Argument analysis: It may be Gorsuch’s call

In Department of Homeland Security v. Thuraissigiam, the government is asking the Supreme Court to uphold a system of limited and narrow judicial review over the expedited removal procedure. In 1996, Congress created the expedited removal process, along with other bare-bones administrative procedures, that privilege speed over process. In expedited review, one front-line immigration officer can make the immediate decision to deport someone without a hearing if that the person is not a citizen and cannot prove that they lived in the United States for the past two years. If the person expresses a fear of persecution, an asylum officer then conducts a “credible fear interview” to assess a potential claim. Only if a “significant possibility” exists that the applicant’s asylum claim would succeed, are they given a full immigration hearing.

Vijayakumar Thuraissigiam, a member of the ethnic minority Tamil population in Sri Lanka who was apprehended just inside the U.S. border, sought asylum, claiming a fear of persecution in his native country. An asylum officer determined that Thuraissigiam would likely be unable to quality for asylum in a full hearing, a determination upheld after a quick review by an immigration judge. Thuraissigiam then filed a petition for habeas corpus in federal court, claiming that the asylum officer made legal errors and violated due process when making their decision.

Under 8 U.S.C. § 1252(e)(2), the only questions a federal court can ask when reviewing an expedited-removal decision are whether the person subjected to expedited removal is a citizen and whether the officer properly entered a removal order. The district court found that Section 1252(e)(2) deprived it of jurisdiction to review Thuraissigiam’s claims, which went well beyond these narrow questions. The U.S. Court of Appeals for the 9th Circuit reversed, holding that the habeas review available to Thuraissigiam under Section 1252(e)(2) did not satisfy the requirements of the Constitution’s suspension clause, which provides that a habeas petition may present legal and constitutional challenges to government action absent extraordinary situations (such as a national emergency). The court of appeals remanded the case to the district court to consider the merits of Thuraissigam’s claims. The Supreme Court agreed to decide whether applying 8 U.S.C. § 1252(e)(2) to preclude Thuraissigiam’s habeas petition violated the suspension clause.

During Monday’s oral argument, Deputy Solicitor General Edwin Kneedler began the government’s defense of this scheme by pointing out that expedited removal only applies to people who are clearly inadmissible and have no right to remain in the United States.

Three justices immediately pushed back.

Justice Sonia Sotomayor argued that even though a speedy process may be permitted when someone has no claim to be in the United States, the question of whether the Constitution grants habeas corpus rights to someone “who had a legal claim to stay” is “vastly different.”

Justice Stephen Breyer jumped in, hypothesizing a case in which someone is walking down the street when a police officer arrests and jails them. Breyer asked, “Would you say that’s consistent with the purpose of habeas, which, after all, … is to review the lawfulness of what the—of what the officer has done, not to just review whether he ordered him put in jail”?

Justice Elena Kagan posed a more basic question: Why can’t an asylum seeker get a hearing to prove whether he or she is eligible for asylum?

Kneedler responded that this case is different, because Thuraissigiam has no right to anything. Asylum is discretionary and the remedy called withholding of removal only prevents a removal order from being executed. Kneedler maintained that Thuraissigiam is simply asking for mercy, to which Breyer replied that if someone is entitled by law to mercy, why can’t he ask for it? Breyer noted that Boumediene v. Bush, a habeas case filed by a man charged with being an enemy combatant, guarantees a detainee’s right to a hearing and a right to see a judge.

Kneedler responded that Congress has not taken away habeas; it has simply tailored it.

Sotomayor and Kagan then asked Kneedler to identify the basis for a tailored habeas review that precludes a court’s review of legal issues, including whether the officer properly applied the law.

Before Kneedler could respond, Chief Justice John Roberts broke in, noting that Kneedler had been trying to argue why Manuf v. Green was relevant. Kneedler explained that in Manuf, the court held that there was no habeas review over two U.S. citizens’ claims that an extradition order sending them to Iraq would result in their torture. In Kneedler’s view, Manuf demonstrates that, as in this situation, habeas petitions cannot fashion humanitarian relief.

Kneedler went on to note that in the past year, 9,000 cases involved expedited removal, as did another 100,000 cases in recent years. If the federal courts were permitted to review those decisions, both the judiciary and immigration enforcement efforts would be bogged down.

Lee Gelernt, representing Thuraissigiam, began his challenge to the expedited removal process by making three points: (1) the main problem with expedited review is that it removes the judiciary from any role in the process; (2) the government has provided no limitation as to when it applies expedited removal, which means that nothing would prevent mass deportations from the interior; and (3) the Supreme Court has used habeas review even when legal error was involved in denying discretionary decisions.

Three justices immediately raised concerns.

Justice Samuel Alito remarked that “the fundamental point of habeas is to secure release from what’s claimed to be unlawful executive custody.” “[W]hat’s unusual about this situation,” he said, “is that your client really doesn’t want to be released.” Gelernt clarified that Thuraissigiam wants release only after getting a hearing. Alito responded that “he wants to be released in this country so that he can remain in this country. … And, therefore, it does seem like what he wants is review of his entitlement to remain in this country, not simply what habeas provides, which is release from custody.”

Roberts followed up on this point, asking why, given that this appears to be a request for humanitarian relief, the relief sought is not outside the purpose of habeas.

Gelernt responded that if the government could force someone to give up their claim by complying with what is an allegedly illegal action, there would be no habeas petitions for contempt proceedings. Habeas remains there, as it does here, to make sure that government officials follow the law.

Justice Brett Kavanaugh expressed surprise that someone at the border can have constitutional protections. He asked, why doesn’t Justice Sandra Day O’Connor’s observation in Landon v. Plasencia, supported by eight justices, control: “This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.”

Gelernt answered that whereas Landon was addressing the scope of due process, this case asks what limits can be placed on habeas, a question answered by the suspension clause.

When Justice Ruth Bader Ginsburg asked about what practically could be raised in a habeas petition, Gelernt began to explain that review would be for legal error as to whether an asylum officer applied the wrong standard. When the discussion turned to whether factual errors are reviewable, Alito criticized habeas review for including factual determinations. Gelernt began to offer a compromise, but Sotomayor wondered why he was backing away from factual error and sticking to only legal or constitutional error.

Gelernt pivoted away from that dispute, pushing back against the government’s assertions about the number of potential new claims. He maintained that of the 9,000 cases cited by the government, only 30 people, or 0.03 percent, have challenged their denials with habeas petitions.

In rebuttal, Sotomayor asked Kneedler whether there is judicial review of a claim by someone who says they received no interview. Kneedler characterized that as a factual question. Sotomayor asked whether there is review of an uncontested legal claim, to which Kneedler again answered no.

When Sotomayor asked that if no review is available over such egregious errors, what good is having any statute or standards. Kneedler responded that Congress has decided that no judicial review is needed. Sotomayor suggested that the great writ of habeas corpus was needed to ensure that the executive branch follows the law, to which Kneedler replied that Manuf showed that when Congress decides the scope of review there is no room for the judiciary to craft humanitarian relief.

It appears that four justices—Ginsburg, Breyer, Sotomayor and Kagan—are not comfortable with a scheme that has no mechanism for courts to correct even the most egregious of mistakes. Two justices—Alito and Kavanaugh—have strong concerns over whether Thuraissigiam’s request for a hearing is a departure from how habeas petitions have been used. Justice Neil Gorsuch, who did not ask any questions, may well determine the outcome, as he has in other immigration cases. A decision is expected by summer.

Editor’s note: Analysis based on transcript of oral argument.