Last week, the Court of Appeals for the Third Circuit decided Osorio-Martinez v. Attorney General, 17-2159, a challenge by several Honduran and El Salvadoran children and their mothers to an order of expedited removal. The Court held that the children, who had been granted Special Immigrant Juvenile (SIJ) status, could not challenge their expedited removal orders, because 8 U.S.C. 1252(e)(2) deprives the courts of jurisdiction to determine anything other than whether an expedited removal order was issued and whether it applies to the petitioners.
This was a follow-on to the Third Circuit's earlier decision in Castro v. Department of Homeland Security, 835 F.3d 422 (3rd Cir. 2016) cert denied 137 S. Ct. 1581 (2017). There, the Court had made a similar holding regarding these same plaintiffs, prior to their achieving SIJ status. In Osorio-Martinez, the court confronted the question left open by Castro, whether the jurisdiction-stripping statute violated the Suspension Clause of Article I, Section 9.
In Castro, the court did not reach the question because it determined the juveniles lacked sufficient ties to the United States to invoke the Suspension Clause, relying on Verdugo-Urquidez. Here, however, the court determined that SIJ status created a sufficient legal relationship between the United States and the juveniles in question to allow them to invoke the Suspension Clause.
The court then used the Supreme Court's test in Boumediene v. Bush, 553 U.S. 723 (2008), to determine that nothing in the juveniles' status prevented them from invoking the Suspension Clause and that the jurisdiction-stripping provision provided no adequate and effective alternative means of challenging their detention and removal. Therefore, the jurisdiction-stripping provision was unconstitutional as applied to these plaintiffs.
In my opinion, the decision by the Third Circuit here is correct. However, I take issue with its earlier decision in Castro. Simply put, the "substantial connections" test of Verdugo-Urquidez has no place in an analysis of whether an alien can invoke the Suspension Clause. The Suspension Clause has no reference to "the people," and its placement in Article I, Section 9 makes clear it is a limit on Congress' power, not a right granted to individuals.
Finally, the reliance on substantial connections in Castro conflicts with Boumediene itself, which did not examine the connections between the detainees in Guantanamo Bay, Cuba and the United States. The only connections the detainees had was their presence in military custody, yet the majority still found they had the ability to invoke the Suspension Clause.
This is yet another example of lower courts reading Verdugo-Urquidez to apply far beyond both its facts and its reasoning. Hopefully, advocates can start pointing out that the substantial connections test, by its very terms, is limited to only those Amendments that reference "the people" and courts will start agreeing. Beyond that, in a future blog post, I plan to explain why it is time to revisit the reasoning of Verdugo-Urquidez, even if we ultimately decide to keep its holding.