Department of Homeland Security v. Thuraissigiam

(Slip Opinion) OCTOBER TERM, 2019 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

DEPARTMENT OF HOMELAND SECURITY ET AL. v.

THURAISSIGIAM

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

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

The Illegal Immigration Reform and Immigrant Responsibility Act

(IIRIRA) provides for the expedited removal of certain “applicants”

seeking admission into the United States, whether at a designated port

of entry or elsewhere. 8 U. S. C. §1225(a)(1). An applicant may avoid

expedited removal by demonstrating to an asylum officer a “credible

fear of persecution,” defined as “a significant possibility . . . that the

alien could establish eligibility for asylum.” §1225(b)(1)(B)(v). An ap-

plicant who makes this showing is entitled to “full consideration” of an

asylum claim in a standard removal hearing. 8 CFR §208.30(f). An

asylum officer’s rejection of a credible-fear claim is reviewed by a su-

pervisor and may then be appealed to an immigration judge.

§§208.30(e)(8), 1003.42(c), (d)(1). But IIRIRA limits the review that a

federal court may conduct on a petition for a writ of habeas corpus. 8

U. S. C. §1252(e)(2). In particular, courts may not review “the deter-

mination” that an applicant lacks a credible fear of persecution.

§1252(a)(2)(A)(iii).

Respondent Vijayakumar Thuraissigiam is a Sri Lankan national

who was stopped just 25 yards after crossing the southern border with-

out inspection or an entry document. He was detained for expedited

removal. An asylum officer rejected his credible-fear claim, a super-

vising officer agreed, and an Immigration Judge affirmed. Respondent

then filed a federal habeas petition, asserting for the first time a fear

of persecution based on his Tamil ethnicity and political views and re-

questing a new opportunity to apply for asylum. The District Court

dismissed the petition, but the Ninth Circuit reversed, holding that, as

applied here, §1252(e)(2) violates the Suspension Clause and the Due

Process Clause.

2 DEPARTMENT OF HOMELAND SECURITY v.

THURAISSIGIAM

Syllabus

Held:

1. As applied here, §1252(e)(2) does not violate the Suspension

Clause. Pp. 11–33.

(a) The Suspension Clause provides that “[t]he Privilege of the

Writ of Habeas Corpus shall not be suspended, unless when in Cases

of Rebellion or Invasion the public Safety may require it.” Art. I, §9,

cl. 2. This Court has held that, at a minimum, the Clause “protects

the writ as it existed in 1789,” when the Constitution was adopted.

INS v. St. Cyr, 533 U. S. 289, 301. Habeas has traditionally provided

a means to seek release from unlawful detention. Respondent does not

seek release from custody, but an additional opportunity to obtain asy-

lum. His claims therefore fall outside the scope of the writ as it existed

when the Constitution was adopted. Pp. 11–15.

(b) Respondent contends that three bodies of case law support his

argument that the Suspension Clause guarantees a broader habeas

right, but none do. Pp. 15–33.

(1) Respondent first points to British and American cases de-

cided before or around the Constitution’s adoption. All those cases

show is that habeas was used to seek release from detention in a vari-

ety of circumstances. Respondent argues that some cases show aliens

using habeas to remain in a country. But the relief ordered in those

cases was simply release; an alien petitioner’s ability to remain in the

country was due to immigration law, or lack thereof. The relief that a

habeas court may order and the collateral consequences of that relief

are two entirely different things. Pp. 15–23.

(2) Although respondent claims to rely on the writ as it existed

in 1789, his argument focuses on this Court’s decisions during the “fi-

nality era,” which takes its name from a feature of the Immigration

Act of 1891 making certain immigration decisions “final.” In Nishi-

mura Ekiu v. United States, 142 U. S. 651, the Court interpreted the

Act to preclude judicial review only of questions of fact. Federal courts

otherwise retained authority under the Habeas Corpus Act of 1867 to

determine whether an alien was detained in violation of federal law.

Thus, when aliens sought habeas relief during the finality era, the

Court exercised habeas jurisdiction that was conferred by the habeas

statute, not because it was required by the Suspension Clause—which

the Court did not mention. Pp. 23–32.

(3) The Court’s more recent decisions in Boumediene v. Bush,

553 U. S. 723, and St. Cyr, 533 U. S. 289, also do not support respond-

ent’s argument. Boumediene was not about immigration at all, and St.

Cyr reaffirmed that the common-law habeas writ provided a vehicle to

challenge detention and could be invoked by aliens already in the coun-

try who were held in custody pending deportation. It did not approve

respondent’s very different attempted use of the writ. Pp. 32–33.

Cite as: 591 U. S. ____ (2020) 3

Syllabus

2. As applied here, §1252(e)(2) does not violate the Due Process

Clause. More than a century of precedent establishes that, for aliens

seeking initial entry, “the decisions of executive or administrative of-

ficers, acting within powers expressly conferred by Congress, are due

process of law.” Nishimura Ekiu, 142 U. S., at 660. Respondent ar-

gues that this rule does not apply to him because he succeeded in mak-

ing it 25 yards into U. S. territory. But the rule would be meaningless

if it became inoperative as soon as an arriving alien set foot on U. S.

soil. An alien who is detained shortly after unlawful entry cannot be

said to have “effected an entry.” Zadvydas v. Davis, 533 U. S. 678, 693.

An alien in respondent’s position, therefore, has only those rights re-

garding admission that Congress has provided by statute. In respond-

ent’s case, Congress provided the right to a “determin[ation]” whether

he had “a significant possibility” of “establish[ing] eligibility for asy-

lum,” and he was given that right. §§1225(b)(1)(B)(ii), (v). Pp. 34–36.

917 F. 3d 1097, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,

and THOMAS, GORSUCH, and KAVANAUGH, JJ., joined. THOMAS, J., filed a

concurring opinion. BREYER, J., filed an opinion concurring in the judg-

ment, in which GINSBURG, J., joined. SOTOMAYOR, J., filed a dissenting

opinion, in which KAGAN, J., joined.

Cite as: 591 U. S. ____ (2020) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order that

corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 19–161

_________________

DEPARTMENT OF HOMELAND SECURITY, ET AL.,

PETITIONERS v. VIJAYAKUMAR

THURAISSIGIAM

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 25, 2020]

JUSTICE ALITO delivered the opinion of the Court.

Every year, hundreds of thousands of aliens are appre-

hended at or near the border attempting to enter this coun-

try illegally. Many ask for asylum, claiming that they

would be persecuted if returned to their home countries.

Some of these claims are valid, and by granting asylum, the

United States lives up to its ideals and its treaty obliga-

tions. Most asylum claims, however, ultimately fail, and

some are fraudulent. In 1996, when Congress enacted the

Illegal Immigration Reform and Immigrant Responsibility

Act (IIRIRA), 110 Stat. 3009–546, it crafted a system for

weeding out patently meritless claims and expeditiously re-

moving the aliens making such claims from the country. It

was Congress’s judgment that detaining all asylum seekers

until the full-blown removal process is completed would

place an unacceptable burden on our immigration system

and that releasing them would present an undue risk that

they would fail to appear for removal proceedings.

This case concerns the constitutionality of the system

2 DEPARTMENT OF HOMELAND SECURITY v.

THURAISSIGIAM

Opinion of the Court

Congress devised. Among other things, IIRIRA placed re-

strictions on the ability of asylum seekers to obtain review

under the federal habeas statute, but the United States

Court of Appeals for the Ninth Circuit held that these re-

strictions are unconstitutional. According to the Ninth Cir-

cuit, they unconstitutionally suspend the writ of habeas

corpus and violate asylum seekers’ right to due process. We

now review that decision and reverse.

Respondent’s Suspension Clause argument fails because

it would extend the writ of habeas corpus far beyond its

scope “when the Constitution was drafted and ratified.”

Boumediene v. Bush, 553 U. S. 723, 746 (2008). Indeed, re-

spondent’s use of the writ would have been unrecognizable

at that time. Habeas has traditionally been a means to se-

cure release from unlawful detention, but respondent in-

vokes the writ to achieve an entirely different end, namely,

to obtain additional administrative review of his asylum

claim and ultimately to obtain authorization to stay in this

country.

Respondent’s due process argument fares no better.

While aliens who have established connections in this coun-

try have due process rights in deportation proceedings, the

Court long ago held that Congress is entitled to set the con-

ditions for an alien’s lawful entry into this country and that,

as a result, an alien at the threshold of initial entry cannot

claim any greater rights under the Due Process Clause. See

Nishimura Ekiu v. United States, 142 U. S. 651, 660 (1892).

Respondent attempted to enter the country illegally and

was apprehended just 25 yards from the border. He there-

fore has no entitlement to procedural rights other than

those afforded by statute.

In short, under our precedents, neither the Suspension

Clause nor the Due Process Clause of the Fifth Amendment

requires any further review of respondent’s claims, and

IIRIRA’s limitations on habeas review are constitutional as

applied.

Cite as: 591 U. S. ____ (2020) 3

Opinion of the Court

I

A

We begin by briefly outlining the provisions of immigra-

tion law that are pertinent to this case. Under those provi-

sions, several classes of aliens are “inadmissible” and there-

fore “removable.” 8 U. S. C. §§1182, 1229a(e)(2)(A). These

include aliens who lack a valid entry document “at the time

of application for admission.” §1182(a)(7)(A)(i)(I). An alien

who arrives at a “port of entry,” i.e., a place where an alien

may lawfully enter, must apply for admission. An alien like

respondent who is caught trying to enter at some other spot

is treated the same way. §§1225(a)(1), (3).

If an alien is inadmissible, the alien may be removed.

The usual removal process involves an evidentiary hearing

before an immigration judge, and at that hearing an alien

may attempt to show that he or she should not be removed.

Among other things, an alien may apply for asylum on the

ground that he or she would be persecuted if returned to his

or her home country. §1229a(b)(4); 8 CFR §1240.11(c)

(2020). If that claim is rejected and the alien is ordered re-

moved, the alien can appeal the removal order to the Board

of Immigration Appeals and, if that appeal is unsuccessful,

the alien is generally entitled to review in a federal court of

appeals. 8 U. S. C. §§1229a(c)(5), 1252(a). As of the first

quarter of this fiscal year, there were 1,066,563 pending re-

moval proceedings. See Executive Office for Immigration

Review (EOIR), Adjudication Statistics: Pending Cases

(Jan. 2020). The average civil appeal takes approximately

one year.1 During the time when removal is being litigated,

the alien will either be detained, at considerable expense,

or allowed to reside in this country, with the attendant risk

——————

1 See Administrative Office of the U. S. Courts, Federal Judicial Case-

load Statistics, U. S. Courts of Appeals—Median Time Intervals in

Months for Civil and Criminal Appeals Terminated on the Merits (2019)

(Table B–4A) (time calculated for non-prisoner appeals from the filing of

a notice of appeal to the last opinion or final order).

4 DEPARTMENT OF HOMELAND SECURITY v.

THURAISSIGIAM

Opinion of the Court

that he or she may not later be found. §1226(a).

Congress addressed these problems by providing more

expedited procedures for certain “applicants for admission.”

For these purposes, “[a]n alien present in the United States

who has not been admitted or who arrives in the United

States (whether or not at a designated port of arrival . . . )”

is deemed “an applicant for admission.” §1225(a)(1).2 An

applicant is subject to expedited removal if, as relevant

here, the applicant (1) is inadmissible because he or she

lacks a valid entry document; (2) has not “been physically

present in the United States continuously for the 2-year pe-

riod immediately prior to the date of the determination of

inadmissibility”; and (3) is among those whom the Secre-

tary of Homeland Security has designated for expedited re-

moval. §§1225(b)(1)(A)(i), (iii)(I)–(II).3 Once “an immigra-

tion officer determines” that a designated applicant “is

inadmissible,” “the officer [must] order the alien removed

from the United States without further hearing or review.”

§1225(b)(1)(A)(i).

Applicants can avoid expedited removal by claiming asy-

lum. If an applicant “indicates either an intention to apply

for asylum” or “a fear of persecution,” the immigration of-

ficer “shall refer the alien for an interview by an asylum

officer.” §§1225(b)(1)(A)(i)–(ii). The point of this screening

interview is to determine whether the applicant has a “cred-

ible fear of persecution.” §1225(b)(1)(B)(v). The applicant

need not show that he or she is in fact eligible for asylum—

a “credible fear” equates to only a “significant possibility”

——————

2 When respondent entered the country, aliens were treated as appli-

cants for admission if they were “encountered within 14 days of entry

without inspection and within 100 air miles of any U. S. international

land border.” 69 Fed. Reg. 48879 (2004).

3 This authority once belonged to the Attorney General, who is still

named in the statute. See 6 U. S. C. §251(2) (transferring authority over

“[t]he detention and removal program” to the Department).

Cite as: 591 U. S. ____ (2020) 5

Opinion of the Court

that the alien would be eligible. Ibid. Thus, while eligibil-

ity ultimately requires a “well-founded fear of persecution

on account of,” among other things, “race” or “political opin-

ion,” §§1101(a)(42)(A), 1158(b)(1)(A), all that an alien must

show to avoid expedited removal is a “credible fear.”4

If the asylum officer finds an applicant’s asserted fear to

be credible,5 the applicant will receive “full consideration”

of his asylum claim in a standard removal hearing. 8 CFR

§208.30(f ); see 8 U. S. C. §1225(b)(1)(B)(ii). If the asylum

officer finds that the applicant does not have a credible fear,

a supervisor will review the asylum officer’s determination.

8 CFR §208.30(e)(8). If the supervisor agrees with it, the

applicant may appeal to an immigration judge, who can take

further evidence and “shall make a de novo determination.”

§§1003.42(c), (d)(1); see 8 U. S. C. §1225(b)(1)(B)(iii)(III).

An alien subject to expedited removal thus has an oppor-

tunity at three levels to obtain an asylum hearing, and the

——————

4 A grant of asylum enables an alien to enter the country, but even if

an applicant qualifies, an actual grant of asylum is discretionary.

§1158(b)(1)(A).

5 The asylum officer also considers an alien’s potential eligibility for

withholding of removal under §1231(b)(3) or relief under the Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (CAT). 8 CFR §§208.30(e)(2)–(3). Respondent’s habeas pe-

tition alleges that “he can show a significan[t] possibility that he could

establish eligibility for asylum, withholding of removal, and CAT

claims.” App. 31–32. But he says in his petition that he left Sri Lanka

“to seek asylum in the United States.” Id., at 15. He discusses the crite-

ria only for asylum. Id., at 21; see also Brief for Respondent 4. And he

now alleges that he was improperly “denied asylum.” Id., at 5. Moreover,

the gravamen of his petition is that he faces persecution in Sri Lanka

“because of ” his Tamil ethnicity and political opinions. App. 13. To ob-

tain withholding or CAT relief on that basis, he would need to show “a

greater likelihood of persecution or torture at home than is necessary for

asylum.” Moncrieffe v. Holder, 569 U. S. 184, 187, n. 1 (2013). And he

would not avoid removal, only removal to Sri Lanka. 8 U. S. C.

§1231(b)(3)(A); 8 CFR §208.16(f ). We therefore read his petition as it is

plainly intended: to seek another opportunity to apply for asylum.

6 DEPARTMENT OF HOMELAND SECURITY v.

THURAISSIGIAM

Opinion of the Court

applicant will obtain one unless the asylum officer, a super-

visor, and an immigration judge all find that the applicant

has not asserted a credible fear.

Over the last five years, nearly 77% of screenings have

resulted in a finding of credible fear.6 And nearly half the

remainder (11% of the total number of screenings) were

closed for administrative reasons, including the alien’s

withdrawal of the claim.7 As a practical matter, then, the

great majority of asylum seekers who fall within the cate-

gory subject to expedited removal do not receive expedited

removal and are instead afforded the same procedural

rights as other aliens.

Whether an applicant who raises an asylum claim re-

ceives full or only expedited review, the applicant is not en-

titled to immediate release. Applicants “shall be detained

pending a final determination of credible fear of persecution

and, if found not to have such a fear, until removed.”

§1225(b)(1)(B)(iii)(IV). Applicants who are found to have a

credible fear may also be detained pending further consid-

eration of their asylum applications. §1225(b)(1)(B)(ii); see

Jennings v. Rodriguez, 583 U. S. ___, ___, ___ (2018) (slip

op., at 3, 13).8

B

The IIRIRA provision at issue in this case, §1252(e)(2),

limits the review that an alien in expedited removal may

obtain via a petition for a writ of habeas corpus. That pro-

vision allows habeas review of three matters: first,

“whether the petitioner is an alien”; second, “whether the

petitioner was ordered removed”; and third, whether the

——————

6 See GAO, Immigration: Actions Needed To Strengthen USCIS’s Over-

sight and Data Quality of Credible and Reasonable Fear Screenings 13–

15, and fig. 2 (GAO–20–250, Feb. 2020).

7 See id., at 16, n. b.

8 The Department may grant temporary parole “for urgent humanitar-

ian reasons or significant public benefit.” 8 U. S. C. §1182(d)(5)(A); see

also 8 CFR §§212.5(b), 235.3(b)(2)(iii), and (4)(ii).

Cite as: 591 U. S. ____ (2020) 7

Opinion of the Court

petitioner has already been granted entry as a lawful per-

manent resident, refugee, or asylee. §§1252(e)(2)(A)–(C). If

the petitioner has such a status, or if a removal order has

not “in fact” been “issued,” §1252(e)(5), the court may order

a removal hearing, §1252(e)(4)(B).

