Castro v. United States Department of Homeland Security

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-1339

_____________

ROSA ELIDA CASTRO; A.A.G.C.;

LAURA LISSETH FLORES-PICHINTE; E.S.U.F.;

KAREN MARGARITA ZELAYA ALBERTO; S.E.A.Z;

KELLY GUTIERREZ RUBIO; G.J.S.G.;

GLADIS CARRASCO GOMEZ; B.J.R.C.;

WENDY AMPARO OSORIO MARTINEZ; D.S.R.O.;

CARMEN LEIVA-MENJIVAR; E.A.M.L.; A.M.M.L.;

DINA ISABEL HUEZO DE CHICAS; L.J.C.H.;

CINDY GISELA LOPEZ FUNEZ; W.S.M.L.;

LESLY GRIZELDA CRUZ MATAMOROS; C.N.V.C.;

JEYDI ERAZO ANDURAY; D.A.L.E.;

DINORA LEMUS; A.R.M.L.;

JENNYS MENDEZ DEBONILLA; A.B.B.M.;

MARTA ALICIA RODRIGUEZ ROMERO; W.A.M.R.;

C.A.M.R.; ROXANA AGUIRRE-LEMUS; C.A.A.;

CELIA PATRICIA SORIANO BRAN; J.A.A.S.;

MARIA DELMI MARTINEZ NOLASCO; J.E.L.M.;

GUADALUPE FLORES FLORES; W.J.B.F.;

CARMEN ALEYDA LOBO MEJIA; A.D.M.L.L.;

JULISSA CLEMENTINA HERNANDEZ JIMINEZ;

A.H.V.H.; *MARIA ERLINDA MEJIA MELGAR;

*E.N.C.M.; *D.G.C.M.;

JETHZABEL MARTIZA AGUILAR MANICA;

V.G.R.A.; HEYMI LISSAMANCIA AREVALO-

MONTERROZA; R.N.F.A;

ELSA MILAGROS RODRIGUEZ GARCIA; J.M.V.G.;

ELIZABETH BENITEZ DE MARQUEZ; A.M.B.;

INGRID MARICELA ELIAS SORIANO; A.E.C.E.;

MARIBEL MARIA ESCOBAR RAMIREZ;

C.Y.L.E.; Y.I.L.E.; R.J.L.E.;

ANA MARICEL RODRIGUEZ-GRANADOS;

J.A.B.R.; V.E.B.R.;

ZULMA LORENA PORTILLO DE DIAZ; K.L.D.P.,

Appellants

v.

UNITED STATES DEPARTMENT OF

HOMELAND SECURITY;

UNITED STATES CUSTOMS AND BORDER

PROTECTION;

UNITED STATES CITIZENSHIP AND

IMMIGRATION SERVICES;

UNITED STATES IMMIGRATION AND

CUSTOMS ENFORCEMENT

SECRETARY OF DHS; ATTORNEY GENERAL OF

THE UNITED STATES;

COMMISSIONER OF CBP; DIRECTOR OF USCIS;

PHILADELPHIA FIELD DIRECTOR, CBP;

PHILADELPHIA ASSISTANT FIELD OFFICE

2

DIRECTOR, ICE; DIRECTOR, BERKS COUNTY

RESIDENTIAL CENTER

* Dismissed Pursuant to Court’s Order entered

May 13, 2016.

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court Nos. 5-15-cv-06153, 5-15-cv-06403,

5-15-cv-06404, 5-15-cv-06406, 5-15-cv-06410,

5-15-cv-06411, 5-15-cv-06428, 5-15-cv-06429,

5-15-cv-06430, 5-15-cv-06431, 5-15-cv-06451,

5-15-cv-06472, 5-15-cv-06474, 5-15-cv-06475,

5-15-cv-06546, 5-15-cv-06547, 5-15-cv-06551,

5-15-cv-06553, 5-15-cv-06591, 5-15-cv-06592,

5-15-cv-06594, 5-15-cv-06595, 5-15-cv-06676,

5-15-cv-06677, 5-15-cv-06755, 5-15-cv-06788,

5-15-cv-06798, 5-15-cv-06863,5-16-cv-00069

District Judge: The Honorable Paul S. Diamond

_____________

Argued May 19, 2016

Before: SMITH, HARDIMAN, and SHWARTZ,

Circuit Judges

3

(Opinion Filed: August 29, 2016)

Lee P. Gelernt [ARGUED]

American Civil Liberties Union

Immigrants’ Rights Project

125 Broad Street

18th Floor

New York, NY 10004

Jennifer C. Newell

American Civil Liberties Union Foundation

39 Drumm Street

San Francisco, CA 94111

Mary Catherine Roper

Molly M. Tack-Hooper

American Civil Liberties Union of Pennsylvania

P.O. Box 60173

Philadelphia, PA 19106

Witold J. Walczak

American Civil Liberties Union

313 Atwood Street

Pittsburgh, PA 15213

Counsel for Appellants

Joseph A. Darrow

Erez Reuveni [ARGUED]

United States Department of Justice

4

Office of Immigration Litigation

450 5th Street, N.W.

Washington, DC 20001

Counsel for Appellees

Ethan D. Dettmer

Gibson Dunn

555 Mission Street

Suite 3000

San Francisco, CA 94105

Counsel for Amici

Curiae Gabriel J.

Chin, Nancy

Morawetz, Hiroshi

Motomura, David

Thronson, Leti

Volpp, and

Stephen Yale-

Loehr

Jonathan H. Feinberg

Kairys Rudovsky Messing & Feinberg

718 Arch Street

Suite 501 South

Philadelphia, PA 19106

Mark C. Fleming

WilmerHale

60 State Street

5

Boston, MA 02109

Counsel for Amici

Curiae Erwin

Chermerinsky,

Eric M. Freedman,

Brandon L.

Garrett, Jonathan

L. Hafetz, Paul D.

Halliday, Randy A.

Hertz, Aziz Huq,

Lee Kovarsky,

Christopher N.

Lasch, James S.

Liebman, Gerald

L. Neuman, Kermit

Roosevelt,

Theodore W.

Ruger, Stephen I.

Vladeck and

Michael J. Wishnie

Bruce P. Merenstein

Nancy Winkelman

Schnader Harrison Segal & Lewis

1600 Market Street

Suite 3600

Philadelphia, PA 19103

Counsel for Amici

Curiae Tahirih

6

Justice Center,

David B.

Thronson, Young

Center for

Immigrant

Childrens Rights,

Sheila I. Velez-

Martinez, Shoba S.

Wadhia, Maureen

A. Sweeney,

Harvard

Immigration and

Refugee Clinic,

American Friends

Service, Farrin R.

Anello, Jon Bauer,

Lenni Benson,

Linda Bosniak,

Benjamin Casper,

Center for Gender

& Refugee Studies,

Denise Gilman,

Joanne

Gottesman,

Geoffrey A.

Hoffman, KIND,

Inc., National

Immigrant Justice

Center (NIJC),

7

Sarah H. Paoletti,

Michele R.

Pistone, Galya

Ruffer and

Rebecca A.

Sharpless

Charles Roth

National Immigrant Justice Center

208 South LaSalle Street

Suite 1300

Chicago, IL 60604

Counsel for

Amicus Curiae

National

Immigrant Justice

Center (NIJC)

________________

OPINION

________________

SMITH, Circuit Judge.

Petitioners are twenty-eight families – twenty-

eight women and their minor children – who filed habeas

8

petitions in the United States District Court for the

Eastern District of Pennsylvania to prevent, or at least

postpone, their expedited removal from this country.

They were ordered expeditiously removed by the

Department of Homeland Security (DHS) pursuant to its

authority under § 235(b)(1) of the Immigration and

Nationality Act (INA), 8 U.S.C. § 1225(b)(1). Before

DHS could effect their removal, however, each

petitioning family indicated a fear of persecution if

returned to their native country. Nevertheless, following

interviews with an asylum officer and subsequent de

novo review by an immigration judge (IJ), Petitioners’

fear of persecution was found to be not credible, such

that their expedited removal orders became

administratively final. Each family then filed a habeas

petition challenging various issues relating to their

removal orders.

In this appeal we must determine, first, whether the

District Court has jurisdiction to adjudicate the merits of

Petitioners’ habeas petitions under § 242 of the INA, 8

U.S.C. § 1252.1 Because we hold that the District Court

does not have jurisdiction under the statute, we must also

1

From this point in this opinion, we will refer to

provisions of the INA by their location in the United

States Code.

9

determine whether the statute violates the Suspension

Clause of the United States Constitution. This is a very

difficult question that neither this Court nor the Supreme

Court has addressed. We hold that, at least as applied to

Petitioners and other similarly situated aliens, § 1252

does not violate the Suspension Clause. Consequently,

we will affirm the District Court’s order dismissing

Petitioners’ habeas petitions for lack of subject matter

jurisdiction.

I. STATUTORY FRAMEWORK

The statutory and regulatory provisions of the

expedited removal regime are at the heart of this case.

We will, therefore, provide an overview of the provisions

which form the framework governing expedited removal

before further introducing Petitioners and their specific

claims. First, we will discuss 8 U.S.C. § 1225(b)(1) and

its implementing regulations, which lay out the

administrative side of the expedited removal regime. We

will then turn to 8 U.S.C. § 1252, which specifies the

scope of judicial review of all removal orders, including

expedited removal orders.

A. Section 1225(b)(1)

10

Under 8 U.S.C. § 1225(b)(1) and its companion

regulations, two classes of aliens are subject to expedited

removal if an immigration officer determines they are

inadmissible due to misrepresentation or lack of

immigration papers: (1) aliens “arriving in the United

States,” and (2) aliens “encountered within 14 days of

entry without inspection and within 100 air miles of any

U.S. international land border.”2 See 8 U.S.C.

§ 1225(b)(1)(A)(i) & (iii); Designating Aliens for

Expedited Removal, 69 Fed Reg. 48877-01 (Aug. 11,

2004). 3 If an alien falls into one of these two classes, and

2

Any aliens otherwise falling within these two categories

but who are inadmissible for reasons other than

misrepresentation or missing immigration papers are

referred for regular – i.e., non-expedited – removal

proceedings conducted under 8 U.S.C. § 1229a. See 8

U.S.C. § 1225(b)(2)(A).

3

The statute actually gives the Attorney General the

unfettered authority to expand this second category of

aliens to “any or all aliens” that cannot prove that they

have been physically present in the United States for at

least the two years immediately preceding the date their

inadmissibility is determined, regardless of their

proximity to the border. See 8 U.S.C.

§ 1225(b)(1)(A)(iii). Although DHS (on behalf of the

Attorney General) has opted to apply the expedited

removal regime only to the limited subset of aliens

11

she indicates to the immigration officer that she fears

persecution or torture if returned to her country, the

officer “shall refer the alien for an interview by an

asylum officer” to determine if she “has a credible fear of

persecution [or torture].” 8 U.S.C. § 1225(b)(1)(A)(ii) &

(B)(ii); 8 C.F.R. § 208.30(d). The statute defines the

term “credible fear of persecution” as “a significant

possibility, taking into account the credibility of the

statements made by the alien in support of the alien’s

claim and such other facts as are known to the officer,

that the alien could establish eligibility for asylum under

section 1158 of this title.” 8 U.S.C. § 1225(b)(1)(B)(v);

see also 8 C.F.R. § 208.30(e)(3) (“An alien will be found

to have a credible fear of torture if the alien shows that

there is a significant possibility that he or she is eligible

for withholding of removal or deferral of removal under

the Convention Against Torture.”).

