.S.C. § 1252(e)(2), which limits habeas review to three factual issues—none of which are the types of claims Thuraissigiam raised. The district court also rejected Thuraissigiam’s argument that § 1252(e)(2) violates the Suspension Clause of the Constitution, which 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.” Thuraissigiam appealed to the U.S. Court of Appeals for the Ninth Circuit, which reversed the district court’s decision and ruled that in Thuraissigiam’s case, § 1252(e)(2) does violate the Suspension Clause. In reaching this conclusion, the Ninth Circuit primarily 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, and determined that § 1252(e)(2) violated the Suspension Clause because it prevented judicial review of whether the government followed the law in issuing Thuraissigiam’s expedited removal order. The government then petitioned for certiorari to the Supreme Court, which the court granted.

In his opinion for the court, Alito framed Thuraissigiam’s petition to the Southern District of California as claiming “the right to enter or remain in a country or to obtain administrative review potentially leading to that result.” This framing is crucial to the court’s ruling because the principal reason Alito concluded § 1252(e)(2) does not violate the Suspension Clause is that he took Thuraissigiam’s habeas petition as being about entering or remaining in the country, not about release from detention at all—and habeas has historically been a means of seeking release from unlawful detention. Alito paired this framing of the petition with a historical analysis of the habeas writ. In earlier cases, the Supreme Court ruled that at a minimum, the Suspension Clause protects the habeas writ as the writ existed when the Constitution was ratified in 1789. The majority concluded that the “the writ has never encompassed respondent’s claims” because in analyzing pre-1789 cases, the habeas writ was used as a means for securing release from detention.

The court studied British and American cases decided before and around 1789. The key commonality the court found was that “all these cases are about release from restraint.” Justice Clarence Thomas in a concurring opinion offered a more detailed account of the history of the habeas writ and the Suspension Clause. Thomas also discerned that “it seems that the founding generation viewed the privilege of the writ of habeas corpus as a freedom from arbitrary detention.” Alito repeatedly noted that these cases show that the habeas writ as it existed in 1789 fails to encompass Thuraissigiam’s claims because “[h]is petition made no mention of release from custody” and his petition instead sought to vacate his expedited removal order and to receive a new opportunity to apply for asylum.

To support this point, Alito compared Thuraissigiam’s requested relief to the type of relief the Supreme Court previously rejected in a 2008 case Munaf v. Green. In that case, two American citizens who were accused of committing crimes in Iraq filed habeas petitions to block their transfer from U.S. custody to the custody of the Central Criminal Court of Iraq. The court denied granting the habeas writ on the merits in part because the petitioners wanted relief beyond simple release and instead wanted the United States to protect them from criminal prosecution in Iraq. Alito compared Thuraissigiam to the petitioners in Munaf because like them, Thuraissigiam ultimately wants a chance to plead his asylum case and obtain legal status to stay in the United States.

The dissenting justices opposed the majority’s conclusions because they disagreed with the way Alito characterized Thuraissigiam’s habeas petition. Rather than focusing on Thuraissigiam’s goal of gaining another chance at asylum, Sotomayor framed Thuraissigiam’s claims as challenges to the asylum officer’s application of the law to the facts, noting that “[a]t bottom, respondent alleged that he was unlawfully denied admission under governing asylum statutes and regulations.” On Alito’s argument that the habeas writ as of 1789 does not encompass Thuraissigiam’s claims because he does not seek simple release, Sotomayor made two overarching points: First, Thuraissigiam “asks merely to be freed from wrongful executive custody,”—as Thuraissigiam spent two years in immigration detention and would be detained again if his expedited removal order is executed—and the fact that such release would take the form of admission into the United States or additional asylum procedures does not place it outside the scope of the habeas writ’s historical purpose, and second, even accepting the majority’s construction of Thuraissigiam’s petition, the 1789-era cases show that the habeas writ has long included Thuraissigiam’s claims.

In support of the second point, Sotomayor cited pre-1789 British cases where the habeas writ was used to allow noncitizens to remain in England. Sotomayor emphasized Somerset v. Stewart (1772), where the judge Lord Mansfield issued a habeas writ that stopped the removal of a slave to Jamaica. As history professor Paul Delaney Halliday described in his book and Sotomayor quoted, the writ “did not free [the] slave so much as it protected him from deportation.” In an even older British case known as Murray’s Case—for which there is no official report and the story instead comes from a secondary source that cites to the National Archives of London—the King’s Bench granted habeas to allow Murray, a Scot, to stay in England instead of being removed to Scotland for a criminal trial. Sotomayor also criticized Alito’s reliance on Munaf because “that case is in a category of its own” and because the decision to deny the writ turned on issues regarding the rights of sovereign nations, interfering with military operations, and using habeas to avoid extradition—all distinct issues from deportation for being in the United States without legal status.

