SCOTUS Leaves in Place Lower Court Ruling Limiting Rights of Illegal Entrants

By Andrew R. Arthur on April 21, 2017

On April 17, 2017, the Supreme Court denied a petition for writ of certiorari in Castro et al. v. Dep't of Homeland Sec., U.S., 2017 WL 1366739 (2017), a case involving the constitutional rights of a group of aliens who had entered the United States illegally. Although "a variety of considerations underlie denials of the writ" generally, the Supreme Court's denial of the petition in this case leaves in place a circuit court decision that limits the rights of aliens who were apprehended shortly after entering the United States illegally, at least in the Third Circuit.

The circuit court decision, Castro v. U.S. Dep't of Homeland Sec., 835 F.3d 422 (3d Cir. 2016), involved 28 families who were natives and citizens of El Salvador, Honduras, and Guatemala. Each of the members of those families had entered the United States illegally over a period of several months in late 2015. U.S. Customs and Border Protection (CBP) agents had arrested each "within close proximity to the border and shortly after their illegal crossing." As the court noted:

In fact, the vast majority were apprehended within an hour or less of entering the country, and at distances of less than one mile from the border; in all events, no petitioner appears to have been present in the country for more than about six hours, and none was apprehended more than four miles from the border.

Each of the alien petitioners was processed for expedited removal under section 235(b) of the Immigration and Nationality Act (INA). Because the aliens expressed a fear of persecution or torture if returned to their native countries, they were referred to an asylum officer for a credible fear interview under section 235(b)(1)(A)(ii) of the INA. While each was found not to have a credible fear, each requested and was granted de novo review of their credible fear claims by an immigration judge under section 235(b)(1)(B)(iii)(III) of the INA.

In each of the cases, the immigration judge agreed that the alien had not been found to have a credible fear, and the cases were referred back to the Department of Homeland Security (DHS) in accordance with 8 C.F.R. § 1208.30(g)(2)(iv)(A) for removal. Each of the 28 families then, separately, submitted a habeas petition to the U.S. District Court for the Eastern District of Pennsylvania, in which they claimed that the asylum officer and immigration judge, in the course of their respective credible fear interviews and reviews "violated their Fifth Amendment procedural due process rights, as well as their rights under the INA, the Foreign Affairs Reform and Restructuring Act of 1998, the United Nations Convention Against Torture, the Administrative Procedure Act, and the applicable implementing regulations."

Those cases (along with six others that were voluntarily dismissed) were reassigned to a district court judge to determine whether the court had jurisdiction to adjudicate the aliens' claims (Castro v. U.S. Dep't of Homeland Sec., 163 F.Supp.3d 157 (E.D. Pa. 2016). The district court judge dismissed those petitions for lack of subject matter jurisdiction, and the aliens appealed to the Court of Appeals for the Third Circuit.

As the district court judge noted in his decision: "Petitioners' challenge to the expedited removal process is not easily explained." In essence, however, the circuit court had to make two determinations. First, the court had to decide whether the provision that governed judicial review of expedited removal proceedings, section 242(e) of the INA, provided the district court with "jurisdiction to adjudicate the merits of" the alien petitioner's requests for habeas. If not, the circuit court had to determine whether this review provision violated the Suspension Clause of the U.S. Constitution, article I, §9, cl. 2.

The 80-page decision of the Third Circuit exhaustively discusses both of these issues. The findings of the court, however, can be stated succinctly, with some brief background.

Consistent with the accelerated nature of the expedited removal process under section 235(b)(1) of the INA, section 242 of the INA significantly limits the availability of judicial review of administrative expedited removal decisions. Section 242(a)(2)(A) of the INA states:

REVIEW RELATING TO SECTION 235(b)(1) .-Notwithstanding any other provision of law . . . no court shall have jurisdiction to review-

(i) except as provided in subsection (e), any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of removal pursuant to section 235(b)(1),

(ii) except as provided in subsection (e), a decision by the Attorney General to invoke the provisions of such section,

(iii) the application of such section to individual aliens, including the determination made under section 235(b)(1)(B), or

(iv) except as provided in subsection (e), procedures and policies adopted by the Attorney General to implement the provisions of section 235(b)(1).