Should the interviewing asylum officer determine

that the alien lacks a credible fear of persecution (i.e., if

the officer makes a “negative credible fear

described above, it has expressly reserved its authority to

exercise at a later time “the full nationwide enforcement

authority of [§ 1225(b)(1)(A)(iii)(II)].” See Designating

Aliens for Expedited Removal, 69 Fed Reg. 48877-01

(Aug. 11, 2004).

12

determination”), the officer orders the removal of the

alien “without further hearing or review,” except by an IJ

as discussed below. 8 U.S.C. § 1225(b)(1)(B)(iii)(I).

The officer is then required to “prepare a written record”

that must include “a summary of the material facts as

stated by the applicant, such additional facts (if any)

relied upon by the officer, and the officer’s analysis of

why, in the light of such facts, the alien has not

established a credible fear of persecution.” Id. §

1225(b)(1)(B)(iii)(II). Next, the asylum officer’s

supervisor reviews and approves the negative credible

fear determination, after which the order of removal

becomes “final.” 8 C.F.R. § 235.3(b)(7); id. §

208.30(e)(7). Nevertheless, if the alien so requests, she is

entitled to have an IJ conduct a de novo review of the

officer’s negative credible fear determination, and “to be

heard and questioned by the [IJ]” as part of this review.

8 U.S.C. § 1225(b)(1)(B)(iii)(III); 8 C.F.R. § 1003.42(d).

Assuming the IJ concurs in the asylum officer’s negative

credible fear determination, “[t]he [IJ]’s decision is final

and may not be appealed,” and the alien is referred back

to the asylum officer to effect her removal. 8 C.F.R.

§ 1208.30(g)(2)(iv)(A). 4

4

On the other hand, if the interviewing asylum officer, or

the IJ upon de novo review, concludes that the alien

possesses a credible fear of persecution or torture, the

13

B. Section 1252

Section 1252 of Title 8 defines the scope of

judicial review for all orders of removal. This statute

narrowly circumscribes judicial review for expedited

removal orders issued pursuant to § 1225(b)(1). It

provides that “no court shall have jurisdiction to review

. . . the application of [§ 1225(b)(1)] to individual aliens,

including the [credible fear] determination made under

[§ 1225(b)(1)(B)].” 8 U.S.C. § 1252(a)(2)(A)(iii).

Moreover, except as provided in § 1252(e), the statute

strips courts of jurisdiction to review: (1) “any individual

determination or to entertain any other cause or claim

arising from or relating to the implementation or

operation of an [expedited removal] order”; (2) “a

decision by the Attorney General to invoke” the

expedited removal regime; and (3) the “procedures and

policies adopted by the Attorney General to implement

the provisions of [§ 1225(b)(1)].” Id. § 1252(a)(2)(A)(i),

(ii) & (iv). Thus, the statute makes abundantly clear that

whatever jurisdiction courts have to review issues

alien is referred for non-expedited removal proceedings

under 8 U.S.C. § 1229a, “during which time the alien

may file an application for asylum and withholding of

removal.” 8 C.F.R. § 1208.30(g)(2)(iv)(B).

14

relating to expedited removal orders arises under

§ 1252(e).

Section 1252(e), for its part, preserves judicial

review for only a small subset of issues relating to

individual expedited removal orders:

Judicial review of any determination made

under [§ 1225(b)(1)] is available in habeas

corpus proceedings, but shall be limited to

determinations of—

(A) whether the petitioner is an alien,

(B) whether the petitioner was

ordered removed under

[§ 1225(b)(1)], and

(C) whether the petitioner can prove

. . . that the petitioner is [a lawful

permanent resident], has been

admitted as a refugee . . . or has been

granted asylum . . . .

15

Id. § 1252(e)(2). In reviewing a determination under

subpart (B) above – i.e., in deciding “whether the

petitioner was ordered removed under [§ 1225(b)(1)]” –

“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 admissible or entitled to any relief from

removal.” Id. § 1252(e)(5).

Section 1252(e) also provides jurisdiction to the

district court for the District of Columbia to review

“[c]hallenges [to the] validity of the [expedited removal]

system.” Id. § 1252(e)(3)(A). Such systemic challenges

include challenges to the constitutionality of any

provision of the expedited removal statute or its

implementing regulations, as well as challenges claiming

that a given regulation is inconsistent with law. See id.

§ 1252(e)(3)(A)(i) & (ii). Nevertheless, systemic

challenges must be brought within sixty days after

implementation of the challenged statute or regulation.

Id. § 1252(e)(3)(B); see also Am. Immigration Lawyers

Ass’n v. Reno, 18 F. Supp. 2d 38, 47 (D.D.C. 1998),

aff’d, 199 F.3d 1352 (D.C. Cir. 2000) (holding that “the

60–day requirement is jurisdictional rather than a

16

traditional limitations period”).5

II. FACTUAL AND PROCEDURAL

BACKGROUND

Petitioners are natives and citizens of El Salvador,

Honduras, and Guatemala who, over a period of several

months in late 2015, entered the United States seeking

refuge. While their reasons for fleeing their home

countries vary somewhat, each petitioner claims to have

been, or to fear becoming, the victim of violence at the

hands of gangs or former domestic partners. United

States Customs and Border Protection (CBP) agents

5

In its brief, as it did during oral argument, the

government repeatedly argues that many of Petitioners’

claims are of a systemic nature and should have been

brought in the district court for the District of Colombia

under § 1252(e)(3). In making this argument, however,

the government conveniently elides the fact that the

sixty-day deadline would clearly prevent Petitioners from

litigating their systemic claims in that forum, because

that deadline passed years ago.

17

encountered and apprehended each petitioner within

close proximity to the border and shortly after their

illegal crossing. 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.6 And because none of the petitioners presented

immigration papers upon their arrest, and none claimed

to have been previously admitted to the country, they

clearly fall within the class of aliens to whom the

expedited removal statute applies. See Part I.A above.

After the CBP agents apprehended them and began

the expedited removal process, Petitioners each

expressed a fear of persecution or torture if returned to

their native country. Accordingly, each was referred to

6

For reasons explained in detail below, we consider the

facts regarding Petitioners’ entry and practically-

immediate arrest by immigration enforcement officials to

be crucial in resolving Petitioners’ Suspension Clause

argument. Accordingly, we grant the government’s

motion for judicial notice as well as its motion to file

under seal the documents subject to its motion for

judicial notice.

18

an asylum officer for a credible fear interview. As part

of the credible fear interview process, the asylum officers

filled out and gave to Petitioners a number of forms,

including a form memorializing the officers’ questions

and Petitioners’ answers during the interview. Following

the interviews – all of which resulted in negative credible

fear determinations – Petitioners requested and were

granted de novo review by an IJ. Because the IJs

concurred in the asylum officers’ conclusions, Petitioners

were referred back to DHS for removal without recourse

to any further administrative review. Each petitioning

family then submitted a separate habeas petition to the

District Court,7 each claiming that the asylum officer and

IJ conducting their credible fear interview and review

violated their Fifth Amendment procedural due process

rights, as well as their rights under the INA, the Foreign

7

Petitioners filed their habeas petitions in the Eastern

District of Pennsylvania because they are being detained

pending their removal at the Berks County Residential

Center in Leesport, Pennsylvania. While we are

uncertain whether venue was proper in the Eastern

District of Pennsylvania – § 1252 does not appear to

indicate where habeas petitions under § 1252(e)(2)

should be filed – none of the parties has argued that

venue was improper. In that venue is non-jurisdictional,

we need not resolve the issue. See Bonhometre v.

Gonzales, 414 F.3d 442, 446 n.5 (3d Cir. 2005).

19

Affairs Reform and Restructuring Act of 1998, the

United Nations Convention Against Torture, the

Administrative Procedure Act, and the applicable

implementing regulations.8 All the petitions were

reassigned to Judge Paul S. Diamond for the limited

purpose of determining whether subject matter

jurisdiction exists to adjudicate Petitioners’ claims.

Petitioners argued before the District Court that

§ 1252 is ambiguous as to whether the Court could

review their challenges to the substantive and procedural

soundness of DHS’s negative credible fear

determinations. As such, they argued that the Court

8

Though Petitioners assert on appeal that they each

raised “a variety” of claims in their habeas petitions,

Pet’rs’ Br. 33, they specifically point us to only two as

being uniform across all Petitioners: first, they claim that

the asylum officers conducting the credible fear

interviews failed to “prepare a written record” of their

negative credible fear determinations that included the

officers’ “analysis of why . . . the alien has not

established a credible fear of persecution,” 8 U.S.C.

§ 1225(b)(1)(B)(iii)(II); and second, they claim that the

officers and the IJs applied a higher standard for

evaluating the credibility of their fear of persecution than

is called for in the statute.

20

should construe the statute to allow review of their claims

in order to avoid “the serious constitutional concerns that

would arise” otherwise. JA 19. The District Court

roundly rejected this argument, concluding instead that

§ 1252 unambiguously forecloses judicial review of all of

Petitioners’ claims, and that to adopt Petitioners’

proposed construction would require the Court “to do

violence to the English language to create an ‘ambiguity’

that does not otherwise exist.” JA 20.

Turning then to the Suspension Clause issue, the

District Court separately analyzed what it termed as

Petitioners’ “substantive” challenges – those going to the

ultimate correctness of the negative credible fear

determinations – versus their challenges relating to the

procedures DHS followed in making those

determinations. Based on the Supreme Court’s decision

in Boumediene v. Bush, 553 U.S. 723 (2008), the Court

derived four “factors in determining the scope of an

alien’s Suspension Clause rights”: “(1) historical

precedent; (2) separation-of-powers principles; (3) the

gravity of the petitioner’s challenged liberty deprivation;

and (4) a balancing of the petitioner’s interest in more

rigorous administrative and habeas procedures against

the Government’s interest in expedited proceedings.” JA

25 (citations omitted). Applying these factors, the Court

determined that the Suspension Clause did not require

that judicial review be available to address any of

21

Petitioners’ claims, and therefore that § 1252(e) does not

violate the Suspension Clause. Thus, the Court

dismissed with prejudice the consolidated petitions for

lack of subject matter jurisdiction. Petitioners then filed

a timely notice of appeal with this Court. 9

III. ANALYSIS

Petitioners challenge on appeal the District Court’s

holding that it lacked subject matter jurisdiction under

§ 1252(e) to review Petitioners’ claims, as well as the

Court’s conclusion that § 1252(e) does not violate the

Suspension Clause. We review de novo the District

Court’s determination that it lacked subject matter

jurisdiction. 10 Great W. Mining & Mineral Co. v. Fox

9

A motions panel of this Court granted Petitioners’

motion for stay of removal pending the outcome of this

appeal, as well as Petitioners’ motion to expedite the

appeal. The panel also granted the motions of various

persons and entities for leave to file amicus briefs in

support of Petitioners. The Court thanks amici for their

valuable contributions in this appeal.

10

Although the District Court concluded that it lacked

subject matter jurisdiction and dismissed the petitions

accordingly, we nonetheless have jurisdiction under 28

22

Rothschild LLP, 615 F.3d 159, 163 (3d Cir. 2010).