A major objective of IIRIRA was to “protec[t] the Execu-

tive’s discretion” from undue interference by the courts; in-

deed, “that can fairly be said to be the theme of the legisla-

tion.” Reno v. American-Arab Anti-Discrimination Comm.,

525 U. S. 471, 486 (1999) (AAADC). In accordance with that

aim, §1252(e)(5) provides that “[t]here shall be no review of

whether the alien is actually inadmissible or entitled to any

relief from removal.” And “[n]otwithstanding” any other

“habeas corpus provision”—including 28 U. S. C. §2241—

“no court shall have jurisdiction to review” any other “indi-

vidual determination” or “claim arising from or relating to

the implementation or operation of an order of [expedited]

removal.” §1252(a)(2)(A)(i). In particular, courts may not

review “the determination” that an alien lacks a credible

fear of persecution. §1252(a)(2)(A)(iii); see also

§§1252(a)(2)(A)(ii), (iv) (other specific limitations).

Even without the added step of judicial review, the

credible-fear process and abuses of it can increase the bur-

dens currently “overwhelming our immigration system.” 84

Fed. Reg. 33841 (2019).9 The past decade has seen a 1,883%

——————

9 References to the factual material in this regulation are not endorse-

ments of the regulation itself. And like the immigration officials in this

case, we do not question the basis for respondent’s asserted fear. See

infra, at 9. But we note the Department’s view that credible-fear claims

can be asserted “in the hope of a lengthy asylum process that will enable

[the claimants] to remain in the United States for years . . . despite their

statutory ineligibility for relief ” and that an influx of meritless claims

can delay the adjudication of meritorious ones; strain detention capacity

and degrade detention conditions; cause the release of many inadmissi-

ble aliens into States and localities that must shoulder the resulting

costs; divert Department resources from protecting the border; and ag-

gravate “the humanitarian crisis created by human smugglers.” 84 Fed.

8 DEPARTMENT OF HOMELAND SECURITY v.

THURAISSIGIAM

Opinion of the Court

increase in credible-fear claims, and in 2018 alone, there

were 99,035 claims. See id., at 33838 (data for fiscal years

2008 to 2018). The majority have proved to be meritless.

Many applicants found to have a credible fear—about 50%

over the same 10-year period—did not pursue asylum. See

EOIR, Adjudication Statistics: Rates of Asylum Filings in

Cases Originating With a Credible Fear Claim (Nov. 2018);

see also 84 Fed. Reg. 33841 (noting that many instead ab-

scond). In 2019, a grant of asylum followed a finding of

credible fear just 15% of the time. See EOIR, Asylum Deci-

sion Rates in Cases Originating With a Credible Fear Claim

(Oct. 2019). Fraudulent asylum claims can also be difficult

to detect,10 especially in a screening process that is designed

to be expedited and that is currently handling almost

100,000 claims per year.

The question presented thus has significant conse-

quences for the immigration system. If courts must review

credible-fear claims that in the eyes of immigration officials

——————

Reg. 33831; see also, e.g., Violent Crime Control and Law Enforcement

Act of 1994, §130010(a)(3)(C), 108 Stat. 2030 (legislative finding of “a

drain on limited resources resulting from the high cost of processing friv-

olous asylum claims”); Arizona v. United States, 567 U. S. 387, 397–398

(2012); Homeland Security Advisory Council, Final Emergency Interim

Report 1, 7–8 (Apr. 16, 2019); Letter from K. Nielsen, Secretary of Home-

land Security, to Members of Congress 1–2 (Mar. 28, 2019); GAO, Asy-

lum: Additional Actions Needed To Assess and Address Fraud Risks 24

(GAO–16–50, Dec. 2015) (GAO Fraud Report); Congressional Budget Of-

fice, The Impact of Unauthorized Immigrants on the Budgets of State

and Local Governments 8–9 (Dec. 2007); Brief for State of Arizona et al.

as Amici Curiae 9–12.

10 See, e.g., GAO Fraud Report 32–33 (discussing Operation Fiction

Writer, a criminal investigation of attorneys and application preparers

who counseled asylum seekers to lie about religious persecution and

forced abortions); Asylum Fraud: Abusing America’s Compassion? Hear-

ing before the Subcommittee on Immigration and Border Security of the

House Committee on the Judiciary, 113th Cong., 2d Sess. (2014) (testi-

mony of Louis D. Crocetti, Jr.) (describing study in which 58% of ran-

domly selected asylum applications exhibited indicators of possible fraud

and 12% were determined to be fraudulent).

Cite as: 591 U. S. ____ (2020) 9

Opinion of the Court

and an immigration judge do not meet the low bar for such

claims, expedited removal would augment the burdens on

that system. Once a fear is asserted, the process would no

longer be expedited.

C

Respondent Vijayakumar Thuraissigiam, a Sri Lankan

national, crossed the southern border without inspection or

an entry document at around 11 p.m. one night in January

2017. App. 38. A Border Patrol agent stopped him within

25 yards of the border, and the Department detained him

for expedited removal. Id., at 37–39, 106; see

§§1182(a)(7)(A)(i)(I), 1225(b)(1)(A)(ii), and (b)(1)(B)(iii)(IV).

He claimed a fear of returning to Sri Lanka because a group

of men had once abducted and severely beaten him, but he

said that he did not know who the men were, why they had

assaulted him, or whether Sri Lankan authorities would

protect him in the future. Id., at 80. He also affirmed that

he did not fear persecution based on his race, political opin-

ions, or other protected characteristics. Id., at 76–77; see

§1101(a)(42)(A).

The asylum officer credited respondent’s account of the

assault but determined that he lacked a “credible” fear of

persecution, as defined by §1225(b)(1)(B)(v), because he had

offered no evidence that could have made him eligible for

asylum (or other removal relief ). Id., at 83, 87, 89; see

§1158(b)(1)(A). The supervising officer agreed and signed

the removal order. Id., at 54, 107. After hearing further

testimony from respondent, an Immigration Judge affirmed

on de novo review and returned the case to the Department

for removal. Id., at 97.

Respondent then filed a federal habeas petition. Assert-

ing for the first time a fear of persecution based on his

Tamil ethnicity and political views, id., at 12–13, he argued

that he “should have passed the credible fear stage,” id., at

30. But, he alleged, the immigration officials deprived him

10 DEPARTMENT OF HOMELAND SECURITY v.

THURAISSIGIAM

Opinion of the Court

of “a meaningful opportunity to establish his claims” and

violated credible-fear procedures by failing to probe past his

denial of the facts necessary for asylum. Id., at 27, 32. Al-

legedly they also failed to apply the “correct standard” to

his claims—the “significant possibility” standard—despite

its repeated appearance in the records of their decisions.

Id., at 30; see id., at 53, 84–89, 97. Respondent requested

“a writ of habeas corpus, an injunction, or a writ of manda-

mus directing [the Department] to provide [him] a new op-

portunity to apply for asylum and other applicable forms of

relief.” Id., at 33. His petition made no mention of release

from custody.

The District Court dismissed the petition, holding that

§§1252(a)(2) and (e)(2) and clear Ninth Circuit case law

foreclosed review of the negative credible-fear determina-

tion that resulted in respondent’s expedited removal order.

287 F. Supp. 3d 1077, 1081 (SD Cal. 2018). The court also

rejected respondent’s argument “that the jurisdictional lim-

itations of §1252(e) violate the Suspension Clause,” again

relying on Circuit precedent. Id., at 1082–1083.

The Ninth Circuit reversed. It found that our Suspension

Clause precedent demands “reference to the writ as it stood

in 1789.” 917 F. 3d 1097, 1111 (2019). But without citing

any pre-1789 case about the scope of the writ, the court held

that §1252(e)(2) violates the Suspension Clause. See id., at

1113–1119. The court added that respondent “has proce-

dural due process rights,” specifically the right “ ‘to expe-

dited removal proceedings that conformed to the dictates of

due process.’ ” Id., at 1111, n. 15 (quoting United States v.

Raya-Vaca, 771 F. 3d 1195, 1203 (CA9 2014)). Although the

decision applied only to respondent, petitioners across the

Circuit have used it to obtain review outside the scope of

§1252(e)(2), and petitioners elsewhere have attempted to

Cite as: 591 U. S. ____ (2020) 11

Opinion of the Court

follow suit.11

The Ninth Circuit’s decision invalidated the application

of an important provision of federal law and conflicted with

a decision from another Circuit, see Castro v. United States

Dept. of Homeland Security, 835 F. 3d 422 (CA3 2016). We

granted certiorari, 589 U. S. ___ (2019).

II

A

The Suspension Clause provides that “[t]he Privilege of

the Writ of Habeas Corpus shall not be suspended, unless

when in Cases of Rebellion or Invasion the public Safety

may require it.” U. S. Const., Art. I, §9, cl. 2. In INS v. St.

Cyr, 533 U. S. 289 (2001), we wrote that the Clause, at a

minimum, “protects the writ as it existed in 1789,” when

the Constitution was adopted. Id., at 301 (internal quota-

tion marks omitted). And in this case, respondent agrees

that “there is no reason” to consider whether the Clause ex-

tends any further. Brief for Respondent 26, n. 12. We

therefore proceed on that basis.12

——————

11 See, e.g., Mnatsakanyan v. United States Dept. of Homeland Secu-

rity, 2020 WL 1245371, *5 (SD Cal., Mar. 16, 2020) (“Given the identical

claims here as in Thuraissigiam, the Court concludes it has jurisdiction

over Petitioner’s habeas petition under the Suspension Clause”); Kaur v.

Barr, 2019 WL 4974425, *3 (D Ariz., Oct. 8, 2019) (granting stay of re-

moval in light of the decision below); Rodrigues v. McAleenan, 2020 WL

363041, *2, *6 (ND Tex., Jan. 22, 2020) (declining to follow the decision

below).

12 The original meaning of the Suspension Clause is the subject of con-

troversy. In INS v. St. Cyr, 533 U. S. 289 (2001), the majority and dissent

debated whether the Clause independently guarantees the availability

of the writ or simply restricts the temporary withholding of its operation.

Compare id., at 300, with id., at 336–341 (Scalia, J., dissenting). See also

Ex parte Bollman, 4 Cranch 75, 95 (1807). We do not revisit that ques-

tion. Nor do we consider whether the scope of the writ as it existed in

1789 defines the boundary of the constitutional protection to which the

St. Cyr Court referred, since the writ has never encompassed respond-

ent’s claims.

12 DEPARTMENT OF HOMELAND SECURITY v.

THURAISSIGIAM

Opinion of the Court

B

This principle dooms respondent’s Suspension Clause ar-

gument, because neither respondent nor his amici have

shown that the writ of habeas corpus was understood at the

time of the adoption of the Constitution to permit a peti-

tioner to claim the right to enter or remain in a country or

to obtain administrative review potentially leading to that

result. The writ simply provided a means of contesting the

lawfulness of restraint and securing release.

In 1768, Blackstone’s Commentaries—usually a “satis-

factory exposition of the common law of England,” Schick v.

United States, 195 U. S. 65, 69 (1904)—made this clear.

Blackstone wrote that habeas was a means to “remov[e] the

injury of unjust and illegal confinement.” 3 W. Blackstone,

Commentaries on the Laws of England 137 (emphasis de-

leted). Justice Story described the “common law” writ the

same way. See 3 Commentaries on the Constitution of the

United States §1333, p. 206 (1833). Habeas, he explained,

“is the appropriate remedy to ascertain . . . whether any

person is rightfully in confinement or not.” Ibid.

We have often made the same point. See, e.g., Preiser v.

Rodriguez, 411 U. S. 475, 484 (1973) (“It is clear . . . from

the common-law history of the writ . . . that the essence of

habeas corpus is an attack by a person in custody upon the

legality of that custody, and that the traditional function of

the writ is to secure release from illegal custody”); Wil-

kinson v. Dotson, 544 U. S. 74, 79 (2005) (similar); Munaf v.

Geren, 553 U. S. 674, 693 (2008) (similar).

——————

We also do not reconsider whether the common law allowed the issu-

ance of a writ on behalf of an alien who lacked any allegiance to the coun-

try. Compare Boumediene v. Bush, 553 U. S. 723, 746–747 (2008) (form-

ing “no certain conclusions”), with Brief for Criminal Justice Legal

Foundation as Amicus Curiae 5–13. See also Hamburger, Beyond Pro-

tection, 109 Colum. L. Rev. 1823, 1847 (2009); P. Halliday, Habeas Cor-

pus: From England to Empire 204 (2010) (Halliday).

Cite as: 591 U. S. ____ (2020) 13

Opinion of the Court

In this case, however, respondent did not ask to be re-

leased.13 Instead, he sought entirely different relief: vaca-

tur of his “removal order” and “an order directing [the De-

partment] to provide him with a new . . . opportunity to

apply for asylum and other relief from removal.” App. 14

(habeas petition). See also id., at 31 (“a fair procedure to

apply for asylum, withholding of removal, and CAT relief”);

id., at 14 (“a new, meaningful opportunity to apply for asy-

lum and other relief from removal”). Such relief might fit

an injunction or writ of mandamus—which tellingly, his pe-

tition also requested, id., at 33—but that relief falls outside

the scope of the common-law habeas writ.

Although the historic role of habeas is to secure release

from custody, the Ninth Circuit did not suggest that re-

lease, at least in the traditional sense of the term,14 was re-

quired. Instead, what it found to be necessary was a “mean-

ingful opportunity” for review of the procedures used in

determining that respondent did not have a credible fear of

persecution. 917 F. 3d, at 1117. Thus, even according to

——————

13 In his brief, respondent states that “he requests an entirely ordinary

habeas remedy: conditional release pending a lawful adjudication. J. A.

33.” Brief for Respondent 29. Citing the same page, the dissent argues

that respondent “asked the district court to ‘[i]ssue a writ of habeas cor-

pus’ without further limitation on the kind of relief that might entail.”

Post, at 7 (opinion of SOTOMAYOR, J.) (quoting App. 33). However, neither

on the cited page nor at any other place in the habeas petition is release,

conditional or otherwise, even mentioned. And in any event, as we dis-

cuss infra, at 15–21, the critical point is that what he sought in the ha-

beas petition and still seeks—a writ “directing [the Department] to pro-

vide [him] a new opportunity to apply for asylum,” App. 33—is not a form

of relief that was available in habeas at the time of the adoption of the

Constitution.

14 Although the Ninth Circuit never mentioned release, its opinion

might be read to suggest that gaining a right to remain in this country

would constitute a release from the “restraint” of exclusion. See 917

F. 3d 1097, 1117 (2019). No evidence has been called to our attention

that the writ was understood in 1789 to apply to any comparable form of

restraint.

14 DEPARTMENT OF HOMELAND SECURITY v.

THURAISSIGIAM

Opinion of the Court

the Ninth Circuit, respondent’s petition did not call for tra-

ditional habeas relief.

Not only did respondent fail to seek release, he does not

dispute that confinement during the pendency of expedited

asylum review, and even during the additional proceedings

he seeks, is lawful. Nor could he. It is not disputed that he

was apprehended in the very act of attempting to enter this

country; that he is inadmissible because he lacks an entry

document, see §§1182(a)(7)(A), 1225(b)(1)(A)(i); and that,

under these circumstances, his case qualifies for the expe-

dited review process, including “[m]andatory detention”

during his credible-fear review, §§1225(b)(1)(B)(ii), (iii)(IV).

Moreover, simply releasing him would not provide the right

to stay in the country that his petition ultimately seeks.

Without a change in status, he would remain subject to ar-

rest, detention, and removal. §§1226(a), 1229a(e)(2).

While respondent does not claim an entitlement to re-

lease, the Government is happy to release him—provided

the release occurs in the cabin of a plane bound for Sri

Lanka. That would be the equivalent of the habeas relief

Justice Story ordered in a case while riding circuit. He is-

sued a writ requiring the release of a foreign sailor who

jumped ship in Boston, but he provided for the sailor to be

released into the custody of the master of his ship. Ex parte

D’Olivera, 7 F. Cas. 853, 854 (No. 3,967) (CC Mass. 1813).

Respondent does not want anything like that. His claim

is more reminiscent of the one we rejected in Munaf. In

that case, American citizens held in U. S. custody in Iraq

filed habeas petitions in an effort to block their transfer to

Iraqi authorities for criminal prosecution. See 553 U. S., at

692. Rejecting this use of habeas, we noted that “[h]abeas

is at its core a remedy for unlawful executive detention” and

that what these individuals wanted was not “simple re-

lease” but an order requiring them to be brought to this

country. Id., at 693, 697. Claims so far outside the “core”

of habeas may not be pursued through habeas. See, e.g.,

Cite as: 591 U. S. ____ (2020) 15

Opinion of the Court

Skinner v. Switzer, 562 U. S. 521, 535, n. 13 (2011).

Like the habeas petitioners in Munaf, respondent does

not want “simple release” but, ultimately, the opportunity

to remain lawfully in the United States. That he seeks to

stay in this country, while the habeas petitioners in Munaf

asked to be brought here from Iraq, see post, at 19–20 (opin-

ion of SOTOMAYOR, J.), is immaterial. In this case as in

Munaf, the relief requested falls outside the scope of the

writ as it was understood when the Constitution was

adopted. See Castro, 835 F. 3d, at 450–451 (Hardiman, J.,

concurring dubitante) (“Petitioners here seek to alter their

status in the United States in the hope of avoiding release

to their homelands. That prayer for relief . . . dooms the

merits of their Suspension Clause argument” (emphasis de-

leted)).

III

Disputing this conclusion, respondent argues that the

Suspension Clause guarantees a broader habeas right. To

substantiate this claim, he points to three bodies of case

law: British and American cases decided prior to or around

the time of the adoption of the Constitution, decisions of

this Court during the so-called “finality era” (running from

the late 19th century to the mid-20th century), and two of

our more recent cases. None of these sources support his

argument.

