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

No. 19-161

IN THE

Supreme Court of the United States

d

DEPARTMENT OF HOMELAND SECURITY, et al.,

Petitioners,

—v.—

VIJAYAKUMAR THURAISSIGIAM ,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR RESPONDENT

Cody Wofsy

Stephen B. Kang

Adrienne Harrold

Morgan Russell

Cecillia D. Wang

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

39 Drumm Street

San Francisco, CA 94111

Lucas Guttentag

559 Nathan Abbott Way

Stanford, CA 94305

David Loy

Sarah Thompson

ACLU FOUNDATION OF SAN

DIEGO & IMPERIAL COUNTIES

P.O. Box 87131

San Diego, CA 92138-7131

Lee Gelernt

Counsel of Record

Omar C. Jadwat

Jonathan Hafetz

Anand V. Balakrishnan

Celso J. Perez

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

(212) 549-2500

lgelernt@aclu.org

David D. Cole

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, NW

Washington, DC 20005

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

INTRODUCTION ....................................................... 1

STATEMENT .............................................................. 4

SUMMARY OF ARGUMENT .................................... 9

ARGUMENT ............................................................. 11

I.

II.

THE SUSPENSION CLAUSE REQUIRES

REVIEW OF MR. THURAISSIGIAM’S

REMOVAL ........................................................ 11

A.

The Finality-Era Cases Demonstrate

That The Suspension Clause Guarantees

Judicial Review Of The Legality Of Mr.

Thuraissigiam’s Removal Order .............. 11

B.

The Court’s Decisions In St. Cyr And

Boumediene Confirm That The Suspension

Clause Guarantees Review Of The

Legality Of Mr. Thuraissigiam’s

Removal Order ......................................... 23

C.

The Common Law Reinforces That The

Suspension Clause Guarantees Habeas

Here .......................................................... 25

THE SUSPENSION CLAUSE DOES NOT

HINGE ON DUE PROCESS RIGHTS AND,

IN ANY EVENT, MR. THURAISSIGIAM IS

ENTITLED TO PROCEDURAL DUE

PROCESS REGARDING HIS REMOVAL. ..... 33

A.

The Suspension Clause Does Not Hinge

On Due Process Rights ............................ 33

i

B.

