Amicus Curiae Brief — Department of Homeland Security, et al., Petitioners v. Vijayakumar Thuraissigiam

Supreme Court briefDec 16, 2019

Ask Donna

What actually matters in this document.

Text

No. 19-161

In the Supreme Court of the United States

DEPARTMENT OF HOMELAND SECURITY, ET AL.,

Petitioners,

VIJAYAKUMAR THURAISSIGIAM,

Respondent.

On Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF IMMIGRATION

LAW REFORM INSTITUTE IN SUPPORT OF

PETITIONERS

CHRISTOPHER J. HAJEC

IMMIGRATION REFORM

LAW INSTITUTE

25 Massachusetts Av NW

Suite 335

Washington, DC 20001

(202) 232-5590

chajec@irli.org

LAWRENCE J. JOSEPH

Counsel of Record

1250 Connecticut Av NW

Suite 700-1A

Washington, DC 20036

(202) 355-9452

lj@larryjoseph.com

QUESTIONS PRESENTED

Respondent is an inadmissible alien who was

apprehended almost immediately after illegally

crossing the U.S. border and was placed into

expedited removal proceedings. See 8 U.S.C.

1225(b)(l). An asylum officer conducted a credible-fear

interview and found that respondent lacked a credible

fear of persecution on a protected ground or a credible

fear of torture. Upon de novo review, an immigration

judge reached the same conclusions and respondent’s

expedited-removal order became final. Respondent

then filed a petition for writ of habeas corpus, which

the district court dismissed for lack of jurisdiction

because it did not raise the kinds of habeas challenges

to expedited-removal orders that are permitted under

8 U.S.C. 1252(e)(2). The court of appeals reversed,

concluding that Section 1252(e)(2) violated the

Suspension Clause, U.S. Const. Art. I, § 9, Cl. 2, as

applied to respondent.

The question presented is whether, as applied to

respondent, Section 1252(e)(2) is unconstitutional

under the Suspension Clause.

TABLE OF CONTENTS

Questions Presented ................................................... i

Table of Contents ....................................................... ii

Table of Authorities................................................... iv

Interest of Amicus Curiae .......................................... 1

Statement of the Case ................................................ 2

Summary of Argument............................................... 2

Argument .................................................................... 5

I. The lower federal courts lacked subjectmatter jurisdiction for this case. ......................... 5

A. Thuraissigiam lacks Article III standing

to challenge detention. .................................. 5

1. Thuraissigiam lacks an injury in fact

because he has no cognizable right. ....... 6

2. Without an underlying substantive

right, Thuraissigiam suffers no

procedural injury..................................... 7

3. Detention and other restrictions are

self-inflicted injuries, and thus raise

no Article III case or controversy. .......... 8

B. The lower federal courts lack statutory

and constitutional subject-matter

jurisdiction. .................................................. 10

II. Thuraissigiam lacks rights under the INA or

the Due Process Clause. .................................... 12

A. Thuraissigiam received the three tiers

of review to which the INA entitles him..... 12

B. Illegal entrants like Thuraissigiam have

no due-process rights beyond the INA

rights Congress provided them. .................. 12

C. Federal courts should not create perverse

incentives to treat illegal entrants better

than aliens who lawfully seek admission. .. 14

III. Thuraissigiam is not asserting habeas rights .. 15

IV. Thuraissigiam lacks rights under the

Suspension Clause. ............................................ 17

A. The Suspension Clause does not extend

beyond habeas corpus. ................................. 17

B. The Ninth Circuit’s arguments under

the Suspension Clause lack merit. ............. 18

1. The Boumediene decision provides

no support for Thuraissigiam. .............. 18

2. The St. Cyr decision provides no

support for Thuraissigiam. ................... 19

3. The “finality-era” decisions provide

no support for Thuraissigiam. .............. 21

Conclusion ................................................................ 21

iii

TABLE OF AUTHORITIES

Cases

Agostini v. Felton,

521 U.S. 203 (1997) ....................................... 20, 21

Alden v. Maine,

527 U.S. 706 (1999) ............................................. 15

Boumediene v. Bush,

553 U.S. 723 (2008) .............................. 4, 15, 18-19

Christopher v. Harbury,

536 U.S. 403 (2002) ............................................... 8

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) .......................................... 9-10

