Opinion analysis: Court confirms limitations on federal review for asylum seekers

In a 7-2 decision, the Supreme Court in Department of Homeland Security v. Thuraissigiam upheld a scheme of limited and narrow judicial review over expedited removal, a bare-bones administrative process created under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. Expedited removal allows an immigration official to make the immediate decision to deport a person without a hearing if the person is apprehended within 100 miles of a border and if they cannot prove they have lived in the country for more than two weeks.

Congress provided three exceptions to expedited removal, one of which involves asylum seekers. If a noncitizen expresses a fear of persecution, the officer must refer them to an asylum officer who conducts what is known as a credible fear interview. If the asylum officer finds a “significant possibility” that the applicant’s asylum claim would succeed, the applicant is given a full immigration hearing.

The narrow legal question for the court in this case was whether the asylum seeker can file in federal district court a petition for habeas corpus—a means of challenging unlawful confinement or vindicating federal rights—to review any legal or constitutional errors the asylum officer may have made. As the court explained, the simple answer in this case is no.

Vijayakumar Thuraissigiam, a member of the ethnic minority Tamil population in Sri Lanka, was apprehended within 25 feet of the U.S. border. He asked for asylum because he feared persecution in his home country after having been kidnapped and beaten. After a credible fear interview, an asylum officer found that there was no significant possibility that Thuraissigiam would qualify for asylum in a full hearing. An immigration judge upheld this decision after a cursory review. Thuraissigiam filed a habeas petition, alleging that the asylum officer had erred by not considering relevant facts about the identity and motives of his attackers, who he explained were government officials targeting him for his political opposition to them, and that the expedited asylum procedure itself violated due process because Thuraissigiam did not receive adequate safeguards, such as a competent translator and an opportunity to present country-condition reports.

The district court denied his claims, contending that under 8 U.S.C. § 1252(e)(2), Congress had limited the ability of federal courts to review expedited removal cases to only the narrow issues of whether Thuraissigiam was a citizen, whether the immigration officer had entered a valid removal order, and whether Thuraissigiam was wrongfully subjected to expedited removal because he had previously been granted lawful permanent residence, refugee status or asylum. 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 guarantees the right to habeas corpus absent extraordinary situations (such as a national emergency).

Today the Supreme Court reversed the 9th Circuit and rejected Thuraissigiam’s argument that Section 1252(e)(2) violated the suspension clause and the due process clause. Writing for the majority, Justice Samuel Alito began by emphasizing the burden on the immigration system imposed by the credible fear process, “[e]ven without the added step of judicial review.” “If courts must review credible-fear claims that in the eyes of immigration officials and an immigration judge do not meet the low bar for such claims, expedited removal would augment the burdens on that system. Once a fear is asserted, the process would no longer be expedited.”

Turning to Thuraissigiam’s suspension clause arguments, the court explained that, because habeas review in 1789 was available only for those seeking to be released from federal custody, Thuraissigiam could not use habeas as a means to request an immigration remedy to remain in the United States.

The majority went on to state that cases from the “finality era,” the 60-year period from 1891 to 1952 in which the executive branch placed numerous restrictions on immigration, did not support Thuraissigiam’s argument that the Constitution entitled him to habeas review. According to Alito, “the Court exercised habeas jurisdiction in the finality era cases because the habeas statute conferred that authority, not because it was required by the Suspension Clause.”

Finally, the majority distinguished this case from Immigration and Naturalization Service v. St. Cyr and Boumediene v. Bush. In Boumediene, enemy combatants detained in Guantanamo Bay in Cuba successfully challenged as violating the suspension clause a 2006 law that deprived federal courts of jurisdiction over habeas petitions filed by enemy combatants. The majority argued that Boumediene is distinguishable because the enemy combatants “had been ‘apprehended on the battlefield in Afghanistan’ and elsewhere, not while crossing the border,” and “nothing in the Court’s discussion of the Suspension Clause suggested that [the enemy combatants] could have used habeas as a means of gaining entry” into the United States.

In St. Cyr, the court held that habeas review existed for lawful permanent residents seeking to bring a constitutional challenge to Congress’ decision to take away a substantive remedy that was available when they entered into criminal plea bargains. But Alito explained that St. Cyr did not apply to Thuraissigiam, who had not been in the United States long enough and had not effectuated a sufficient lawful entry into the country, to be afforded constitutional protections that lawful permanent residents receive. Moreover, St. Cyr did not “signify approval of [Thuraissigiam]’s very different attempted use of the writ, which the Court did not consider.”