Therefore, by statute, a federal court's jurisdiction to review expedited removal decisions is limited to section 242(e) of the INA, which provides only limited judicial review authority. Section 242(e)(1) of the INA makes clear that "no court may ... enter declaratory, injunctive, or other equitable relief in any action pertaining to an" expedited removal order "except as specifically authorized in a subsequent paragraph" therein. Section 242(e)(2) of the INA states that while "[j]udicial review of any [expedited removal] determination . . . is available in habeas corpus proceedings," such review is limited to:

(A) whether the petitioner is an alien,

(B) whether the petitioner was ordered removed under such section, and

(C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, has been admitted as a refugee under section 207, or has been granted asylum under section 208, such status not having been terminated, and is entitled to such further inquiry as prescribed by the Attorney General pursuant to section 235(b)(1)(C).

With respect to the question in section 242(e)(2)(B) of the INA above (i.e., whether an alien "was ordered removed under" the expedited removal provision in section 235(b)(1) of the INA, section 242(e)(5) of the INA states: "the court's inquiry shall be limited to whether such an order in fact was issued and whether it relates to the petitioner. There shall be no review of whether the alien is actually inadmissible or entitled to any relief from removal."

Finally, section 242(e)(3) of the INA provides limited judicial review of the validity of the expedited removal system, but only "in an action instituted in the United States District Court for the District of Columbia" that is filed "no later than 60 days of after the date the challenged section, regulation, directive, guideline, or procedure ... is first implemented."

The alien petitioners argued that section 242 of the INA provides jurisdiction for the district court over their claims. The circuit court, however, concluded that the district court lacked such jurisdiction, finding:

Petitioners' claims here ... have nothing to do with the issuance of the actual removal orders; instead, they go to the adequacy of the credible fear proceedings. Furthermore, to treat Petitioners' claims regarding the procedural shortcomings of the credible fear determination process as though they were "claim[s] that the order was not lawfully issued due to some procedural defect" would likely eviscerate the clear jurisdiction-limiting provisions of [section 242 of the INA] for it would allow an alien to challenge in court practically any perceived shortcoming in the procedures prescribed by Congress or employed by the Executive — a result clearly at odds with Congress' intent.

The circuit court then turned to the second question, that is, whether section 242 of the INA "operates as an unconstitutional suspension of the writ by stripping courts of habeas jurisdiction over all but a few narrow questions." In assessing this question, the circuit court looked for guidance to Boumediene v. Bush, 553 U.S. 723 (2008), which involved the jurisdiction of a civilian court over the writ of habeas corpus in a matter involving alien enemy combatants who was detained at Guantanamo Bay.

As the circuit court in Castro explained:

In Boumediene the Court addressed two main, sequential questions. First, the Court considered whether detainees at the United States Naval Station at Guantanamo Bay, Cuba, "are barred from seeking the writ or invoking the protections of the Suspension Clause either because of their status ... as enemy combatants, or their physical location ... at Guantanamo Bay." Then, after determining that the detainees were entitled to the protections of the Suspension Clause, the Court addressed the question "whether the statute stripping jurisdiction to issue the writ avoids the Suspension Clause mandate because Congress has provided adequate substitute procedures for habeas corpus." (Citations omitted.)

Significantly, the circuit court held that the alien petitioners in Castro could not prove that they were entitled to the protections of the Suspension Clause:

[B]ecause the Supreme Court has unequivocally concluded that "an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application." Petitioners were each apprehended within hours of surreptitiously entering the United States, so we think it appropriate to treat them as "alien[s] seeking initial admission to the United States." And since the issues that Petitioners seek to challenge all stem from the Executive's decision to remove them from the country, they cannot invoke the Constitution, including the Suspension Clause, in an effort to force judicial review beyond what Congress has already granted them. As such, we need not reach the second question under the Boumediene framework, i.e., whether the limited scope of review of expedited removal orders under [section 242 of the INA] is an adequate substitute for traditional habeas review. (Citations omitted, emphasis added.)