DaimlerChrysler Corp. v. Cuno,

547 U.S. 332 (2006) ............................................... 9

DeCanas v. Bica,

424 U.S. 351 (1976) ............................................. 15

Demore v. Kim,

538 U.S. 510 (2003) ............................ 5-6, 8, 13, 15

Ex parte Young,

209 U.S. 123 (1908) ............................................. 11

F.C.C. v. Beach Communications, Inc.,

508 U.S. 307 (1993) ............................................. 13

Goosby v. Osser,

409 U.S. 512 (1973) ............................................. 11

Green v. Mansour,

474 U.S. 64 (1985) ............................................... 11

Hagans v. Lavine,

415 U.S. 528 (1974) ............................................. 11

INS v. St. Cyr,

533 U.S. 289 (2001) .................................... 4, 18-21

Jerman v. Carlisle, McNellie, Rini, Kramer &

Ulrich, L.P.A., 559 U.S. 573 (2010) ...................... 9

Johnson v. Eisentrager,

339 U.S. 763 (1950) ......................................... 7, 19

Kamen v. Kemper Fin. Servs.,

500 U.S. 90 (1991) ................................................. 5

Landon v. Plasencia,

459 U.S. 21 (1982) .......... 3-4, 6, 8, 10, 15-18, 20-21

Lehman v. Lycoming Cty. Children’s Servs.

Agency, 458 U.S. 502 (1982) ............................... 12

Lehnhausen v. Lake Shore Auto Parts Co.,

410 U.S. 356 (1973) ............................................. 13

Lewis v. Casey,

518 U.S. 343 (1996) ............................................... 9

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ........................................ 5-6, 7

Minnesota v. Clover Leaf Creamery Co.,

449 U.S. 456 (1981) ........................................ 13-14

Penfield Co. v. SEC,

330 U.S. 585 (1947) ............................................... 8

Pennsylvania v. New Jersey,

426 U.S. 660 (1976) ............................................... 9

Rasul v. Bush,

542 U.S. 466 (2004) ............................................. 11

Reno v. Flores,

507 U.S. 292 (1993) ............................................... 7

Shaughnessy v. United States ex rel. Mezei,

345 U.S. 206 (1953) ... 3-4, 6, 8, 12-13, 15-18, 20-21

Steel Co. v. Citizens for a Better Environment,

523 U.S. 83 (1998) ................................................. 5

Summers v. Earth Island Inst.,

555 U.S. 488 (2009) ............................................... 7

Valley Forge Christian College v. Americans

United for Separation of Church & State, Inc.,

454 U.S. 464 (1982) ............................................... 5

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ............................................. 20

Statutes

U.S. CONST. art. I, § 8, cl. 4 ...................................... 15

U.S. CONST. art. I, § 9, cl. 2 ................. 4, 12, 16-18, 21

U.S. CONST. art. III............................................ 5, 7-10

U.S. CONST. art. III, § 2 .............................................. 5

U.S. CONST. amend. V, cl. 4................... 3, 8, 12-13, 15

Administrative Procedure Act,

5 U.S.C. §§ 551-706 ............................................. 10

5 U.S.C. § 701(a)(1) .................................................. 10

5 U.S.C. § 702 ........................................................... 10

5 U.S.C. § 704 ........................................................... 10

Immigration and Naturalization Act,

8 U.S.C. §§ 1101-1537 .... 2-4, 6-8, 10, 12, 14-17, 19

8 U.S.C. § 1252(e)(2) ............................................. 2, 10

8 U.S.C. § 1252(e)(3) ................................................. 16

8 U.S.C. § 1252(g) ..................................................... 20

8 U.S.C. § 1601(6) ..................................................... 14

8 U.S.C. § 1225(b)(1)(A)(iii) ...................................... 20

REAL ID Act of 2005, § 106(a)(3),

PUB. L. NO. 109-13, Tit. I, Div. B, § 106(a)(3),

119 Stat. 231, 311 ............................................... 20

Rules, Regulations and Orders

S.Ct. Rule 37.6 ............................................................ 1

vii

No. 19-161

In the Supreme Court of the United States

DEPARTMENT OF HOMELAND SECURITY, ET AL.,

Petitioners,

VIJAYAKUMAR THURAISSIGIAM,

Respondent.

On Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit

INTEREST OF AMICUS CURIAE

The Immigration Reform Law Institute1 (“IRLI”)

is a nonprofit 501(c)(3) public interest law firm

dedicated both to litigating immigration-related cases

in the interests of United States citizens and to

assisting courts in understanding federal immigration

law. IRLI has litigated or filed amicus curiae briefs in

a wide variety of immigration-related cases. For more

than twenty years the Board of Immigration Appeals

has solicited supplementary briefing, drafted by IRLI

staff, from the Federation for American Immigration

Reform, of which IRLI is a supporting organization.

Amicus files this brief with all parties’ written consent.

Pursuant to Rule 37.6, counsel for amicus authored this brief in

whole, no party’s counsel authored this brief in whole or in part,

and no person or entity — other than amicus and its counsel —

contributed monetarily to preparing or submitting the brief.

STATEMENT OF THE CASE

Vijayakumar Thuraissigiam unlawfully crossed

the Mexican border outside of a port of entry and was

apprehended moments later, 25 yards from the

border. He was screened for a credible fear of torture

or persecution on a protected basis pursuant to the

Immigration and Naturalization Act, 8 U.S.C.

