explaining, pre-Thuraissigiam, that Supreme Court precedent “call[s] into serious question the proposition that even the slightest entrance into this country triggers constitutional protections that are otherwise unavailable to the alien outside its borders”
How later courts described this case
- explaining, pre-Thuraissigiam, that Supreme Court precedent “call[s] into serious question the proposition that even the slightest entrance into this country triggers constitutional protections that are otherwise unavailable to the alien outside its borders”
- holding that the petitioners failed to “clear Boumediene’s first hurdle” based on Landon’s conclusion “that ‘an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.’”
- concluding that petitioners who unlawfully entered the country and were apprehended within hours were treated as aliens seeking admission at the border and thus could not invoke constitutional protections
- explaining that Section 1225(b)(1) applies to “arriving aliens” and those aliens “encountered within 14 days of entry without inspection and within 100 air miles of any U.S. international land border”
Written by the judges who cited it.
The opinion
HARDIMAN, Circuit Judge,
concurring dubitante.
I join Judge Smith’s excellent opinion in full, but I write separately to express my doubt that the expression of the plenary power doctrine in Landon v. Plasencia completely resolves step one of the Suspension Clause analysis under Boume-diene. Although Landon appears to preclude “alien[s] seeking initial admission to the United States” from invoking any constitutional protections “regarding [their] application^,” the question of what constitutional rights such aliens are afforded was not squarely before the Supreme Court in that case because the petitioner was a returning permanent resident. 459 U.S. 21, 23, 32 , 103 S.Ct. 321 , 74 L.Ed.2d 21 (1982). Nor did the Court in Landon purport to resolve a jurisdictional question raising the possibility of an unconstitutional suspension of the writ of habeas corpus. 1
Despite my uncertainty about Landon’s, dispositive application here, I am convinced that we would reach the same result under step two of Boumediene’s framework. Unlike the petitioners in Boumediene — who sought their release in the face of indefinite detention — Petitioners here seek to alter their status in the United States in the hope of avoiding release to their homelands. That prayer for *451 relief, in my view, dooms the merits of their Suspension Clause argument that 8 U.S.C. § 1252 (e) provides an “inadequate or ineffective” habeas substitute. United States v. Hayman, 342 U.S. 205, 223 , 72 S.Ct. 263 , 96 L.Ed. 232 (1952).