Alito disputed Sotomayor’s points about Somerset and Murray’s Case by arguing that the petitioners being allowed to stay in England was “due not to the [habeas] writ issued ... but to English law regarding entitlement to reside in the country,” which did not have the kind of restrictions there are in today’s federal immigration statute. Alito’s contention with Sotomayor’s analysis highlights some central tensions between the majority and the dissent’s framing of Thuraissigiam’s petition and their accounts of the relationship between the habeas writ and release from unlawful detention.

First, the majority and the dissent disagree over what Thuraissigiam’s goals were in the first place. In his habeas petition filed in the district court, the relief Thuraissigiam sought included, among other things, declaring his “expedited removal order contrary to law” and vacating the expedited removal order, issuing “a writ of habeas corpus, an injunction, or a writ of mandamus directing [the government] to provide [Thuraissigiam] a new opportunity to apply for asylum and other applicable forms of relief,” and the most open-ended request, “grant such further relief as the Court deems just and proper.” (See page 33 of the Joint Appendix.)

Alito emphasized the absence of the term “release” in Thuraissigiam’s requested relief, but he also observed that Thuraissigiam could not have requested simple release because under 8 U.S.C. §1225(b)(1)(B)(iii)(IV), a noncitizen must be detained pending a final determination of credible fear of persecution and kept in detention until removed if found not to have a credible fear. If a noncitizen is found to have a credible fear, she must remain in detention while her asylum application is pending, absent a grant of temporary parole for extraordinary circumstances such as “urgent humanitarian reasons” under 8 U.S.C. § 1182(d)(5)(A). Moreover, Alito argued that Thuraissigiam has the opportunity to be released from detention on his own volition: He can accept voluntary deportation and return to Sri Lanka. Consequently, in Alito’s account, habeas cannot be used to seek release in the specific form of being allowed to remain in the United States. Alito thus took a narrow, strict position: The immediate goal of habeas must be simple release from detention, an option Thuraissigiam did not, and perhaps could not, have pursued through this legal action.

In contrast, Sotomayor focused on Thuraissigiam’s end goal of obtaining release and the right to stay in the United States after succeeding in his asylum case. She noted that he sought the proper application of asylum law “which statutorily permits him to remain if he shows a credible fear of persecution[], or in the alternative, release pursuant to the writ” even though he could be denied asylum and rearrested. Under this construction, the emphasis in his petition is on release as the ultimate goal of gaining the right to live as a free person in the United States. Thus, the habeas writ would fulfill its traditional function of being used as a means of obtaining release because it would be used to obtain additional asylum procedures, which if successful, would lead to his release for good. As a result of this framing, beyond the pre-1789 cases, Sotomayor also discussed early 19th century cases that show that “common-law courts understood that relief short of release, such as ordering officials to comply with the law and to correct underlying errors, nevertheless fell within the scope of a request for habeas corpus.” Alito’s response here, again, is that the petitioners in these cases were still challenging the legality of their detention, whereas Thuraissigiam was challenging the legality of his expedited removal order.

The second key issue in the case is how salient seeking release from unlawful detention is to the case law on the habeas writ. As stated above, Alito challenged Sotomayor’s arguments about Somerset and Murray’s Case because, per his interpretation, the petitioners being able to remain in the United States was a “side effect” or a “collateral consequence” of the writs ordering their release. As a result, Alito noted that Thuraissigiam’s requested relief for vacatur of his removal order “might fit an injunction or writ of mandamus”—which Thuraissigiam also sought in his requested relief—“but that relief falls outside the scope of the common-law habeas writ.” This speaks to how differently the majority and dissent viewed the function of the habeas writ: Sotomayor in response to Alito’s critique of those cases stated that regardless of England’s immigration laws at the time, those laws “did not bear on the availability of the [habeas] writ as a means to remain in the country in the first instance.” Thus, although the majority and dissent both define habeas as a means to an end, for the majority that end must only be release from detention and the line from the writ to release must be direct. For the dissenting justices, the end may be something short of release and the road from the writ to release need not be so linear.