§§ 1101-1537 (“INA”), but he expressed a fear only of

random, private violence in his native Sri Lanka. He

was processed for expedited removal, with his case

going before three tiers of administrative review: an

asylum officer, review by a supervisory asylum officer,

and de novo review by an immigration judge. These

layers of review all confirmed that Thuraissigiam is

ineligible for asylum and lacks a credible fear of

torture on a protected basis. Under 8 U.S.C.

§ 1252(e)(2), habeas corpus challenges to such

removal is limited to criteria going to whether a

removal order was wrongly issued (e.g., whether the

person is an alien and was ordered removed, or

whether an INA-recognized exception to removal

exists). Unable to meet those criteria for INAsanctioned habeas review, Thuraissigiam initiated

this habeas action against the Department of

Homeland Security and its constituent agencies and

officials (collectively, the “Government”) to avoid

expedited removal and to seek a “meaningful opportunity” to make his case. With that summary, IRLI

adopts the facts as stated by the Government. See

Gov’t Br. at 3-16.

SUMMARY OF ARGUMENT

Statutory and constitutional subject-matter

jurisdiction are lacking here for several reasons. First,

Shaughnessy v. United States ex rel. Mezei, 345 U.S.

206 (1953), Landon v. Plasencia, 459 U.S. 21 (1982),

and their progeny deny aliens in Thuraissigiam’s

position any rights beyond what the INA provides.

Without an underlying concrete right, Thuraissigiam

lacks not only standing generally (Section I.A.1) but

also procedural standing (Section I.A.2) to pursue his

claims. Second, because recent illegal entrants like

Thuraissigiam can simply leave the United States to

pursue their INA proceedings from abroad, any

detention represents a “self-inflicted injury” chosen by

the alien (i.e., not caused by the Government) (Section

I.A.3). Third, the availability of an adequate remedy

and statutory review means that the Government’s

sovereign immunity bars this litigation; the MezeiPlasencia line of cases already has held that

Thuraissigiam lacks the rights he seeks to assert,

which places his claims outside federal-question

jurisdiction (Section I.B).

With respect to the INA, it is undisputed that the

Government has afforded Thuraissigiam all the rights

that the INA provides (Section II.A). Under the MezeiPlasencia line of cases, for recent illegal entrants, the

process due under the Due Process Clause is whatever

process Congress has provided. Thus, satisfying the

INA automatically also satisfies the Due Process

Clause (Section II.B). Regarding the due-process

merits, challenges that involve neither fundamental

rights nor protected classes fall under the rationalbasis test; that test is met here because the MezeiPlasencia line of cases has already ratified the choices

that Congress has made (Section II.B). Insofar as

Congress has plenary power over immigration and

has sought to avoid providing incentives for illegal

immigration — such as treating illegal entrants

better than lawful entrants — this Court should not

rely on a common law writ to set national immigration

policy, especially where there is no constitutional

violation to warrant the Judiciary’s intervention

(Section II.C).

Habeas corpus, moreover, is a procedural vehicle

to avoid a detention that is unlawful under some other

substantive law; since Thuraissigiam’s claim is not

such a vehicle, his attempt at systemic reform of the

INA is not habeas relief (Section III). Insofar as the

Suspension Clause applies only to the writ of habeas

corpus, Thuraissigiam’s attempt at systemic reform is

not subject to the Clause (Section IV.A). Finally, the

Ninth Circuit’s invocation of Boumediene v. Bush, 553

U.S. 723, 765 (2008), INS v. St. Cyr, 533 U.S. 289, 299300 (2001), and this Court’s “finality-era” immigration

cases to support the Ninth Circuit’s Suspension

Clause analysis is misplaced: (1) Boumediene

involved extraterritorial application of habeas relief to

aliens detained abroad, and relied on a preconstitutional common law writ of habeas corpus that

has no bearing here (Section IV.B.1); (2) St. Cyr

concerned a lawful permanent resident (“LPR”) who

had resided here for more than a decade before his

deportation proceedings, which placed him outside

the Mezei-Plasencia line of cases (i.e., the LPR in St.

Cyr had due-process rights that Thuraissigiam — as

a recent illegal entrant — lacks) (Section IV.B.2); and

(3) while arguably not even applicable to the Suspension Clause, the “finality-era” cases concerned longerterm residents with due-process rights (i.e., like St.

Cyr, the cases are inapposite to recent illegal entrants

like Thuraissigiam) (Section IV.B.3).

ARGUMENT

I. THE LOWER FEDERAL COURTS LACKED

SUBJECT-MATTER JURISDICTION FOR

THIS CASE.

