SCOTUS: Judicial Review Limitation for Expedited Removal Does Not Violate the Constitution

Avoiding a calamitous result, and supporting Congress’s elimination of the 'entry doctrine'

By Andrew R. Arthur on June 26, 2020

  • On Thursday, the Supreme Court held that statutory limitations on judicial review in cases involving aliens in expedited removal proceedings did not violate the Constitution as applied.
  • Specifically, the Court held that an alien apprehended shortly after entry, who had received a negative credible fear determination from an asylum officer that had been affirmed by an immigration judge, could not seek habeas review of that determination.
  • The Court also held that aliens apprehended by DHS after entering illegally and placed into expedited removal proceedings do not have due process rights beyond those provided by Congress—similar to aliens who are denied admission at a port of entry.
  • Finally, the majority affirmed a previous decision that held aliens who have been found to have a credible fear and are referred to immigration court to apply for asylum are subject to detention, unless paroled by DHS.
  • Had the Court ruled differently, thousands of aliens in expedited removal who were found not to have a credible fear could have delayed their removals indefinitely by seeking habeas review.
  • The decision of the Court implicitly affirmed a decision involving similar facts issued by the Third Circuit.

On Thursday, the Supreme Court in DHS v. Thuraissigiam held that statutory limitations on judicial review in cases involving aliens in expedited removal proceedings did not violate the Constitution, at least as applied in that case. The decision affirmed Congress’ limitations on judicial review and its elimination of the so-called "entry doctrine", and also reiterated that aliens found to have a credible fear are subject to detention until their asylum cases can be ruled upon.

Briefly, section 235(b)(1) of the Immigration and Nationality Act (INA) provides that aliens arriving in the United States who do not have proper documents to enter the United States-- including migrants who have entered illegally — are subject to expedited removal from this country. The expedited removal order is issued not by an immigration judge (IJ) following removal proceedings, but rather by an officer from the Department of Homeland Security (DHS) (usually a Border Patrol agent or a U.S. Customs and Border Protection (CBP) officer).

As I have explained numerous times before (including at length in my last post), if the alien asserts an intention to apply for asylum or a fear of return, however, the alien is referred to an Asylum Officer (AO) from U.S. Citizenship and Immigration Services (USCIS) for a "credible fear" interview. Pursuant to current regulations, if the alien is found to have a credible fear of persecution, the alien’s case is transferred to an IJ for consideration of the alien’s asylum claim in removal proceedings.

If the AO concludes that the alien does not have a credible fear, the decision is reviewed by a supervisory AO. If the supervisory AO concurs with the AO’s decision, the alien can seek to have that decision reviewed by an IJ in a "credible-fear review" proceeding. If the IJ finds that the alien does not have a credible fear, the alien is returned to DHS for removal.

Judicial review of a negative credible-fear decision is extremely limited by statute. Specifically, section 242(e)(2) of the INA provides that an alien can seek habeas review of an expedited removal decision, but that review is limited to three questions: whether the petitioner is an alien; whether he or she was ordered removed under section 235(b)(1) of the INA; and whether the petitioner is in valid lawful permanent resident, asylee, or refugee status. The merits of the alien’s credible fear claim are not reviewable.

Or, at least they weren’t. On March 7, 2019, the Ninth Circuit in Thuraissigiam v. DHS held that the restrictions on habeas in section 242(e)(2) of the INA violate the Suspension Clause of the Constitution, and that the alien there had procedural due process rights in those proceedings, and in particular a right to "to expedited removal proceedings that conformed to the dictates of due process."

The Suspension Clause, Article I, section 9, clause 2 of the constitution states: "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 circuit court, describing the procedural protections in the expedited-removal judicial review provision as "meager," found that that this was "compounded by the fact that" the review provision "prevents any judicial review of whether DHS complied with the procedures in an individual case, or applied the correct legal standards."

Briefly, the alien appellant in that case had entered the United States illegally on February 17, 2017, and was arrested by CBP 25 yards north of the border. He was placed in expedited-removal proceedings, and referred for a credible fear interview with an AO after he claimed that he feared persecution in his home country of Sri Lanka. He was found not to have a credible fear by the AO, a determination affirmed by an IJ in a credible-fear review proceeding. He filed a habeas petition with the U.S. District Court for the Southern District of California, which dismissed it, holding that section 242(e) of the INA did not authorize jurisdiction over the alien’s claim. He then appealed that decision to the Ninth Circuit, which issued the judgment above.

The Department of Justice (DOJ) appealed that decision to the Supreme Court, as I reported in an October 2019 post. Justice Alito, writing on Thursday for the majority (which included Chief Justice Roberts and Justices Thomas, Gorsuch, and Kavanaugh) reversed the Ninth Circuit, finding that section 242(e)(2) of the INA did not violate the Suspension Clause, and as applied to Thuraissigiam, did not violate the Due Process Clause of the Constitution.

Central to the majority’s opinion on the Suspension Clause issue was the fact that the alien respondent was not, essentially, seeking release from custody (the remedy in a habeas corpus action, although he claimed in some way to be doing so) but rather was seeking to use habeas to have his negative credible-fear determination reviewed.

In this regard, the majority held: "While respondent does not claim an entitlement to release, the Government is happy to release him — provided the release occurs in the cabin of a plane bound for Sri Lanka."