The discussion of pre-1789 cases also underscores an initial obstacle the court had to overcome: The pre-1789 cases are difficult to draw reliable conclusions from because of the paucity of accessible cases from that era and the poor records of cases that have been archived to some extent. As a result, there is a compelling argument for resolving the issue the Supreme Court has repeatedly dodged, including in this case, of whether, as Alito put it in a footnote, “the scope of the [habeas] writ as it existed in 1789 defines the boundary of the constitutional protection.” In fact, Alito pointed out that Thuraissigiam did not “ask us to hold that the Suspension Clause guarantees the writ as it might have evolved since the adoption of the Constitution”—signaling that perhaps the result would be different if the writ as it evolved (instead of the writ as it existed pre-1789) was at issue.

The analyses of cases from the late 19th to mid-20th centuries and more recent cases thus provide further insight into the debates between the majority and the dissent on the scope of the habeas writ.

The key cases the majority and dissent focus on outside of the 1789-era are cases from the “finality era”—the period from 1891 to 1952 when federal statutes precluded judicial intervention in immigration enforcement except as constitutionally required. The finality era cases were discussed heavily in the Ninth Circuit’s decision, the government’s merits brief to the Supreme Court and Thuraissigiam’s merits brief in response. Alito’s first contention based on the finality-era cases was that “those decisions were based not on the Suspension Clause but on the habeas statute and the immigration laws then in force.” One of the finality-era cases that Alito spent more time on is Nishimura Ekiu v. United States (1892). In that case, Nishimura Ekiu, an immigrant from Japan, was detained upon arrival based on the immigration inspector’s finding that she was likely to become a “public charge,” generally an individual who is likely to rely primarily on the government for subsistence. Ekiu subsequently filed a habeas petition arguing that the 1891 immigration statute was unconstitutional if it gave exclusive authority to the inspector to decide her right to enter. The Supreme Court ruled that the inspector acted in conformity with the statute, that his decision was “final and conclusive,” and that the 1891 statute was constitutional even though it precluded judicial review for factual questions. For Alito, the critical point in this case was that “the Court did not hold that the Suspension Clause imposed any limitations on the authority of Congress to restrict the issuance of writs of habeas corpus in immigration matters.”

Alito’s view disagreed with both the dissent and Thuraissigiam’s position on the question of whether the request for judicial review in Ekiu stemmed from ordinary statutory interpretation—which Congress could alter at will—or from the Constitution itself, which Congress cannot change. Alito asserted that the court in Ekiu and other finality-era cases upheld judicial review over legal challenges to immigration orders because of simple interpretation of the 1891 statute. In contrast, the dissent argued the court in Ekiu and other finality-era cases construed the 1891 immigration statute to allow judicial review of legal challenges because review of legal questions was “constitutionally compelled.” Working against the dissent is Alito’s point that Ekiu and none of the finality-era cases even mention the Suspension Clause. Alito further cited Gegiow v. Uhl (1915), where the Supreme Court stated that “courts are not forbidden by the statute to consider whether the reasons ... agree with the requirements of the [statute].” The pertinent language in the 1891 statute was: “All decisions made by the inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the superintendent of immigration, whose action shall be subject to review by the Secretary of the Treasury” (emphasis added). Given this language, it is unclear if the court’s statements in Ekiu and Gegiow were based on straightforward interpretations of the statute, or interpretations applying the doctrine of constitutional avoidance—a device courts use to avoid striking down statutes where there is a plausible interpretation of the statute that does not present constitutional concerns.

In support of Sotomayor’s position that the court in Ekiu and other cases construed the statute to avoid constitutional problems, she notes that the court in Ekiu did declare that “[a]n alien immigrant, prevented from landing by any such officer claiming authority to do so under an act of congress, and thereby restrained of his liberty, is doubtless entitled to a writ of habeas corpus to ascertain whether the restraint is lawful.” This statement is bolstered by the fact that the Ekiu court did consider the constitutionality of the 1891 statute for Ekiu’s claim that the limits on judicial review violated her “right to the writ of habeas corpus.” Thus, while the court did not explicitly mention the Suspension Clause, per the dissent, “it certainly decided the case in a manner that avoided raising this constitutional question.” The dissent notes that in a later case, Heikkila v. Barber (1953), the Supreme Court stated that the 1917 immigration statute “clearly had the effect of precluding judicial intervention in deportation cases except insofar as it was required by the Constitution.” The “shall be final” language in the 1917 statute was very similar to the “shall be final” language in the 1891 statute. The dissent thus argued that Heikkila “settles the matter,” while the majority dismissed the relevancy of Heikkila altogether because it was not a habeas case but instead was a challenge under the Administrative Procedure Act. The dissent criticized the majority for dismissing Heikkila as irrelevant and for “ignor[ing] the principles of stare decisis to stir up a settled debate.” The dispute between the majority and dissent on the finality-era cases shows that: While both sides agreed that in the finality-era cases, courts exercised judicial review over questions of law and application of law to fact, they disagreed that the Suspension Clause compelled this review—the constitutionally compelled nature of judicial review in these types of cases was the linchpin to Thuraissigiam’s Suspension Clause argument.