Appellate courts must determine not only their

own appellate jurisdiction, but also the lower courts’

jurisdiction. Steel Co. v. Citizens for a Better

Environment, 523 U.S. 83, 95 (1998). Appellate courts

must do so even if the parties concede jurisdiction:

“Although the parties did not raise the issue in their

briefs on the merits, we must first consider whether

we have jurisdiction to decide this case.” Demore v.

Kim, 538 U.S. 510, 516 (2003) (interior quotation

marks omitted); cf. Kamen v. Kemper Fin. Servs., 500

U.S. 90, 97 n.4 (1991) (jurisdictional arguments are an

exception to rule that courts ordinarily do not consider

issues raised only by an amicus). Jurisdiction poses

several barriers that this Court should resolve before

reaching the merits.

A. Thuraissigiam lacks Article III standing

to challenge detention.

Under Article III, a “bedrock requirement” is that

federal courts are limited to hearing cases and

controversies. U.S. CONST. art. III, § 2; Valley Forge

Christian College v. Americans United for Separation

of Church & State, Inc., 454 U.S. 464, 471 (1982). As

relevant here, courts assess Article III standing under

a tripartite test for an “injury in fact”: judicially

cognizable injury to the plaintiff, causation by the

challenged conduct, and redressability by a court.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62

(1992). Thuraissigiam lacks both a cognizable injury

and causation; given that lack of substantive

standing, he also lacks procedural standing needed to

challenge the INA procedures.

1. Thuraissigiam lacks an injury in fact

because he has no cognizable right.

This Court has made it abundantly clear that

recent illegal entrants like Thuraissigiam have no

right to be in the United States: “an alien seeking

initial admission to the United States requests a

privilege and has no constitutional rights regarding

his application.” Plasencia, 459 U.S. at 32. Excluding

an alien seeking admission is an act of sovereignty. Id.

Accordingly, “[w]hatever 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 (interior

quotation marks omitted). Finally, “detention during

deportation proceedings [is] a constitutionally valid

aspect of the deportation process.” Demore, 538 U.S.

at 523. Quite simply, due-process claims cannot

succeed here because the INA already provides the

process due.

Although INA detainees understandably resent

detention pending completion of their immigration

proceedings, they simply have no right to be in the

United States until those proceedings resolve.

Plasencia, 459 U.S. at 32; Demore, 538 U.S. at 523.

Moreover, detainees can avoid detention by leaving

the United States. See Section I.A.3, infra. A

detainee’s ability to end his or her detention by simply

leaving the United States distinguishes detainees

from dissimilarly situated citizens and long-term

residents in civil and criminal detentions. As this

Court has explained, “in the exercise of its broad

power over immigration and naturalization, Congress

regularly makes rules that would be unacceptable if

applied to citizens.” Reno v. Flores, 507 U.S. 292, 30506 (1993) (interior quotation marks omitted); Johnson

v. Eisentrager, 339 U.S. 763, 771 (1950) (“in extending

constitutional protections beyond the citizenry, the

Court has been at pains to point out that it was the

alien’s presence within its territorial jurisdiction that

gave the Judiciary power to act”).

2. Without an underlying substantive

right, Thuraissigiam suffers no

procedural injury.

As shown in Section I.A.1, supra, Thuraissigiam

lacks an independent right to be in the United States

while his INA proceedings resolve. Attempting to

sidestep the Government’s plenary authority over

admission, he attempts to challenge INA procedures.

Because Thuraissigiam lacks a substantive right to be

in the United States, however, he lacks procedural

rights to challenge the procedures under which the

Government proceeds.

Under Article III, Thuraissigiam cannot have a

procedural due-process right without having an

underlying substantive right first: “the procedures in

question [must be] designed to protect some

threatened concrete interest of his that is the ultimate

basis of his standing,” and which is “apart from his

interest in having the procedure observed.” Defenders

of Wildlife, 504 U.S. at 573 n.8; Summers v. Earth

Island Inst., 555 U.S. 488, 496 (2009) (“deprivation of

a procedural right without some concrete interest that

is affected by the deprivation — a procedural right in

vacuo — is insufficient to create Article III standing”);

cf. Christopher v. Harbury, 536 U.S. 403, 414-15

(2002) (denial-of-access rights are “ancillary to the

underlying claim, without which a plaintiff cannot

have suffered injury by being shut out of court”). The

Due Process Clause does not afford Thuraissigiam the

right to be released into the United States pending

resolution of his immigration proceedings. Plasencia,

459 U.S. at 32; Mezei, 345 U.S. at 212; Demore, 538

U.S. at 523 (“detention during deportation proceedings [is] a constitutionally valid aspect of the

deportation process”). He lacks a procedural right to

challenge the INA process because he lacks a concrete

right to be released into the United States pending the

end of his INA removal procedures.

3. Detention and other restrictions are

self-inflicted injuries, and thus raise

no Article III case or controversy.