Petitioners, as the side asserting jurisdiction, “bea[r] the

burden of proving that jurisdiction exists.” Nuveen Mun.

Trust ex rel. Nuveen High Yield Mun. Bond Fund v.

WithumSmith Brown, P.C., 692 F.3d 283, 293 (3d Cir.

2012).

A. Statutory Jurisdiction under § 1252(e)

The government contends that § 1252

unambiguously forecloses judicial review of Petitioners’

claims, and that nearly every court to address this or

similar issues has held that the statute precludes

challenges related to the expedited removal regime.

Petitioners, on the other hand, argue that the statute can

plausibly be construed to provide jurisdiction over their

claims, and that, per the doctrine of constitutional

avoidance, the statute should therefore be so construed.

They also point to precedent purportedly supporting their

position.

U.S.C. § 1291 “to determine [our] own jurisdiction.”

White-Squire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d

Cir. 2010) (quoting United States v. Ruiz, 536 U.S. 622,

628 (2002)).

23

We review pure legal questions of statutory

interpretation de novo. Ki Se Lee v. Ashcroft, 368 F.3d

218, 221 (3d Cir. 2004). “The first step in interpreting a

statute is to determine whether the language at issue has a

plain and unambiguous meaning with regard to the

particular dispute in the case.” Id. at 222 (internal

quotation marks and citations omitted). If the statute is

unambiguous, we must go no further. Roth v. Norfalco

LLC, 651 F.3d 367, 379 (3d Cir. 2011). The statute must

be enforced according to its plain meaning, even if doing

so may lead to harsh results. See Lamie v. U.S. Tr., 540

U.S. 526, 534, 538 (2004) (“[W]hen the statute’s

language is plain, the sole function of the courts—at least

where the disposition required by the text is not absurd—

is to enforce it according to its terms. . . . Our

unwillingness to soften the import of Congress’ chosen

words even if we believe the words lead to a harsh

outcome is longstanding.” (internal quotation marks and

citations omitted)). Thus, we begin with the statute’s

plain meaning.

As discussed in our overview of the expedited

removal regime, see Part I.B above, § 1252 makes

abundantly clear that if jurisdiction exists to review any

claim related to an expedited removal order, it exists only

under subsection (e) of the statute. See 8 U.S.C.

§ 1252(a)(2)(A). And under subsection (e), unless the

petitioner wishes to challenge the “validity of the

24

system” as a whole rather than as applied to her, the

district courts’ jurisdiction is limited to three narrow

issues. See id. § 1252(e)(2) & (3). Petitioners in this

case concede that two of those three issues do not apply

to them; that is, they concede they are aliens, id.

§ 1252(e)(2)(A), and that they have not previously been

lawfully admitted to the country, id. § 1252(e)(2)(C).

Nevertheless, they argue that their claims fall within the

third category of issues that courts are authorized to

entertain: “whether [they have been] ordered removed

under [§ 1225(b)(1).]” Id. § 1252(e)(2)(B).

At first glance, it is hard to see how this latter grant

of jurisdiction can be of any help to Petitioners, since

they do not dispute that an expedited removal order is

outstanding as to each. Indeed, their argument seems

even more untenable in light of § 1252(e)(5), the first

sentence of which clarifies that when a court must

“determin[e] whether an alien has been ordered removed

under [§ 1225(b)(1)], the court’s inquiry shall be limited

to whether such an order in fact was issued and whether

it relates to the petitioner.” Id. § 1252(e)(5). How could

the government’s alleged procedural deficiencies in

ordering the Petitioners’ expedited removal undermine

the fact that expedited removal orders “in fact w[ere]

issued” and that these orders “relat[e] to the

petitioner[s]”? Id.

25

Nevertheless, Petitioners argue that the second

sentence of § 1252(e)(5) creates a strong inference that

courts have jurisdiction to review claims like theirs. This

sentence states, “There shall be no review of whether the

alien is actually inadmissible or entitled to any relief

from removal.” Id. Petitioners argue that because this

sentence explicitly prohibits review of only two narrow

questions, we should read it to implicitly authorize

review of other questions related to the expedited

removal order, such as whether the removal order

resulted from a procedurally erroneous credible fear

proceeding. Furthermore, Petitioners argue that the

government’s proposed construction of § 1252(e)(2)(B)

and (e)(5) would render the second sentence of

§ 1252(e)(5) superfluous since the first sentence – which

would essentially limit courts’ review “only [to] whether

the agency literally issued the alien a piece of paper

marked ‘expedited removal,’” Pet’rs’ Br. 15 – would

already prevent review of the questions foreclosed by the

second sentence. Based on these arguments, Petitioners

claim that the statute is at least ambiguous as to whether

their claims are reviewable and that we should construe

the statute in their favor in order to avoid the “serious

constitutional problems” that may ensue if we read it to

foreclose habeas review. Sandoval v. Reno, 166 F.3d

225, 237 (3d Cir. 1999).

Petitioners are attempting to create ambiguity

26

where none exists.11 Their reading of the second

sentence in § 1252(e)(5) may be creative, but it

completely ignores other provisions in the statute –

including the sentence immediately preceding it – that

clearly evince Congress’ intent to narrowly circumscribe

judicial review of issues relating to expedited removal

orders. See, e.g., 8 U.S.C. § 1252(a)(2)(A)(iii) (“[N]o

court shall have jurisdiction to review . . . the application

of [§ 1225(b)(1)] to individual aliens, including the

[credible fear] determination made under

[§ 1225(b)(1)(B)].”).

As for their argument that the government’s

construction renders superfluous the second sentence of

§ 1252(e)(5), we think the better reading is that the

11

And because we conclude that the statute is

unambiguous, we are unable to employ the canon of

constitutional avoidance to reach Petitioners’ desired

result. See Miller v. French, 530 U.S. 327, 341 (2000)

(“[T]he canon of constitutional doubt permits us to avoid

[constitutional] questions only where the saving

construction is not plainly contrary to the intent of

Congress. We cannot press statutory construction to the

point of disingenuous evasion even to avoid a

constitutional question.” (internal quotation marks and

citations omitted)).

27

second sentence simply clarifies the narrowness of the

inquiry under the first sentence, i.e., that “review should

only be for whether an immigration officer issued that

piece of paper and whether the Petitioner is the same

person referred to in that order.” M.S.P.C. v. U.S.

Customs & Border Prot., 60 F. Supp. 3d 1156, 1163-64

(D.N.M. 2014), vacated as moot, No. 14-769, 2015 WL

7454248 (D.N.M. Sept. 23, 2015); see also id. (“Rather

than being superfluous . . . the second sentence seems to

clarify that Congress really did mean what it said in the

first sentence.”); Diaz Rodriguez v. U.S. Customs &

Border Prot., No. 6:14-CV-2716, 2014 WL 4675182, at

*2 (W.D. La. Sept. 18, 2014), vacated as moot sub nom

Diaz-Rodriguez v. Holder, No. 14-31103, 2014 WL

10965184 (5th Cir. Dec. 16, 2014) (“The second sentence

of Section 1252(e)(5) . . . is most fairly interpreted as a

clarification and attempt by Congress to foreclose narrow

interpretations of the first sentence of Section

1252(e)(5).”).12

12

Furthermore, even if our reading of the statute means

that the second sentence is superfluous, the canon against

surplusage does not always control and generally should

not be followed where doing so would render ambiguous

a statute whose meaning is otherwise plain. See Lamie,

540 U.S. at 536 (explaining that “our preference for

avoiding surplusage constructions is not absolute,” and

28

By reading the INA to foreclose Petitioners’

claims, we join the majority of courts that have addressed

the scope of judicial review under § 1252 in the

expedited removal context. See, e.g., Shunaula v.

Holder, 732 F.3d 143, 145-47 (2d Cir. 2013) (observing

that § 1252 “provides for limited judicial review of

expedited removal orders in habeas corpus proceedings”

but otherwise deprives the courts of jurisdiction to hear

claims related to the implementation or operation of a

removal order, and holding that an alien’s claims

disputing that he sought to enter the country through

fraud or misrepresentation and asserting that he was not

advised that he was in an expedited removal proceeding

or given the opportunity to consult with a lawyer “f[ell]

within this jurisdictional bar”); Brumme v. I.N.S., 275

F.3d 443, 448 (5th Cir. 2001) (characterizing argument

that courts have jurisdiction under § 1252(e)(2)(B) to

determine whether the expedited removal statute “was

applicable in the first place” as an attempt to make “an

end run around” the “clear” language of § 1252(e)(5)); Li

v. Eddy, 259 F.3d 1132, 1134-35 (9th Cir. 2001), opinion

vacated as moot, 324 F.3d 1109 (9th Cir. 2003) (“With

respect to review of expedited removal orders, . . . the

statute could not be much clearer in its intent to restrict

that “applying the rule against surplusage is, absent other

indications, inappropriate” where applying the rule would

make ambiguous an otherwise unambiguous statute).

29

habeas review. Accordingly, only two issues were

properly before the district court: whether the order

removing the petitioner was in fact issued, and whether

the order named [the petitioner].” (citation omitted));

Khan v. Holder, 608 F.3d 325, 329-30 (7th Cir. 2010)

(accord); Diaz Rodriguez, 2014 WL 4675182, at *2

(rejecting proposed construction similar to Petitioners’

argument in this case; “The expedited removal statutes

are express and unambiguous. The clarity of the

language forecloses acrobatic attempts at

interpretation.”).

Petitioners claim that the Ninth Circuit and two

district courts in other circuits have construed § 1252 to

allow judicial review of claims that the aliens in question

had been ordered expeditiously removed in violation of

the expedited removal statute. In Smith v. U.S. Customs

and Border Protection, 741 F.3d 1016 (9th Cir. 2014),

Smith, a Canadian national, was ordered removed under

§ 1225(b)(1) when, upon presenting himself for

inspection at the United States-Canada border, the CBP

agent concluded that he was an intending immigrant

without proper work-authorization documents. Smith

filed a habeas petition under § 1252(e)(2)(B), claiming

that Canadians are exempt from the documentation

requirements for admission, which meant that the CBP

agent exceeded his authority in ordering Smith removed.

Therefore (Smith’s argument went), he was not “ordered

30

removed under [§ 1225(b)(1)].” Id. at 1021. The Ninth

Circuit “[a]ccept[ed] [Smith’s] theory at face value” only

to then reject Smith’s argument on the merits. Id.

Although the Supreme Court has disapproved of the

practice, see Steel Co. v. Citizens for a Better

Environment, 523 U.S. 83, 93-94 (1998), the court

appears merely to have assumed hypothetical jurisdiction

in order to dispose of the appeal on easier merits grounds.

We therefore assign no weight to either Smith’s outcome

or its reasoning.

In American-Arab Anti-Discrimination

Commission v. Ashcroft, 272 F. Supp. 2d 650 (E.D.