More precisely, the majority held that the relief the alien sought was outside the scope of habeas as understood when the Constitution was ratified, and that other cases that the alien cited to bolster his habeas claim (some of which predated the enactment of the Constitution) did not support the proposition that the writ could or should be read more broadly in his case (although Congress could expand courts’ habeas jurisdiction, but as noted did not do so in a manner that would have benefited Thuraissigiam).

The majority further concluded that section 242(e)(2) of the INA did not violate the Due Process Clause of the Constitution as it applied in Thuraissigiam. In addressing this issue, the majority cited its decision in U.S. ex rel. Knauff v. Shaughnessy, where the Court held: "Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned."

In other words, aliens who are seeking entry into the United States are limited to the due process rights that Congress has provided them — nothing more.

The alien contended that such precedent did not apply in his case "because he was not taken into custody the instant he attempted to enter the country (as would have been the case had he arrived at a lawful port of entry)", but rather had proceeded 25 yards into the United States, and therefore was entitled to greater due process rights than an alien apprehended at entry.

Importantly, the majority held in response:

This rule would be meaningless if it became inoperative as soon as an arriving alien set foot on U. S. soil. When an alien arrives at a port of entry — for example, an international airport — the alien is on U. S. soil, but the alien is not considered to have entered the country for the purposes of this rule. On the contrary, aliens who arrive at ports of entry — even those paroled elsewhere in the country for years pending removal — are "treated" for due process purposes "as if stopped at the border."

The same must be true of an alien like respondent. As previously noted, an alien who tries to enter the country illegally is treated as an "applicant for admission," [section 235(a)(1) of the INA], and an alien who is detained shortly after unlawful entry cannot be said to have "effected an entry," . ... Like an alien detained after arriving at a port of entry, an alien like respondent is "on the threshold." ... The rule advocated by respondent and adopted by the Ninth Circuit would undermine the "sovereign prerogative" of governing admission to this country and create a perverse incentive to enter at an unlawful rather than a lawful location.

I say "Importantly", because this determination resolves a critical issue that has been pending since Congress replaced the convoluted and much litigated "entry doctrine" with the concept of "removal" in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).

Pursuant to that doctrine, as the Board of Immigration Appeals (BIA) explained in 1993, an "entry" into the United States by an alien required that the alien: (1) was physically present in this country; (2) had been inspected and admitted or had actually and intentionally evaded inspection at the closest port; and (3) was free from official restraint. In other words (and rather over simplistically), if the alien landed illegally in the United States and was not immediately spotted doing so, the alien was deemed to have "entered".

An alien who had "entered", in turn, could only be deported in deportation proceedings, while an alien who had not was subject to exclusion proceedings, where the due process rights were limited to the degree explained by the Supreme Court in Knauff. The majority opinion makes clear that the elimination of the entry doctrine in IIRIRA had an actual, constitutional effect, at least with respect to aliens apprehended shortly after they had entered.

Thuraissigiam thus implicitly affirms the conclusion of the Third Circuit in Castro v. DHS, which I described in detail in an April 2017 post. The Third Circuit had held that the 28 petitioners there (at least one of whom apparently had been in the United States for six hours and one of whom apparently was detained four miles from the border) were aliens "seeking initial admission to the United States," and for that reason could not invoke Constitutional protections beyond those Congress had provided them in section 242(e)(2) of the INA. Perhaps forecasting its opinion on Thursday, the Supreme Court rejected a petition for writ of certiorari filed by the petitioners in that case in April 2017.

In a March 2019 post, I noted that the Ninth Circuit's decision had set up a circuit split with the Third Circuit in Castro, and predicted that the Supreme Court would likely have to intervene. I continued, noting:

In the interim, it is reasonable to expect that more aliens in the Ninth Circuit who received negative credible-fear findings will petition for habeas corpus from those decisions, slowing the expedited-removal process, which Congress had intended to be "expedited" as the name suggests.

Had the Supreme Court sided with the Ninth Circuit, the result would have been calamitous for the "expedited" portion of expedited removal. In FY 2019, AOs denied credible fear in 16,679 cases, and that year, IJs only vacated 3,169 negative credible fear determinations, affirming 8,801 (not all aliens who receive a credible fear denial seek IJ review).

Those 8,801 aliens could have requested district court review—essentially halting their removal indefinitely—had the Court ruled differently. And the number of aliens who would have sought IJ review likely would have been significantly higher, as it would have put them in a position to seek habeas (and indefinite presence in this country).

Finally, Justice Alito reaffirmed his conclusion in Jennings v. Rodriguez that aliens found to have a credible fear are not entitled to release pending adjudication of their asylum claims. The only caveat that he placed on such detention was that, "The Department may grant temporary parole [under section 212(d)(5)(A) of the INA] ‘for urgent humanitarian reasons or significant public benefit.’"

In line with that earlier determination, in April 2019, Attorney General William Barr held in Matter of M-S-, that aliens who are placed in removal proceedings after a positive credible-fear finding are ineligible for bond, reversing a prior BIA decision, Matter of X-K-. Matter of M-S-, however, was enjoined by a judge in the U.S. District Court for the Western District of Washington in Padilla v. ICE, a decision that was affirmed in part and reversed in part by the Ninth Circuit in March.

It remains to be seen whether DOJ will seek further review of that decision in light of Thuraissigiam. Given the limitations placed on the due process rights of arriving aliens in expedited removal proceedings in Thuraissigiam, it should.