The court then addressed Thuraissigiam’s due process claim. Alito explained that newly arriving noncitizens who enter without status do not have the same constitutional protections as do noncitizens who are already within the country. “[A]n alien in [Thuraissigiam]’s position has only those rights regarding admission that Congress has provided by statute. In respondent’s case, Congress provided the right to a ‘determin[ation]’ whether he had ‘a significant possibility’ of ‘establish[ing] eligibility for asylum,’ and he was given that right.” The majority did note in footnote 28 that Thuraissigiam had never given the asylum officer factual information about the identity and motives of his attackers, which he presented in his habeas petition. The court cited two regulations that permit reopening of cases or reconsideration of administrative decisions, and also pointed out that “the Executive always has discretion not to remove.”

Justice Clarence Thomas concurred “to address the original meaning of the Suspension Clause.” Thomas argued that the Founders had intended the Great Writ of habeas corpus “to guarantee freedom from discretionary detention,” which would arise when the executive branch detains someone without bail or trial based only on suspicion of crime or dangerousness. In contrast, argued Thomas, IIRIRA’s expedited removal process, which affects people who are seeking an immigration benefit, “bears little resemblance to a suspension as that term was understood at the founding.”

Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, concurred in the judgment, emphasizing that the decision in this case is a very narrow one, confined to an as-applied challenge by the asylum seeker at issue. Breyer listed a number of situations in which he suggested that habeas review would be available, such as the case of someone apprehended within the interior whom a frontline officer mistakenly deports, disbelieving the person’s claim of citizenship or claim of a more than two-year residence, or of someone who claims that an asylum officer made an egregious error, such as “the dead-wrong legal interpretation” that Judaism is not a religion.

Breyer clarified that the decision in this case was predicated on the fact that Thuraissigiam was apprehended 25 yards from the border and was provided the expedited removal process as designed, which is available to all asylum seekers. Moreover, Thuraissigiam was in essence seeking a review of facts, and not of law, because “[a]t the heart of both purportedly legal contentions … lies a disagreement with immigration officials finding about two brute facts underlying their credible-fear determination—again, the identity of respondent’s attackers and their motive for attacking him.” Lastly, Thuraissigiam’s claimed procedural errors were too granular for review, making his case distinguishable from that of an asylum seeker alleging that the border patrol officer had denied him or her all access to the existing procedures provided by Congress. Breyer “would therefore avoid making statements about the Suspension Clause that sweep beyond the principles needed to decide this case—let alone come to conclusions about the Due Process Clause, a distinct constitutional provision that is not directly at issue here.”

Justice Sonia Sotomayor, joined by Justice Elena Kagan, wrote a strongly worded dissent, asserting that the majority “declares that the Executive Branch’s denial of asylum claims in expedited removal proceedings shall be functionally unreviewable through the writ of habeas corpus, no matter whether the denial is arbitrary or irrational or contrary to governing law. That determination flouts over a century of this Court’s practice.”

Sotomayor criticized the majority for what she called a distortion of the history and purpose of the Great Writ, in which a simple release from custody has never been the only remedy sought by those challenging executive power. She argued that giving credence to the lack of any specific immigration analogue in 1789 is misguided, because the country essentially had an open-border policy until the rise of the modern federal immigration scheme in the 20th century. In Sotomayor’s view, Thuraissigiam’s habeas claim is a means to prevent the executive branch from creating an arbitrary administrative scheme plagued with errors, a right that has been the purpose of habeas since its inception. Invoking habeas is proper, not to secure Thuraissigiam’s immediate release from custody, but to grant him rightful access to laws that are supposed to be available to him.

Sotomayor also pointedly criticized the majority’s suggestion that Thuraissigiam’s “unlawful status independently prohibits him from challenging the constitutionality of the expedited removal proceedings.” “Both the Constitution and this Court’s cases,” she argued, “plainly guarantee due process protections to all ‘persons’ regardless of their immigration status, a guarantee independent of the whims of the political branches. This contrary proclamation by the Court unnecessarily decides a constitutional question in a manner contrary to governing law.” The decision “handcuffs the Judiciary’s ability to … safeguard individual liberty,” Sotomayor lamented, and “paves the way towards transforming already summary expedited removal proceedings into arbitrary administrative adjudications.”