Mich. 2003), several Lebanese aliens were ordered

removed under § 1225(b)(1), years after entering the

United States using fraudulent documentation. They

filed habeas petitions challenging their expedited

removal orders, and the district court concluded that it

had jurisdiction “under the circumstances here . . . to

determine whether the expedited removal statute was

lawfully applied to petitioners in the first place.” Id. at

663. To support this conclusion, the court latched onto

the language in § 1252(e)(5) limiting the scope of habeas

review under § 1252(e)(2)(B) to “whether [the expedited

removal order] relates to the petitioner,” reasoning that

an order “relates to” a person only if it was lawfully

applied to the person. Id. We find the court’s

construction of the statute to be not just unsupported, but

31

also flatly contradicted by the plain language of the

statute itself. See 8 U.S.C. § 1252(a)(2)(A)(iii) (“[N]o

court shall have jurisdiction to review . . . the application

of [§ 1225(b)(1)] to individual aliens.” (emphasis

added)). Accordingly, we decline to follow it.

The last case Petitioners point us to is Dugdale v.

U.S. Customs and Border Protection, 88 F. Supp. 3d 1

(D.D.C. 2015). Dugdale was an alien who had lived for

extended periods in the United States but who was

ordered removed pursuant to § 1225(b)(1) after trying to

return to the country following a visit to Canada. He

filed a habeas petition to challenge his removal order

under § 1252(e)(2). In his petition he claimed, inter alia,

that because his removal order was not signed by the

supervisor of the issuing immigration officer, he was not

actually “ordered removed” under § 1225(b)(1). See id.

at 6. Addressing this argument, the court recognized that

the “[c]ase law on this question is scarce.” Id.

Nevertheless, the court ultimately concluded “that a

determination of whether a removal order ‘in fact was

issued’ fairly encompasses a claim that the order was not

lawfully issued due to some procedural defect.” Id.

(quoting 8 U.S.C. § 1252(e)(5)). Because the claim that

the supervisor failed to sign the removal order “f[ell]

within that category of claims,” id., the court exercised

its jurisdiction, and ordered further briefing to determine

if the CBP had complied with its own regulations in

32

issuing his removal order.

Even if we were to agree with Dugdale that

§ 1252(e)(2)(B) encompasses claims alleging “some

procedural defect” in the expedited removal order, we

would nonetheless find Petitioners’ claims easily

distinguishable. The procedural defect that Dugdale

alleged was at least arguably related to the question

whether a removal order “in fact was issued.”

Petitioners’ claims here, on the other hand, 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 § 1252, 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.

In a final effort to dissuade us from adopting the

government’s proposed reading of the statute, Petitioners

suggest a variety of presumably undesirable outcomes

that could stem from it. For instance, they argue that

under the government’s reading, a court would lack

33

jurisdiction to review claims that, in ordering the

expedited removal of an alien, “the government refused

to provide a credible fear interview, manifestly applied

the wrong legal standard, outright denied the applicant an

interpreter, or even refused to permit the applicant to

testify.” Pet’rs’ Br. 18; see also Brief for National

Immigrant Justice Center as Amicus Curiae 5-21

(suggesting several other factual scenarios in which

courts would lack jurisdiction to correct serious

government violations of expedited removal statute). To

this, we can only respond as the Seventh Circuit did in

Khan when acknowledging some of the possible

implications of the jurisdiction-stripping provisions of

§ 1252: “To say that this [expedited removal] procedure

is fraught with risk of arbitrary, mistaken, or

discriminatory behavior . . . is not, however, to say that

courts are free to disregard jurisdictional limitations.

They are not . . . .” 608 F.3d at 329. 13

13

Of course, even though our construction of § 1252

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

34

For these reasons we agree with the District

Court’s conclusion that it lacked jurisdiction under

§ 1252 to review Petitioners’ claims, and turn now to the

constitutionality of the statute under the Suspension

Clause.

B. Suspension Clause Challenge

The Suspension Clause of the United States

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.”

has been living continuously for several years in the

United States before being ordered removed under

§ 1225(b)(1). 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 § 1252 may be

tempered by the Constitution’s requirement that habeas

review be available in some circumstances and for some

people.

35

U.S. Const. art. I, § 9, cl. 2. The government does not

contend that we are in a time of formal suspension.

Thus, the question is whether § 1252 operates as an

unconstitutional suspension of the writ by stripping

courts of habeas jurisdiction over all but a few narrow

questions. As the party challenging the constitutionality

of a presumptively constitutional statute, Petitioners bear

the burden of proof. Marshall v. Lauriault, 372 F.3d

175, 185 (3d Cir. 2004).

Petitioners argue that the answer to the ultimate

question presented on appeal – whether § 1252 violates

the Suspension Clause – can be found without too much

effort in the Supreme Court’s Suspension Clause

jurisprudence, especially in I.N.S. v. St. Cyr, 533 U.S.

289 (2001), and Boumediene v. Bush, 553 U.S. 723

(2008), as well as in a series of cases from what has been

termed the “finality era.” The government, on the other

hand, largely views these cases as inapposite, and instead

focuses our attention on what has been called the

“plenary power doctrine” and on the Supreme Court

cases that elucidate it. The challenge we face is to

discern the manner in which these seemingly disparate,

and perhaps even competing, constitutional fields

interact. Ultimately, and for the reasons we will explain

below, we conclude that Congress may, consonant with

the Constitution, deny habeas review in federal court of

claims relating to an alien’s application for admission to

36

the country, at least as to aliens who have been denied

initial entry or who, like Petitioners, were apprehended

very near the border and, essentially, immediately after

surreptitious entry into the country.

We will begin our discussion with a detailed

overview of the Supreme Court’s relevant Suspension

Clause precedents, followed by a summary of the Court’s

plenary power cases. We will then explain how we think

these two areas coalesce in the context of Petitioners’

challenges to their expedited removal orders.

1. Suspension Clause Jurisprudence

The Supreme Court has held that a statute

modifying the scope of habeas review is constitutional

under the Suspension Clause so long as the modified

scope of review – that is, the habeas substitute – “is

neither inadequate nor ineffective to test the legality of a

person’s detention.” Swain v. Pressley, 430 U.S. 372,

381 (1977) (citing United States v. Hayman, 342 U.S.

205, 223 (1952)). The Court has weighed the adequacy

and effectiveness of habeas substitutes on only a few

occasions, and only once, in Boumediene, has it found a

substitute wanting. See Boumediene, 553 U.S. at 795

(holding that “the [Detainee Treatment Act] review

procedures are an inadequate substitute for habeas

37

corpus,” and therefore striking down under the

Suspension Clause § 7 of the Military Commissions Act,

which stripped federal courts of habeas jurisdiction over

Guantanamo Bay detainees). Thus, Boumediene

represents our only “sum certain” when it comes to

evaluating the adequacy of a given habeas substitute such

as § 1252, and even then the decision “leaves open as

many questions as it settles about the operation of the

[Suspension] Clause.” Gerald L. Neuman, The Habeas

Corpus Suspension Clause After Boumediene v. Bush,

110 Colum. L. Rev. 537, 578 (2010).

Before we delve into Boumediene, however, we

must examine the Supreme Court’s decision in St. Cyr,

another case on which Petitioners heavily rely. Although

the Court in St. Cyr ultimately dodged the Suspension

Clause question by construing the jurisdiction-stripping

statute at issue to leave intact courts’ habeas jurisdiction

under 28 U.S.C. § 2241, the opinion offers insight into

“what the Suspension Clause might possibly protect.”

Neuman, supra, at 539 & n.8.

St. Cyr was a lawful permanent resident alien who,

in early 1996, pleaded guilty to a crime that qualified him

for deportation. St. Cyr, 533 U.S. at 293. Under the

immigration laws prevailing at the time of his conviction,

he was eligible for a waiver of deportation at the

Attorney General’s discretion. Id. Nevertheless, by the

38

time he was ordered removed in 1997, Congress had

enacted the Anti-Terrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), 110 Stat. 1214, and the Illegal

Immigration Reform and Immigrant Responsibility Act

of 1996 (“IIRIRA”), 110 Stat. 3009–546. Among the

myriad other revisions to our immigration laws that these

enactments effected, AEDPA and IIRIRA stripped the

Attorney General of his discretionary power to waive

deportation, and replaced it with the authority to “cancel

removal” for a narrow class of aliens that did not include

aliens who, like St. Cyr, had been previously “convicted

of any aggravated felony.” 8 U.S.C. § 1229b(a)(3).

When St. Cyr applied to the Attorney General for waiver

of deportation, the Attorney General concluded that

AEDPA and IIRIRA stripped him of his waiver authority

even as to aliens who pleaded guilty to the deportable

offense prior to the statutes’ enactment. 533 U.S. at 297.

St. Cyr filed a habeas petition in federal district court

under § 2241, claiming that the provisions of AEDPA

and IIRIRA eliminating the Attorney General’s waiver

authority did not apply to aliens who pleaded guilty to a

deportable offense before their enactment. Id. at 293.

The government contended that AEDPA and

IIRIRA stripped the courts of habeas jurisdiction to

review the Attorney General’s determination that he no

longer had the power to waive St. Cyr’s deportation. Id.

at 297-98. The Court ultimately disagreed with the

39

government, construing the judicial review statutes to

permit habeas review under § 2241. To support this

construction, the Court relied heavily on the doctrine of

constitutional avoidance, under which courts are

“obligated to construe the statute to avoid [serious

constitutional] problems” if such a saving construction is

“fairly possible.”14 Id. at 299-300 (internal quotation

marks and citations omitted). In the Court’s review, the

government’s proposed construction of the jurisdiction-

stripping provisions would have presented “a serious

Suspension Clause issue.” Id. at 305.

To explain why the Suspension Clause could

possibly have been violated by a statute stripping the

courts of habeas jurisdiction under § 2241, the Court

began with the foundational principle that, “at the

absolute minimum, the Suspension Clause protects the

writ ‘as it existed in 1789.’” Id. at 301 (quoting Felker v.

Turpin, 518 U.S. 651, 663-64 (1996)). Looking to the

Founding era, the Court found evidence that “the writ of

habeas corpus was available to nonenemy aliens as well

as to citizens” as a means to challenge the “legality of

Executive detention.” Id. at 301-02. In such cases,

14

The Court also relied on “the longstanding rule

requiring a clear statement of congressional intent to

repeal habeas jurisdiction.” 533 U.S. at 298.

40

habeas review was available to challenge “detentions

based on errors of law, including the erroneous

application or interpretation of statutes.” Id. at 302.

Even while discussing the Founding-era evidence,

however, the Court in St. Cyr was “careful not to

foreclose the possibility that the protections of the

Suspension Clause have expanded along with post–1789

developments that define the present scope of the writ.”

Boumediene, 553 U.S. at 746. Indeed, the Court

discussed at some length the “historical practice in

immigration law,” St. Cyr, 533 U.S. at 305, with special

focus on cases from what may be termed the “finality

era.” See id. at 306-07. In order to understand the role

that these finality-era cases appear to play in St. Cyr’s

Suspension Clause analysis, and because Petitioners

place significant weight on them in their argument that

§ 1252 violates the Suspension Clause, we will describe

them in some depth.

The finality-era cases came about during an

approximately sixty-year period when federal

immigration law rendered final (hence, the “finality” era)

the Executive’s decisions to admit, exclude, or deport

aliens. This period began with the passage of the

41

Immigration Act of 1891, ch. 551, 26 Stat. 1084,15 and

concluded when Congress enacted the Immigration and

Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat.

163, which permitted judicial review of deportation

orders through declaratory judgment actions in federal

district courts. See Shaughnessy v. Pedreiro, 349 U.S.