A

Respondent and amici supporting his position have done

considerable research into the use of habeas before and

around the time of the adoption of the Constitution,15 but

——————

15 Respondent and his amici rely primarily on British cases decided be-

fore the adoption of the Constitution. “There is widespread agreement

that the common-law writ of habeas corpus was in operation in all thir-

teen of the British colonies that rebelled in 1776,” but “almost no re-

ported decisio[n] from the period.” Oldham & Wishnie, The Historical

Scope of Habeas Corpus and INS v. St. Cyr, 16 Geo. Immigration L. J.

16 DEPARTMENT OF HOMELAND SECURITY v.

THURAISSIGIAM

Opinion of the Court

they have not unearthed evidence that habeas was then

used to obtain anything like what is sought here, namely,

authorization for an alien to remain in a country other than

his own or to obtain administrative or judicial review lead-

ing to that result. All that their research (and the dissent’s)

shows is that habeas was used to seek release from deten-

tion in a variety of circumstances. In fact, respondent and

his amici do not argue that their cases show anything more.

See Brief for Respondent 27 (arguing that habeas was

“available” at the founding “to test all forms of physical re-

straint”); Brief for Scholars of the Law of Habeas Corpus as

Amici Curiae 11 (the “historical record . . . demonstrates

that the touchstone for access to the writ” was “whether the

petitioner challenges control of his person”).

Because respondent seeks to use habeas to obtain some-

thing far different from simple release, his cause is not

aided by the many release cases that he and his amici have

found. Thus, for present purposes, it is immaterial that ha-

beas was used to seek release from confinement that was

imposed for, among other things, contempt of court (see

Bushell’s Case, Vaugh. 135, 124 Eng. Rep. 1006 (C. P.

1670)), debt (see Hollingshead’s Case, 1 Salk. 351, 91 Eng.

Rep. 307 (K. B. 1702); Rex v. Nathan, 2 Str. 880, 93 Eng.

Rep. 914 (K. B. 1724)), medical malpractice (see Dr. Groen-

velt’s Case, 1 Raym. Ld. 213, 91 Eng. Rep. 1038 (K. B.

1702)), failing to pay an assessment for sewers (see Hetley

v. Boyer, Cro. Jac. 336, 79 Eng. Rep. 287 (K. B. 1613)), fail-

ure to lend the King money (see Darnel’s Case, 3 How. St.

Tr. 1 (K. B. 1627)), carrying an authorized “dagg,” i.e., hand-

gun (see Gardener’s Case, Cro. Eliz. 821, 78 Eng. Rep. 1048

(K. B. 1600)), “impressment” into military service or invol-

untary servitude (see St. Cyr, 533 U. S., at 302), or refusing

to pay a colonial tax (see Oldham & Wishnie 496). Nor does

it matter that common-law courts sometimes ordered or

——————

485, 496 (2002) (Oldham & Wishnie) (internal quotation marks omitted).

Cite as: 591 U. S. ____ (2020) 17

Opinion of the Court

considered ordering release in circumstances that would be

beyond the reach of any habeas statute ever enacted by

Congress, such as release from private custody. See, e.g.,

Rex v. Delaval, 3 Burr. 1434, 1435–1437, 97 Eng. Rep. 913,

914 (K. B. 1763) (release of young woman from “indentures

of apprenticeship”); Rex v. Clarkson, 1 Str. 444, 93 Eng.

Rep. 625 (K. B. 1722) (release from boarding school); Lister’s

Case, 8 Mod. 22, 88 Eng. Rep. 17 (K. B. 1721) (release of

wife from estranged husband’s restraint). What matters is

that all these cases are about release from restraint. Ac-

cord, Preiser, 411 U. S., at 484–485, and nn. 3–5.16

Respondent and his amici note that habeas petitioners

were sometimes released on the condition that they conform

to certain requirements. See Brief for Respondent 30; Legal

Historians Brief 18. For example, they cite a case in which

a man was released on condition that he treat his wife well

and support her, and another in which a man was released

on condition that he issue an apology. Ibid. But what re-

spondent sought in this case is nothing like that. Respond-

ent does not seek an order releasing him on the condition

that he do or refrain from doing something. What he

wants—further review of his asylum claim—is not a condi-

tion with which he must comply. Equally irrelevant is the

practice, discussed in the dissent, of allowing the executive

to justify or cure a defect in detention before requiring re-

lease. See post, at 16–18. Respondent does not seek this

sort of conditional release either, because the legality of his

detention is not in question.

——————

16 Respondent’s amici also point out that, during the English Civil War,

Parliament created a national religion and a “bewildering array of com-

mittees” to manage the war. Brief for Legal Historians as Amici Curiae

10 (Legal Historians Brief ) (internal quotation marks omitted). They

argue that “[h]abeas corpus was readily available to test the legality of

their actions.” Ibid. But according to their source, the challenged actions

were “imprisonment orders,” including imprisonment of clergymen who

refused to conform. Halliday 163–164.

18 DEPARTMENT OF HOMELAND SECURITY v.

THURAISSIGIAM

Opinion of the Court

Respondent contends that two cases show that habeas

could be used to secure the right of a non-citizen to remain

in a foreign country, but neither proves his point. His first

case, involving a Scot named Murray, is one for which no

official report is available for us to review.17 We could

hardly base our decision here on such a decision.18

His second case, Somerset v. Stewart, Lofft. 1, 98 Eng.

Rep. 499 (K. B. 1772), is celebrated but does not aid re-

spondent. James Somerset was a slave who was “de-

tain[ed]” on a ship bound for Jamaica, and Lord Mansfield

famously ordered his release on the ground that his deten-

tion as a slave was unlawful in England. Id., at 19, 98 Eng.

Rep., at 510. This relief, release from custody, fell within

the historic core of habeas, and Lord Mansfield did not or-

der anything else.

It may well be that a collateral consequence of Somerset’s

release was that he was allowed to remain in England, but

if that is so, it was due not to the writ issued by Lord Mans-

field, but to English law regarding entitlement to reside in

the country. At the time, England had nothing like modern

immigration restrictions. As late as 1816, the word “depor-

tation” apparently “was not to be found in any English dic-

——————

17 Respondent cites a secondary source, which in turn cites to the Na-

tional Archives in London. See Brief for Respondent 27 (citing Halliday

236).

18 Whether the founding generation understood habeas relief more

broadly than described by Blackstone, Justice Story, and our prior cases,

see supra, at 12, cannot be settled by a single case or even a few obscure

and possibly aberrant cases. And in any event, what is said here about

Murray’s case provides little support for respondent’s position. In 1677,

we are told, Murray was imprisoned in England so that he could be “ ‘sent

into Scotland’ ” for a criminal trial, but the King’s Bench twice issued a

writ of habeas corpus requiring his release. Brief for Respondent 27

(quoting Halliday 236). Putting aside the “delicate” relationship between

England and Scotland at the time, Boumediene, 553 U. S., at 749, issu-

ance of a writ to secure the release of a person held in pretrial custody is

far afield from what respondent wants here.

Cite as: 591 U. S. ____ (2020) 19

Opinion of the Court

tionary.” The Use of the Crown’s Power of Deportation Un-

der the Aliens Act, 1793–1826, in J. Dinwiddy, Radicalism

and Reform in Britain, 1780–1850, p. 150, n. 4 (1992); see

also, e.g., Craies, The Right of Aliens To Enter British Ter-

ritory, 6 L. Q. Rev. 27, 35 (1890) (“England was a complete

asylum to the foreigner who did not offend against its

laws”); Haycraft, Alien Legislation and the Prerogative of

the Crown, 13 L. Q. Rev. 165, 180 (1897) (“There do not ap-

pear to have been any transactions in Parliament or in the

[Crown’s] Privy Council directly affecting [deportation]

from the time of Elizabeth [I] to that of George III”).19

For a similar reason, respondent cannot find support in

early 19th-century American cases in which deserting for-

eign sailors used habeas to obtain their release from the

custody of American officials. In none of the cases involving

deserters that have been called to our attention did the

court order anything more than simple release from cus-

tody. As noted, Justice Story ordered a sailor’s release into

the custody of his ship’s master. See Ex parte D’Olivera,

7 F. Cas., at 854. Other decisions, while ordering the re-

lease of detained foreign deserters because no statute au-

thorized detention, chafed at having to order even release.

See Case of the Deserters from the British Frigate L’Afri-

caine, 3 Am. L. J. & Misc. Repertory 132, 135–136 (Md.

1810) (reporting judge’s statement “that he never would in-

terfere to prevent” the British consul himself from detain-

ing British deserters); Case of Hippolyte Dumas, 2 Am. L.

J. & Misc. Repertory 86, 87 (Pa. 1809) (noting “inconven-

ience” that U. S. law did not discourage desertion of foreign

sailors); Commonwealth v. Holloway, 1 Serg. & Rawle 392,

396 (Pa. 1815) (opinion of Tilghman, C. J.) (same); id., at

——————

19 This regime lasted until after 1789, when the Aliens Act of 1793 au-

thorized justices of the peace to imprison “without bail or mainprize” (i.e.,

bond) any alien found without a passport, who could then be “sen[t] out

of th[e] realm.” An Act for Regulating Immigration into Great Britain,

33 Geo. III, ch. 4, §§11, 29.

20 DEPARTMENT OF HOMELAND SECURITY v.

THURAISSIGIAM

Opinion of the Court

397 (opinion of Yeates, J.) (same). These cases thus do not

contemplate the quite different relief that respondent asks

us to sanction here.

In these cases, as in Somerset, it may be that the released

petitioners were able to remain in the United States as a

collateral consequence of release, but if so, that was due not

to the writs ordering their release, but to U. S. immigration

law or the lack thereof. These decisions came at a time

when an “open door to the immigrant was the . . . federal

policy.” Harisiades v. Shaughnessy, 342 U. S. 580, 588,

n. 15 (1952); see also St. Cyr, 533 U. S., at 305 (first immi-

gration regulation enacted in 1875). So release may have

had the side effect of enabling these individuals to remain

in this country, but that is beside the point.

The relief that a habeas court may order and the collat-

eral consequences of that relief are two entirely different

things. Ordering an individual’s release from custody may

have the side effect of enabling that person to pursue all

sorts of opportunities that the law allows. For example, re-

lease may enable a qualified surgeon to operate on a pa-

tient; a licensed architect may have the opportunity to de-

sign a bridge; and a qualified pilot may be able to fly a

passenger jet. But a writ of habeas could not be used to

compel an applicant to be afforded those opportunities or as

a means to obtain a license as a surgeon, architect, or pilot.

Similarly, while the release of an alien may give the alien

the opportunity to remain in the country if the immigration

laws permit, we have no evidence that the writ as it was

known in 1789 could be used to require that aliens be per-

mitted to remain in a country other than their own, or as a

means to seek that permission.

Respondent’s final examples involve international extra-

dition, but these cases are no more pertinent than those al-

ready discussed. For one thing, they post-date the founding

era. England was not a party to any extradition treaty in

1789, and this country’s first extradition treaty was the Jay

Cite as: 591 U. S. ____ (2020) 21

Opinion of the Court

Treaty of 1794. See 1 J. Moore, Extradition and Interstate

Rendition §§7, 78, pp. 10, 89 (1891). In any event, extradi-

tion cases, similar to the deserter cases, illustrate nothing

more than the use of habeas to secure release from custody

when not in compliance with the extradition statute and

relevant treaties. As noted by a scholar on whose work re-

spondent relies, these cases “examine[d] the lawfulness of

magistrates’ decisions permitting the executive to detain al-

iens.” Neuman, Habeas Corpus, Executive Detention, and

the Removal of Aliens, 98 Colum. L. Rev. 961, 1003 (1998).

In these cases, as in all the others noted above, habeas was

used “simply” to seek release from allegedly unlawful de-

tention. Benson v. McMahon, 127 U. S. 457, 463 (1888).

See also, e.g., In re Stupp, 23 F. Cas. 296, 303 (No. 13,563)

(CC SDNY 1875).20

Despite pages of rhetoric, the dissent is unable to cite a

single pre-1789 habeas case in which a court ordered relief

that was anything like what respondent seeks here. The

——————

20 Amici supporting respondent make an additional argument. They

contend that “[i]n eighteenth century practice, the authority of English

judges to review habeas petitions was not constrained by past decisions”

and that these judges felt free to innovate in order to ensure that justice

was done. Legal Historians Brief 5–6. But the role of federal courts un-

der our Constitution is very different from that of those English judges.

The English judges “were considered agents of the Crown, designed to

assist the King in the exercise of his power.” Boumediene, 553 U. S., at

740. The court with primary habeas jurisdiction, after all, was called the

King’s Bench, on which the King “was theoretically always present.”

Halliday & White, The Suspension Clause: English Text, Imperial Con-

texts, and American Implications, 94 Va. L. Rev. 575, 594, 598, and n. 49

(2008). Habeas was an exercise of the King’s prerogative “to have an

account . . . why the liberty of any of his subjects is restrained.” 2 J.

Story, Commentaries on the Constitution of the United States §1335,

p. 207 (1833); accord, Legal Historians Brief 5–7. In our federal courts,

by contrast, the scope of habeas has been tightly regulated by statute,

from the Judiciary Act of 1789 to the present day, and precedent is as

binding in a habeas case as in any other. See, e.g., Jenkins v. Hutton,

582 U. S. ___, ___ (2017) (per curiam) (slip op., at 4).

22 DEPARTMENT OF HOMELAND SECURITY v.

THURAISSIGIAM

Opinion of the Court

dissent instead contends that “the Suspension Clause in-

quiry does not require a close (much less precise) factual

match with historical habeas precedent,” post, at 11, and

then discusses cases that are not even close to this one. The

dissent reveals the true nature of its argument by suggest-

ing that there are “inherent difficulties [in] a strict original-

ist approach in the habeas context because of, among other

things, the dearth of reasoned habeas decisions at the

founding.” Ibid. But respondent does not ask us to hold

that the Suspension Clause guarantees the writ as it might

have evolved since the adoption of the Constitution. On the

contrary, as noted at the outset of this discussion, he rests

his argument on “the writ as it existed in 1789.” Brief for

Respondent 26, n. 12.

What the dissent merely implies, one concurring opinion

states expressly, arguing that the scope of the writ guaran-

teed by the Suspension Clause “may change ‘depending

upon the circumstances’ ” and thus may allow certain aliens

to seek relief other than release. Post, at 3 (BREYER, J.,

concurring in judgment) (quoting Boumediene, 553 U. S., at

779). But that is not respondent’s argument, and as a gen-

eral rule “we rely on the parties to frame the issues for de-

cision and assign to courts the role of neutral arbiter of mat-

ters the parties present.” United States v. Sineneng-Smith,

590 U. S. ___, ___ (2020) (slip op., at 3) (internal quotation

marks omitted). In any event, the concurrence’s snippets of

quotations from Boumediene are taken entirely out of con-

text. They relate to the question whether the statutory re-

view procedures for Guantanamo detainees seeking release

from custody provided an adequate substitute for a habeas

petition seeking release. See infra, at 32–33. They do not

suggest that any habeas writ guaranteed by the Suspension

Clause permits a petitioner to obtain relief that goes far be-

Cite as: 591 U. S. ____ (2020) 23

Opinion of the Court

yond the “core” of habeas as “a remedy for unlawful execu-

tive detention.” Munaf, 553 U. S., at 693.21

B

We now proceed to consider the second body of case law

on which respondent relies, decisions of this Court during

the “finality era,” which takes its name from a feature of the

Immigration Act of 1891 making certain immigration deci-

sions “final.” Although respondent claims that his argu-

ment is supported by “the writ as it existed in 1789,” Brief

for Respondent 26, n. 12, his argument focuses mainly on

this body of case law, which began a century later. These

cases, he claims, held that “the Suspension Clause man-

dates a minimum level of judicial review to ensure that the

——————

21 This concurrence imagines three horrible possibilities that it fears

could come to pass unless we interpret the Suspension Clause to protect

the right to some undefined category of relief beyond release from cus-

tody. See post, at 2 (opinion of BREYER, J.). But its interpretation is nei-

ther necessary nor obviously sufficient to prevent the possibilities it

fears. First, if a citizen were detained for deportation, today’s opinion

would not prevent the citizen from petitioning for release. Second, if re-

spondent’s “procedural” claims do not merit habeas review, as the con-

currence concludes, post, at 8, it is not clear why habeas should help the

concurrence’s hypothetical alien whose credible-fear claim was rejected

based on forged evidence. Both respondent and this hypothetical alien

assert procedural irregularities. Does the availability of habeas review

depend on a judge’s view of the severity of the irregularity asserted? Fi-

nally, there is the hypothetical alien denied asylum on the ground that

Judaism is not a religion. Such a decision would of course be ridiculous,

but why it would not raise a question of “brute fac[t]” that falls outside

the concurrence’s interpretation of the Suspension Clause, post, at 5, is

again not clear.

Whatever may be said about the concurrence’s hypotheticals, it is pos-

sible to imagine all sorts of abuses not even remotely related to unau-

thorized executive detention that could be imposed on people in this

country if the Constitution allowed Congress to deprive the courts of any

jurisdiction to entertain claims regarding such abuses. If that were to

happen, it would no doubt be argued that constitutional provisions other

than the Suspension Clause guaranteed judicial review. We have no oc-

casion to consider such arguments here.

24 DEPARTMENT OF HOMELAND SECURITY v.

THURAISSIGIAM

Opinion of the Court

Executive complies with the law in effectuating removal.”

