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.