48, 51-52 (1955).16 During this period, and despite the

15

Section 8 of the Act contained the finality provision:

“All decisions made by the inspection officers or their

assistants touching the right of any alien to land, when

adverse to such right, shall be final unless appeal be

taken to the superintendent of immigration, whose action

shall be subject to review by the Secretary of the

Treasury.” Immigration Act of 1891, § 8, 26 Stat. 1084,

1085.

16

Between the 1891 and 1952 Acts, Congress revised the

immigration laws on several occasions, each time

maintaining a similar finality provision. See, e.g.,

Immigration Act of 1907, § 25, 34 Stat. 898, 907 (“[I]n

every case where an alien is excluded from admission

into the United States, under any law or treaty now

existing or hereafter made, the decision of the appropriate

immigration officers, if adverse to the admission of such

alien, shall be final, unless reversed on appeal to the

Secretary of Commerce and Labor.”); Immigration Act

of 1917, § 19, 39 Stat. 874, 890 (“In every case where

any person is ordered deported from the United States

42

statutes’ finality provisions appearing to strip courts of

all jurisdiction to review the Executive’s immigration-

related determinations, the Supreme Court consistently

recognized the ability of immigrants to challenge the

legality of their exclusion or deportation through habeas

corpus. Based on this, Petitioners contend that the

finality-era cases “establishe[d] a constitutional floor for

judicial review,” Pet’rs’ Br. 26, and that the Suspension

Clause was the source of this floor. In making this

argument, Petitioners rely especially on Heikkila v.

Barber, 345 U.S. 229 (1953), in which the Court derived

from its finality-era precedents the principle that the

statutes’ finality provisions “had the effect of precluding

judicial intervention in deportation cases except insofar

as it was required by the Constitution.” Id. at 234-35

(emphasis added); see also id. at 234 (“During these

years, the cases continued to recognize that Congress had

intended to make these administrative decisions

nonreviewable to the fullest extent possible under the

Constitution.” (emphasis added; citing Fong Yue Ting v.

United States, 149 U.S. 698, 713 (1893) (“The power to

exclude or to expel aliens . . . is vested in the political

departments of the government, and is to be regulated by

treaty or by act of congress, and to be executed by the

executive authority according to the regulations so

under the provisions of this Act, or of any law or treaty,

the decision of the Secretary of Labor shall be final.”).

43

established, except so far the judicial department . . . is

required by the paramount law of the constitution, to

intervene.” (emphasis added)))).

Indeed, the Heikkila decision brings us back to St.

Cyr and helps us understand the significance that the

Court apparently assigned to the finality-era cases in its

Suspension Clause discussion. First, the Court in St. Cyr

noted that the government’s proposed construction of the

AEDPA and IIRIRA jurisdiction-stripping provisions

“would entirely preclude review of a pure question of law

by any court.” 533 U.S. at 300. Such a result was

problematic because, under “[the Suspension] Clause,

some ‘judicial intervention in deportation cases’ is

unquestionably ‘required by the Constitution.’” Id.

(quoting Heikkila, 345 U.S. at 235). In short, the Court

found in the finality-era cases evidence that, as a matter

of historical practice, aliens facing removal could

challenge “the Executive’s legal determinations,”17

17

As support for this proposition, the Court also cited

Gegiow v. Uhl, 239 U.S. 3 (1915). See St. Cyr, 533 U.S.

at 306 & n.28. Gegiow involved Russian immigrants

whom immigration officers had ordered deported after

concluding that the aliens were “likely to become public

charges.” 239 U.S. at 8 (internal quotation marks

omitted). The immigrants sought and obtained habeas

review of the Executive’s determination. According to

44

including “Executive interpretations of the immigration

laws.” Id. at 306-07.

We turn now to Boumediene. 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

the Supreme Court, the only reason the Executive

provided to support its conclusion that the aliens were

deportable was that they were not likely to find work in

the city of their ultimate destination (Portland, Oregon)

due to the poor conditions of the city’s labor market. Id.

at 8-9. In order to avoid the force of earlier Supreme

Court precedent holding that “[t]he conclusiveness of the

decisions of immigration officers under [the prevailing

immigration statute’s finality provision] is

conclusiveness upon matters of fact,” id. at 9 (citing

Nishimura Ekiu v. United States, 142 U.S. 651 (1892)),

the Court presented the question on review as one of law,

rather than one of fact: “whether an alien can be declared

likely to become a public charge on the ground that the

labor market in the city of his immediate destination is

overstocked.” Id. at 9-10. And because the Court

ultimately concluded that such a consideration was not an

appropriate grounds for ordering the aliens deported, it

reversed the order. Id. at 10.

45

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.” 553 U.S. at 739. 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.” Id. at 771.

In answering the first question regarding the

detainees’ entitlement vel non to the protections of the

Suspension Clause, the Court primarily looked to its

“extraterritoriality” jurisprudence, i.e., its cases

addressing where and under what circumstances the

Constitution applies outside the United States. From

these precedents the Court developed a multi-factor test

to determine whether the Guantanamo detainees were

covered by the Suspension Clause:

[A]t least three factors are relevant in

determining the reach of the Suspension

Clause: (1) the citizenship and status of the

detainee and the adequacy of the process

through which that status determination was

made; (2) the nature of the sites where

apprehension and then detention took place;

46

and (3) the practical obstacles inherent in

resolving the prisoner's entitlement to the

writ.

Id. at 766. Based on these factors, the Court concluded

that the Suspension Clause “has full effect at

Guantanamo Bay.” 18 Id. at 771.

The Court next considered the adequacy of the

habeas substitute provided to the detainees by Congress.

The Detainee Treatment Act (DTA) granted jurisdiction

to the Court of Appeals for the D.C. Circuit “only to

assess whether the CSRT [Combat Status Review

Tribunal19] complied with the ‘standards and procedures

18

While the Court obviously analyzed how these factors

apply to the Guantanamo detainees in much greater depth

than our brief summary might suggest, we refrain from

expositing its analysis further. That is because, as we

explain in greater detail below, we think this multi-factor

test provides little guidance in addressing Petitioners’

entitlement to the protections of the Suspension Clause in

this case.

19

CSRTs are the military tribunals established by the

Department of Defense to determine if the Guantanamo

detainees are “enemy combatants” who are therefore

47

specified by the Secretary of Defense’ and whether those

standards and procedures are lawful.” Id. at 777 (quoting

DTA § 1005(e)(2)(C), 119 Stat. 2742). Under the DTA,

the D.C. Circuit lacked jurisdiction “to inquire into the

legality of the detention generally.” Id.

In assessing the adequacy of the DTA as a habeas

substitute, the Court acknowledged the lack of case law

addressing “standards defining suspension of the writ or

[the] circumstances under which suspension has

occurred.” Id. at 773. It also made clear that it was not

“offer[ing] a comprehensive summary of the requisites

for an adequate substitute for habeas corpus.” Id. at 779.

Having pronounced these caveats, the Court then began

its discussion of what features the habeas substitute

needed to include to avoid violating the Suspension

Clause. To begin, the Court recognized what it

considered to be two “easily identified attributes of any

constitutionally adequate habeas corpus proceeding,” id.:

first, the Court “consider[ed] it uncontroversial [ ] that

the privilege of habeas corpus entitles the prisoner to a

meaningful opportunity to demonstrate that he is being

held pursuant to ‘the erroneous application or

subject to indefinite detention without trial pending the

duration of the war in Afghanistan. See 553 U.S. at 733-

34.

48

interpretation’ of relevant law,” id. (quoting St. Cyr, 533

U.S. at 302); and second, “the habeas court must have the

power to order the conditional release of an individual

unlawfully detained,” id.

In addition to these two seemingly irreducible

attributes of a constitutionally adequate habeas substitute,

the Court identified a few others that, “depending on the

circumstances, [ ] may be required.” Id. (emphasis

added). These additional features include: the ability of

the prisoner to “controvert facts in the jailer’s return,” see

id. at 780; “some authority to assess the sufficiency of the

Government’s evidence against the detainee,” id. at 786;

and the ability “to introduce exculpatory evidence that

was either unknown or previously unavailable to the

prisoner,” id. at 780; see also id. at 786. To determine

whether the circumstances in a given case are such that

the habeas substitute must also encompass these

additional features, the Court discussed a number of

considerations, all of which related to the “rigor of any

earlier proceedings.” Id. at 781. In short, the Court

established a sort of sliding scale whose focus was “the

sum total of procedural protections afforded to the

detainee at all stages, direct and collateral.” Id. at 783.

Applying these principles, the Court ultimately

concluded that the DTA did not provide the detainees an

adequate habeas substitute. The Court believed the DTA

49

could be construed to provide most of the attributes

necessary to make it a “constitutionally adequate

substitute” for habeas – including the detainees’ ability to

challenge the CSRT’s legal and factual determinations,

as well as authority for the court to order the release of

the detainees if it concluded that detention was not

justified. Id. at 787-89. Nevertheless, the DTA did not

afford detainees “an opportunity . . . to present relevant

exculpatory evidence that was not made part of the

record in the earlier proceedings.” Id. at 789. This latter

deficiency doomed the DTA as a habeas substitute.

Because of this, the Court held that the Military

Commissions Act, which stripped federal courts of their

§ 2241 habeas jurisdiction with respect to the CSRT

enemy combatant determinations, “effects an

unconstitutional suspension of the writ.” Id. at 792.

2. Plenary Power Jurisprudence

Against the backdrop of the Court’s most relevant

Suspension Clause precedents, we direct our attention to

the plenary power doctrine. Because the course of this

doctrine’s development in the Supreme Court sheds

useful light on the current state of the law, a brief

historical overview is first in order.

The Supreme Court has “long recognized [that] the

50

power to expel or exclude aliens [i]s a fundamental

sovereign attribute exercised by the Government’s

political departments largely immune from judicial

control.” Fiallo v. Bell, 430 U.S. 787, 792 (1977)

(internal quotation marks and citation omitted). “[T]he

Court’s general reaffirmations of this principle have been

legion.” Kleindienst v. Mandel, 408 U.S. 753, 765-766 &

n.6 (1972) (collecting cases). The doctrine first emerged

in the late nineteenth century in the context of the

Chinese Exclusion Act, one of the first federal statutes to

regulate immigration.

The case that first recognized the political

branches’ plenary authority to exclude aliens, Chae Chan

Ping v. United States, 130 U.S. 581 (1889), involved a

Chinese lawful permanent resident who, prior to

departing the United States for a trip abroad, had

obtained a certificate entitling him to reenter the country

upon his return. Id. at 581-82. While he was away,

however, Congress passed an amendment to the Chinese

Exclusion Act that rendered such certificates null and

void. Id. at 582. Thus, after immigration authorities

refused him entrance upon his return, the alien brought a

habeas petition to challenge the lawfulness of his

exclusion, arguing that the amendment nullifying his

reentry certificate was invalid. Id. The Court upheld the

validity of the amendment, reasoning that “[t]he power of

exclusion of foreigners [is] an incident of sovereignty

51

belonging to the government of the United States as a

part of those sovereign powers delegated by the

constitution,” and therefore that “the right to its exercise

at any time when, in the judgment of the government, the

interests of the country require it, cannot be granted away

or restrained on behalf of any one.” Id. at 609; see also

id. (concluding that questions regarding the political

soundness of the amendment “are not questions for

judicial determination”).