Id., at 11–12. The Ninth Circuit also relied heavily on these

cases and interpreted them to “suggest that the Suspension

Clause requires review of legal and mixed questions of law

and fact related to removal orders.” 917 F. 3d, at 1117.

This interpretation of the “finality era” cases is badly mis-

taken. Those decisions were based not on the Suspension

Clause but on the habeas statute and the immigration laws

then in force. The habeas statute in effect during this time

was broad in scope. It authorized the federal courts to re-

view whether a person was being held in custody in viola-

tion of any federal law, including immigration laws. Thus,

when aliens claimed that they were detained in violation of

immigration statutes, the federal courts considered

whether immigration authorities had complied with those

laws. This, of course, required that the immigration laws

be interpreted, and at the start of the finality era, this Court

interpreted the 1891 Act’s finality provision to block review

of only questions of fact. Accordingly, when writs of habeas

corpus were sought by aliens who were detained on the

ground that they were not entitled to enter this country, the

Court considered whether, given the facts found by the im-

migration authorities, the detention was consistent with

applicable federal law. But the Court exercised that review

because it was authorized to do so by statute. The decisions

did not hold that this review was required by the Suspen-

sion Clause.

In this country, the habeas authority of federal courts has

been addressed by statute from the very beginning. The

Judiciary Act of 1789, §14, 1 Stat. 82, gave the federal

courts the power to issue writs of habeas corpus under spec-

ified circumstances, but after the Civil War, Congress en-

acted a much broader statute. That law, the Habeas Cor-

pus Act of 1867, provided that “the several courts of the

United States . . . shall have power to grant writs of habeas

corpus in all cases where any person may be restrained of

Cite as: 591 U. S. ____ (2020) 25

Opinion of the Court

his or her liberty in violation of the constitution, or of any

treaty or law of the United States.” Judiciary Act of Feb. 5,

1867, §1, 14 Stat. 385. The Act was “of the most compre-

hensive character,” bringing “within the habeas corpus ju-

risdiction of every court and of every judge every possible

case of privation of liberty contrary” to federal law.

Ex parte McCardle, 6 Wall. 318, 325–326 (1868). This ju-

risdiction was “impossible to widen.” Id., at 326; see Fay v.

Noia, 372 U. S. 391, 415 (1963) (noting the Act’s “expansive

language” and “imperative tone”). The 1867 statute, unlike

the current federal habeas statute, was not subject to re-

strictions on the issuance of writs in immigration matters,

and in United States v. Jung Ah Lung, 124 U. S. 621 (1888),

the Court held that an alien in immigration custody could

seek a writ under that statute. Id., at 626. This provided

the statutory basis for the writs sought in the finality era

cases.

The Immigration Act of 1891, enacted during one of the

country’s great waves of immigration, required the exclu-

sion of certain categories of aliens and established proce-

dures for determining whether aliens fell within one of

those categories. The Act required the exclusion of “idiots,

insane persons, paupers or persons likely to become a public

charge,” persons with infectious diseases, persons with con-

victions for certain crimes, some individuals whose passage

had been paid for by a third party, and certain laborers. Act

of Mar. 3, 1891, ch. 551, §1, 26 Stat. 1084. Inspection offic-

ers were authorized to board arriving vessels and inspect

any aliens on board. §8, id., at 1085. And, in the provision

of central importance here, the Act provided that “[a]ll de-

cisions 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 su-

perintendent of immigration, whose action shall be subject

to review by the Secretary of the Treasury.” Ibid. Later

26 DEPARTMENT OF HOMELAND SECURITY v.

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Opinion of the Court

immigration Acts, which remained in effect until 1952,22

contained similar provisions. See Act of 1894, 28 Stat. 390;

Immigration Act of 1907, §25, 34 Stat. 907; Immigration Act

of 1917, §17, 39 Stat. 887.

The first of the finality era cases, Nishimura Ekiu v.

United States, 142 U. S. 651 (1892), required the Court to

address the effect of the 1891 Act’s finality provision in a

habeas case. Nishimura Ekiu is the cornerstone of respond-

ent’s argument regarding the finality era cases, so the opin-

ion in that case demands close attention.

The case involved an alien who was detained upon arrival

based on the immigration inspector’s finding that she was

liable to become a public charge. Seeking to be released,

the alien applied to the Circuit Court for a writ of habeas

corpus and argued that the 1891 Act, if construed to give

immigration authorities the “exclusive authority to deter-

mine” her right to enter, would violate her constitutional

right to the writ of habeas corpus and her right to due pro-

cess. Id., at 656 (statement of the case). The Circuit Court

refused to issue the writ, holding that the determination of

the inspector of immigration was not subject to review, and

the alien then appealed.

This Court upheld the denial of the writ. The Court in-

terpreted the 1891 Act to preclude judicial review only with

respect to questions of fact. Id., at 660. And after inter-

preting the 1891 Act in this way, the Court found that “the

act of 1891 is constitutional.” Id., at 664.

The Court’s narrow interpretation of the 1891 Act’s final-

ity provision meant that the federal courts otherwise re-

tained the full authority granted by the Habeas Corpus Act

of 1867 to determine whether an alien was detained in vio-

lation of federal law. Turning to that question, the Court

——————

22 See Shaughnessy v. Pedreiro, 349 U. S. 48, 51–52 (1955) (interpret-

ing 1952 Immigration and Nationality Act, 66 Stat. 163, to provide for

review of deportation orders).

Cite as: 591 U. S. ____ (2020) 27

Opinion of the Court

held that the only procedural rights of an alien seeking to

enter the country are those conferred by statute. “As to

such persons,” the Court explained, “the decisions of execu-

tive or administrative officers, acting within powers ex-

pressly conferred by Congress, are due process of law.” Id.,

at 660. The Court therefore considered whether the proce-

dures set out in the 1891 Act had been followed, and finding

no violation, affirmed the denial of the writ. Id., at 661–

664. What is critical for present purposes is that the Court

did not hold that the Suspension Clause imposed any limi-

tations on the authority of Congress to restrict the issuance

of writs of habeas corpus in immigration matters.

Respondent interprets Nishimura Ekiu differently. See

Brief for Respondent 13–15. As he reads the decision, the

Court interpreted the 1891 Act to preclude review of all

questions related to an alien’s entitlement to enter the coun-

try. Any other interpretation, he contends, would fly in the

face of the statutory terms. But, he maintains, the Court

held that this limitation violated the Suspension Clause ex-

cept with respect to questions of fact, and it was for this

reason that the Court considered whether the procedures

specified by the 1891 Act were followed. In other words, he

reads Nishimura Ekiu as holding that the 1891 Act’s final-

ity provision was unconstitutional in most of its applica-

tions (i.e., to all questions other than questions of fact).

This interpretation is wrong. The opinion in Nishimura

Ekiu states unequivocally that “the act of 1891 is constitu-

tional,” id., at 664, not that it is constitutional only in part.

And if there is any ambiguity in the opinion regarding the

Court’s interpretation of the finality provision, the later de-

cision in Gegiow v. Uhl, 239 U. S. 3 (1915), left no doubt.

What Nishimura Ekiu meant, Gegiow explained, was that

the immigration authorities’ factual findings were conclu-

sive (as Gegiow put it, “[t]he conclusiveness of the decisions

of immigration officers . . . is conclusiveness upon matters

of fact”) and therefore, the Court was “not forbidden by the

28 DEPARTMENT OF HOMELAND SECURITY v.

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Opinion of the Court

statute to consider” in a habeas proceeding “whether the

reasons” for removing an alien “agree with the require-

ments of the act.” 239 U. S., at 9. In light of this interpre-

tation, the Nishimura Ekiu Court had no occasion to decide

whether the Suspension Clause would have tolerated a

broader limitation, and there is not so much as a hint in the

opinion that the Court considered this question. Indeed,

the opinion never even mentions the Suspension Clause,

and it is utterly implausible that the Court would hold sub

silentio that Congress had violated that provision.

Holding that an Act of Congress unconstitutionally sus-

pends the writ of habeas corpus is momentous. See

Boumediene, 553 U. S., at 773 (noting “the care Congress

has taken throughout our Nation’s history” to avoid suspen-

sion). The Justices on the Court at the beginning of the fi-

nality era had seen historic occasions when the writ was

suspended—during the Civil War by President Lincoln and

then by Congress, and later during Reconstruction by Pres-

ident Grant. See Hamdi v. Rumsfeld, 542 U. S. 507, 563

(2004) (Scalia, J., dissenting) (discussing these events). The

suspension of habeas during this era played a prominent

role in our constitutional history. See Ex parte Merryman,

17 F. Cas. 144, 151–152 (No. 9,487) (CC Md. 1861) (Taney,

C. J.); Ex parte Milligan, 4 Wall. 2, 116, 131 (1866). (Two

of the Justices at the beginning of the finality era were on

the Court when Ex parte Milligan was decided.) The Jus-

tices knew a suspension of the writ when they saw one, and

it is impossible to believe that the Nishimura Ekiu Court

identified another occasion when Congress had suspended

the writ and based its decision on the Suspension Clause

without even mentioning that provision.

The dissent’s interpretation of Nishimura Ekiu is differ-

ent from respondent’s. According to the dissent, Nishimura

Ekiu interpreted the 1891 Act as it did based on the doc-

trine of constitutional avoidance. See post, at 22. This

reading has no support in the Court’s opinion, which never

Cite as: 591 U. S. ____ (2020) 29

Opinion of the Court

mentions the Suspension Clause or the avoidance doctrine

and never explains why the Clause would allow Congress

to preclude review of factual findings but nothing more.

But even if there were some basis for this interpretation, it

would not benefit respondent, and that is undoubtedly why

he has not made the argument. IIRIRA unequivocally bars

habeas review of respondent’s claims, see §1252(e)(2), and

he does not argue that it can be read any other way. The

avoidance doctrine “has no application in the absence of am-

biguity.” Warger v. Shauers, 574 U. S. 40, 50 (2014) (inter-

nal quotation marks and ellipsis omitted). Thus, if Nishi-

mura Ekiu’s interpretation were based on constitutional

avoidance, it would still not answer the interpretive ques-

tion here.

When we look to later finality era cases, any suggestion

of a Suspension Clause foundation becomes even less plau-

sible. None of those decisions mention the Suspension

Clause or even hint that they are based on that provision,

and these omissions are telling. On notable occasions dur-

ing that time, the writ was suspended—in the Philippines

in 190623 and Hawaii in 1941.24 During World War II, the

Court held that “enemy aliens” could utilize habeas “unless

there was suspension of the writ.” In re Yamashita, 327

U. S. 1, 9 (1946). And the Court invoked the Suspension

Clause in holding that the Executive lacked authority to in-

tern a Japanese-American citizen. See Ex parte Endo, 323

U. S. 283, 297–299 (1944). If the Justices during that time

had thought that the Suspension Clause provided the au-

thority they were exercising in the many cases involving

habeas petitions by aliens detained prior to entry, it is hard

——————

23 While the Philippines was a Territory, its government suspended ha-

beas to deal with “ ‘certain organized bands’ ” of rebels. Fisher v. Baker,

203 U. S. 174, 179–181 (1906) (quoting resolution).

24 The Governor of Hawaii suspended habeas, with President Roose-

velt’s approval, after the attack on Pearl Harbor. See Duncan v. Kahan-

amoku, 327 U. S. 304, 307–308, 324 (1946).

30 DEPARTMENT OF HOMELAND SECURITY v.

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Opinion of the Court

to believe that this important fact would have escaped men-

tion.

Respondent suggests that Nishimura Ekiu cannot have

interpreted the 1891 Act’s finality provision to apply only to

factual questions because the statutory text categorically

bars all review. The important question here, however, is

what the Court did in Nishimura Ekiu, not whether its in-

terpretation was correct, and in any event, there was a rea-

sonable basis for the Court’s interpretation.

The determinations that the immigration officials were

required to make under the 1891 Act were overwhelmingly

factual in nature. The determination in Nishimura’s case—

that she was likely to become a public charge—seems to

have been a pure question of fact, and the other grounds for

exclusion under the Act involved questions that were either

solely or at least primarily factual in nature.

If we were now called upon to determine the meaning of

a provision like the finality provision in the 1891 Act, our

precedents would provide the basis for an argument in fa-

vor of the interpretation that the Nishimura Ekiu Court

reached. The presumption in favor of judicial review, see,

e.g., Guerrero-Lasprilla v. Barr, 589 U. S. ___, ___ (2020)

(slip op., at 6); Nasrallah v. Barr, 590 U. S. ___, ___–___

(2020) (slip op., at 7–9), could be invoked. So could the rule

that “[i]mplications from statutory text or legislative his-

tory are not sufficient to repeal habeas jurisdiction.” St.

Cyr, 533 U. S., at 299; accord, Ex parte Yerger, 8 Wall. 85,

105 (1869). Thus, respondent’s interpretation of the deci-

sion in Nishimura Ekiu is wrong, and the same is true of

his understanding of the later finality era cases.

Rather than relying on the Suspension Clause, those

cases simply involved the exercise of the authority con-

ferred by the habeas statute then in effect. This was true

of Nishimura Ekiu, Gegiow, and every other finality era

case that respondent cites in support of his Suspension

Clause argument. See, e.g., Gonzales v. Williams, 192 U. S.

Cite as: 591 U. S. ____ (2020) 31

Opinion of the Court

1 (1904); Yee Won v. White, 256 U. S. 399 (1921); Tod v.

Waldman, 266 U. S. 113 (1924); United States ex rel.

Polymeris v. Trudell, 284 U. S. 279 (1932); United States

ex rel. Johnson v. Shaughnessy, 336 U. S. 806 (1949);

United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537

(1950); Shaughnessy v. United States ex rel. Mezei, 345

U. S. 206 (1953); United States ex rel. Accardi v. Shaugh-

nessy, 347 U. S. 260 (1954). Some finality era cases pre-

sented pure questions of law, while others involved the ap-

plication of a legal test to particular facts. At least one

involved an alien who had entered illegally. See id., at 262.

But none was based on the Suspension Clause. No majority

opinion even mentioned the Suspension Clause.25 Indeed,

any mention of the Constitution was rare—and unhelpful

to respondent’s arguments here.26 And in all the cited cases

concerning aliens detained at entry, unlike the case now be-

fore us, what was sought—and the only relief considered—

was release. Indeed, in an early finality era case, the Court

took pains to note that it did not “express any opinion” on

whether an alien was entitled to enter. Lem Moon Sing v.

United States, 158 U. S. 538, 549 (1895).

Like the dissent, respondent makes much of certain

statements in Heikkila v. Barber, 345 U. S. 229 (1953),

which he interprets to substantiate his interpretation of

Nishimura Ekiu and the subsequent entry cases discussed

above. But he takes these statements out of context and

reads far too much into them. Heikkila was not a habeas

——————

25 In a concurrence in United States ex rel. Turner v. Williams, 194

U. S. 279 (1904), Justice Brewer stated without elaboration and without

citing any authority that the Suspension Clause prohibits Congress from

“oust[ing] the courts from the duty of inquiry respecting both law and

facts” in habeas cases. Id., at 295. No other Justice joined that opinion.

26 In Fong Yue Ting v. United States, 149 U. S. 698, 713 (1893), and

many other cases, the Court noted that the Constitution gives Congress

plenary power to set requirements for admission.

32 DEPARTMENT OF HOMELAND SECURITY v.

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Opinion of the Court

case, and the question before the Court was whether a de-

portation order was reviewable under the Administrative

Procedure Act (APA). The Court held that the order was

not subject to APA review because the Immigration Act of

1917 foreclosed “judicial review”—as opposed to review in

habeas. 345 U. S., at 234–235. Nothing in Heikkila sug-

gested that the 1891 Act had been found to be partly uncon-

stitutional, and Heikkila certainly did not address the scope

of the writ of habeas corpus in 1789.

In sum, the Court exercised habeas jurisdiction in the fi-

nality era cases because the habeas statute conferred that

authority, not because it was required by the Suspension

Clause. As a result, these cases cannot support respond-

ent’s argument that the writ of habeas corpus as it was un-

derstood when the Constitution was adopted would have al-

lowed him to claim the right to administrative and judicial

review while still in custody.

C

We come, finally, to the more recent cases on which re-

spondent relies. The most recent, Boumediene, is not about

immigration at all. It held that suspected foreign terrorists

could challenge their detention at the naval base in Guan-

tanamo Bay, Cuba. They had been “apprehended on the

battlefield in Afghanistan” and elsewhere, not while cross-

ing the border. 553 U. S., at 734. They sought only to be

released from Guantanamo, not to enter this country. See,

e.g., Brief for Petitioner Al Odah et al. in Al Odah v. United

States, decided with Boumediene v. Bush, O. T. 2007, No.

06–1196, p. 39 (arguing that “habeas contemplates but one

remedy,” “release”). And nothing in the Court’s discussion

of the Suspension Clause suggested that they could have

used habeas as a means of gaining entry. Rather, the Court

reaffirmed that release is the habeas remedy though not the

“exclusive” result of every writ, given that it is often “appro-

priate” to allow the executive to cure defects in a detention.