The debate carried on in Alito and Sotomayor’s conflicting analyses of more recent cases such as Boumediene v. Bush (2008) and I.N.S. v. St. Cyr (2001). In Boumediene, the Supreme Court ruled 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. It is the only ruling so far where the court found a statute in violation of the Suspension Clause. The court first determined that the Suspension Clause applied to the Guantanamo detainees based on precedents concerning extraterritoriality of constitutional rights because the Guantanamo detainees were enemy aliens imprisoned abroad, and then concluded that there was no “adequate substitute” for habeas because there was no other procedure that provided the kind of review habeas does. First, Alito disregarded Boumediene because it “is not about immigration at all.” Second, Alito pointed out that the detainees at Guantanamo “sought only to be released from Guantanamo, not to enter this country” and that “nothing in the Court’s discussion of the Suspension Clause suggested that they could have used habeas as a means of gaining entry.”

Alito also dismissed St. Cyr, which involved a habeas petition filed by Enrico St. Cyr, a lawful permanent resident who was at risk of deportation after pleading guilty to a criminal charge. In that case, the Supreme Court ruled that the statutes at issue did not repeal the jurisdiction of courts to review St. Cyr’s habeas petition because, under the Suspension Clause, “some ‘judicial intervention in deportation cases’ is unquestionably ‘required by the Constitution.’” 533 U.S. at 300 (quoting Heikkila). Alito wrote that this statement in St. Cyr “does nothing” for Thuraissigiam because all it did was reaffirm the conclusions drawn from 1789-era habeas cases: that the writ “provided a vehicle to challenge all manner of detention by government officials” and that “the writ could be invoked by aliens already in the country who were held in custody pending deportation” (emphasis added). To Alito, the statement in St. Cyr that the Constitution requires some judicial intervention in deportation cases did not “signify approval of [Thuraissigiam]’s very different attempted use of the writ.”

Although Alito did not expound on the “already in the country” point in discussing St. Cyr, the government emphasized in its merits brief that a central distinction between St. Cyr and Thuraissigiam was that St. Cyr entered and established residence in the United States. As a result, St. Cyr was like the petitioner in Yamataya v. Fisher (The Japanese Immigrant Case) (1903). In Yamataya, the court, in an opinion by the first Justice Harlan, granted the petitioner Yamataya’s request for a writ of habeas corpus, holding that Yamataya was entitled to due process because he had “entered the country, and has become subject in all respects to its jurisdiction, and a part of its population.” As Yamataya suggests, the Supreme Court has typically recognized greater judicial recourse for individuals who have entered and established ties in the United States in the form of a dwelling, job, or establishment of a family—regardless of whether the individual entered the United States legally or “entered without inspection,” that is, crossed the border surreptitiously. The government argued that because Thuraissigiam is differently situated from Yamataya and St. Cyr—given that Thuraissigiam was arrested just 25 yards from the border–he does not have the same rights as them. However, the Supreme Court did not declare in Yamataya or St. Cyr that lesser ties to the country resulted in less rights to judicial review. Whether Thuraissigiam had actually “entered” the United States, and the legal significance of the differences between Thuraissigiam and petitioners with greater ties to the country such as St. Cyr, were subjects of dispute between the majority and dissent and are explained in greater detail below.