It has long been settled that, as the Supreme Court held in Landon v. Plasencia, 459 U.S. 21, 32 (1982) (and as cited by the circuit court in Castro), "an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative." What is significant about the decision in Castro is the fact that the circuit court extended that reasoning to the alien petitioners who had all entered the United States, albeit surreptitiously and briefly.

The circuit court in Castro recognized this, stating:

Another potential criticism of our position — and particularly of our decision to treat Petitioners as "alien[s] seeking initial admission to the United States" who are prohibited from invoking the Suspension Clause — is that it appears to ignore the Supreme Court's precedents suggesting that an alien's physical presence in the country alone flips the switch on constitutional protections that are otherwise dormant as to aliens outside our borders.

It distinguished seemingly contrary case law, however, noting:

[M]ost of the cases [it cited as potentially contrary decisions] did not involve aliens who were seeking initial entry to the country or who were apprehended immediately after entry. ... And for the cases that did involve arriving aliens, the Court rejected the aliens' efforts to invoke additional protections based merely on their presence in the territorial jurisdiction of the United States.

The circuit court in Castro found, moreover, that "the Supreme Court has suggested in several other opinions that recent clandestine entrants like Petitioners do not qualify for constitutional protections based merely on their physical presence alone." After surveying these opinions, the circuit court concluded: "At a minimum ... all of these cases call into serious question the proposition that even the slightest entrance into this country triggers constitutional protections that are otherwise unavailable to the alien outside its borders."

The significance of this position was apparent before the circuit court issued its decision. As Lee Gelernt, the attorney who argued the case before the Third Circuit and counsel of record on the petition for writ of certiorari, stated in an interview published the day after the circuit court heard the case:

The administration is asking the court of appeals to rule  —  for the first time in the country's history  —  that noncitizens on U.S. soil are not entitled to go to federal court to challenge the legality of their removal. ... If the court of appeals adopts the administration's position, it would create an unprecedented situation in our nation's history and would have ramifications well beyond these Central American families.

This was similar to the position that was taken by the alien petitioners in seeking certiorari. In their petition, they stated: "The Third Circuit starkly departed from this Court's plenary power cases ... [I]t incorrectly held that individuals who have entered the country can be assimilated to the constitutional status of noncitizens arriving at the border."

Again, there are many reasons why the Supreme Court may have denied the alien petitioners' request for certiorari. It would appear, however, that for whatever reason, the Court allowed to stand a decision that significantly limits the constitutional rights of aliens apprehended shortly after an illegal entry into the United States.

The reach of the Third Circuit's decision is not entirely clear. While the court had no problem finding that aliens apprehended shortly after entry were assimilated to the position of aliens seeking initial entry, it stated in a footnote:

Of course, even though our construction of [section 242 of the INA] means that courts in the future will almost certainly lack statutory jurisdiction to review claims that the government has committed even more egregious violations of the expedited removal statute than those alleged by Petitioners, this does not necessarily mean that all aliens wishing to raise such claims will be without a remedy. For instance, consider the case of an alien who has been living continuously for several years in the United States before being ordered removed under [section 235(b)(1) of the INA]. Even though the statute would prevent him from seeking judicial review of a claim, say, that he was never granted a credible fear interview, under our analysis of the Suspension Clause below, the statute could very well be unconstitutional as applied to him (though we by no means undertake to so hold in this opinion). Suffice it to say, at least some of the arguably troubling implications of our reading of [section 242 of the INA] may be tempered by the Constitution's requirement that habeas review be available in some circumstances and for some people.

Further, it is not clear whether other circuits will adopt the reasoning of the circuit court in Castro. That said, there would be strong policy reasons for doing so. The idea that the rights of an alien with no ties to the United States shift the moment that the alien touches dry ground is the sort of legal fiction that is difficult to explain logically. The idea that an alien who evaded inspection to enter illegally has the same rights as a lawfully admitted alien is even harder to rectify. Further, this fiction encourages aliens who want to come to the United States to undertake a dangerous cross-border trek with a smuggler, instead of undergoing orderly processing at a port of entry.

One thing is for certain, however — Castro was a hard-litigated decision, the consequences of which were apparent to the parties, the court of appeals, and the Supreme Court, the latter of which ultimately opted not to hear it.