Cite as: 591 U. S. ____ (2020) 33

Opinion of the Court

553 U. S., at 779.

Respondent’s other recent case is St. Cyr, in which the

Court’s pertinent holding rejected the argument that cer-

tain provisions of IIRIRA and the Antiterrorism and Effec-

tive Death Penalty Act of 1996 that did not refer expressly

to habeas should nevertheless be interpreted as stripping

the authority conferred by the habeas statute. In refusing

to adopt that interpretation, the Court enlisted a quartet of

interpretive canons: “the strong presumption in favor of ju-

dicial review of administrative action,” “the longstanding

rule requiring a clear statement of congressional intent to

repeal habeas jurisdiction,” the rule that a “clear indica-

tion” of congressional intent is expected when a proposed

interpretation would push “the outer limits of Congress’

power,” and the canon of constitutional avoidance. 533

U. S., at 298–300. In connection with this final canon, the

Court observed: “Because of [the Suspension] Clause, some

‘judicial intervention in deportation cases’ is unquestiona-

bly ‘required by the Constitution.’ ” Id., at 300 (quoting

Heikkila, 345 U. S., at 235).

Respondent pounces on this statement, but like the Heik-

kila statement on which it relies, it does nothing for him.

The writ of habeas corpus as it existed at common law pro-

vided a vehicle to challenge all manner of detention by gov-

ernment officials, and the Court had held long before that

the writ could be invoked by aliens already in the country

who were held in custody pending deportation. St. Cyr re-

affirmed these propositions, and this statement in St. Cyr

does not signify approval of respondent’s very different at-

tempted use of the writ, which the Court did not consider.27

——————

27 The Government notes other distinctions between St. Cyr and this

case, including that the alien in St. Cyr raised a pure question of law,

while respondent raises at best a mixed question of law and fact. We

have no need to consider these distinctions.

34 DEPARTMENT OF HOMELAND SECURITY v.

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Opinion of the Court

IV

In addition to his Suspension Clause argument, respond-

ent contends that IIRIRA violates his right to due process

by precluding judicial review of his allegedly flawed credible-

fear proceeding. Brief for Respondent 38–45. The Ninth

Circuit agreed, holding that respondent “had a constitu-

tional right to expedited removal proceedings that con-

formed to the dictates of due process.” 917 F. 3d, at 1111,

n. 15 (internal quotation marks omitted). And the Ninth

Circuit acknowledged, ibid., that this holding conflicted

with the Third Circuit’s decision upholding §1252(e)(2) on

the ground that applicants for admission lack due process

rights regarding their applications, see Castro, 835 F. 3d, at

445–446. Since due process provided an independent

ground for the decision below and since respondent urges

us to affirm on this ground, it is hard to understand the dis-

sent’s argument that the due process issue was not “seri-

ously in dispute below” or that it is somehow improper for

us to decide the issue. Post, at 34.

Nor is the dissent correct in defending the Ninth Circuit’s

holding. That holding is contrary to more than a century of

precedent. In 1892, the Court wrote that as to “foreigners

who have never been naturalized, nor acquired any domicil

or residence within the United States, nor even been admit-

ted into the country pursuant to law,” “the decisions of ex-

ecutive or administrative officers, acting within powers ex-

pressly conferred by Congress, are due process of law.”

Nishimura Ekiu, 142 U. S., at 660. Since then, the Court

has often reiterated this important rule. See, e.g., Knauff,

338 U. S., at 544 (“Whatever the procedure authorized by

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

is concerned”); Mezei, 345 U. S., at 212 (same); 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 regard-

ing his application, for the power to admit or exclude aliens

Cite as: 591 U. S. ____ (2020) 35

Opinion of the Court

is a sovereign prerogative”).

Respondent argues that this rule does not apply to him

because he was not taken into custody the instant he at-

tempted to enter the country (as would have been the case

had he arrived at a lawful port of entry). Because he suc-

ceeded in making it 25 yards into U. S. territory before he

was caught, he claims the right to be treated more favora-

bly. The Ninth Circuit agreed with this argument.

We reject it. It disregards the reason for our century-old

rule regarding the due process rights of an alien seeking

initial entry. That rule rests on fundamental propositions:

“[T]he power to admit or exclude aliens is a sovereign pre-

rogative,” id., at 32; the Constitution gives “the political de-

partment of the government” plenary authority to decide

which aliens to admit, Nishimura Ekiu, 142 U. S., at 659;

and a concomitant of that power is the power to set the pro-

cedures to be followed in determining whether an alien

should be admitted, see Knauff, 338 U. S., at 544.

This rule would be meaningless if it became inoperative

as soon as an arriving alien set foot on U. S. soil. When an

alien arrives at a port of entry—for example, an interna-

tional airport—the alien is on U. S. soil, but the alien is not

considered to have entered the country for the purposes of

this rule. On the contrary, aliens who arrive at ports of en-

try—even those paroled elsewhere in the country for years

pending removal—are “treated” for due process purposes

“as if stopped at the border.” Mezei, 345 U. S., at 215; see

Leng May Ma v. Barber, 357 U. S. 185, 188–190 (1958);

Kaplan v. Tod, 267 U. S. 228, 230–231 (1925).

The same must be true of an alien like respondent. As

previously noted, an alien who tries to enter the country il-

legally is treated as an “applicant for admission,”

§1225(a)(1), and an alien who is detained shortly after un-

lawful entry cannot be said to have “effected an entry,”

Zadvydas v. Davis, 533 U. S. 678, 693 (2001). Like an alien

36 DEPARTMENT OF HOMELAND SECURITY v.

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Opinion of the Court

detained after arriving at a port of entry, an alien like re-

spondent is “on the threshold.” Mezei, 345 U. S., at 212.

The rule advocated by respondent and adopted by the Ninth

Circuit would undermine the “sovereign prerogative” of

governing admission to this country and create a perverse

incentive to enter at an unlawful rather than a lawful loca-

tion. Plasencia, 459 U. S., at 32.

For these reasons, an alien in respondent’s position has

only those rights regarding admission that Congress has

provided by statute. In respondent’s case, Congress pro-

vided the right to a “determin[ation]” whether he had “a

significant possibility” of “establish[ing] eligibility for asy-

lum,” and he was given that right. §§1225(b)(1)(B)(ii), (v).

Because the Due Process Clause provides nothing more, it

does not require review of that determination or how it was

made. As applied here, therefore, §1252(e)(2) does not vio-

late due process.28

*

* *

Because the Ninth Circuit erred in holding that

§1252(e)(2) violates the Suspension Clause and the Due

Process Clause, we reverse the judgment and remand the

case with directions that the application for habeas corpus

be dismissed.

It is so ordered.

——————

28 Although respondent, during his interviews with immigration offi-

cials, does not appear to have provided any information tying the assault

he suffered at the hands of those who arrived at his home in a van to

persecution on the basis of ethnicity or political opinion, his counseled

petition offers details about “white va[n]” attacks against Tamils in

Sri Lanka. App. 25–26 (internal quotation marks omitted). As now por-

trayed, his assault resembles those incidents. Department officials and

immigration judges may reopen cases or reconsider decisions, see 8 CFR

§§103.5(a)(1), (5), and 1003.23(b)(1), and the Executive always has dis-

cretion not to remove, see AAADC, 525 U. S., at 483–484.

Cite as: 591 U. S. ____ (2020) 1

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 19–161

_________________

DEPARTMENT OF HOMELAND SECURITY, ET AL.,

PETITIONERS v. VIJAYAKUMAR

THURAISSIGIAM

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 25, 2020]

JUSTICE THOMAS, concurring.

I join the Court’s opinion, which correctly concludes that

respondent’s Suspension Clause argument fails because he

does not seek a writ of habeas corpus. I write separately to

address the original meaning of the Suspension Clause,

which guarantees that “[t]he Privilege of the Writ of Habeas

Corpus shall not be suspended, unless when in Cases of Re-

bellion or Invasion the public Safety may require it.” Art.

I, §9, cl. 2. The Founders appear to have understood “[t]he

Privilege of the Writ of Habeas Corpus” to guarantee free-

dom from discretionary detention, and a “suspen[sion]” of

that privilege likely meant a statute granting the executive

the power to detain without bail or trial based on mere sus-

picion of a crime or dangerousness. Thus, the expedited re-

moval procedure in the Illegal Immigration Reform and Im-

migrant Responsibility Act of 1996, 110 Stat. 3009–546, is

likely not a suspension.1

I

The writ of habeas corpus began as a prerogative writ in

the Court of King’s Bench in the 16th century. J. Baker, An

Introduction to English Legal History 157 (5th ed. 2019).

——————

1 I express no view on the question whether respondent is even entitled

to the privilege of the writ as an unadmitted alien.

2 DEPARTMENT OF HOMELAND SECURITY v.

THURAISSIGIAM

THOMAS, J., concurring

Over time, however, it came to be understood both as a right

to be free from arbitrary detention and as a procedural writ.

By the end of the 16th century, the English connected the

common-law writ of habeas corpus to liberty. Specifically,

it was associated with the guarantee in Magna Carta that

“[n]o free person (Nullus liber homo) shall be taken or im-

prisoned, or disseised or outlawed or exiled, or in any way

destroyed . . . except by the lawful judgment of his peers or

by the law of the land.” Id., at 157, n. 76, 506. Perhaps

most prominently, Edward Coke wrote in his Institutes

that “if a man be taken, or committed to prison contra legem

terrae, against the Law of the land,” then “[h]e may have an

habeas corpus.” The Second Part of the Institutes of the

Laws of England 55 (6th ed. 1681). For Coke, and for the

many English (and later Americans) who read his work,

“the writ was treated as an aspect of the Charter’s guar-

anty.” D. Meador, Habeas Corpus and Magna Carta: Dual-

ism of Power and Liberty 22 (1966).

This association between habeas corpus and freedom

from discretionary detention deepened after 1679 with the

Habeas Corpus Act, also known as An Act for the better se-

cureing the Liberty of the Subject and for Prevention of Im-

prisonments beyond the Seas. The statute sought to ad-

dress “great Delayes” in “criminall or supposed criminall

Matters.” 31 Car. 2, ch. 2. It required an officer served with

a writ of habeas corpus to produce the prisoner within three

days in “any such criminall or supposed criminall Matters.”

Ibid. It also guaranteed bail to prisoners in cases of felony

or high treason if they were not tried within one term of

court. Ibid. To protect these rights, Parliament created a

special statutory remedy: All writs under the Habeas Cor-

pus Act were marked as issuing pursuant to the statute.

Ibid.; P. Halliday, Habeas Corpus: From England to Empire

320 (2010).

Parliament passed the Habeas Corpus Act to curb the

power of King Charles II, but it nonetheless came to be seen

Cite as: 591 U. S. ____ (2020) 3

THOMAS, J., concurring

as a protection for liberty, not just an assertion of the pow-

ers of Parliament over the Crown. Henry Care, in the 1774

edition of his widely read treatise English Liberties, com-

mented that “before this statute [the common-law writ of

habeas corpus] was rendered far less useful than it ought

to be, partly by the Judges pretending a power to grant or

deny the said writ at their pleasure, in many cases; and es-

pecially by the ill practices of Sheriffs and Goalers, by put-

ting the prisoner to the charge and trouble of . . . a second

and third writ, before they would obey the first.” 1 English

Liberties, or the Free-born Subject’s Inheritance 195. The

Habeas Corpus Act, he concluded, “provides thus for our lib-

erty.” Id., at 198. William Blackstone put it even more

sweepingly, writing that the Habeas Corpus Act “is fre-

quently considered as another magna carta.” 3 Commen-

taries on the Laws of England 135 (1770).

II

The Founders inherited this understanding of habeas

corpus. And they enshrined it in the Suspension Clause,

which they understood to protect a substantive right.

The language of the Suspension Clause evinces this un-

derstanding. The Clause itself does not authorize courts to

issue writs of habeas corpus. INS v. St. Cyr, 533 U. S. 289,

337 (2001) (Scalia, J., dissenting); Ex parte Bollman, 4

Cranch 75, 94 (1807). Nor does it refer simply to the writ

of habeas corpus. Rather, it protects the privilege of the

writ of habeas corpus. The word “privilege” was “used in-

terchangeably with the words ‘rights,’ ‘liberties,’ and ‘free-

doms,’ and had been since the time of Blackstone.” McDon-

ald v. Chicago, 561 U. S. 742, 813 (2010) (THOMAS, J.,

concurring in part and concurring in judgment). By using

this term, the Framers appear to have had a substantive

right in mind.

Ratification debates reflect this understanding as well.

Future Supreme Court Justice James Iredell said in the

4 DEPARTMENT OF HOMELAND SECURITY v.

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THOMAS, J., concurring

North Carolina convention that, “[b]y the privileges of the

habeas corpus, no man can be confined without inquiry; and

if it should appear that he has been committed contrary to

law, he must be discharged.” 4 Debates in the Several State

Conventions 171 (J. Elliot ed. 1891). Signer of the Consti-

tution James McHenry told the Maryland House of Dele-

gates that “[p]ublic safety may require a suspension of the

Ha[beas] Corpus in cases of necessity: when those cases do

not exist, the virtuous Citizen will ever be protected in his

opposition to power.” 11 Documentary History of the Rati-

fication of the Constitution 80, 84 (J. Kaminski et al. eds.

2015) (Documentary History).

This understanding is echoed in statements that the Con-

stitution protects the Habeas Corpus Act, the writ of habeas

corpus, or simply “the habeas corpus,” all referring to a sub-

stantive right. Alexander Hamilton wrote in The Federalist

No. 83 that “the habeas corpus act” was “provided for in the

most ample manner in the plan of the convention.” The

Federalist No. 83, p. 499 (C. Rossiter ed. 1961). Again in

No. 84, he wrote that the Constitution “establish[ed] the

writ of habeas corpus.” Id., No. 84, at 511. In the Pennsyl-

vania ratifying convention, Jasper Yeates said that the Sus-

pension Clause “direct[ed] that the privilege of the habeas

corpus act shall not be suspended except in times of imme-

diate danger.” 2 Documentary History 434–435 (M. Jensen

ed. 1976). In Virginia, Governor Edmund Randolph—a

signer and future Attorney General—argued that “the ha-

beas corpus is at least on as secure and good a footing as it

is in England” because “[t]hat privilege is secured here by

the Constitution.” 9 id., at 1099 (J. Kaminski & G. Saladino

eds. 1990). Luther Martin of Maryland wrote that “the gen-

eral government is to have a power of suspending the ha-

beas corpus act, in cases of rebellion or invasion.” Genuine

Information VIII, reprinted in 15 id., at 434 (J. Kaminski &

G. Saladino eds. 1984). In Massachusetts, Theophilius Par-

sons “made a Loud Speech on the Habeas Corpus act that

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THOMAS, J., concurring

it will not be in the power of Gov[ern]ment to suspend the

act only in time of war.” 7 id., at 1813 (J. Kaminski & G.

Saladino eds. 2001). Other speakers and writers made sim-

ilar references. See A. Tyler, Habeas Corpus in Wartime

132–133 (2017) (collecting examples). In sum, it seems that

the founding generation viewed the privilege of the writ of

habeas corpus as a freedom from arbitrary detention.2

III

The remaining question is what it means for “[t]he Privi-

lege of the Writ of Habeas Corpus” to “be suspended.” U. S.

Const., Art. I, §9, cl. 2. At the founding, suspension was a

well-known term that meant “a [t]emporal [s]top of a

[m]an’s [r]ight.” N. Bailey, An Universal Etymological Eng-

lish Dictionary (22d ed. 1770); see St. Cyr, 533 U. S., at 337–

338 (Scalia, J., dissenting). In the context of habeas corpus,

——————

2 None of this is to say that the writ of habeas corpus involved a wide-

ranging, ever-changing inquiry. As the Court today reaffirms, “the scope

of habeas has been tightly regulated by statute, from the Judiciary Act

of 1789 to the present day.” Ante, at 21, n. 20. A writ of habeas corpus

was “in the nature of a writ of error, to examine the legality of the com-

mitment.” Ex parte Watkins, 3 Pet. 193, 202 (1830) (Marshall, C. J.).

When an executive detained someone without trial, it allowed a court to

“examine into [the] validity” of “the reason for” commitment. 3 W. Black-

stone, Commentaries on the Laws of England 133 (1770). In cases of

detention pursuant to the judgment of a court, “a prisoner seeking a writ

of habeas corpus could challenge only the jurisdiction of the court that

had rendered the judgment under which he was in custody.” Wright v.

West, 505 U. S. 277, 285 (1992) (opinion of THOMAS, J.). In both contexts,

the writ “played only a procedural role: It issued as of right when a pris-

oner showed probable cause to believe he was being held illegally . . . and

obligated the warden to file a ‘return’ identifying the grounds of impris-

onment.” Jennings v. Stephens, 574 U. S. 271, 285 (2015) (THOMAS, J.,

dissenting). When the writ of habeas corpus was granted, it “decided

nothing except that there was a case calling for an answer by the gaoler.”

Goddard, A Note on Habeas Corpus, 65 L. Q. Rev. 30, 34 (1949). “After

reviewing the reason so returned, the court could release, bail, or remand

the prisoner as appropriate.” J. Baker, An Introduction to English Legal

History 157 (5th ed. 2019).

6 DEPARTMENT OF HOMELAND SECURITY v.

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THOMAS, J., concurring

it appears to have specifically meant a grant of authority to

the executive to detain without bail or trial based on suspi-

cion of a crime or dangerousness.

The English understood the term this way. Blackstone

called it “the happiness of [the English] constitution” that

“the parliament only, or legislative power, . . . can authorize

the crown, by suspending the habeas corpus act for a short

and limited time, to imprison suspected persons without

giving any reason for so doing.” 1 Commentaries on the

Laws of England, at 136. Bills known as suspensions

granted broad power to detain based on suspicion of a

crime. For example, in 1777, Lord Germaine introduced a

bill “ ‘to empower his Majesty to secure and detain Persons

charged with, or suspected of, the Crime of High Treason

committed in North America, or on the High Seas, or the

Crime of Piracy.’ ” 19 W. Cobbett, The Parliamentary His-

tory of England 4 (1814). The bill allowed certain prisoners

to be detained “ ‘without bail or mainprize’ ”3 and prohibited

any “ ‘judge or justice of peace’ ” from “ ‘bail[ing] or try[ing]

any such person or persons, . . . any law, statute, or usage,

to the contrary in any wise notwithstanding.’ ” Id., at 5.

