SG seeks cert in Suspension Clause case

Late last week, the United States Solicitor General’s Office filed a petition for certiorari in Department of Homeland Security v. Vijayakumar Thuraissigiam, challenging a Ninth Circuit Court of Appeals ruling declaring a portion of the Immigration and Nationality Act unconstitutional.

Specifically, the lower court held that 8 U.S.C. 1252(e)(2), which provides for limited judicial review of decisions in expedited removal cases, violates the Suspension Clause of the Constitution. This case is directly in conflict with a 2016 Third Circuit decision in Castro v. U.S. Dep’t of Homeland Security, 835 F.3d 422.

In expedited removal proceedings, aliens who are apprehended shortly after crossing the border may be subjected to removal without the process of a full deportation proceeding. Mr. Thuraissigiam, a resident of Sri Lanka, was apprehended 25 yards north of the U.S. border within minutes of crossing. He was placed in the expedited removal process where he claimed asylum.

An immigration official conducted a credible fear interview and determined that Mr. Thuraissigiam did not demonstrate a credible fear of being persecuted based on a protected category if he were returned to Sri Lanka. This decision was reviewed by a supervisory immigration officer, and received de novo review by an Immigration Judge. Both reviews reached the same conclusion.

Mr. Thuraissigiam then filed a writ of habeas corpus, arguing that his rights had been violated by the process. The District Court dismissed the case, based on 8 U.S.C. 1252(e)(2), which strictly limits what a court can review of the expedited removal process. The court is only allowed to review three things: 1) is the applicant for the writ an alien; 2) was he ordered removed under the expedited removal procedures (i.e. is he the person to whom the removal order applies); and 3) can he prove that he was admitted to the United States as a lawful permanent resident, refugee, or asylee, and that legal status has not been terminated.

The SG’s petition is somewhat unclear on whether it is arguing that Mr. Thuraissigiam is not entitled to claim the protection of the Suspension Clause. On page 16, it cites Landon v. Plasencia, 459 U.S. 21 (1982) for the proposition that an alien seeking admission to the country has no constitutional rights regarding his application. But in the meat of its argument, the brief focuses more on the adequacy of the procedures Mr. Thuraissigiam received. It relies on a series of cases going back to the 1950s which hold that the only due process an alien is entitled to is that which is prescribed by Congress.

Pages 17-20 do press the argument that an alien who has clandestinely entered the country and has only been here a short time is not entitled to the full panopoly of constitutional rights. But the rest of the merits argument (pages 20-29) focus more on the robustness of the procedures. And in the final section, arguing why the Court should grant the petition, it focuses on the harms of finding that those similarly situated to the Appellee are entitled to greater process than is currently provided by the expedited removal procedure.

Overall, while there is some concern in what the SG is seeking, it appears to more heavily rely on the adequate alternative remedies argument than the argument that these individuals do not have rights at all. For example, the SG attempts to distinguish Boumediene rather than argue it was wrongly decided, and the brief only makes one mention of Verdugo-Urquidez at the end of a string cite. This is not the brief I would expect if the SG was launching a full-scale assault on the habeas rights of recent clandestine arrivals. Of course, should the Court grant the cert petition, the merits brief may prove more forceful on this point.

My own read of the facts, as laid out in the SG’s brief, is that the initial decision was likely correct, and the Court could avoid deciding the thornier legal issue by holding that the expedited removal procedure provides enough process to satisfy the Suspension Clause’s demands.

The SG’s brief in the case is available here.

Hernandez v. Mesa Amicus

Also last week, I submitted a brief in Hernandez v. Mesa, the cross-border shooting case. In this case, my brief addresses the Fifth Circuit’s decision to apply the statutory presumption against extraterritoriality to a constitutional remedy for violations of the Fourth Amendment. A summary of the argument follows:

Because of the cross-border nature of the shooting at the center of this case, the lower court assumed that this case involved an extraterritorial application of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).  However, the extraterritorial aspects of this case should not be considered a “special factor” that counsels hesitation in the recognition of a remedy under Bivens.  The court below erred when it wrongfully relied on a statutory canon of construction when examining a constitutional remedy.  The concerns underlying the statutory presumption–concerns about conflicts with foreign law, U.S. sovereignty, and an assumption that Congress acts domestically, unless it clearly indicates otherwise–are not implicated here. If anything, when interpreting the Constitution, these concerns run in the opposite direction.