In subsequent decisions from the same period, the

Court upheld and even extended its reasoning in Chae

Chan Ping. For instance, in Nishimura Ekiu v. United

States, 142 U.S. 651 (1892), another exclusion (as

opposed to deportation) case, a Japanese immigrant was

denied entry to the United States because immigration

authorities determined that she was “likely to become a

public charge.” Id. at 662 (internal quotation marks and

citation omitted). The Court concluded that the statute

authorizing exclusion on such grounds was valid under

the sovereign authority of Congress and the Executive to

control immigration. Id. at 659 (stating that the power

over admission and exclusion “belongs to the political

department[s] of the government”). In a statement that

perfectly encapsulates the meaning of the plenary power

doctrine, the Court declared:

It is not within the province of the judiciary

52

to order that foreigners who have never been

naturalized, nor acquired any domicile or

residence within the United States, nor even

been admitted into the country pursuant to

law, shall be permitted to enter, in

opposition to the constitutional and lawful

measures of the legislative and executive

branches of the national government. As to

such persons, the decisions of executive or

administrative officers, acting within powers

expressly conferred by congress, are due

process of law.

Id. at 660.20

20

While the Court recognized Nishimura Ekiu’s

“entitle[ment] to a writ of habeas corpus to ascertain

whether the restraint [of her liberty] is lawful,” id. at 660,

the scope of the Court’s habeas review was limited to

inquiring whether the immigration officer ordering the

exclusion “was duly appointed” under the statute and

whether the officer’s decision to exclude her “was within

the authority conferred upon him by [the Immigration

53

The following year, in Fong Yue Ting v. United

States, 149 U.S. 698 (1893), the Court extended the

plenary power doctrine to deportation cases as well.

Fong Yue Ting involved several Chinese immigrants who

were ordered deported pursuant to the Chinese Exclusion

Act because they lacked certificates of residence and

could not show by the testimony of “at least one credible

white witness” that they were lawful residents. Id. at

702-04. The aliens sought to challenge their deportation

orders, claiming, inter alia, that the Exclusion Act

violated the equal protection clause of the Fourteenth

Amendment. See id. at 724-25 (citing Yick Wo v.

Hopkins, 118 U.S. 356 (1886)). As it had done in Chae

Act of 1891].” Id. at 664. Thus, Nishimura Ekiu cannot

help Petitioners because, as we noted above, they have

conceded that they fall within the class of aliens for

whom Congress has authorized expedited removal, and

that the immigration officials ordering their removal are

duly appointed to do so. See 8 U.S.C.

§ 1225(b)(1)(A)(iii). That said, it would be a different

matter were the Executive to attempt to expeditiously

remove an alien that Congress has not authorized for

expeditious removal – for example, an alien who claims

to have been continuously present in the United States for

over two years prior to her detention. Such a situation

might very well implicate the Suspension Clause in a

way that Petitioners’ expedited removal does not.

54

Chan Ping and Nishimura Ekiu, the Court declined to

intervene or review the validity of the immigration

legislation:

The question whether, and upon what

conditions, these aliens shall be permitted to

remain within the United States being one to

be determined by the political departments

of the government, the judicial department

cannot properly express an opinion upon the

wisdom, the policy, or the justice of the

measures enacted by congress in the

exercise of the powers confided to it by the

constitution over this subject.

Id. at 731; see also id. at 707 (“The right of a nation to

expel or deport foreigners who have not been naturalized,

or taken any steps towards becoming citizens of the

country, rests upon the same grounds, and is as absolute

and unqualified, as the right to prohibit and prevent their

entrance into the country.”).

Thus, the Court’s earliest plenary power decisions

established a rule leaving essentially no room for judicial

intervention in immigration matters, a rule that applied

equally in exclusion as well as deportation cases.

55

Yet not long after these initial decisions, the Court

began to walk back the plenary power doctrine in

significant ways. In Yamataya v. Fisher, 189 U.S. 86

(1903), a Japanese immigrant was initially allowed to

enter the country after presenting herself for inspection at

a port of entry. Id. at 87. Nevertheless, just a few days

later, an immigration officer sought her deportation

because he had concluded, after some investigation, that

she “was a pauper and a person likely to become a public

charge.” Id. About a week later, the Secretary of the

Treasury ordered her deported without notice or hearing.

Id. Yamataya then filed a habeas petition in federal

district court to challenge her deportation, claiming that

the failure to provide her notice and a hearing violated

due process. Id. The Court acknowledged its plenary

power precedents, including Nishimura Ekiu and Fong

Yue Ting, see id. at 97-99, but clarified that these

precedents did not recognize the authority of immigration

officials to “disregard the fundamental principles that

inhere in ‘due process of law’ as understood at the time

of the adoption of the Constitution.” Id. at 100.

According to these “fundamental principles,” the Court

held, no immigration official has the power

arbitrarily to cause an alien who has entered

the country, and has become subject in all

respects to its jurisdiction, and a part of its

population, although alleged to be illegally

56

here, to be taken into custody and deported

without giving him all opportunity to be

heard upon the questions involving his right

to be and remain in the United States.

Id. at 101.21

Thus, Yamataya proved to be a “turning point” in

the Court’s plenary power jurisprudence. Henry M. Hart,

Jr., The Power of Congress to Limit the Jurisdiction of

Federal Courts: An Exercise in Dialectic, 66 Harv. L.

Rev. 1362, 1390 n.85 (1953). Indeed, as Professor Hart

explains, it was at this point that the Court “began to see

that the premise [of the plenary power doctrine] needed

to be qualified – that a power to lay down general rules,

even if it were plenary, did not necessarily include a

21

Although the Court recognized the due process rights

of recent entrants to the country – even entrants who are

subsequently determined “to be illegally here” – it

explicitly declined to address whether very recent

clandestine entrants like Petitioners enjoy such rights.

See Yamataya, 189 U.S. at 100. For obvious reasons, and

as we explain below, we consider this carve-out in the

Court’s holding to be of particular importance in

resolving this appeal.

57

power to be arbitrary or to authorize administrative

officials to be arbitrary.” Id. at 1390; see also Charles D.

Weisselberg, The Exclusion and Detention of Aliens:

Lessons from the Lives of Ellen Knauff and Ignatz Mezei,

143 U. Pa. L. Rev. 933, 947-48 & n.62 (1995)

(discussing Yamataya’s significance to the development

of the plenary power doctrine). Yamataya, then,

essentially gave way to the finality-era cases upon which

Petitioners and amici place such considerable weight.

Hart, supra, at 1391 & n.86 (noting the “[t]housands” of

habeas cases challenging exclusion and deportation

orders “whose presence in the courts cannot be explained

on any other basis” than on the reasoning of Yamataya).

Nevertheless, Yamataya did not mark the only

“turning point” in the development of the plenary power

doctrine. Nearly fifty years after Yamataya, the Court

issued two opinions – United States ex rel. Knauff v.

Shaughnessy, 338 U.S. 537 (1950) and Shaughnessy v.

United States ex rel. Mezei, 345 U.S. 206 (1953) – that

essentially undid the effects of Yamataya, at least for

aliens “on the threshold of initial entry,” as well as for

those “assimilated to that status for constitutional

purposes.” Mezei, 345 U.S. at 212, 214 (internal

quotation marks and alterations omitted); see also Hart,

supra, at 1391-92 (explaining the significance of Knauff

and Mezei for the Court’s plenary power jurisprudence,

noting specifically that by these decisions the Court

58

“either ignores or renders obsolete every habeas corpus

case in the books involving an exclusion proceeding”).

In Knauff, the German wife of a United States

citizen sought admission to the country pursuant to the

War Brides Act. 338 U.S. at 539 (citing Act of Dec. 28,

1945, ch. 591, 59 Stat. 659 (1946)). She was detained

immediately upon her arrival at Ellis Island, and the

Attorney General eventually ordered her excluded,

without a hearing, because “her admission would be

prejudicial to the interests of the United States.” Id. at

539-40. The Court upheld the Attorney General’s

decision largely on the basis of pre-Yamataya plenary

power principles and precedents:

[T]he decision to admit or to exclude an

alien may be lawfully placed with the

President, who may in turn delegate the

carrying out of this function to a responsible

executive officer of the sovereign, such as

the Attorney General. The action of the

executive officer under such authority is

final and conclusive. Whatever the rule may

be concerning deportation of persons who

have gained entry into the United States, it is

not within the province of any court, unless

expressly authorized by law, to review the

determination of the political branch of the

59

Government to exclude a given alien. . . .

Whatever the procedure authorized by

Congress is, it is due process as far as an

alien denied entry is concerned.

Id. at 543-44 (citing, inter alia, Nishimura Ekiu, 142 U.S.

at 659-60 and Fong Yue Ting, 149 U.S. at 713-14). Thus,

with its holding in Knauff, the Court effectively

“reinvigorated the judicial deference prong of the plenary

power doctrine.” Weisselberg, supra, at 956.

Similar to Knauff, Mezei involved an alien

detained on Ellis Island who was denied entry for

undisclosed national security reasons. Unlike Knauff,

however, Mezei had previously lived in the United States

for many years before leaving the country for a period of

approximately nineteen months, “apparently to visit his

dying mother in Rumania [sic].” 345 U.S. at 208. And

unlike Knauff, Mezei had no choice but to remain in

custody indefinitely on Ellis Island, as no other country

would admit him either. Id. at 208-09. In these

conditions, Mezei brought a habeas petition to challenge

his exclusion (and attendant indefinite detention). Id. at

209. Nevertheless, the Court again upheld the

Executive’s decision, essentially for the same reasons

articulated in Knauff. “It is true,” the Court explained,

“that aliens who have once passed through our gates,

even illegally, may be expelled only after proceedings

60

conforming to traditional standards of fairness

encompassed in due process of law.” Id. at 212 (citing,

inter alia, Yamataya, 189 U.S. at 100-01). In contrast,

aliens “on the threshold of initial entry stan[d] on

different footing: ‘Whatever the procedure authorized by

Congress is, it is due process as far as an alien denied

entry is concerned.’” 22 Id. (quoting Knauff, 338 U.S. at

544).

Thus, Knauff and Mezei essentially restored the

political branches’ plenary power over aliens at the

border seeking initial admission. And since these

decisions, the Court has continued to signal its

commitment to the full breadth of the plenary power

22

Although Mezei (like Knauff) was indisputably on

United States soil when he was ordered excluded and

when he filed his habeas petition, the Court “assimilated”

Mezei’s status “for constitutional purposes” to that of an

alien stopped at the border. See id. at 214 (internal

quotation marks and citation omitted). This analytical

maneuver is often referred to as the “entry fiction” or the

“entry doctrine.” See, e.g., Jean v. Nelson, 727 F.2d 957,

969 (11th Cir. 1984) (en banc), aff’d, 472 U.S. 846

(1985). As explained below, the entry fiction plays an

important, albeit indirect, role in our analysis of

Petitioners’ Suspension Clause challenge.

61

doctrine, at least as to aliens at the border seeking initial

admission to the country. 23 See Fiallo, 430 U.S. at 792

(“This Court has repeatedly emphasized that over no

conceivable subject is the legislative power of Congress

more complete than it is over the admission of aliens.