The text contained no mention of the Habeas Corpus Act,

but it nevertheless was referred to as a “suspension of the

Habeas Corpus Act.” Id., at 9–10. As one historian has

written, suspensions “were officially acts ‘empowering his

majesty to apprehend and detain such persons as he shall

find cause to suspect’ ” and to do so “ ‘without bail or

mainprise.’ ” Halliday, Habeas Corpus, at 248.

Americans shared a similar understanding, as evidenced

by the suspensions that States passed during the Revolu-

tionary War. “By their common terms,” these suspensions

——————

3 Mainprise or mainprize is a “writ ordering the sheriff to take . . . se-

curity . . . for the prisoner’s appearance and release the prisoner.”

Black’s Law Dictionary 1142 (11th ed. 2019).

Cite as: 591 U. S. ____ (2020) 7

THOMAS, J., concurring

“bestowed authority on state executives to arrest and de-

tain persons preventively based on suspicion of supporting

the Crown.” Tyler, Habeas Corpus in Wartime, at 111. In

1777, Massachusetts authorized the detention of “any per-

son whom the council shall deem the safety of the Common-

wealth requires should be restrained of his personal liberty,

or whose enlargement within this state is dangerous

thereto” “without bail or mainpri[s][z]e.” 1776–1777 Mass.

Acts ch. 45, §§1, 3, p. 641. Virginia similarly allowed the

Governor and council to detain anyone “whom they may

have just cause to suspect of disaffection to the independ-

ence of the United States or of attachment to their ene-

mies.” An act for giving certain powers to the governour

and council, and for punishing those who shall oppose the

execution of laws, reprinted in 10 W. Hening’s Statutes at

Large 413–414 (1822). And New York created a board with

power “to apprehend and confine or cause to be appre-

hended or confined . . . all persons whose going at large

shall in the judgment of the said commissioners or any

three of them appear dangerous to the safety of this State.”

An Act appointing commissioners for detecting and defeat-

ing conspiracies and declaring their powers (Feb. 5, 1778),

1778 N. Y. Laws ch. 3, pp. 8–9; see also An Act for consti-

tuting a Council of Safety (Oct. 11, 1777), 1777 N. J. Laws

ch. 40, §4, p. 85; An Act to Empower the Supreme Executive

Council of this Commonwealth to Provide for the Security

Thereof in Special Cases Where No Provision Is Already

Made by Law (Sept. 6, 1777), ch. 762, §2, 9 Statutes at

Large of Pennsylvania 140 (J. Mitchell & H. Flanders eds.

1903); An Act to punish certain crimes and misdemeanors,

and to prevent the growth of toryism, 1777 Md. Laws ch.

20, §7.4

——————

4 It does not appear that it was necessary to expressly mention the

availability of the writ in a suspending Act. Some States made express

reference to the writ of habeas corpus, see, e.g., ch. 762, §2, 9 Statutes at

Large of Pennsylvania 140, but many did not.

8 DEPARTMENT OF HOMELAND SECURITY v.

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THOMAS, J., concurring

Massachusetts continued using this formula for suspen-

sions under its 1780 Constitution. These suspensions are

especially probative because that Constitution contained

language similar to the Federal Suspension Clause: “The

privilege and benefit of the writ of habeas corpus shall be

enjoyed in this Commonwealth in the most free, easy,

cheap, expeditious and ample manner; and shall not be sus-

pended by the Legislature, except upon the most urgent and

pressing occasions, and for a limited time not exceeding

twelve months.” Pt. 2, ch. VI, Art. VII. In response to

Shays’ Rebellion, which gained notoriety across the United

States, Massachusetts passed “An Act for Suspending the

Privilege of the Writ of Habeas Corpus.” It provided that

“the Governor, with the advice and consent of the

Council, be and he hereby is authorised and empow-

ered . . . to command, and cause to be apprehended, and

committed in any Goal, or other safe place, within the

Commonwealth, any person or persons whatsoever,

whom the Governor and Council, shall deem the safety

of the Commonwealth requires should be restrained of

their personal liberty, or whose enlargement is danger-

ous thereto; any Law, Usage or Custom to the contrary

notwithstanding.” 1786–1787 Mass. Acts ch. 41, p.

102.

The Act also provided that “any Person who shall be appre-

hended and imprisoned, as aforesaid, shall be continued in

imprisonment, without Bail or Mainprize, until he shall be

discharged therefrom by order of the Governor, or of the

General Court.” Id., at 103; see also An Act to Suspend the

Privilege of the Writ of Habeas Corpus for Six Months (June

27, 1782), 1782–1783 Mass. Acts ch. 2, pp. 6–7. Thus, in a

jurisdiction with an analog to the Suspension Clause, a sus-

pension was a grant of power to detain without bail or trial

based on suspicion of a crime or dangerousness.

Cite as: 591 U. S. ____ (2020) 9

THOMAS, J., concurring

Although the ratification debates are not especially illu-

minating on the meaning of a suspension, they provide fur-

ther support for this understanding. Luther Martin wrote

that the Government, upon “suspending the habeas corpus

act may seize upon the persons of those advocates of free-

dom, who have had virtue and resolution enough to excite

the opposition, and may imprison them during its pleas-

ure.” Genuine Information VIII, reprinted in 15 Documen-

tary History 434. Another essayist, writing in a Boston

newspaper, explained that suspension would allow “the

President, or President and Senate, as Congress shall think

proper to empower, to take up and confine for any cause, or

for any suspicion, or for no cause, perhaps any person, he or

they shall think proper. 5 id., at 712 (J. Kaminski & G.

Saladino eds. 1998).

In sum, a suspension was not necessarily an express lim-

itation on the availability of the writ of habeas corpus. Ra-

ther, it appears to have been a grant of power to detain

based on suspicion of a crime or dangerousness without bail

or trial.

IV

Under this interpretation, 8 U. S. C. §1252 likely does not

suspend the writ of habeas corpus. To be placed in expe-

dited removal, an immigration officer must “determin[e]”

that an alien is “inadmissible.” §1225(b)(1)(A)(i). That de-

termination is based in part on the alien’s lack of valid en-

try documentation and failure to satisfy a 2-year continu-

ous physical presence requirement, not on mere suspicion

or dangerousness. §§1225(b)(1)(A)(i), (iii)(II); §1182(a)(7).

An alien has the opportunity to avoid expedited removal by

demonstrating a “credible fear of persecution.”

§§1225(b)(1)(B)(iii), (v). If the alien is unsuccessful, he may

seek “[j]udicial review . . . in habeas corpus proceedings” of

“whether [he] is an alien”; “whether [he] was ordered re-

moved” under expedited removal; and “whether [he] can

10 DEPARTMENT OF HOMELAND SECURITY v.

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THOMAS, J., concurring

prove by a preponderance of the evidence that [he] is an al-

ien lawfully admitted for permanent residence, has been

admitted as a refugee . . . , or has been granted asylum” and

“such status [has not] been terminated.” §1252(e)(2).

This statute bears little resemblance to a suspension as

that term was understood at the founding. It does not allow

the executive to detain based on mere suspicion of a crime

or dangerousness. Rather, it requires a finding that the de-

tainee lacks valid documentation and is not eligible for asy-

lum. It even expressly permits habeas relief for a detainee

who does not meet certain criteria for expedited removal.

Some may wish that the Suspension Clause were

broader. Perhaps for this reason, our precedents have de-

parted from the original understanding of the Suspension

Clause. See, e.g., Boumediene v. Bush, 553 U. S. 723, 826–

850 (2008) (Scalia, J., dissenting); St. Cyr, 533 U. S., at 336–

341 (Scalia, J., dissenting). But this understanding does

contain an important guarantee of individual liberty by lim-

iting the circumstances in which Congress may give the ex-

ecutive power to detain without bail or trial based on suspi-

cion of a crime or dangerousness. In this case, that

guarantee has not been violated.

Cite as: 591 U. S. ____ (2020) 1

BREYER, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 19–161

_________________

DEPARTMENT OF HOMELAND SECURITY, ET AL.,

PETITIONERS v. VIJAYAKUMAR

THURAISSIGIAM

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 25, 2020]

JUSTICE BREYER, with whom JUSTICE GINSBURG joins,

concurring in the judgment.

The statute at issue here, 8 U. S. C. §1252(e)(2), sets forth

strict limits on what claims a noncitizen subject to expe-

dited removal may present in federal habeas corpus pro-

ceedings. I agree that enforcing those limits in this partic-

ular case does not violate the Suspension Clause’s

constitutional command: “The Privilege of the Writ of Ha-

beas Corpus shall not be suspended, unless when in Cases

of Rebellion or Invasion the public Safety may require it.”

U. S. Const., Art. I, §9, cl. 2. But we need not, and should

not, go further.

We need not go further because the Government asked us

to decide, and we agreed to review, an issue limited to the

case before us. The question presented is “whether, as ap-

plied to respondent, Section 1252(e)(2) is unconstitutional

under the Suspension Clause.” Pet. for Cert. i (emphasis

added). All we must decide is whether, under the Suspen-

sion Clause, the statute at issue “is unconstitutional as ap-

plied to this party, in the circumstances of this case.” Chi-

cago v. Morales, 527 U. S. 41, 74 (1999) (Scalia, J.,

dissenting).

Nor should we go further. Addressing more broadly

whether the Suspension Clause protects people challenging

2 DEPARTMENT OF HOMELAND SECURITY v.

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BREYER, J., concurring in judgment

removal decisions may raise a host of difficult questions in

the immigration context. What review might the Suspen-

sion Clause assure, say, a person apprehended years after

she crossed our borders clandestinely and started a life in

this country? Under current law, noncitizens who have

lived in the United States for up to two years may be placed

in expedited-removal proceedings, see §1225(b)(1)(A)(iii),

but Congress might decide to raise that 2-year cap (or re-

move it altogether). Does the Suspension Clause let Con-

gress close the courthouse doors to a long-term permanent

resident facing removal? In INS v. St. Cyr, 533 U. S. 289

(2001), we avoided just that “serious and difficult constitu-

tional issue.” Id., at 305.

Could Congress, for that matter, deny habeas review to

someone ordered removed despite claiming to be a natural-

born U. S. citizen? The petitioner in Chin Yow v. United

States, 208 U. S. 8 (1908), and others have faced that pre-

dicament. See also §1252(e)(2)(A) (permitting, at present,

habeas review of citizenship claims). What about foreclos-

ing habeas review of a claim that rogue immigration offi-

cials forged the record of a credible-fear interview that, in

truth, never happened? Or that such officials denied a ref-

ugee asylum based on the dead-wrong legal interpretation

that Judaism does not qualify as a “religion” under govern-

ing law? Cf. Tod v. Waldman, 266 U. S. 113, 119–120

(1924) (observing that immigration officials ignored a Jew-

ish family’s claim that they were “refugees” fleeing “reli-

gious persecution”).

The answers to these and other “difficult questions about

the scope of [Suspension Clause] protections” lurk behind

the scenes here. Lozman v. Riviera Beach, 585 U. S. ___,

___ (2018) (slip op., at 10). I would therefore avoid making

statements about the Suspension Clause that sweep beyond

the principles needed to decide this case—let alone come to

conclusions about the Due Process Clause, a distinct consti-

Cite as: 591 U. S. ____ (2020) 3

BREYER, J., concurring in judgment

tutional provision that is not directly at issue here. Com-

pare ibid. (concluding that, with narrow grounds for deci-

sion available, resolving broader, more difficult questions

“must await a different case”) with ante, at 12–16 (suggest-

ing that removal is simply not the sort of “restraint” for

which the Suspension Clause guarantees a means of “secur-

ing release”), and ante, at 34–36 (addressing a separate due

process question).

As for the resolution of the dispute before us, Congress,

in my view, had the constitutional power to foreclose habeas

review of the claims that respondent has pressed in this

case. Habeas corpus, as we have said, is an “adaptable rem-

edy,” and the “precise application and scope” of the review

it guarantees may change “depending upon the circum-

stances.” Boumediene v. Bush, 553 U. S. 723, 779 (2008);

see also id., at 813 (ROBERTS, C. J., dissenting). So where

the Suspension Clause applies, the “habeas court’s role”

may prove more “extensive,” or less so, depending on the

context at issue. Id., at 780 (majority opinion). Here, even

assuming that the Suspension Clause guarantees respond-

ent some form of habeas review—which is to say, even ac-

cepting for argument’s sake that the relief respondent seeks

is “release,” contra, ante, at 22—the scope of that constitu-

tionally required review would not extend to his claims.

Two features of this case persuade me.

First, respondent’s status suggests that the constitu-

tional floor set by the Suspension Clause here cannot be

high. A Border Patrol agent apprehended respondent just

25 yards inside the border. Respondent was placed in ex-

pedited removal proceedings shortly thereafter, where he

received the same consideration for relief from removal that

Congress has afforded persons arriving at the border. Re-

spondent has never lived in, or been lawfully admitted to,

the United States.

To my mind, those are among the “circumstances” that

4 DEPARTMENT OF HOMELAND SECURITY v.

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BREYER, J., concurring in judgment

inform the “scope” of any habeas review that the Suspen-

sion Clause might guarantee respondent. Boumediene, 553

U. S., at 779. He is thus in a materially different position

for Suspension Clause purposes than the noncitizens in, for

example, Rowoldt v. Perfetto, 355 U. S. 115 (1957), United

States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 (1954),

Bridges v. Wixon, 326 U. S. 135 (1945), and Hansen v. Haff,

291 U. S. 559 (1934). They had all lived in this country for

years. The scope of whatever habeas review the Suspension

Clause assures respondent need not be as extensive as it

might for someone in that position.

Second, our precedents demonstrate that respondent’s

claims are of the kind that Congress may, consistent with

the Suspension Clause, make unreviewable in habeas pro-

ceedings. Even accepting respondent’s argument that our

“finality era” cases map out a constitutional minimum, see

ante, at 23–24, his claims, on the facts presented here, differ

significantly from those that we reviewed throughout this

period.

To begin, respondent concedes that Congress may elimi-

nate habeas review of factual questions in cases like this

one. See, e.g., Nishimura Ekiu v. United States, 142 U. S.

651, 660 (1892). He has thus disclaimed the “right to chal-

lenge the historical facts” found by immigration officials

during his credible-fear process. Tr. of Oral Arg. 44. But

even though respondent has framed his two primary claims

as asserting legal error, substance belies that label. Both

claims are, at their core, challenges to factual findings.

During his credible-fear interview, respondent said that

he is an ethnic Tamil from Sri Lanka and that, one day, a

group of men abducted him in a van and brutally beat him.

App. 67, 70–74. The asylum officer believed respondent’s

account, id., at 83, which respondent confirmed was his sole

basis for seeking relief, id., at 77, 79. The critical question,

then, concerned the nature of the attack: Who attacked re-

spondent and why? In written findings, the asylum officer

Cite as: 591 U. S. ____ (2020) 5

BREYER, J., concurring in judgment

concluded that it was “unknown who these individuals were

or why they wanted to harm [respondent].” Id., at 87.

Based on those findings, the asylum officer determined that

respondent had not established a credible fear of persecu-

tion or torture within the meaning of governing law. See

id., at 87, 89.

Respondent, to be sure, casts the brunt of his challenge

to this adverse credible-fear determination as two claims of

legal error. But it is the factual findings underlying that

determination that respondent, armed with strong new fac-

tual evidence, now disputes. See id., at 23–27; Brief for Pro-

fessors of Sri Lankan Politics as Amici Curiae 7–11; see also

ante, at 36, n. 28 (noting that immigration officials may re-

visit their findings in light of this additional evidence).

Respondent first asserts that the asylum officer failed to

apply—or at least misapplied—the applicable legal stand-

ard under §1225(b)(1)(B)(v), which required only a “signifi-

cant possibility” that respondent could establish entitle-

ment to relief from removal. See App. 30–32; Brief for

Respondent 6. Respondent also contends that the asylum

officer “demonstrated a fatal lack of knowledge” about con-

ditions in Sri Lanka, id., at 7, in violation of provisions re-

quiring that asylum officers consider “other facts as are

known to the officer,” §1225(b)(1)(B)(v), and have “had pro-

fessional training in country conditions,” §1225(b)(1)(E)(i).

See App. 24–26, 28–29, 31.

At the heart of both purportedly legal contentions, how-

ever, lies a disagreement with immigration officials’ find-

ings about the two brute facts underlying their credible-fear

determination—again, the identity of respondent’s attack-

ers and their motive for attacking him. Other than his own

testimony describing the attack, respondent has pointed to

nothing in the administrative record to support either of

these claims.

As to his legal-standard claim, respondent does not cite

anything affirmatively indicating that immigration officials

6 DEPARTMENT OF HOMELAND SECURITY v.

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BREYER, J., concurring in judgment

misidentified or misunderstood the proper legal standard

under §1225(b)(1)(B)(v). Rather, he argues that their cred-

ible-fear determination was so egregiously wrong that it

simply must have rested on such a legal error. See Tr. of

Oral Arg. 46–50. But that contention rests on a refusal to

accept the facts as found by the immigration officials. Spe-

cifically, it rejects their findings that no evidence suggested

respondent was attacked by men affiliated with the Sri

Lankan Government and motivated by respondent’s Tamil

ethnicity or (as he now alleges) history of political activism.