 And even if the presumption were applied, under this Court’s tests, the actions taken by Agent Mesa do not implicate extraterritoriality at all.  That is because when examining whether the presumption applies, courts look to the context of the statute to determine its “focus.”  Here, the context of the Constitution and the “focus” on preventing unreasonable actions by Government agents both suggest that extraterritoriality is not implicated.  Finally, the location of the shooting–in a culvert area largely controlled by the U.S. Border Patrol–is more akin to the control exercised by the United States in Guantanamo Bay, Cuba, than to those areas where the Constitution does not apply.  So application of the Bivens remedy in this context is not “extraterritorial” at all.

The complete brief can be found here.


Last week, I filed an amicus brief in the PROMESA case that the Supreme Court will be hearing on October 12. A summary of the brief’s arguments follows:

Taken to its logical conclusion, the First Circuit’s holding below would imperil self-rule in unincorporated territories. While the court tries to cabin its holding to members of the Financial Oversight and Management Board for Puerto Rico, the court’s logic sweeps far more broadly and would encompass many territorial officials, including those currently subject to popular election.

The First Circuit held that the members of the Oversight Board are “Officers of the United States” subject to the Appointments Clause of Article II, Section 2 of the U.S. Constitution. That status, the Court determined, stems from the fact that the members of the Oversight Board held continuing offices and exercised “significant authority” pursuant to the laws of the United States. Aurelius Investment, LLC, et al. v. Commonwealth of Puerto Rico, et al., 915 F.3d 838 at 856-57 (1st Cir. 2019). In making that determination, however, the Court failed to distinguish between members of the Oversight Board and many other territorial office-holders whose selection or appointment does not comport with the requirements of the Appointments Clause. This omission places territorial self-governance in doubt.

Even if one can distinguish between members of the Oversight Board and other members of the Puerto Rican government because of the island’s Commonwealth status, the First Circuit’s test also implicates the home rule of Guam and the United States Virgin Islands, which cannot claim the protection of that status for themselves. In light of these implications, the Court should carefully consider the results of the First Circuit’s reasoning so as not to strip U.S. territories of their longstanding self-governance.

The full brief can be found here.

Court grants cert in PROMESA case

I’m a bit late to this, but during its last week of the term, the Supreme Court granted cert in five petitions seeking to review the First Circuit’s decision striking down PROMESA, the Puerto Rico Oversight, Management, and Economic Stability Act. The First Circuit held that the members of the Oversight Board created by the Act were “Officers of the United States” and that the scheme for appointing said officers violated the Appointments Clause of Article II. Specifically, it held that they were principle officers, subject to appointment by the President and confirmation by the Senate.

This decision appears to fly in the face of the text of the statute. First, Congress notes that it is exercisign its power under Article IV, Sec. 3, to make needful rules for the territories of the United States. Second, Section 101(b) expressly declares that the Oversight Board is created as an entity within the territorial government and shall not be considered to be a federal entity. It is funded entirely from territorial funds.

Furthermore, the implications of the holding are quite sweeping. If the members of the Oversight Board are Officers of the United States, it is hard to understand why the Governor of Puerto Rico would not be. Thus, under the First Circuit’s argument, he or she could not be popularly elected, but would have to be appointed by the President and confirmed by the Senate. (In fact, prior to 1947 this is precisely how the Governor was selected).

The First Circuit also relies on the argument that PROMESA is a federal law. It attempts to distinguish between the Governor and the Oversight Board by arguing that the Governor exercises authority arising from the laws of the territory, specifically the Puerto Rican Constitution. However, it rightfully acknowledges that the Constituton itself stems from a congressional grant of power from the federal government, citing the Supreme Court’s recent double jeopardy decision, Puerto Rico v. Sanchez-Valle, 136 S. Ct. 1863 (2016). It’s only answer is that if all Puerto Rican laws were federal laws, then every claim brought under Puerto Rico’s laws would pose a federal question, and that can’t possibly be right. Color me unconvinced by this argument, which the Court spends only one paragraph on.

There is truly no cabining the First Circuit’s decision to just the Oversight Board. If allowed to stand, it creates truly grave questions for the future of self-government not just in Puerto Rico, but in all of the territories currently governed by Congress under Article IV.

Ninth Circuit Weighs in on Second Amendment rights of undocumented aliens

Today, the Ninth Circuit issued a published opinion in United States v. Torres, a case addressing whether 18 U.S.C. 925(g)(5)(A) violates the Second Amendment right of undocumented immigrants.