Our cases have long recognized the power to expel or

exclude aliens as a fundamental sovereign attribute

23

The Court has departed from its reasoning in Knauff

and Mezei in other respects, including for lawful

permanent residents seeking reentry at the border, see

Landon v. Plasencia, 459 U.S. 21, 32-33 (1982) (holding

that such aliens are entitled to protections of Due Process

Clause in exclusion proceedings), as well as for resident

aliens facing indefinite detention incident to an order of

deportation following conviction of a deportable offense,

compare Zadvydas v. Davis, 533 U.S. 678, 692-95 (2001)

(concluding that resident aliens ordered deported have

liberty interest under Fifth Amendment in avoiding

indefinite detention incident to deportation, and

distinguishing Mezei on grounds that petitioners had

already entered U.S. before ordered deported), with id. at

702-05 (Scalia, J., dissenting) (arguing that Mezei

controlled question whether aliens ordered deported had

liberty interest to remain in United States such that they

are entitled to due process in decision to hold them

indefinitely, and stating that such aliens have no right to

release into the United States).

62

exercised by the Government’s political departments

largely immune from judicial control.” (internal

quotation marks and citations omitted)); Landon v.

Plasencia, 459 U.S. 21, 32 (1982) (“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, for the power to admit or

exclude aliens is a sovereign prerogative.” (citing Knauff,

338 U.S. at 542; Nishimura Ekiu, 142 U.S. at 659-60)).

3. Application to Petitioners and the Expedited

Removal Regime

Having introduced the prevailing understandings

of the Suspension Clause and of the political branches’

plenary power over immigration, we now consider the

relationship between these two areas of legal doctrine

and how they apply to Petitioners’ claim that the

jurisdiction-stripping provisions of § 1252 violate the

Suspension Clause.

Petitioners argue that under the Supreme Court’s

Suspension Clause jurisprudence – especially St. Cyr and

the finality-era cases – courts must, at a minimum, be

able to review the legal conclusions underlying the

Executive’s negative credible fear determinations,

including the Executive’s interpretation and application

63

of a statute to undisputed facts. 24 And because

§ 1252(e)(2) does not provide for at least this level of

review, Petitioners claim that it constitutes an inadequate

substitute for habeas, in violation of the Suspension

Clause.

24

Petitioners at times claim that they should also be

entitled to raise factual challenges due to the “truncated”

nature of the credible fear determination process.

Notwithstanding Boumediene’s holding that habeas

review of factual findings may be required in some

circumstances, we think Petitioners’ argument is readily

disposed of based solely on some of the very cases they

cite to argue that § 1252 violates the Suspension Clause.

See, e.g., St. Cyr, 533 U.S. at 306 (noting that in finality-

era habeas challenges to deportation orders “the courts

generally did not review factual determinations made by

the Executive”); Heikkila, 345 U.S. at 236 (noting that

“the scope of inquiry on habeas corpus” “has always

been limited to the enforcement of due process

requirements,” and not to reviewing the record to

determine “whether there is substantial evidence to

support administrative findings of fact”); Gegiow, 239

U.S. at 9 (“The conclusiveness of the decisions of

immigration officers under [the finality provision of the

Immigration Act of 1907] is conclusiveness upon matters

of fact.”).

64

The government, on the other hand, claims that the

plenary power doctrine operates to foreclose Petitioners’

Suspension Clause challenge. In the government’s view,

Petitioners should be treated no differently from aliens

“on the threshold of initial entry” who clearly lack

constitutional due process protections concerning their

application for admission. Mezei, 345 U.S. at 212. And

because Petitioners “have no underlying procedural due

process rights to vindicate in habeas,” Respondents’ Br.

49, the government argues that “the scope of habeas

review is [ ] irrelevant.” Id.

Petitioners raise three principal arguments in

response to the government’s contentions above. First,

they claim that to deny them due process rights despite

their having indisputably entered the country prior to

being apprehended would run contrary to numerous

Supreme Court precedents recognizing the constitutional

rights of all “persons” within the territorial jurisdiction of

the United States. See, e.g., Mathews v. Diaz, 426 U.S.

67, 77 (1976) (explaining that the Fifth Amendment

applies to all aliens “within the jurisdiction of the United

States,” including those “whose presence in this country

is unlawful, involuntary, or transitory”). Second, they

argue that even if the Constitution does not impose any

independent procedural minimums that the Executive

must satisfy before removing Petitioners, the Executive

must at least fairly administer those procedures that

65

Congress has actually prescribed in the expedited

removal statute. Cf. Dia v. Ashcroft, 353 F.3d 228, 238-

39 (3d Cir. 2003) (en banc) (holding that Fifth

Amendment entitles aliens to due process in deportation

proceedings, and explaining that these rights “ste[m]

from those statutory rights granted by Congress and the

principle that ‘[m]inimum due process rights attach to

statutory rights.’” (quoting Marincas v. Lewis, 92 F.3d

195, 203 (3d Cir. 1996))). Third, Petitioners claim that,

regardless of the extent of their constitutional or statutory

due process rights, habeas corpus stands as a

constitutional check against illegal detention by the

Executive that is separate and apart from the protections

afforded by the Due Process Clause.

We agree with the government that Petitioners’

Suspension Clause challenge to § 1252 must fail, though

we do so for reasons that are somewhat different than

those urged by the government. As explained in Part

III.B.1 above, Boumediene contemplates a two-step

inquiry whereby courts must first determine whether a

given habeas petitioner is prohibited from invoking the

Suspension Clause due to some attribute of the petitioner

or to the circumstances surrounding his arrest or

detention. Cf. Boumediene, 553 U.S. at 739. Only after

confirming that the petitioner is not so prohibited may

courts then turn to the question whether the substitute for

habeas is adequate and effective to test the legality of the

66

petitioner’s detention (or removal). As we explain

below, we conclude that Petitioners cannot clear

Boumediene’s first hurdle – that of proving their

entitlement vel non to the protections of the Suspension

Clause.25

The reason Petitioners’ Suspension Clause claim

falls at step one is because 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.”

Landon, 459 U.S. at 32. Petitioners were each

apprehended within hours of surreptitiously entering the

United States, so we think it appropriate to treat them as

25

In evaluating Petitioners’ rights under the Suspension

Clause, we find Boumediene’s multi-factor test,

referenced earlier in this opinion, to provide little

guidance. As we explain above, the Court derived the

factors from its extraterritoriality jurisprudence in order

to assess the reach of the Suspension Clause to a territory

where the United States is not sovereign. See 553 U.S. at

766. In our case, of course, there is no question that

Petitioners were apprehended within the sovereign

territory of the United States; thus, the Boumediene

factors are of limited utility in determining Petitioners’

entitlement to the protections of the Suspension Clause.

67

“alien[s] seeking initial admission to the United States.”

Id. 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 § 1252 is an adequate substitute for traditional

habeas review.26

Petitioners claim that St. Cyr and the finality-era

cases firmly establish their right to invoke the Suspension

Clause to challenge their removal orders. 27 For two main

26

And because we hold that Petitioners cannot even

invoke the Suspension Clause to challenge issues related

to their admission or removal from the country, we have

no occasion to consider what constitutional or statutory

due process rights, if any, Petitioners may have.

27

Petitioners also rely on this Court’s decision in

Sandoval v. Reno, 166 F.3d 225 (3d Cir. 1999), which is

factually and analytically very similar to St. Cyr.

Because St. Cyr essentially subsumes Sandoval, however,

our reasons for rejecting St. Cyr’s significance in our

case apply equally to Sandoval.

68

reasons we think Petitioners’ reliance on these cases is

flawed. First, St. Cyr involved a lawful permanent

resident, a category of aliens (unlike recent clandestine

entrants) whose entitlement to broad constitutional

protections is undisputed. Cf. Landon, 459 U.S. at 32.

Second, as stated earlier, St. Cyr discussed the

Suspension Clause (and therefore the finality-era cases)

only to explain what the Clause “might possibly protect,”

Neuman, supra, at 539 & n.8, not what the Clause most

certainly protects – and even in this hypothetical posture

the opinion was non-committal when discussing the

significance of the finality-era cases to the Suspension

Clause analysis. See 533 U.S. at 304 (“St. Cyr’s

constitutional position finds some support in our prior

immigration cases . . . . [T]he ambiguities in the scope of

the exercise of the writ at common law . . . , and the

suggestions in this Court’s prior decisions as to the extent

to which habeas review could be limited consistent with

the Constitution, convince us that the Suspension Clause

questions that would be presented by the INS’ reading of

the immigration statutes before us are difficult and

significant.” (emphases added; citing Heikkila, 345 U.S.

at 234-35)). Indeed, the Court had good reason to tread

carefully when it came to the meaning of the finality-era

cases; after all, none of them even mentions the

Suspension Clause, let alone identifies it as the

69

constitutional provision establishing the minimum

measure of judicial review required in removal cases.28

28

It was largely for this reason that the District Court

below declined to assign much weight to the finality-era

cases in its analysis of Petitioners’ Suspension Clause

argument. Petitioners and amici contend that the

Suspension Clause was the only “logical” constitutional

provision that the Court in Heikkila could have relied

upon when explaining that “the Constitution” required a

certain level of judicial review of immigration decisions.

See Brief for Scholars of Habeas Corpus Law, Federal

Courts, and Constitutional Law as Amicus Curiae 12.

Given the tentative and hypothetical nature of the Court’s

Suspension Clause analysis in St. Cyr, we too are hesitant

to extract too much Suspension Clause-related guidance

from a series of cases whose precise relationship (if any)

to the Suspension Clause is far from clear. This is

especially so in light of Justice Scalia’s dissent in St. Cyr

in which he forcefully critiqued the majority’s reliance

on the finality-era cases generally and Heikkila

specifically:

The Court cites many cases which it says

establish that it is a “serious and difficult

constitutional issue” whether the Suspension

Clause prohibits the elimination of habeas

jurisdiction effected by IIRIRA. Every one

of those cases, however, pertains not to the

70

meaning of the Suspension Clause, but to

the content of the habeas corpus provision of

the United States Code, which is quite a

different matter. The closest the Court can

come is a statement in one of those cases to

the effect that the Immigration Act of 1917

“had the effect of precluding judicial

intervention in deportation cases except

insofar as it was required by the

Constitution,” Heikkila, 345 U.S., at 234-35.

That statement (1) was pure dictum, since

the Court went on to hold that the judicial

review of petitioner’s deportation order was

unavailable; (2) does not specify to what

extent judicial review was “required by the

Constitution,” which could (as far as the

Court’s holding was concerned) be zero;

and, most important of all, (3) does not refer

to the Suspension Clause, so could well have

had in mind the due process limitations upon

the procedures for determining deportability

that our later cases establish.

533 U.S. at 339 (Scalia, J., dissenting) (some citations

omitted).

Nevertheless, we need not resolve this issue in our case,

for even if St. Cyr definitively established the import of

71

We therefore conclude that St. Cyr and the finality-era

cases are not controlling here.

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. See Mathews, 426 U.S. at 77

(“Even one whose presence in this country is unlawful,

involuntary, or transitory is entitled to th[e] constitutional

protection [of the Due Process Clause].”); Zadvydas, 533

U.S. at 693 (“It is well established that certain

constitutional protections available to persons inside the

United States are unavailable to aliens outside of our

geographic borders. But once an alien enters the country,

the legal circumstance changes, for the Due Process

Clause applies to all ‘persons’ within the United States,

including aliens, whether their presence here is lawful,

the finality-era cases to the Suspension Clause, we still

think the distinction between a lawful permanent resident

and a very recent surreptitious entrant makes all the

difference in this case. More on this below.

