Bibi Alli & Matthew Blaisdell

Department of Homeland Security v. Thuraissigiam addressed whether the expedited removal statute [at 8 U.S.C. § 1252(e)(2)], which severely limits federal review of orders of expedited removal, violates a noncitizen’s right to seek a writ of habeas corpus under the U.S. Constitution’s Suspension Clause. Mr. Thuraissigiam’s writ sought release from detention in order to pursue additional review of his asylum application. The U.S. Supreme Court dismissed his petition, finding that a noncitizen seeking to enter the U.S. to pursue an immigration benefit does not possess a due process right to review of their detention beyond what Congress has provided in the statute.

What is expedited removal?

The Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) of 1996 distinguished between two forms of removal (deportation) proceedings:

1. “Formal” removal (8 U.S.C. § 1229a(a)(1)) – noncitizens subject to formal removal proceedings may have an immigration judge hear their case. They may also have an attorney represent them, apply for relief from removal, and are entitled to substantial due process protections. Noncitizens can appeal decisions to the Board of Immigration Appeals (BIA) and then to the federal court of appeals.

2. Expedited removal (8 U.S.C. § 1225 (b)(1)(A)) – Under expedited removal proceedings, noncitizens are not afforded procedural protections by a judge. Decisions are made by a DHS officer and they are not allowed counsel. However, noncitizens may submit a claim for asylum if they have a fear of returning to their home country. If so, the noncitizen will have a credible fear interview with an asylum officer to determine whether there is a significant possibility that the applicant would have a successful asylum claim. If they pass the interview, the noncitizen is taken out of expedited removal, served with a Notice to Appear, and is placed in “formal” removal proceedings before an immigration judge.

Expedited removal applies to (among others) noncitizens who: have not been admitted or paroled into the U.S.; are arrested within 100 miles of the border; and are unable to prove that they lived in the U.S. for more than 14 days. As suggested by its name, expedited removal speeds up the removal process but could lead to egregious procedural errors. However, IIRIRA eliminated almost all review of such errors.

What is the Suspension Clause and the writ of habeas corpus?

Article I, Section 9, Clause 2 of the U.S. Constitution states that “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.” The ability to challenge federal detention via a writ of habeas corpus is a understood as a liberty right that the government may not suspend (except for extraordinary circumstances). Habeas Corpus originated in the Magna Carta and was used in English courts to challenge unlawful detention by the King, and was later adopted by the U.S. as a means of challenging the lawfulness of imprisonment by the federal government.

Why did Mr. Thuraissigiam seek habeas corpus?

Mr. Thuraissigiam was apprehended by Customs and Border Protection at the Mexico-California border in February 2017 and placed into expedited removal proceedings. Mr. Thuraissigiam claimed that he had a fear of persecution and was referred to an asylum officer, who concluded that he failed to show a credible fear of persecution; the decision was then approved by the asylum officer’s supervisor. After requesting a cursory review by an immigration judge, the asylum officer’s decision was reaffirmed and the case returned to DHS to commence removal.

Mr. Thuraissigiam filed a petition for habeas corpus in the U.S. District Court for the Southern District of California claiming that “the asylum officer did not apply the proper legal standard to elevate his asylum claim, the interpreter did not accurately communicate questions and answers, the asylum officer did not consider country-condition evidence, and the asylum officer never asked relevant questions that would have elicited key additional facts.” Mr. Thuraissigiam argued that he was also unaware that the information he offered to the asylum officer and immigration judge would be shared with the Sri Lankan government. The District Court dismissed the case due to its limited review under IIRIRA. On appeal, the Ninth Circuit reversed the District Court’s ruling and held that the provision under IIRIRA limiting review was unconstitutional because it violated the Suspension Clause of the U.S. Constitution.

Due process protections are not triggered by merely crossing the border into the U.S.

Under the “entry fiction” doctrine, the Supreme Court has traditionally held that noncitizens who are understood to be seeking to enter the U.S. (either because they unlawfully entered or because they were detained at a port of entry or within a certain distance from the border) do not have the same constitutional protections as those already within the U.S.

Such persons are largely only entitled to the rights that Congress, by use of its plenary power, has provided by statute. Mr. Thuraissigiam argued that the Fifth Amendment extends due process to all persons physically within the U.S. and that, while this “entry fiction” doctrine applies to noncitizens at ports of entry (such as at the physical border or at an airport), he was not apprehended at the border or at a port and therefore the doctrine should not apply to him: thus entitling him to additional constitutional protections. The court rejected this argument, stating that he was detained was only 25 yards after crossing the border, and thus did not “effectuate an entry.”

Habeas corpus is limited to release for the sake of release.

Mr. Thuraissigiam argued that, anyway, the scope of the writ of  habeas corpus is founded less upon the due process rights of the individual (to seek relief from unlawful detention) than as a separation-of-powers mechanism used by the judiciary to ensure that the executive branch complies with the law (when detaining individuals). While this seems like a very fine distinction,  it would mean that his access to habeas corpus does not depend on whether he is entitled to due process, but whether he is entitled to challenge the government’s compliance with the law. In doing so, he relied upon Boumediene v. Bush, 553 U.S. 723 (2008), in which the Court held that the writ extended enemy combatants detained outside of the U.S (at Guantanamo Bay).

The Court rejected this interpretation as applied to him, finding that it fell outside the scope of how habeas corpus has been applied since 1789 because he was not utilizing the writ to merely seek “simple release” from an unlawful confinement (as were the combatants in Boumediene), but rather the opportunity to enter the U.S. in order to pursue an immigration benefit (asylum); had he wanted, he could have obtained release by merely allowing the government to physically remove him from the U.S.

The ability to pursue asylum and protection under the Convention against Torture may be massively restricted.

As of July 23, 2019, the Trump administration expanded expedited removal orders to “individuals who are undocumented, or who have committed fraud or misrepresentation, and who are encountered within the entire United States and who have not been physically present in the United States for two years prior to apprehension.” As noted above, individuals ordered removed under the expedited process lacks any signficant judicial oversight or accountability. If the procedure is dramatically expanded, so will the number of valid claims that do not receive a thorough review and result in an order of removal that cannot be challenged in court.

Relatedly, the Court has just accepted the case of Albence v. Chavez, in which it will determine whether a noncitizen is entitled to a bond hearing after having unlawfully reentered the U.S. after having been removed, and who seeks to have the removal order deferred on the basis that they are likely to be persecuted or tortured upon return. (The answer may depend on which statute serves as the basis for the detention). Those concerned with the due process protections accorded to noncitizens seeking to enter the U.S. to flee persecution and torture should take note.