Because Alito denied the relevancy of St. Cyr due to the distinctions between St. Cyr and Thuraissigiam’s uses of the habeas writ—including in part for Thuraissigiam not being “already in the country” in the same way as St. Cyr—Alito did not specifically discuss the fact that St. Cyr used his habeas petition to challenge the legality of his deportation order, instead of just, or even principally, his detention. Sotomayor raised this and especially relied on the methodology the court applied in St. Cyr and Boumediene to argue that perfect consistency with pre-1789 cases that the majority insisted on was not required. For example, Sotomayor stated that the court in St. Cyr “simply asked, at a far more general level, whether habeas jurisdiction was historically ‘invoked on behalf of noncitizens ... in the immigration context’ to ‘challenge Executive ... detention in civil cases’” (quoting St. Cyr, 533 U.S. at 305). In Boumediene, the court acknowledged that a “[d]iligent search by all parties reveal[ed] no certain conclusions” about the relevant scope of the common-law writ in 1789 yet did not “infer too much, one way or the other, from the lack of historical evidence on point.” Although both Boumediene and St. Cyr involved challenges to unlawful detention, St. Cyr is more helpful for Thuraissigiam because both Thuraissigiam and St. Cyr challenged the legality of a removal/deportation order in their habeas petitions. Because Alito declined to further analyze this point, the majority did not assess other differences between St. Cyr and Thuraissigiam that the government pointed out in its merits brief to the Supreme Court, such as the fact that St. Cyr raised a pure question of law while Thuraissigiam raised legal claims and questions on the application of the law to facts.

In addition to arguing that the limits on habeas review in § 1252(e)(2) violated the Suspension Clause, Thuraissigiam also argued that the statute violated his rights to due process under the Fifth Amendment by prohibiting judicial review of his claims. Although Sotomayor argued that it was unnecessary for the court to decide this claim, Alito considered Thuraissigiam’s due process argument and held that individuals who seek initial admission to the United States, like Thuraissigiam, do not have due process rights beyond what the statute confers. In support, Alito cited previous cases where the Supreme Court differentiated between noncitizens who have already been naturalized or have greater ties to the United States and noncitizens with no such status or ties. For example, in Landon v. Plasencia (1892), the court declared that “an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.”

The government emphasized this point in its merits brief, arguing that Thuraissigiam is properly classified as an alien seeking initial admission because he is a “clandestine entrant” with no real ties to the United States and was apprehended 25 yards from the U.S.-Mexico border shortly after entering. Thuraissigiam countered in his merits brief that the language in Plasencia did not apply to him because he did in fact enter and was, without doubt, present in the United States—and as a person who 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. Because Thuraissigiam made it 25 yards into the United States before he was stopped, he argued the entry fiction doctrine did not apply to him.

Alito countered that the entry fiction doctrine did not require a bright-line rule that defined entry as taking even a few steps onto U.S. territory prior to arrest. For Alito, the fundamental principle that the political branches have plenary authority over the admission or exclusion of immigrants “would be meaningless if it became inoperative as soon as an arriving alien set foot on U. S. soil.” Alito supported this argument with the point that noncitizens who arrive at ports of entry such as an airport in the United States are not considered to have entered the United States and thus cannot invoke due process rights. By way of analogy, Alito held the same must be true for Thuraissigiam, as he must also be considered “on the threshold of initial entry.” However, in one of the cases Alito cited, Shaughnessy v. United States ex rel. Mezei (1953), the Supreme Court affirmed that an immigrant can use the habeas writ to challenge her exclusion even though, like other finality-era cases, it never held that the noncitizen-petitioners had due process rights.

Sotomayor objected to Alito’s sweeping ruling that essentially expanded the entry fiction doctrine by pointing out the lack of a principled distinction under his theory. Per the entry fiction doctrine and norms before this decision, there was a clear line between individuals stopped at a port before entering the United States and individuals stopped after already entering the country. Alito’s airport analogy in fact is in line with this doctrine: It is a “fiction” because even though the airport is on United States soil, and thus all individuals at the airport have “entered” the United States, they are considered applicants seeking initial admission with no due process rights because of the well-established fiction that they were stopped before crossing the port of entry into the country. Because Thuraissigiam was not apprehended until 25 yards after entering the United States, and he was past any port of entry, he “was actually within the territorial limits of the United States” and therefore he has due process rights. The troubling result Alito’s ruling on this point creates, as Sotomayor pointed out, is that although Alito cabined the holding to people who are in Thuraissigiam’s position, “[w]here its logic must stop, however, is hard to say”—and—“[t]aken to its extreme ... [it] would permit Congress to constitutionally eliminate all procedural protections for any noncitizen the Government deems unlawfully admitted and summarily deport them” no matter their ties to the United States.