See App. 87; see also, e.g., id., at 23–26. Respondent’s quar-

rel, at bottom, is not with whether settled historical facts

satisfy a legal standard, see Guerrero-Lasprilla v. Barr, 589

U. S. ___, ___ (2020) (slip op., at 4), but with what the his-

torical facts are.

Respondent’s country-conditions claim is much the same.

Respondent does not cite anything in the administrative

record affirmatively indicating that, contrary to

§§1225(b)(1)(B)(v) and (E)(i), immigration officials, for ex-

ample, consciously disregarded facts presented or other-

wise known to them, or that the asylum officer never re-

ceived relevant professional training. Instead, respondent

offers a similar refrain: The credible-fear determination

was so egregiously wrong that immigration officials simply

must not have known about conditions in Sri Lanka. See

Brief for Respondent 7. So this claim, too, boils down to a

factual argument that immigration officials should have

known who respondents’ attackers were and why they at-

tacked him.

Mindful that the “Constitution deals with substance, not

shadows,” Salazar v. Buono, 559 U. S. 700, 723 (2010)

(ROBERTS, C. J., concurring) (internal quotation marks

omitted), I accordingly view both claims as factual in na-

ture, notwithstanding respondent’s contrary characteriza-

tion. For that reason, Congress may foreclose habeas re-

view of these claims without running afoul of the

Cite as: 591 U. S. ____ (2020) 7

BREYER, J., concurring in judgment

Suspension Clause. See, e.g., Nishimura Ekiu, 142 U. S.,

at 660.

The other two claims of error that respondent has pressed

assert that immigration officials violated procedures re-

quired by law. He first contends that, by not asking addi-

tional questions during the credible-fear interview, the asy-

lum officer failed to elicit “all relevant and useful

information,” in violation of 8 CFR §208.30(d) (2020). See

App. 27, 31. Respondent further alleges that translation

problems arose during the interview, in violation of the asy-

lum officer’s duty under §§208.30(d)(1) and (2) to ensure

that respondent was “[a]ble to participate effectively” and

“ha[d] an understanding of the credible fear determination

process.” See App. 27–28, 31. Though both claims may rea-

sonably be understood as procedural, they may constitu-

tionally be treated as unreviewable—at least under the bor-

der-entry circumstances present in this case. See supra, at

3–4.

Respondent’s procedural claims are unlike those that we

reviewed in habeas proceedings during the finality era.

Throughout that period, the procedural claims that we ad-

dressed asserted errors that fundamentally undermined

the efficacy of process prescribed by law. See Chin Yow, 208

U. S., at 11 (observing that a noncitizen could obtain habeas

relief on procedural grounds if he was denied “an oppor-

tunity to prove his right to enter the country, as the statute

meant that he should have”). Many of our finality era cases

thus dealt with situations in which immigration officials

failed entirely to take obligatory procedural steps.

In Waldman, for example, we faulted immigration offi-

cials for making “no finding[s]” at all on potentially dispos-

itive issues, including whether the noncitizens were fleeing

religious persecution and therefore exempt from a literacy

requirement. 266 U. S., at 120. And in United States ex rel.

Johnson v. Shaughnessy, 336 U. S. 806 (1949), we re-

versed for procedural error because the noncitizen was

8 DEPARTMENT OF HOMELAND SECURITY v.

THURAISSIGIAM

BREYER, J., concurring in judgment

denied outright “the independent [medical] review and

re-examination” required by then-governing law. Id., at

812; see also Accardi, 347 U. S., at 267 (faulting the Attor-

ney General for short-circuiting altogether legally pre-

scribed adjudication procedures by “dictating” an immigra-

tion decision himself ).

Respondent’s procedural claims are different. He does

not allege that immigration officials, say, denied him a

credible-fear interview or skipped a layer of intra-agency

review altogether. Nor do his allegations suggest that the

asylum officer’s questioning or the interpreter’s translation

constructively deprived him of the opportunity to establish

a credible fear; indeed, he has consistently maintained that

the information that was elicited more than sufficed. See,

e.g., Tr. of Oral Arg. 46–48; cf. Chin Yow, 208 U. S., at 13

(observing that “the denial of a hearing cannot be estab-

lished” merely “by proving that the decision was wrong”).

Respondent thus contends that the credible-fear process

was procedurally defective for reasons that are more tech-

nical. He alleges that additional questions would have

yielded further “relevant and useful” information and that

“communication issues affected the interview” in some way.

App. 27.

Respondent’s procedural claims consequently concern not

the outright denial (or constructive denial) of a process, but

the precise way in which the relevant procedures were ad-

ministered. They raise fine-grained questions of degree—

i.e., whether the asylum officer made sufficiently thorough

efforts to elicit all “relevant and useful information” and

whether he took sufficiently thorough precautions to ensure

that respondent was “[a]ble to participate effectively” in the

interview. 8 CFR §208.30(d).

Reviewing claims hinging on procedural details of this

kind would go beyond the traditionally “limited role” that

habeas has played in immigration cases similar to this

one—even during the finality era. St. Cyr, 533 U. S., at 312.

Cite as: 591 U. S. ____ (2020) 9

BREYER, J., concurring in judgment

To interpret the Suspension Clause as insisting upon ha-

beas review of these claims would require, by constitutional

command, that the habeas court make indeterminate and

highly record-intensive judgments on matters of degree.

Respondent has not cited, and I have not found, any case of

ours suggesting that the Suspension Clause demands pars-

ing procedural compliance at so granular a level. Neither,

apparently, has the Solicitor General. See Tr. of Oral Arg.

14–15, 23–24; Brief for Petitioners 38.

Together with respondent’s status, see supra, at 3–4,

these characteristics convince me that Congress had the

constitutional power to foreclose habeas review of respond-

ent’s procedural claims. Recasting those claims as an alle-

gation that respondent’s “due process rights were violated

by” immigration officials makes no material difference.

App. 32. That alternative description changes none of the

features that, in my view, put respondent’s procedural

claims beyond the scope of any minimum habeas review

that the Suspension Clause might assure him under the cir-

cumstances.

* * *

For these reasons, I would hold that, as applied to re-

spondent, §1252(e)(2)’s limits on habeas review do not vio-

late the Suspension Clause. I would go no further.

Cite as: 591 U. S. ____ (2020) 1

SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 19–161

_________________

DEPARTMENT OF HOMELAND SECURITY, ET AL.,

PETITIONERS v. VIJAYAKUMAR

THURAISSIGIAM

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 25, 2020]

JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN joins,

dissenting.

The majority declares that the Executive Branch’s denial

of asylum claims in expedited removal proceedings shall be

functionally unreviewable through the writ of habeas cor-

pus, no matter whether the denial is arbitrary or irrational

or contrary to governing law. That determination flouts

over a century of this Court’s practice. In case after case,

we have heard claims indistinguishable from those re-

spondent raises here, which fall within the heartland of ha-

beas jurisdiction going directly to the origins of the Great

Writ.

The Court thus purges an entire class of legal challenges

to executive detention from habeas review, circumscribing

that foundational and “stable bulwark of our liberties,” 1 W.

Blackstone, Commentaries 99 (Am. ed. 1832). By self-im-

posing this limitation on habeas relief in the absence of a

congressional suspension, the Court abdicates its constitu-

tional duty and rejects precedent extending to the founda-

tions of our common law.

Making matters worse, the Court holds that the Consti-

tution’s due process protections do not extend to noncitizens

like respondent, who challenge the procedures used to de-

termine whether they may seek shelter in this country or

2 DEPARTMENT OF HOMELAND SECURITY v.

THURAISSIGIAM

SOTOMAYOR, J., dissenting

whether they may be cast to an unknown fate. The decision

deprives them of any means to ensure the integrity of an

expedited removal order, an order which, the Court has just

held, is not subject to any meaningful judicial oversight as

to its substance. In doing so, the Court upends settled con-

stitutional law and paves the way toward transforming al-

ready summary expedited removal proceedings into arbi-

trary administrative adjudications.

Today’s decision handcuffs the Judiciary’s ability to per-

form its constitutional duty to safeguard individual liberty

and dismantles a critical component of the separation of

powers. It will leave significant exercises of executive dis-

cretion unchecked in the very circumstance where the

writ’s protections “have been strongest.” INS v. St. Cyr, 533

U. S. 289, 301 (2001). And it increases the risk of erroneous

immigration decisions that contravene governing statutes

and treaties.

The Court appears to justify its decision by adverting to

the burdens of affording robust judicial review of asylum

decisions. But our constitutional protections should not

hinge on the vicissitudes of the political climate or bend to

accommodate burdens on the Judiciary. I respectfully dis-

sent.

I

The as-applied challenge here largely turns on how the

Court construes respondent’s requests for relief. Its de-

scriptions, as well as those of one of the concurrences, skew

the essence of these claims. A proper reframing thus is in

order.

A

Respondent first advances a straightforward legal ques-

tion that courts have heard in habeas corpus proceedings in

“case after case.” Id., at 306. His habeas petition claimed

that an asylum officer and Immigration Judge “appl[ied] an

Cite as: 591 U. S. ____ (2020) 3

SOTOMAYOR, J., dissenting

incorrect legal standard” by ordering him removed despite

a showing of a significant possibility of credible fear to es-

tablish “eligibility for asylum, withholding of removal, and

[Convention Against Torture] claims.” App. 31–32; see also

8 U. S. C. §1225(b)(1)(B)(v) (setting standard for credible

fear as “a significant possibility, taking into account the . . .

statements made by the alien . . . and such other facts as

are known to the officer, that the alien could establish eli-

gibility for asylum”). The Government itself has character-

ized that claim as a challenge to the “ ‘application of a legal

standard to factual determinations . . . underlying the Ex-

ecutive’s negative credible-fear findings.’ ” 917 F. 3d 1097,

1117, n. 20 (CA9 2019) (case below). At bottom, respondent

alleged that he was unlawfully denied admission under gov-

erning asylum statutes and regulations.

The Court disagrees, flattening respondent’s claim into a

mere plea “ultimately to obtain authorization to stay in this

country.” Ante, at 2; see also ante, at 12 (describing the re-

quest as a “right to enter or remain in a country”); ante, at

13, n. 14 (framing relief sought as “gaining a right to remain

in this country”); ante, at 16 (equating relief with “authori-

zation . . . to remain in a country other than his own”). Yet

while the Court repeatedly says that respondent seeks

nothing more than admission as a matter of grace, its own

descriptions of respondent’s habeas petition belie its asser-

tions. See, e.g., ante, at 5, n. 5 (“[T]he gravamen of his pe-

tition is that [respondent] faces persecution in Sri Lanka

‘because of ’ his Tamil ethnicity and political opinions”);

ibid. (suggesting that the same persecution inquiry governs

respondent’s Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment claim);

ante, at 36, n. 28 (observing that respondent’s habeas peti-

tion contains factual allegations that resemble documented

persecution on the basis of ethnicity or political opinion).

Though the Court refuses to admit as much, its descriptions

of respondent’s arguments illustrate, at bottom, claims that

4 DEPARTMENT OF HOMELAND SECURITY v.

THURAISSIGIAM

SOTOMAYOR, J., dissenting

immigration officials legally erred in their review of his asy-

lum application.

In papering over the true nature of respondent’s claims,

the Court transforms his assertions of legal error in the ex-

ercise of executive discretion into a naked demand for exec-

utive action. But the distinction between those forms of re-

lief makes all the difference. The law has long permitted

habeas petitioners to challenge the legality of the exercise

of executive power, even if the executive action ultimately

sought is discretionary. See St. Cyr, 533 U. S., at 307 (citing

cases). That principle has even more force today, where an

entire scheme of statutes and regulations cabins the Exec-

utive’s discretion in evaluating asylum applications. For

that reason, the Court’s observation that the ultimate

“grant of asylum is discretionary” is beside the point. Ante,

at 5, n. 4.

For its part, one concurring opinion seems to

acknowledge that claims that assert something other than

pure factual error may constitutionally require some judi-

cial review. Ante, at 3–5 (BREYER, J., concurring in judg-

ment). It simply determines that respondent’s credible-fear

claims amount to nothing more than a “disagreement with

immigration officials’ findings about the two brute facts un-

derlying their credible-fear determination,” namely, the

identity of his attackers and their motivations. Ante, at 5.

It also faults respondent for failing to develop his claims of

legal error with citations “indicating that immigration offi-

cials misidentified or misunderstood the proper legal stand-

ard” or that they “disregarded” or were not properly trained

in identifying relevant country conditions. Ante, at 5–6.

But the essence of respondent’s petition is that the facts

as presented (that he, a Tamil minority in Sri Lanka, was

abducted by unidentified men in a van and severely

beaten), when considered in light of known country condi-

tions (as required by statute), amount at least to a “signifi-

cant possibility” that he could show a well-founded fear of

Cite as: 591 U. S. ____ (2020) 5

SOTOMAYOR, J., dissenting

persecution. So viewed, respondent’s challenge does not

quibble with historic facts, but rather claims that those

“settled facts satisfy a legal standard,” which this Court has

held amounts to a “legal inquiry.” Guerrero-Lasprilla v.

Barr, 589 U. S. ___, ___ (2020) (slip op., at 4). The concur-

ring opinion suggests that any conclusions drawn from the

discrete settled facts here could not be “so egregiously

wrong” as to amount to legal error. Ante, at 6. But the ul-

timate inquiry is simply whether the facts presented satisfy

a statutory standard. While this concurring opinion may

believe that the facts presented here do not show that re-

spondent is entitled to relief, its view of the merits does not

alter the legal nature of respondent’s challenge.

B

Second, respondent contended that the inadequate proce-

dures afforded to him in his removal proceedings violated

constitutional due process. Among other things, he as-

serted that the removal proceedings by design did not pro-

vide him a meaningful opportunity to establish his claims,

that the translator and asylum officer misunderstood him,

and that he was not given a “reasoned explanation” for the

decision. App. 27, 32; see also id., at 32 (arguing that

“[u]nder constitutionally adequate procedures, [respond-

ent] would have prevailed on his claims”). Again, however,

the Court falls short of capturing the procedural relief ac-

tually requested. The Court vaguely suggests that respond-

ent merely wanted more cracks at obtaining review of his

asylum claims, not that he wanted to challenge the existing

expedited removal framework or the process actually ren-

dered in his case as constitutionally inadequate. See ante,

at 2 (characterizing respondent as asking for “additional

administrative review of his asylum claim”); see also ante,

at 5, n. 5 (describing petition as seeking “another oppor-

tunity to apply for asylum”). That misconstrues respond-

6 DEPARTMENT OF HOMELAND SECURITY v.

THURAISSIGIAM

SOTOMAYOR, J., dissenting

ent’s procedural challenges to the expedited removal pro-

ceedings, which matters crucially; a constitutional chal-

lenge to executive detention is just the sort of claim the com-

mon law has long recognized as cognizable in habeas. See

generally Part II, infra.

One concurring opinion, meanwhile, properly character-

izes respondent’s claims on this score as “procedural” chal-

lenges. Ante, at 7 (opinion of BREYER, J.). Yet it concludes

that those claims are not reviewable because they do not

allege sufficiently serious defects. See ante, at 7–8 (describ-

ing cognizable claims as those involving “ ‘no [factual] find-

ing[s],’ ” contentions that officials “skipped a layer of intra-

agency review altogether,” the “outright denial (or construc-

tive denial) of a process,” or an official’s “fail[ure] entirely

to take obligatory procedural steps”). But these are simply

distinctions of degree, not of kind. Respondent claimed that

officials violated governing asylum regulations and de-

prived him of due process by conducting an inadequate in-

terview and providing incomplete translation services. It is

difficult to see the difference between those claims and the

ones that the concurring opinion upholds as cognizable. Cf.

ante, at 7–8 (finding cognizable claims that an official

“short-circuit[ed] altogether legally prescribed adjudication

procedures by ‘dictating’ an immigration decision” and that

an official deprived a noncitizen of “ ‘an opportunity to prove

his right to enter the country, as the statute meant that he

should have’ ”).

Indeed, the concurring opinion notes that the core ques-

tion is whether a defect “fundamentally undermined the ef-

ficacy of process prescribed by law.” Ante, at 7. Respond-

ent’s petition plainly posits procedural defects that violate,

or at least call into question, the “efficacy of process pre-

scribed by law” and the Constitution. Ibid. The concurring

opinion might think that respondent is not entitled to addi-

tional protections as a matter of law or that the facts do not

show he was denied any required process. But conclusions

Cite as: 591 U. S. ____ (2020) 7

SOTOMAYOR, J., dissenting

about the merits of respondent’s procedural challenges

should not foreclose his ability to bring them in the first

place.

C

Finally, the Court asserts that respondent did not specif-

ically seek “release” from custody in what the Court styles

as the “traditional” sense of the term as understood in ha-

beas jurisprudence. Ante, at 10, 13; cf. ante, at 14 (suggest-

ing that respondent “does not claim an entitlement to re-

lease”). Instead, the Court seems to argue that respondent

seeks only a peculiar form of release: admission into the

United States or additional asylum procedures that would

allow for admission into the United States. Such a request,

the Court implies, is more akin to mandamus and injunc-

tive relief. Ante, at 13.

But it is the Court’s directionality requirement that

bucks tradition. Respondent asks merely to be freed from

wrongful executive custody. He asserts that he has a cred-

ible fear of persecution, and asylum statutes authorize him

to remain in the country if he does. That request is indis-

tinguishable from, and no less “traditional” than, those long

made by noncitizens challenging restraints that prevented

them from otherwise entering or remaining in a country not

their own. See Part II–B–1, infra.