Detention while a detainee tries to gain entry to

or avoid removal from the United States is a part of

the entry and removal process. Each detainee is free

to pursue that legal issue — entry or removal — from

abroad. The only thing that keeps such detainees in

detention is their own decision to remain here while

the process resolves. Thus, immigration detainees like

Thuraissigiam cannot analogize their circumstances

to compelled detention in the criminal or civil contexts

for residents. Unlike compelled resident detainees,

immigration detainees like Thuraissigiam “carry the

keys of their prison in their own pockets.” Penfield Co.

v. SEC, 330 U.S. 585, 590 (1947) (interior quotation

marks omitted). A detainee’s ability to escape

detention by simply leaving the United States

undermines any liberty claim in two respects, one

going to the equities and the other to jurisdiction.

First, because such detainees choose detention

over the other perfectly viable and lawful choice —

leaving the United States — they cannot credibly ask

a court to compare them to lawful residents facing

compelled civil or criminal detention. Since no one is

keeping them here, they cannot challenge the

legislative grace that allows them to stay at the

taxpayers’ expense. It does not matter whether

detainees knew the law prior to coming here: “We

have long recognized … that ignorance of the law will

not excuse any person, either civilly or criminally.”

Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich,

L.P.A., 559 U.S. 573, 581 (2010) (interior quotation

marks omitted).

Second, under standing’s causation requirement,

a “self-inflicted injury” cannot manufacture an Article

III case or controversy. Clapper v. Amnesty Int’l USA,

568 U.S. 398, 418 (2013); Pennsylvania v. New Jersey,

426 U.S. 660, 664 (1976). Amicus IRLI does not

dispute that the detainees may have an Article III

case or controversy with the United States on whether

the detainees qualify to enter the United States, but

“standing is not dispensed in gross.” Lewis v. Casey,

518 U.S. 343, 358 n.6 (1996); DaimlerChrysler Corp.

v. Cuno, 547 U.S. 332, 353 & n.5 (2006). A detainee

cannot bootstrap a Due Process claim to release into

the United States when their actual case involves only

an immigration claim on whether they can enter or

remain in the United States. Until their immigration

claims resolve, such detainees must choose between

detention and leaving. The choice they make does not

entitle them to raise new claims, premised only on

their own choice.

Simply put, these aliens have no right to remain

in or be at large in the United States, Plasencia, 459

U.S. at 32, and they cannot manufacture that right by

coming here illegally and then protesting the terms of

being here. Clapper, 133 S.Ct. at 1152-53. Having the

right to an INA determination of admissibility or

removability does not create the right to reside at

large here while the system resolves the INA issue. If

an alien wants the certainty of avoiding detention

while immigration proceedings resolve, the alien must

apply for admission or non-removability from abroad.

B. The lower federal courts lack statutory

and constitutional subject-matter

jurisdiction.

In addition to lacking Article III jurisdiction, see

Section I.A supra, Thuraissigiam also asserts claims

outside the lower federal courts’ constitutional and

statutory subject-matter jurisdiction.

First, as a sovereign, the Government is immune

from suit except to the extent that it consents to suit.

Although the Administrative Procedure Act (“APA”)

waives sovereign immunity for prospective injunctive

or declaratory relief, 5 U.S.C. § 702, that waiver comes

with limitations: (1) except where judicial review is

expressly provided, APA review is not available if the

plaintiff has an adequate remedy, id. § 704; and (2) if

the underlying statute precludes review or provides a

statutory review procedure, nonstatutory review like

the APA does not apply. Compare id. §§ 702, 701(a)(1)

with 8 U.S.C. § 1252(e)(2). Here, the INA’s statutory10

review and preclusion-of-review provisions block the

APA’s waiver of sovereign immunity.2

Second, federal-question jurisdiction is lacking

here because Thuraissigiam asked the lower courts to

address a settled question. When this Court has

answered a question, that question ceases to present

a federal question for jurisdictional purposes: “federal

courts are without power to entertain claims

otherwise within their jurisdiction if they are so

attenuated and unsubstantial as to be absolutely

devoid of merit,” where a claim is “plainly

unsubstantial … [when] its unsoundness so clearly

results from the previous decisions of this court as to

foreclose the subject and leave no room for the

inference that the question sought to be raised can be

the subject of controversy.” Hagans v. Lavine, 415

U.S. 528, 537 (1974) (interior quotations omitted);

Goosby v. Osser, 409 U.S. 512, 518 (1973). This Court

has long held that recent illegal entrants like

Thuraissigiam have no constitutional rights at issue

here, see Section I.A.1, supra, which forecloses

federal-question jurisdiction altogether.