The court addressed an issue previously decided by five other circuits and deepened what is currently a 3-way split over whether undocumented immigrants have Second Amendment rights at all. The Fourth, Fifth, and Eighth Circuits have all held that there is no Second Amendment right in these circumstances. The Seventh Circuit found that undocumented aliens had such rights, and the Ninth Circuit joined the Tenth in avoiding the question by assuming such rights existed and then upholding the law under intermediate scrutiny review.

There are three problems with the court’s analysis in this case. First, it applied the test under United States v. Verdugo-Urquidez, which focused on the rights of aliens outside of the United States; second, it applied intermediate scrutiny under the Second Amendment, as opposed to strict scrutiny which typically applies when laws are based on alienage; and third, the analysis is circular and self-contradictory.

First, despite refusing the address the underlying question of whether the Second Amendment applied to undocumented immigrants, the court went through an analysis under Verdugo-Urquidez. While it is true that Verdugo-Urquidez examined the meaning of the term “the people” in the Fourth Amendment, a phrase which is repeated in the Second Amendment, the Supreme Court was examining the question in the context of the extraterritorial application of the Constitution. The Supreme Court has previously found that undocumented immigrants have certain rights under the Constitution (see, e.g. Plyler v. Doe, 457 U.S. 202 (1982)). Typically, presence within the United States has been enough to extend rights to anyone within our territory.

Second, the Ninth Circuit upheld the restriction as consistent with intermediate scrutiny, providing a reasonable fit designed to protect an important government interest. Here, the Court noted that the Supreme Court had not indicated what level of scrutiny was applicable to claims the Second Amendment was being burdened, but noted the near unanimity of courts in applying that level of scrutiny. However, the court ignored the other half of the equation. 18 USC 922(g)(5)(A) makes it a crime for an alien who is illegally in the United States to possess a firearm. Statutes that target individuals based on their alienage are typically subjected to strict scrutiny, the level of scrutiny sought by Torres here. See e.g. Graham v. Richardson, 403 U.S. 365 (1971). To be fair, Graham dealt with legal aliens and state laws.

Finally, the logic of the Court is circular and self-contradictory. The court assumes for purposes of the decision that undocumented aliens have Second Amendment rights, but upheld 18 USC 922(g)(5)(A)’s total ban on such aliens possessing firearms. It is hard to see how aliens can have a right to possess firearms under the Second Amendment if it is a permissible restriction, consistent with that Amendment, to totally deny them the ability to possess said firearms. The end result is the same as denying the right in the first place. It is impossible to imagine what content the right has if it does not prevent the Government from enacting 922(g)(5)(A).

Cert petition filed in Ninth Circuit cross-border shooting case

As promised, when the defendant sought to stay the Ninth Circuit’s mandate, a petition for certiorari has been filed in Swartz v. Rodriguez, which concerns a cross border shooting incident. I discussed the Ninth Circuit’s decision here.

The petition is available here.

The petition presents two questions: 1) the “antecedent question” of whether a Bivens remedy applies at all and 2) whether Officer Swartz was entitled to qualified immunity.

As to the first question, it argues that the context of a cross-border shooting is new for Bivens purposes and that four “special factors” counsel hesitation in extending Bivens to this new context. Those special factors are: 1) foreign relations; 2) separation of powers; 3) the extraterritorial application of the Constitution in this case; and 4) the failure of Congress to act to provide a remedy.

I do not find the question of the extraterritorial application to be particularly convincing, because at the time Officer Swartz fired his weapon at J.A., the minor child, he had no idea if J.A. was a Mexican citizen, an American citizen, or whether he had any substantial ties to the United States. All he knew was that J.A. was in Mexico. The Supreme Court just last term in Hernandez v. Mesa frowned upon the use of unknown facts, learned only in hindsight, to justify a grant of qualified immunity. While this petition does ask a slightly different question, I do not believe that this makes a difference here.

Had J.A. been an American citizen, I believe he clearly should be entitled to a Bivens remedy, despite his presence in Mexico. The Supreme Court has consistently held, for over a century, that the Fourth Amendment travels with American citizens abroad. Given this, it does not seem extreme to extend the Bivens remedy abroad to the same extent. For reasons I have articulated elsewhere, I believe that the Fourth Amendment follows the conduct of U.S. officials wherever they act. And in this case, the action taken by Swartz undeniably occurred on U.S. soil, even though the effects occurred in Mexico.

