Department of Homeland Security et al. v. Thuraissigiam

Certiorari To The United States Court Of Appeals For The Ninth Circuit

No. 19-161. Argued March 2, 2020--Decided June 25, 2020

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) provides for the expedited removal of certain “applicants” seeking admission into the United States, whether at a designated port of entry or elsewhere. 8 U. S. C. §1225(a)(1). An applicant may avoid expedited removal by demonstrating to an asylum officer a “credible fear of persecution,” defined as “a significant possibility . . . that the alien could establish eligibility for asylum.” §1225(b)(1)(B)(v). An applicant who makes this showing is entitled to “full consideration” of an asylum claim in a standard removal hearing. 8 CFR §208.30(f). An asylum officer’s rejection of a credible-fear claim is reviewed by a supervisor and may then be appealed to an immigration judge. §§208.30(e)(8), 1003.42(c), (d)(1). But IIRIRA limits the review that a federal court may conduct on a petition for a writ of habeas corpus. 8 U. S. C. §1252(e)(2). In particular, courts may not review “the determination” that an applicant lacks a credible fear of persecution. §1252(a)(2)(A)(iii).

  Respondent Vijayakumar Thuraissigiam is a Sri Lankan national who was stopped just 25 yards after crossing the southern border without inspection or an entry document. He was detained for expedited removal. An asylum officer rejected his credible-fear claim, a supervising officer agreed, and an Immigration Judge affirmed. Respondent then filed a federal habeas petition, asserting for the first time a fear of persecution based on his Tamil ethnicity and political views and requesting a new opportunity to apply for asylum. The District Court dismissed the petition, but the Ninth Circuit reversed, holding that, as applied here, §1252(e)(2) violates the Suspension Clause and the Due Process Clause.


 1. As applied here, §1252(e)(2) does not violate the Suspension Clause. Pp. 11–33.

  (a) The Suspension Clause provides that “[t]he 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.” Art. I, §9, cl. 2. This Court has held that, at a minimum, the Clause “protects the writ as it existed in 1789,” when the Constitution was adopted. INS v. St. Cyr, 533 U. S. 289, 301. Habeas has traditionally provided a means to seek release from unlawful detention. Respondent does not seek release from custody, but an additional opportunity to obtain asylum. His claims therefore fall outside the scope of the writ as it existed when the Constitution was adopted. Pp. 11–15.

  (b) Respondent contends that three bodies of case law support his argument that the Suspension Clause guarantees a broader habeas right, but none do. Pp. 15–33.

   (1) Respondent first points to British and American cases decided before or around the Constitution’s adoption. All those cases show is that habeas was used to seek release from detention in a variety of circumstances. Respondent argues that some cases show aliens using habeas to remain in a country. But the relief ordered in those cases was simply release; an alien petitioner’s ability to remain in the country was due to immigration law, or lack thereof. The relief that a habeas court may order and the collateral consequences of that relief are two entirely different things. Pp. 15–23.

   (2) Although respondent claims to rely on the writ as it existed in 1789, his argument focuses on this Court’s decisions during the “finality era,” which takes its name from a feature of the Immigration Act of 1891 making certain immigration decisions “final.” In Nishimura Ekiu v. United States, 142 U. S. 651, the Court interpreted the Act to preclude judicial review only of questions of fact. Federal courts otherwise retained authority under the Habeas Corpus Act of 1867 to determine whether an alien was detained in violation of federal law. Thus, when aliens sought habeas relief during the finality era, the Court exercised habeas jurisdiction that was conferred by the habeas statute, not because it was required by the Suspension Clause—which the Court did not mention. Pp. 23–32.

   (3) The Court’s more recent decisions in Boumediene v. Bush, 553 U. S. 723, and St. Cyr, 533 U. S. 289, also do not support respondent’s argument. Boumediene was not about immigration at all, and St. Cyr reaffirmed that the common-law habeas writ provided a vehicle to challenge detention and could be invoked by aliens already in the country who were held in custody pending deportation. It did not approve respondent’s very different attempted use of the writ. Pp. 32–33.

 2. As applied here, §1252(e)(2) does not violate the Due Process Clause. More than a century of precedent establishes that, for aliens seeking initial entry, “the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.” Nishimura Ekiu, 142 U. S., at 660. Respondent argues that this rule does not apply to him because he succeeded in making it 25 yards into U. S. territory. But the rule would be meaningless if it became inoperative as soon as an arriving alien set foot on U. S. soil. An alien who is detained shortly after unlawful entry cannot be said to have “effected an entry.” Zadvydas v. Davis, 533 U. S. 678, 693. An alien in respondent’s position, therefore, 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. §§1225(b)(1)(B)(ii), (v). Pp. 34–36.

917 F. 3d 1097, reversed and remanded.

 Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Gorsuch, and Kavanaugh, JJ., joined. Thomas, J., filed a concurring opinion. Breyer, J., filed an opinion concurring in the judgment, in which Ginsburg, J., joined. Sotomayor, J., filed a dissenting opinion, in which Kagan, J., joined.