In Rasul v. Bush, 542 U.S. 466, 482-84 (2004), this

Court found jurisdiction over custodians of detainees

because of ongoing violations of federal law, but that

does not provide universal federal question jurisdiction in all habeas actions. See id. at 505 n.6 (Scalia,

J., dissenting) (disputing jurisdiction in Rasul);

The “officer suit” exception in Ex parte Young, 209 U.S. 123

(1908), provides a limited exception to sovereign immunity, but

only for ongoing violations of federal law. Green v. Mansour, 474

U.S. 64, 66-67 (1985). As explained, there is no ongoing violation

of federal law here. See Sections II-IV, infra.

Lehman v. Lycoming Cty. Children’s Servs. Agency,

458 U.S. 502, 519 n.4 (1982) (Blackmun, J., dissenting) (collecting habeas actions dismissed for lack of

federal-question jurisdiction). As indicated above,

there is neither a federal question nor a federal

violation here under this Court’s precedents.

II. THURAISSIGIAM LACKS RIGHTS UNDER

THE INA OR THE DUE PROCESS CLAUSE.

Before addressing the writ of habeas corpus and

the Suspension Clause, see Sections III-IV, infra, IRLI

first establishes that the proceedings here did not

violate any of Thuraissigiam’s rights under the INA

or Due Process Clause.

A. Thuraissigiam received the three tiers

of review to which the INA entitles him.

There is no dispute that the Government provided

Thuraissigiam the three tiers of review that the INA

provides. Thus, the Government has not violated the

INA.

B. Illegal entrants like Thuraissigiam have

no due-process rights beyond the INA

rights Congress provided them.

Recent illegal entrants like Thuraissigiam have

no due-process rights. INA detainees understandably

prefer release to detention while immigration

proceedings remain pending, but they simply have no

right to be in the United States until the proceeding

resolves. See Section I.A.1, supra. Indeed, “[w]hatever

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 (interior quotation marks

omitted). If the Government complies with INA — and

that is conceded — the Government has satisfied the

Due Process Clause.

Under Mezei, detainees do not suffer injury to a

liberty interest because they lack a Due Process

liberty interest. But even if detainees had a cognizable

liberty interest, restricting that interest would not

necessarily violate Due Process. If injuries implicate

neither fundamental rights nor protected classes, dueprocess analysis proceeds under the rational-basis

test. F.C.C. v. Beach Communications, Inc., 508 U.S.

307, 313 (1993). Under that test, detention does not

violate a constitutional command or entitlement:

“when the Government deals with deportable aliens,

the Due Process Clause does not require it to employ

the least burdensome means to accomplish its goal.”

Demore, 538 U.S. at 528. While good policy arguments

may support programs like supervised release for

some detainees, those policy arguments do not suffice

for rational-basis review.

Under the rational-basis test, “a legislative choice

is not subject to courtroom fact-finding and may be

based on rational speculation unsupported by

evidence or empirical data,” Beach Communications,

508 U.S. at 315. Consequently, rational-basis

petitioners must “negative every conceivable basis

which might support [the challenged statute],”

including those bases on which the Government

plausibly may have acted. Lehnhausen v. Lake Shore

Auto Parts Co., 410 U.S. 356, 364 (1973) (internal

quotations omitted). Such petitioners cannot prevail

even by marshaling “impressive supporting evidence

… [on] the probable consequences of the [statute]” visà-vis the legislative purpose, but must instead negate

“the theoretical connection” between the two.

Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456,

463-64 (1981) (emphasis in original). For example, the

Government may have believed that supervised

release would act as a magnet for further illegal

immigration (i.e., the policy would equate to a

billboard reading “come to the United States illegally

and get released”). Contrary to the message such a

policy would send, “[i]t is a compelling government

interest to remove the incentive for illegal

immigration provided by the availability of public

benefits.” 8 U.S.C. § 1601(6). And that possible

rationale alone suffices to rebut arguments against

detention.

C. Federal courts should not create

perverse incentives to treat illegal

entrants better than aliens who lawfully

seek admission.

Even if this Court finds that the lower courts had

jurisdiction, this Court should reject the attempt to

set national immigration policy by common-law writs.

Amicus IRLI respectfully submits that there is too

thin a reed of potential constitutional violation at

issue here for this Court to trench the plenary power

of Congress over immigration.

As the Government explains, Congress adopted

the expedited removal provisions in 1996 to avoid the

perverse incentives of treating illegal border crossers

better than aliens who entered at ports of entry under

the applicable INA requirements. See Gov’t Br. at 4-5.

It would provide just such perverse incentives to cross

the border illegally for this Court to give recent illegal

entrants like Thuraissigiam a more robust form of

judicial review than that available to lawful entrants.

In Boumediene, this Court found that a commonlaw right to habeas corpus in favor of aliens abroad

may have antedated ratification of the Constitution.

553 U.S. at 765. While both novel and sui generis, that

does not dispute that the concept of sovereignty also

antedates the Constitution. Alden v. Maine, 527 U.S.