In last term’s Ziglar v. Abbasi, the Court appeared to restrict Bivens to the three contexts in which it had previously been held to apply - unlawful searches and seizures under the Fourth Amendment, due process claims under the Fifth Amendment, and claims under the Eighth Amendment. Here, this seems like a classic Bivens case - indeed, unlike the search in Bivens, the seizure here was much more extreme. Only if the Court takes an extremely cramped view of the context can it be said to be materially different from Bivens itself.

While Congress could make matters a great deal clearer by enacting a statutory remedy for these types of cross-border shootings, its inaction, especially in light of Bivens, does not deprive the Court of the ability to recognize this three-decades old remedy in this familiar context.

Puerto Rico and the Appointments Clause

On July 13, 2018, the United States District Court for the District of Puerto Rico issued a decision in In re: The Financial Oversight and Management Board for Puerto Rico as representative of the Commonwealth of Puerto Rico, denying a motion to dimiss the Oversight Board's bankruptcy petition under the Puerto Rico Oversightm, Management, and Economic Stability Act (PROMESA).

Under the terms of the Act, the Financial Oversight and Management Board had filed a petition in federal court to restructure Puerto Rico's debt.  Three of the creditors, Aurelius Investment, LLC, Aurelius Opportunity Fund, LLC and Lex Claims, LLC moved to dismiss the petition, arguing that the Oversight and Management Board was appointed in a manner inconsistent with the Appointments Clause of Article II, Section 2 of the U.S. Constitution.  The following is an excerpt of the facts.  Footnotes and citations have been removed.

In 2016, in response to the longstanding and dire fiscal emergency of theCommonwealth, Congress enacted PROMESA “pursuant to article IV, section 3 of the Constitution of the United States, which provides Congress the power to dispose of and make allneedful rules and regulations for territories.” PROMESA established, among other things, federal statutory authority pursuant to which federalterritories, including the Commonwealth, may restructure their debts.

The Oversight Board is composed of seven voting members, with the Governor or his designee serving ex officio as an additional non-voting member.  PROMESA provides that the President "shall appoint" the seven voting members as follows: one "may be selected in the President's sole discretion" and six "should be selected" from specific lists of candidates by congressional leaders. (emphasis added).  PROMESA does not require Presidential nomination and Senate confirmation for the President's discretionary appointeess and members chosen from the congressional lists.  However, in the event that the President appoints members that are not named on the congressiaional lists, Senate confirmation is required under PROMESA.


Aurelius argued that the Appointments Clause procedures were mandatory because members of the Board are either (i) principal "Officers of the United States" who could only be appointed with Senate confirmation; or (ii) inferior officers of the United States whose appointment was improperly delegated to the President.

The United States intervened to defend PROMESA's constitutionality.  It argued that PROMESA’s appointment mechanism is not subject to the Appointments Clause because (i) the Oversight Board members are territorial officers rather than “Officers of the United States,” and (ii) the Appointments Clause does not govern the appointment of such territorial officers.

In addition, the Board argued that the Appointments Clause is not a "fundamental" constitutional provision and so does not apply of its own force to Puerto Rico, under the Territorial Incorporation Doctrine, and, in the alternative, even if were applicable, the Board members were properly appointed.

The Court avoided the tricky question of whether the Appointments Clause applies to Puerto Rico, because it determined that the members of the Board were territorial officers and not "Officers of the United States."  As such, regardless of whether the Clause applied, it would not govern the appointment of Board members.

The Court relied on Congress's plenary power under Article IV, Sec. 3 of the Constitution to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States...."  It held that despite the fact the officers are appointed by the President and are only removable by him, they are not "Officers of the United States" within the meaning of the Appointments Clause.  Because territories are not inherently sovereign, like states, the federal government plays two roles in overseeing them - the more familiar federal role, and it can act as states do with regard to their own governments.  The court likened territories to municipal corporations, such as counties.  When acting in that role, the federal government creates officers that belong to the territory and it has the authority to determine how such officers shall be appointed.

This can be a confusing area of law, since most people are not accustomed to thinking of federal power as being divided in this way.  It can also be confusing, given that the Supreme Court has held that the territory's sovereign powers flow from the federal government, such that the two are not distinguishable for Double Jeopardy purposes.  Nevertheless, this distinction between territorial and federal officers is long recognized and it allowed the Court to avoid the more tricky question that would arise under the Board's theory, arising as it does from the Insular Cases.