The Court has also never described “release” as the sole

remedy of the Great Writ. Nevertheless, respondent’s peti-

tion is not limited in the way the Court claims. As it

acknowledges, ante, at 10, respondent directly asked the

District Court to “[i]ssue a writ of habeas corpus” without

further limitation on the kind of relief that might entail,

App. 33. Respondent also sought “an [o]rder directing [the

Government] to show cause why the writ should not be

granted” and an order “directing [the Government] to va-

cate the expedited removal order entered against [him].”

Ibid. As the petition’s plain language indicates, respondent

8 DEPARTMENT OF HOMELAND SECURITY v.

THURAISSIGIAM

SOTOMAYOR, J., dissenting

raised a garden-variety plea for habeas relief in whatever

form available and appropriate, including, but not limited

to, release.

* * *

Fairly characterized, respondent’s claims allege legal er-

ror (for violations of governing asylum law and for viola-

tions of procedural due process) and an open-ended request

for habeas relief. It is “uncontroversial” that the writ en-

compasses such claims. See Boumediene v. Bush, 553 U. S.

723, 779 (2008) (concluding that release is but one form of

relief available); see also St. Cyr., 533 U. S., at 302, 304–

308 (citing cases predating the founding to show that the

writ could challenge “the erroneous application or interpre-

tation” of relevant law); see also Part II–D, infra.

II

Only by recasting respondent’s claims and precedents

does the Court reach its decision on the merits. By its ac-

count, none of our governing cases, recent or centuries old,

recognize that the Suspension Clause guards a habeas right

to the type of release that respondent allegedly seeks.1

——————

1 The Court wisely declines to explore whether the Suspension Clause

independently guarantees the availability of the writ or simply restricts

the temporary withholding of its operation, a point of disagreement be-

tween the majority and dissent in INS v. St. Cyr, 533 U. S. 289 (2001).

Ante, at 11, n. 12. Justice Scalia, dissenting in St. Cyr, wrote that the

Suspension Clause “does not guarantee any content to (or even the exist-

ence of ) the writ of habeas corpus, but merely provides that the writ shall

not (except in case of rebellion or invasion) be suspended.” 533 U. S., at

337. But no majority of this Court, at any time, has adopted that theory.

Notably, moreover, even Justice Scalia appears to have abandoned his

position just three years later in Hamdi v. Rumsfeld, 542 U. S. 507, 555–

556 (2004) (dissenting opinion) (“The two ideas central to Blackstone’s

understanding—due process as the right secured, and habeas corpus as

the instrument by which due process could be insisted upon by a citizen

illegally imprisoned—found expression in the Constitution’s Due Process

and Suspension Clauses”); see also id., at 558 (“The writ of habeas corpus

Cite as: 591 U. S. ____ (2020) 9

SOTOMAYOR, J., dissenting

Ante, at 13, n. 14 (finding no evidence that the writ was un-

derstood in 1789 to grant relief that would amount to “gain-

ing a right to remain in this country”); ante, at 13 (charac-

terizing a “ ‘meaningful opportunity’ ” for review of asylum

claims as falling outside of traditional notions of release

from custody). An overview of cases starting from the colo-

nial period to the present reveals that the Court is incor-

rect, even accepting its improper framing of respondent’s

claims.

A

The critical inquiry, the Court contends, is whether re-

spondent’s specific requests for relief (namely, admission

into the United States or additional asylum procedures al-

lowing for admission into the United States) fall within the

scope of the kind of release afforded by the writ as it existed

in 1789. Ante, at 11, 12; see also ante, at 10 (criticizing the

court below for holding §1252(e)(2) unconstitutional “with-

out citing any pre-1789 case about the scope of the writ”).

This scope, it explains, is what the Suspension Clause pro-

tects “at a minimum.” Ante, at 11. But as the Court implic-

itly acknowledges, its inquiry is impossible. The inquiry

also runs headlong into precedent, which has never de-

manded the kind of precise factual match with pre-1789

case law that today’s Court demands.

To start, the Court recognizes the pitfalls of relying on

pre-1789 cases to establish principles relevant to immigra-

tion and asylum: “At the time, England had nothing like

modern immigration restrictions.” Ante, at 18–19 (“As late

as 1816, the word ‘deportation’ apparently ‘was not to be

found in any English dictionary’ ”). It notes, too, that our

——————

was preserved in the Constitution—the only common-law writ to be ex-

plicitly mentioned”). Even one concurring opinion seems to recognize

that the Suspension Clause “protect[s] a substantive right.” Ante, at 3–

4 (opinion of THOMAS, J.).

10 DEPARTMENT OF HOMELAND SECURITY v.

THURAISSIGIAM

SOTOMAYOR, J., dissenting

cases have repeatedly observed the relative novelty of im-

migration laws in the early days of this country. Ante, at

20 (citing Harisiades v. Shaughnessy, 342 U. S. 580, 588, n.

15 (1952) (“An open door to the immigrant was the early

federal policy”); St. Cyr, 533 U. S., at 305 (remarking that

the first immigration regulation was enacted in 1875)); see

also Demore v. Kim, 538 U. S. 510, 539 (2003) (O’Connor, J.,

concurring in part and concurring in judgment) (“Because

colonial America imposed few restrictions on immigration,

there is little case law prior to that time about the availa-

bility of habeas review to challenge temporary detention

pending exclusion or deportation”).

The Court nevertheless seems to require respondent to

engage in an exercise in futility. It demands that respond-

ent unearth cases predating comprehensive federal immi-

gration regulation showing that noncitizens obtained re-

lease from federal custody onto national soil. But no federal

statutes at that time spoke to the permissibility of their en-

try in the first instance; the United States lacked a compre-

hensive asylum regime until the latter half of the 20th cen-

tury. Despite the limitations inherent in this exercise, the

Court appears to insist on a wealth of cases mirroring the

precise relief requested at a granular level; nothing short of

that, in the Court’s view, would demonstrate that a noncit-

izen in respondent’s position is entitled to the writ. See

ante, at 18, n. 18 (dismissing respondent’s cited cases on the

ground that “[w]hether the founding generation understood

habeas relief more broadly than described by Blackstone,

Justice Story, and our prior cases . . . cannot be settled by a

single case or even a few obscure and possibly aberrant

cases”); see also Neuman, Habeas Corpus, Executive Deten-

tion, and the Removal of Aliens, 98 Colum. L. Rev. 961

(1998) (noting the inherent difficulties of a strict originalist

approach in the habeas context because of, among other

things, the dearth of reasoned habeas decisions at the

founding).

Cite as: 591 U. S. ____ (2020) 11

SOTOMAYOR, J., dissenting

But this Court has never rigidly demanded a one-to-one

match between a habeas petition and a common-law habeas

analog. In St. Cyr, for example, the Court considered

whether a noncitizen with a controlled substance conviction

could challenge on habeas the denial of a discretionary

waiver of his deportation order. 533 U. S., at 293. In doing

so, the Court did not search high and low for founding-era

parallels to waivers of deportation for criminal noncitizens.

It simply asked, at a far more general level, whether habeas

jurisdiction was historically “invoked on behalf of nonciti-

zens . . . in the immigration context” to “challenge Execu-

tive . . . detention in civil cases.” Id., at 302, 305. That in-

cluded determining whether “[h]abeas courts . . . answered

questions of law that arose in the context of discretionary

relief ” (including questions regarding the allegedly “erro-

neous application or interpretation of statutes”). Id., at

302, and n. 18, 307.

Boumediene is even clearer that the Suspension Clause

inquiry does not require a close (much less precise) factual

match with historical habeas precedent. There, the Court

concluded that the writ applied to noncitizen detainees held

in Guantanamo, 553 U. S., at 771, despite frankly admit-

ting that a “[d]iligent search by all parties reveal[ed] no cer-

tain conclusions” about the relevant scope of the common-

law writ in 1789, id., at 746. Indeed, the Court reasoned

that none of the cited cases illustrated whether a “common-

law court would or would not have granted . . . a petition for

a writ of habeas corpus” like that brought by the noncitizen-

detainee petitioners, and candidly acknowledged that “the

common-law courts simply may not have confronted cases

with close parallels.” Id., at 746, 752. But crucially, the

Court declined to “infer too much, one way or the other,

from the lack of historical evidence on point.” Id., at 752.

Instead, it sought to find comparable common-law habeas

cases by “analogy.” Id., at 748–752.

There is no squaring the Court’s methodology today with

12 DEPARTMENT OF HOMELAND SECURITY v.

THURAISSIGIAM

SOTOMAYOR, J., dissenting

St. Cyr or Boumediene. As those cases show, requiring

near-complete equivalence between common-law habeas

cases and respondent’s habeas claim is out of step with this

Court’s longstanding approach in immigration cases.

B

1

Applying the correct (and commonsense) approach to de-

fining the Great Writ’s historic scope reveals that respond-

ent’s claims have long been recognized in habeas.

Respondent cites Somerset v. Stewart, Lofft. 1, 98 Eng.

Rep. 499 (K. B. 1772), as an example on point. There, Lord

Mansfield issued a writ ordering release of a slave bound

for Jamaica, holding that there was no basis in English law

for “sending . . . him over” to another country. Id., at 17–

19, 98 Eng. Rep., at 509–510. Thus, the writ issued even

though it “did not free [the] slave so much as it protected

him from deportation.” P. Halliday, Habeas Corpus: From

England to Empire 175 (2010). Somerset establishes the

longstanding availability of the writ to challenge the legal-

ity of removal and to secure release into a country in which

a petitioner sought shelter. Scholarly discussions of Mur-

ray’s Case suggest much of the same. There, the King’s

Bench granted habeas to allow a nonnative to remain in

England and to prevent his removal to Scotland for trial.

Halliday, Habeas Corpus, at 236.

The Court dismisses these examples outright. It

acknowledges that the petitioner in Somerset may have

been allowed to remain in England because of his release

on habeas, yet declares that this was “due not to the wri[t]

ordering [his] release” but rather to the existing state of the

law. Ante, at 20. But the writ clearly did more than permit

the petitioner to disembark from a vessel; it prevented him

from being “sen[t] . . . over” to Jamaica. Lofft., at 17, 98

Eng. Rep., at 509. What England’s immigration laws might

have prescribed after the writ’s issuance did not bear on the

Cite as: 591 U. S. ____ (2020) 13

SOTOMAYOR, J., dissenting

availability of the writ as a means to remain in the country

in the first instance.

The Court also casts aside the facts of Murray’s Case,

even though they, too, reveal that habeas was used to per-

mit a nonnative detainee to remain in a country. Ante, at

18, n. 18. The Court minimizes the decision as “obscure and

possibly aberrant.” Ibid. But given the relative paucity of

habeas cases from this era, it is telling that the case serves

as another example of the writ being used to allow a noncit-

izen to remain in England.2

The reasoning of Somerset and Murray’s Case carried

over to the Colonies, where colonial governments presumed

habeas available to noncitizens to secure their residence in

a territory. See generally Oldham & Wishnie, The Histori-

cal Scope of Habeas Corpus and INS v. St. Cyr, 16 Geo. Im-

migration L. J. 485 (2002). For example, in 1755, British

authorities sought to deport French Acadian settlers from

Nova Scotia, then under the control of Great Britain, to the

American Colonies. Id., at 497. The Governor and Assem-

bly of South Carolina resisted the migrants’ arrival and de-

tained them in ships off the coast of Charleston. They rec-

ognized, however, that the exclusion could not persist

because the migrants would be entitled to avail themselves

of habeas corpus. Id., at 498. Ultimately, the Governor re-

leased most of the Acadian migrants for resettlement

throughout the Colony. Ibid.

Founding era courts accepted this view of the writ’s scope.

Rather than credit these decisions, the Court marches

——————

2 The Court notes “the ‘delicate’ relationship between England and

Scotland at the time” of Murray’s Case. Ante, at 18, n. 18. Interestingly,

the Court does not mention the delicate nature of the relationship be-

tween the United States and Iraq in Munaf v. Geren, 553 U. S. 674

(2008), the centerpiece of the Court’s argument, even though that case

arose during a military conflict. Ante, at 14–15. Nor does it acknowledge

the impact that the relationship had on the Munaf Court’s decision to

refrain from issuing the writ. See Part II–B–3, infra.

14 DEPARTMENT OF HOMELAND SECURITY v.

THURAISSIGIAM

SOTOMAYOR, J., dissenting

through an assorted selection of cases and throws up its

hands, contending that the case law merely reflects a wide

range of circumstances for which individuals were deprived

of their liberty. See ante, at 16–17. Thus, the Court con-

cludes, the common law simply did not speak to whether

individuals could seek “release” that would allow them to

enter a country (as opposed to being expelled from it).

At the same time, notwithstanding its professed keen in-

terest in precedent, the Court seems to discount decisions

supporting respondent’s view that habeas permitted re-

lease from custody into the country. At least two other clas-

ses of cases demonstrate that the writ was available from

around the founding onward to noncitizens who were de-

tained, and wanted to remain, including those who were

prevented from entering the United States at all.

First, common-law courts historically granted the writ to

discharge deserting foreign sailors found and imprisoned in

the United States. In Commonwealth v. Holloway, 1 Serg.

& Rawle 392 (1815), the Pennsylvania Supreme Court

granted a writ of habeas corpus to a Danish sailor who had

deserted his vessel in violation of both an employment con-

tract and Danish law. The court explained that the deser-

tion did not violate any domestic law or treaty, and thus

imprisonment was inappropriate. Id., at 396 (opinion of

Tilghman, C. J.). By ordering an unconditional discharge

and declining to return the noncitizen sailor to the custody

of any foreign power, the court used the writ to order a re-

lease that authorized a noncitizen to remain in the United

States, a country “other than his own.” Ante, at 16. The

same was true in similar cases that even the Court cites.

See ante, at 19 (citing Case of the Deserters from the British

Frigate L’Africaine, 3 Am. L. J. & Misc. Repertory 132 (Md.

1810) (reporting on a decision discharging deserters); Case

of Hippolyte Dumas, 2 Am. L. J. & Misc. Repertory 86 (Pa.

1809) (same)).

Curiously, the Court does not contest that the writs in

Cite as: 591 U. S. ____ (2020) 15

SOTOMAYOR, J., dissenting

these cases were used to secure the liberty of foreign sailors,

and consequently their right to enter the country.3 Rather,

it remarks that judges at the time “chafed at having to or-

der even release,” ante, at 19, which some saw as incon-

sistent with principles of comity, Holloway, 1 Serg. &

Rawle, at 394. But reluctance is not inability. That those

judges followed the law’s dictates despite their distaste for

the result should give today’s Court pause.

The Court seizes on one case where a court ordered a de-

serting sailor to be returned to his foreign vessel-master.

See ante, at 14, 19 (citing Ex parte D’Olivera, 7 F. Cas. 853,

854 (No. 3,967) (CC Mass. 1813)). But it reads too much

into this one decision. In D’Olivera, the court held that de-

serting sailors were unlawfully confined and granted a writ

of habeas corpus, but directed that they be discharged to

their vessel-master out of “a desire not to encourage deser-

tion among foreign seamen.” Id., at 854. As illustrated by

other deserter cases supra, the kind of results-oriented de-

cisionmaking in D’Olivera does not seem to be the norm.

The Court’s proclamation about how the scope of common-

law habeas cannot hinge on a “single case” should have

equal force here. Ante, at 18, n. 18.

Next, courts routinely granted the writ to release wrong-

fully detained noncitizens into Territories other than the

detainees’ “own.” Many involved the release of fugitive or

former slaves outside their home State. In these cases,

courts decided legal questions as to the status of these peti-

tioners. In Arabas v. Ivers, 1 Root 92 (Conn. Super. Ct.

1784), for example, a Connecticut court determined that a

former slave from New York held in local jail on his alleged

master’s instructions had, in fact, been freed through his

service in the Continental Army. The court ordered him

——————

3 Indeed, the Court highlights a striking similarity to the present asy-

lum challenge by observing that the foreign-deserter cases show the “use

of habeas to secure release from custody when not in compliance with . . .

statute[s] and relevant treaties.” Ante, at 21.

16 DEPARTMENT OF HOMELAND SECURITY v.

THURAISSIGIAM

SOTOMAYOR, J., dissenting

discharged “upon the ground that he was a freeman, abso-

lutely manumitted from his master by enlisting and serving

in the army.” Id., at 93. See also In re Belt, 7 N. Y. Leg.

Obs. 80 (1848) (granting habeas to discharge an imprisoned

fugitive slave whose owner did not timely apply for his re-

turn to Maryland); In re Ralph, 1 Morris 1 (Iowa 1839) (dis-

charging person from custody on the grounds that he was

not a fugitive slave subject to return to Missouri when he

had been allowed to travel to the Iowa Territory by his for-

mer master); Commonwealth v. Holloway, 2 Serg. & Rawle

305 (Pa. 1816) (holding on habeas corpus that a child born

in a free State to a slave was free); In re Richardson’s Case,

20 F. Cas. 703 (No. 11,778) (CC DC 1837) (ordering prisoner

to be discharged in the District of Columbia because war-

rant was insufficient to establish that he was a runaway

slave from Maryland); Commonwealth v. Griffith, 19 Mass.

11 (1823) (contemplating that the status of a freeman seized

in Massachusetts as an alleged fugitive from Virginia could

be determined on habeas corpus).

The weight of historical evidence demonstrates that com-

mon-law courts at and near the founding granted habeas to

noncitizen detainees to enter Territories not considered

their own, and thus ordered the kind of release t

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