706, 728-29 (1999). As sovereign with plenary control

over immigration, Plasencia, 459 U.S. at 32

(controlling immigration an act of sovereignty); U.S.

CONST. art. I, § 8, cl. 4, Congress had the power to

enact the INA process that Thuraissigiam challenges:

“Power to regulate immigration is unquestionably

exclusively a federal power.” DeCanas v. Bica, 424

U.S. 351, 354 (1976). Insofar as the Mezei-Plasencia

line of cases has long held that due process for recent

illegal entrants is whatever Congress has provided,

there is little basis for this Court to contemplate

overruling Congress on the record here.

III. THURAISSIGIAM IS NOT ASSERTING

HABEAS RIGHTS

Leaving aside unusual extraterritorial cases like

Boumediene, where the Court’s majority hypothesized

that a common law right to habeas corpus for aliens

abroad that may have predated ratification of the

Constitution, habeas is a due-process procedural

device to prevent detention in violation of other

substantive laws. Here, the relevant substantive laws

are the INA and the Due Process Clause, and the

Government has not violated either of them. See

Sections II.A-II.B, supra. Habeas seeks release, not

systemic review.

Habeas petitioners cannot cherrypick their rights:

“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 (interior quotation

marks omitted). As this Court recognized, Congress

found that “‘aliens who enter or remain in the United

States in violation of our law are effectively taking

immigration opportunities that might otherwise be

extended to others.’” Demore, 538 U.S. at 518 (quoting

S. REP. NO. 104-249, at 7 (1996)). As a sovereign with

plenary control over immigration, Plasencia, 459 U.S.

at 32; DeCanas, 424 U.S. at 354, Congress had every

right to remove recent illegal entrants — subject to

the INA protections such as credible fear of torture

and asylum — via the expedited removal provisions at

issue here. By contrast, Thuraissigiam does not have

every right to challenge the INA procedures.

First, to the extent that Thuraissigiam challenges

INA procedures and not detention, he seeks judicial

review of the INA, not habeas relief. The INA provides

procedures for systemic judicial review, see 8 U.S.C.

§ 1252(e)(3), but Thuraissigiam has not followed those

procedures.

Second, the writ of habeas corpus has never been

held to promise more than due process, and the INA

provisions at issue here are due process. See Section

II.B, supra. The argument that the INA violates the

Suspension Clause by denying habeas relief is a non

sequitur, given that to the INA per se qualifies as due

process under the Mezei-Plasencia line of cases.

Thuraissigiam cannot take the right to be here —

detained, unless released by discretion, and subject to

INA removal — and then pare away detention or

removal via habeas or other systemic challenges to the

INA. The rights Congress afforded him are the rights

that he gets. And the Government has not violated

those rights.

IV. THURAISSIGIAM LACKS RIGHTS UNDER

THE SUSPENSION CLAUSE.

The Ninth Circuit attempts to avoid the obvious

result that Thuraissigiam did not suffer the violation

of any INA, due-process, or habeas rights, see Sections

I-III, supra, by pressing this Court’s decisions under

the Suspension Clause. Pet. App. 31a-41a. That

Clause offers Thuraissigiam no help beyond the writ

of habeas corpus, which — as indicated — offers no

help.

A. The Suspension Clause does not extend

beyond habeas corpus.

With exceptions not relevant here, the Suspension

Clause prevents suspending the writ of habeas corpus:

The Privilege of the Writ of Habeas Corpus

shall not be suspended, unless when in

Cases of Rebellion or Invasion the public

Safety may require it.

U.S. CONST. art. I, § 9, cl. 2. By its terms, the Clause

extends only to habeas corpus, not to other rights. And

this Court has never expanded the Clause to extend

to other rights. Under the circumstances, the fact that

Thuraissigiam does not seek a writ of habeas corpus,

see Section III, supra, is dispositive of the Suspension

Clause issue: Thuraissigiam has no rights under the

Clause, and the INA neither facially nor as applied

violates the Suspension Clause here.

B. The Ninth Circuit’s arguments under

the Suspension Clause lack merit.

Rather than follow the Mezei-Plasencia line of

cases to hold that recent illegal entrants like

Thuraissigiam lack due-process rights under the

Constitution beyond the rights that Congress has

afforded them, the Ninth Circuit built its Suspension

Clause argument on an amalgam of reasoning from

Boumediene, St. Cyr, and some “finality-era”

decisions. In doing so, the Ninth Circuit failed to

follow this Court’s binding applicable precedents

under the Mezei-Plasencia line of cases.

1. The Boumediene decision provides

no support for Thuraissigiam.