72

unlawful, temporary, or permanent.” (citations omitted));

see also Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886);

Yamataya, 189 U.S. at 100-01; Mezei, 345 U.S. at 212;

Leng May Ma v. Barber, 357 U.S. 185, 187 (1958);

Plyler v. Doe, 457 U.S. 202, 210 (1982). Again, this

criticism is misplaced for two principal reasons.

First, and perhaps most fundamentally, most of the

cases cited above did not involve aliens who were

seeking initial entry to the country or who were

apprehended immediately after entry. See, e.g., Yick Wo,

118 U.S. at 358 (long-time resident alien); Mathews, 426

U.S. at 69 (lawfully admitted resident aliens); Plyler, 457

U.S. at 206 (undocumented resident aliens); Zadvydas,

533 U.S. at 684-85 (long-time resident aliens). And as

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.29 See Mezei,

29

Petitioners make much of the fact that the Court

extended constitutional due process protections to the

alien in Yamataya despite her short stint in the United

States. See 189 U.S. at 87, 100-01. Petitioners’ reliance

on this case ignores other language in the opinion clearly

distinguishing Yamataya – an alien who was initially

admitted to the country and who “ha[d] become . . . a part

of its population” before being ordered deported, id. at

73

345 U.S. at 207 (former resident alien held on Ellis

Island seeking readmission after extended absence); Leng

May Ma, 357 U.S. at 186 (arriving alien allowed into the

country on parole pending admission determination).

Thus, Petitioners can draw little support from these latter

cases.

Second, 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. See Yamataya, 189 U.S. at 100-01 (withholding

judgment on question “whether an alien can rightfully

invoke the due process clause of the Constitution who

has entered the country clandestinely, and who has been

here for too brief a period to have become, in any real

sense, a part of our population, before his right to remain

is disputed”); Wong Yang Sung v. McGrath, 339 U.S. 33,

49-50 (1950) (“It was under compulsion of the

Constitution that this Court long ago held [in Yamataya]

101 – from very recent clandestine entrants like

Petitioners, see id. at 100. Thus, while Yamataya might

apply in some future case where the alien ordered

removed has been in the country for a period of time

sufficient “to have become, in [some] real sense, a part of

our population,” id., that simply is not this case.

74

that an antecedent deportation statute must provide a

hearing at least for aliens who had not entered

clandestinely and who had been here some time even if

illegally.” (emphasis added)); Kwong Hai Chew v.

Colding, 344 U.S. 590, 596 n.5 (1953) (“The Bill of

Rights is a futile authority for the alien seeking admission

for the first time to these shores. But once an alien

lawfully enters and resides in this country he becomes

invested with the rights guaranteed by the Constitution to

all people within our borders.” (emphasis added));

Landon, 459 U.S. at 32 (1982) (“[O]nce an alien gains

admission to our country and begins to develop the ties

that go with permanent residence his constitutional status

changes accordingly.” (emphasis added)); United States

v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (stating

in dicta that “aliens receive constitutional protections

when they have come within the territory of the United

States and developed substantial connections with this

country” (emphasis added)). At a minimum, we

conclude that 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.

Such a proposition is further weakened by the Court’s

adoption of the “entry fiction” to deny due process rights

to aliens even though they are unquestionably within the

territorial jurisdiction of the United States. In other

words, if entitlement to constitutional protections turned

entirely on an alien’s position relative to such a rigid

75

conception as a line on a map, then the Court’s entry-

fiction cases such as Mezei would run just as contrary to

this principle as our holding in this case does. 30

We thus conclude that, as recent surreptitious

entrants deemed to be “alien[s] seeking initial admission

to the United States,” Petitioners are unable to invoke the

Suspension Clause, despite their having effected a brief

entrance into the country prior to being apprehended for

removal. 31

30

This is not to say that an alien’s location relative to the

border is irrelevant to a determination of his rights under

the Constitution. Indeed, we think physical presence is a

factor courts should consider; we simply leave it to courts

in the future to evaluate the Suspension Clause rights of

an alien whose presence in the United States goes

meaningfully beyond that of Petitioners here.

31

In addition to the above, it is worth noting that when

the Court in Landon stated that certain aliens lack

constitutional rights regarding their application for

admission, it did not categorize aliens based on whether

they have entered the country or not; rather, the Court

focused (as IIRIRA and the expedited removal regime

focus) on whether the aliens are “seeking initial

76

***

admission to the United States.” Landon, 459 U.S. at 32

(emphasis added); see also, e.g., 8 U.S.C. § 1225(b)(1)

(conditioning aliens’ eligibility for expedited removal, in

part, on inadmissibility, even if aliens are physically

present in the United States). Arguably, this suggests

that, at least in some circumstances, an alien’s mere

physical presence in the country is of little constitutional

significance unless that alien has previously applied for

and been granted admission. See David A. Martin, Two

Cheers for Expedited Removal in the New Immigration

Laws, 40 Va. J. Int’l L. 673, 689 n.55 (2000) (arguing

that “by emphasizing admission over entry, [Landon]

may give more weight to” the constitutional significance

of IIRIRA’s focus on aliens’ admissibility rather than

physical location). Then again, Landon relied on Knauff

to support its statement that “an alien seeking initial

admission . . . has no constitutional rights regarding his

application.” See Landon, 459 U.S. at 32 (citing, inter

alia, Knauff, 338 U.S. at 542). And since Knauff focused

on whether the alien had “entered” the country, “initial

admission” in Landon may simply be synonymous with

“initial entry.” At all events, our opinion should not be

read to place tremendous weight on this possible

distinction.

77

Our holding rejecting Petitioners’ Suspension

Clause claims is true to the arc traced by the Supreme

Court’s plenary power cases in recent decades. It is also

consistent with the Court’s analytical framework for

evaluating Suspension Clause challenges. Even if

Petitioners would be entitled to constitutional habeas

under the finality-era cases, those cases, as explained

above, no longer represent the prevailing view of the

plenary power doctrine, at least when it comes to aliens

seeking initial admission. Instead, we must look to

Knauff, Mezei, and other cases reaffirming those sea-

changing precedents, all of which point to the conclusion

that aliens seeking initial admission to the country – as

well as those rightfully assimilated to that status on

account of their very recent surreptitious entry – are

prohibited from invoking the protections of the

Suspension Clause in order to challenge issues relating to

their application for admission. 32

32

Of course, as we recognized above, this is not to say

that the political branches’ power over immigration is

limitless in all respects. We doubt, for example, that

Congress could authorize, or that the Executive could

engage in, the indefinite, hearingless detention of an alien

simply because the alien was apprehended shortly after

clandestine entrance. Cf. Zadvydas, 533 U.S. at 695

(noting that the question before the Court – “whether

78

aliens that the Government finds itself unable to remove

are to be condemned to an indefinite term of

imprisonment within the United States” – does not

implicate questions regarding “the political branches’

authority to control entry into the United States”). And

we are certain that this “plenary power” does not mean

Congress or the Executive can subject recent clandestine

entrants or other arriving aliens to inhumane treatment.

Cf. Wong Wing v. United States, 163 U.S. 228, 237

(1896) (noting that “[n]o limits can be put by the courts

upon the power of congress to protect, by summary

methods, the country from the advent of aliens whose

race or habits render them undesirable as citizens, or to

expel such if they have already found their way into our

land, and unlawfully remain therein,” but distinguishing

such valid exercises of power from a law allowing the

Executive to subject deportable aliens to hard labor

without a jury trial); Zadvydas, 533 U.S. at 704 (Scalia,

J., dissenting) (noting the difference between the rights of

aliens not to be tortured or “subjected to the punishment

of hard labor without a judicial trial” and the right to

remain in the country after being deemed deportable);

Lynch v. Cannatella, 810 F.2d 1363, 1373 (5th Cir. 1987)

(“The ‘entry fiction’ that excludable aliens are to be

treated as if detained at the border despite their physical

presence in the United States determines the aliens’

rights with regard to immigration and deportation

79

IV. CONCLUSION

We are sympathetic to the plight of Petitioners and

other aliens who have come to this country seeking

protection and repose from dangers that they sincerely

believe their own governments are unable or unwilling to

address. Nevertheless, Congress has unambiguously

limited the scope of judicial review, and in so doing has

foreclosed review of Petitioners’ claims. And in light of

the undisputed facts surrounding Petitioners’

surreptitious entry into this country, and considering

Congress’ and the Executive’s plenary power over

decisions regarding the admission or exclusion of aliens,

we cannot say that this limited scope of review is

unconstitutional under the Suspension Clause, at least as

to Petitioners and other aliens similarly situated. We will

therefore affirm the District Court’s order dismissing

Petitioners’ habeas petitions for lack of subject matter

jurisdiction.

proceedings. It does not limit the right of excludable

aliens detained within United States territory to humane

treatment.” (footnote omitted)). But to say that the

political branches’ power over immigration is subject to

important limits in some contexts by no means requires

that the exercise of that power must be subject to judicial

review in all contexts.

80

Rosa Elida Castro et al. v. U.S. Department of Homeland

Security, No. 16-1339

HARDIMAN, Circuit Judge, concurring dubitante.

I join Judge Smith’s excellent opinion in full, but I

write separately to express my doubt that the expression

of the plenary power doctrine in Landon v. Plasencia

completely resolves step one of the Suspension Clause

analysis under Boumediene. Although Landon appears to

preclude “alien[s] seeking initial admission to the United

States” from invoking any constitutional protections

“regarding [their] application[s],” the question of what

constitutional rights such aliens are afforded was not

squarely before the Supreme Court in that case because

the petitioner was a returning permanent resident. 459

U.S. 21, 23, 32 (1982). Nor did the Court in Landon

purport to resolve a jurisdictional question raising the

possibility of an unconstitutional suspension of the writ

of habeas corpus.1

1

Landon may also be at odds with the proposition

that “the Suspension Clause protects the writ ‘as it

existed in 1789.’” INS v. St. Cyr, 533 U.S. 289, 301

(2001) (quoting Felker v. Turpin, 518 U.S. 651, 663–64

(1996)); see also Boumediene v. Bush, 553 U.S. 723, 746

(2008). See generally Paul D. Halliday & G. Edward

White, The Suspension Clause: English Text, Imperial

Context, and American Implications, 94 Va. L. Rev. 575,

675–76 (2008) (“A sample of newspapers from the 1780s

provides four instances of the use of the writ by slaves in

Despite my uncertainty about Landon’s dispositive

application here, I am convinced that we would reach the

same result under step two of Boumediene’s framework.

Unlike the petitioners in Boumediene—who sought their

release in the face of indefinite detention—Petitioners

here seek to alter their status in the United States in the

hope of avoiding release to their homelands. That prayer

for relief, in my view, dooms the merits of their

Suspension Clause argument that 8 U.S.C. § 1252(e)

provides an “inadequate or ineffective” habeas substitute.

United States v. Hayman, 342 U.S. 205, 223 (1952).

Connecticut, New Jersey, Pennsylvania, and Maryland.

These suggest that the use of the writ was not confined to

native-born British-American citizens of European

ancestry, and that American usage was paralleling that in

England and its colonies. Indeed, it is difficult to imagine

that Americans were not aware of reports of the decision

in Somerset’s Case of 1772, in which Chief Justice

Mansfield ruled that a slave in England could not be held

in custody.”).

2