Notably absent from the majority and the dissent’s opinions were discussion of Alito’s general statement that noncitizens in Thuraissigiam’s position lack due process rights beyond those provided by statute. Specifically, although the court ruled that Thuraissigiam does not have a due process right to judicial review of his claims, it did not address the issue of how that ruling affects the larger question of how the statute is to be enforced if there is no way to sue the government in federal court for failing to follow the law. Thuraissigiam alleged not only that the government violated his due process rights in issuing his expedited removal order, but also that the government violated his statutory and regulatory rights—for example, the asylum officer did not consider country conditions evidence, which the immigration statute and regulations require. The ruling leaves no effective remedy for a noncitizen in expedited removal when asylum officers flout statutory and regulatory requirements in credible fear interviews.

Between the two poles, Breyer in his concurring opinion, joined by Ginsburg, attempted to find a middle ground while agreeing with the outcome. Breyer tried to cabin the court’s conclusions more specifically to Thuraissigiam and only as applied to him and his claims. In agreeing with the majority that the statute did not violate the Suspension Clause as applied to Thuraissigiam, Breyer emphasized that for Thuraissigiam, as someone who was apprehended 25 yards after crossing the border, “the constitutional floor set by the Suspension Clause here cannot be high.” In other words, Breyer believed that any scope of habeas review the Suspension Clause guaranteed Thuraissigiam “need not be as extensive” as it might be for noncitizens who have lived in the United States for years. Second, and more important to his concurrence, Breyer argued that “Congress may, consistent with the Suspension Clause, make unreviewable” Thuraissigiam’s claims in habeas proceedings because per Breyer’s construction of Thuraissigiam’s petition, his claims are more so questions of fact rather than questions of law or the application of law to fact. By framing the petition in this light, Breyer essentially answers the merits questions, which were not at issue. As Sotomayor noted, “The concurring opinion might think that respondent is not entitled to additional protections as a matter of law or that the facts do not show he was denied any required process. But conclusions about the merits of respondent’s procedural challenges should not foreclose his ability to bring them in the first place.” As a result, although Breyer presented a more flexible alternative to the majority’s holdings, the dissent argued that Breyer’s reasoning for the argument that the habeas writ did not encompass Thuraissigiam’s claims was too close to answering questions that should have been preserved for the merits stage.

The Supreme Court’s decision in this case carries a tremendous impact. The majority’s strict ruling on the Suspension Clause argument and its expansion of the entry fiction doctrine foreclose the habeas writ and due process arguments as options for individuals like Thuraissigiam, at least without congressional authorization. One salient open question the decision leaves unanswered, as discussed above, is what mechanisms if any remain in place to prevent the government from issuing expedited removal orders contrary to the law without any consequence or accountability. Based on the broadness of the majority’s decision, there is a serious question, as Sotomayor articulated, about how noncitizens can “ensure the integrity of an expedited removal order ... [that] is not subject to any meaningful judicial oversight as to its substance.”

The decision also leaves uncertain at what point a noncitizen has stepped across the “threshold of initial entry” into the United States and has thus gained access to habeas corpus and to due process protections. The court found that Thuraissigiam did not cross the threshold. However, as Sotomayor noted in her dissent, the majority did not specify the amount of time in the United States or physical distance on the U.S. side of the border that suffices to trigger access to habeas and due process. To answer that question, the court may have to address the constitutionality of the “expanded expedited removal” for noncitizens who have lived inside the United States for under two years. The D.C. Circuit recently upheld this application of “expanded expedited removal” on statutory grounds in Make the Road New York v. Wolf.

Lastly, related to the issue of preventing the government from violating the law, Thuraissigiam engenders doubt, if not concern, about broader principles of separation of powers and the rule of law. Sotomayor warned that the court’s decision “handcuffs the Judiciary’s ability to perform its constitutional duty to safeguard individual liberty,” “will leave significant exercises of executive discretion unchecked,” and “increases the risk of erroneous immigration decisions that contravene governing statutes and treaties.” For Thuraissigiam specifically, the decision forecloses his chance to contest his expedited removal order and most likely will result in him being forcibly returned to the dangers and persecution he fled. More broadly, the decision produces questions about the judiciary’s historical role in upholding the rule of law by holding the executive accountable when it violates the law.

Aditi Shah is a graduate of Harvard Law School, where she was a clinical student at the Harvard Immigration and Refugee Clinic and a research assistant for Professor William Rubenstein. She holds a B.A. in History and Health: Science, Society and Policy from Brandeis University.

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