With respect to the Suspension Clause, the

Boumediene majority found the historical reach of the

common law writ of habeas corpus uncertain vis-à-vis

aliens abroad and gave the aliens the benefit of the

doubt as to whether the challenged statute suspended

the writ of habeas corpus for enemy combatants

imprisoned abroad. 553 U.S. at 765. That geographic

extension has no bearing to illegal aliens apprehended

within the United States.

Right or wrong, Boumediene merely extended the

scope of U.S. sovereignty from “formal” sovereignty

over U.S. territory also to include “de facto”

sovereignty over a military base in Cuba for which the

United States has permanent “complete jurisdiction

and control” under a lease, even though Cuba retained

“ultimate sovereignty.” 553 U.S. at 753. In doing so,

this Court did not extend that novel concept to a

military prison abroad where the United States

lacked “absolute” control because it held the prison

“under the jurisdiction of the combined Allied Forces.”

553 U.S. at 768 (citing Eisentrager and Hirota v.

MacArthur, 338 U.S. 197, 198 (1948)); see also id. at

754, 765 (U.S. had “plenary control” over Guantanamo

Bay); id. at 771 (“complete and total control”). As

interesting as the Boumediene discussion of a preConstitution, common-law writ of habeas corpus for

aliens abroad might be, it does not apply here unless

the Court wants to conclude that all aliens like

Thuraissigiam have habeas corpus rights before they

cross our border illegally.

For citizens and aliens detained within the United

States, the writ of habeas corpus is well understood

and, on the facts here, inapplicable. See Section II,

supra. Boumediene has no bearing here.

2. The St. Cyr decision provides no

support for Thuraissigiam.

Similarly, St. Cyr is inapposite because it involved

a habeas petition by an LPR who became deportable

by pleading guilty to a crime that appeared to justify

revoking LPR status, with no possibility for a form of

discretionary relief terminated by the then-recent

INA amendments. The substantive legal issue in St.

Cyr concerned the retroactivity of the INA

amendment to convictions — like St. Cyr’s — that

occurred before the INA amendment.

In recognizing that a decade-plus LPR had liberty

interests under the Constitution that support habeas

corpus, this Court did not sub silentio create similar

rights in illegal entrants, especially ones like

Thuraissigiam, who was apprehended moments after

crossing the border illegally. A future case may give

this Court the opportunity to draw a line between St.

Cyr’s decade-plus lawful stay and Thuraissigiam’s

momentary unlawful presence here, cf. 8 U.S.C.

§ 1225(b)(1)(A)(iii) (suggesting a line at two years),

but this is not that case.

Like Congress, this Court “does not alter the

fundamental details of [the constitutional] scheme in

vague terms or ancillary provisions — it does not …

hide elephants in mouseholes.” Whitman v. Am.

Trucking Ass’ns, 531 U.S. 457, 468 (2001). While LPRs

have constitutional liberty interests, illegal entrants

like Thuraissigiam do not. The Ninth Circuit erred in

supplanting the Mezei-Plasencia line of cases relevant

to recent illegal entrants like Thuraissigiam with the

St. Cyr authority relevant to LPRs:

“[I]f a precedent of this Court has direct

application in a case, yet appears to rest on

reasons rejected in some other line of

decisions, the Court of Appeals should

follow the case which directly controls,

leaving to this Court the prerogative of

overruling its own decisions.”

Agostini v. Felton, 521 U.S. 203, 237 (1997) (quoting

Rodriguez de Quijas v. Shearson/American Express,

Inc., 490 U.S. 477, 484 (1989)). As relied on by the

Ninth Circuit, St. Cyr is inapposite here.3

St. Cyr is further inapposite because Congress responded by

amending 8 U.S.C. § 1252(g) in the REAL ID Act of 2005, PUB.

L. NO. 109-13, Tit. I, Div. B, § 106(a)(3), 119 Stat. 231, 311, to bar

resort to the habeas statute, as well as to all other non-INA forms

of statutory and nonstatutory review. Compare id. with 8 U.S.C.

§ 1252(g).

3. The “finality-era” decisions provide

no support for Thuraissigiam.

As the Government explains, the “finality-era”

cases on which the Ninth Circuit relied do not address

the Suspension Clause, and the Ninth Circuit relied

instead on a chain of inferences to find those cases

relevant. See Gov’t Br. at 38-40. Like St. Cyr, however,

those cases do not address recent illegal entrants like

Thuraissigiam who lack due-process rights beyond

the rights that Congress provided. Therefore, as with

St. Cyr, see Section IV.B.2, supra, the Ninth Circuit

should have followed the Mezei-Plasencia line of cases

relevant to recent illegal entrants like Thuraissigiam.

See Agostini, 521 U.S. at 237. The Ninth Circuit’s

failure to do so was error, and this case presents no

circumstance for this Court to reconsider the MezeiPlasencia line of cases.

CONCLUSION

The judgment of the Court of Appeals should be

reversed.

December 16, 2019

Respectfully submitted,