Further reading:

In re The Financial Oversight and Management Board for Puerto Rico as representative of Commonwealth of Puerto Rico, No. 17 BK 2383-LTS.

Hat tip to Bob Loeb at Orrick for posting a copy of the decision.

Third Circuit holds Suspension Clause applies to Special Immigrant Juveniles

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.

Some brief thoughts on Trump v. Hawaii

Today, the U.S. Supreme Court decided Trump v. Hawaii, a challenge to the President's "travel ban."  The majority upheld the ban 5-4, ruling that banning individuals from certain countries was within his statutory power under the Immigration and Nationality Act.

For the most part, the decision does not touch on the extraterritorial application of the Constitution.  But I wanted to briefly address a statement by Justice Thomas in his concurring opinion.

The plaintiffs had challenged the travel ban on both statutory and constitutional grounds.  They argued that the ban violated the First Amendment's protection against the establishment of religion, because it was the policy implementation of the President's long-promised "Muslim Ban."

The majority found standing to address this question based on the First Amendment rights of the plaintiffs, U.S. citizens, to associate with their relatives.  (Slip op. at 25-26).

Justice Thomas, in his concurrence, notes that the Establishment Clause does not create a right to be free from all laws that a "reasonable observer" views as religious or antireligious.  He then states:  "The plaintiffs cannot raise any other First Amendment claim, since the alleged religious discrimination in this case was directed at aliens abroad. See United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990)."

However, he provides no further rationale or explanation for his view that the plaintiffs are not in a position to raise a First Amendment challenge on behalf of the aliens being rejected based on their religion.  There is simply no basis in Verdugo-Urquidez for holding that the Establishment Clause does not protect aliens seeking entry to the United States.

Justice Thomas's citation to Verdugo-Urquidez cites to the Court's discussion of the term "the people" and notes that it is used in the Fourth, First, Second, Ninth, and Tenth Amendments.  But this does not answer the question.  First of all, the term "the people," while appearing in the First Amendment, does not appear until discussing the right of the people to peaceably assemble and petition their government for a redress of grievances.  There is nothing in the text to limit the right to free exercise to be limited to the people.  Indeed, the plain language of the Amendment makes clear it is a limit on Congress:  "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof...."  Nothing here implies any limit to "the people" of the United States.

Only one Court of Appeals has ever addressed the question of whether the Establishment Clause applies outside the United States - the Second Circuit in Lamont v. Woods, 948 F.2d 825 (2nd Cir. 1991).  Decided the year after Verdugo-UrquidezLamont involved a challenge to the State Department's use of public funds to build religious schools in foreign countries.  There, the Court relied on the Verdugo-Urquidez framework to strike down the expense of the money.  Unlike the Fourth Amendment, the court found that any violation of the Establishment Clause occured in the United States, when the money was granted by Appellants, not once it was spent.

Furthermore, an in support of the textual argument above, the court noted that "The Establishment Clause, unlike the Fourth Amendment, contains no limiting language. Indeed, the basic structure of the Establishment Clause, which imposes a restriction on Congress, differs markedly from that of the Fourth Amendment, which confers a right on the people."  948 F.2d at 835.  The Second Circuit then relied on the Supreme Court's holding in one of the first Insular CasesDownes v. Bidwell, which held that:

When the Constitution declares that "no bill of attainder or ex post facto law shall be passed," and that "no title of nobility shall be granted by the United States," it goes to the competency of Congress to pass a bill of that description. Perhaps, the same remark may apply to the First Amendment, that "Congress shall make no law respecting an establishment of religion. . . ." We do not wish, however, to be understood as expressing an opinion how far the bill of rights contained in the first eight amendments is of general and how far of local application.  182 U.S. 244, 277 (1901).  Thus, the Court itself had previously held that the Establishment Clause goes to the very root of Congress to act at all.

The court also looked to the history of the Establishment Clause and found it telling that both the drafting committee and the full House refused Madison's suggestion that the Clause address establishment of a "national" religion.

Finally, the court addressed whether there would be negative policy implications of applying the clause abroad.  There is likely a better argument from a policy perspective in finding application of the clause to be problematic in this case.  However, this alone is not enough to overcome the presumption that the Establishment Clause limits Congress's (and the Executive's) power to discriminate based on religion.  At the very least, if one wants to argue that the policy implications mitigate against the extraterritorial application of the Constitution, one need do more than make a passing citation to Verdugo-Urquidez as if the case definitively answered the question.