In Any Event, Mr. Thuraissigiam Is

Entitled To Procedural Due Process In

Contesting His Removal .......................... 38

III. THE STATUTE’S SCOPE OF REVIEW DOES

NOT PROVIDE AN ADEQUATE SUBSTITUTE

FOR HABEAS UNDER THE SUSPENSION

CLAUSE. .......................................................... 45

CONCLUSION.......................................................... 52

ii

TABLE OF AUTHORITIES

CASES

Balasubramanrim v. INS,

143 F.3d 157 (3d Cir. 1998) .................................... 7

Boumediene v. Bush, 553 U.S. 723 (2008) ........ passim

Bridges v. Wixon, 326 U.S. 135 (1945) ..................... 50

Carlson v. Landon, 342 U.S. 524 (1952) .................. 16

Castro v. U.S. Dep’t of Homeland Sec.,

835 F.3d 422 (3d Cir. 2016) .................................. 37

Chin Yow v. United States,

208 U.S. 8 (1908)....................................... 25, 26, 30

Delgadillo v. Carmichael, 332 U.S. 388 (1947) ........ 50

Ex parte Watkins, 28 U.S. 193 (1830) ...................... 34

Fay v. Noia, 372 U.S. 391 (1963) .............................. 36

Felker v. Turpin, 518 U.S. 651 (1996) ...................... 25

Gaksakuman v. U.S. Att’y Gen.,

767 F.3d 1164 (11th Cir. 2014) .............................. 5

Gegiow v. Uhl, 239 U.S. 3 (1915)............ 15, 21, 22, 24

Gonzales v. Williams, 192 U.S. 1 (1904) .................. 15

Hansen v. Haff, 291 U.S. 559 (1934) ........................ 50

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

In re Neagle, 135 U.S. 1 (1890) ................................. 20

INS v. Chadha, 462 U.S. 919 (1983) .................. 35, 48

INS v. St. Cyr, 533 U.S. 289 (2001)................... passim

Jones v. Cunningham, 371 U.S. 236 (1963) ............. 27

Kanaszczyc v. Mathews,

30 F.2d 573 (6th Cir. 1929) .................................. 16

iii

Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) .. 43

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

MacKusick v. Johnson, 3 F.2d 398 (1st Cir. 1924) .. 16

Mahler v. Eby, 264 U.S. 32 (1924)...................... 30, 50

Martinez v. Neelly, 344 U.S. 916 (1953) ................... 17

Mathews v. Diaz, 426 U.S. 67 (1976) ....................... 40

Moncrieffe v. Holder, 569 U.S. 184 (2013) ......... 23, 43

Munaf v. Geren, 553 U.S. 674 (2008) ....................... 32

Nishimura Ekiu v. United States,

142 U.S. 651 (1892)........................................ passim

Nken v. Holder, 556 U.S. 418 (2009) ........................ 49

Omar v. McHugh,

646 F.3d 13 (D.C. Cir. 2011) ........................... 32, 33

R. v. Clarkson, 93 Eng. Rep. 625 (K.B. 1722) .......... 27

R. v. Nathan, 93 Eng. Rep. 914 (K.B. 1724) ............ 30

R. v. Thames Ditton, (K.B. 1785), reprinted in 2

Francis Const, Laws Relating to the Poor 331 (3d

ed. 1793) ................................................................ 31

Rowoldt v. Perfetto, 355 U.S. 115 (1957) .................. 50

Shaughnessy v. United States ex rel. Mezei,

345 U.S. 206 (1953)........................................ passim

Shelby County v. Holder, 570 U.S. 529 (2013) ......... 24

Somerset’s Case, 98 Eng. Rep. 499 (K.B. 1772) . 27, 31

Stern v. Marshall, 564 U.S. 462 (2011) .................... 48

Tod v. Waldman, 266 U.S. 113 (1924) ..................... 30

United States ex rel. Polymeris v. Trudell,

284 U.S. 279 (1932)............................................... 15

iv

United States ex rel. Accardi v. Shaughnessy,

347 U.S. 260 (1954)................................... 16, 20, 24

United States ex rel. Johnson v. Shaughnessy,

336 U.S. 806 (1949)......................................... 15, 50

United States ex rel. Knauff v. Shaughnessy,

338 U.S. 537 (1950)........................................ passim

United States v. Jung Ah Lung,

124 U.S. 621 (1888)......................................... 12, 25

United States v. Martinez-Fuerte,

428 U.S. 543 (1976)............................................... 41

United States v. Vanbiervliet,

284 U.S. 590 (1931)............................................... 16

United States v. Verdugo-Urquidez,

494 U.S. 259 (1990)............................................... 44

Vartelas v. Holder, 566 U.S. 257 (2012) ................... 42

Yamataya v. Fisher, 189 U.S. 86 (1903)................... 39

Yee Won v. White, 256 U.S. 399 (1921)..................... 15

Zadvydas v. Davis, 533 U.S. 678 (2001) ............ 38, 40

Zakonaite v. Wolf, 226 U.S. 272 (1912) .................... 16

CONSTITUTION & STATUTES

U.S. Const. amend. V ......................................... passim

U.S. Const. art. I, § 9 ......................................... passim

8 U.S.C. § 1101(a)(42)(A) ............................................ 6

8 U.S.C. § 1158(a)(1) ................................................. 43

8 U.S.C. § 1225(b)(1)(B) .............................................. 4

8 U.S.C. § 1225(b)(1)(B)(ii) ......................................... 4

8 U.S.C. § 1225(b)(1)(B)(iii)(III).................................. 4

v

8 U.S.C. § 1225(b)(1)(B)(v) .......................................... 4

8 U.S.C. § 1231(b)(3) ................................................... 6

8 U.S.C. § 1252(e)(2) ............................................... 2, 4

8 U.S.C. § 1252(e)(3) ................................................... 4

8 U.S.C. § 1225(b)(1)(B)(v) .......................................... 7

8 U.S.C. § 1225(b)(1)(E)(i) .......................................... 7

Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084 ........ 13, 17

Act of Aug. 18, 1894, ch. 301, 28 Stat. 252 .............. 13

Immigration Act of 1907, ch. 1134, 34 Stat. 898 ..... 13

Immigration Act of 1917, ch. 29, 39 Stat. 874 ......... 13

Habeas Corpus Act of Feb. 5, 1867, ch. 28,

14 Stat. 385 ........................................................... 20

LEGISLATIVE HISTORY

H.R. Rep. No. 51-3807 (1891) ................................... 12

Select Comm. on Immigration & Naturalization,

Chinese Immigration, H.R. Rep. No. 51-4048

(1891)............................................................... 12, 13

REGULATIONS

8 C.F.R. § 208.30(d) .................................................... 7

8 C.F.R. § 208.30(d)(2) ................................................ 5

8 C.F.R. § 208.30(d)(4) ................................................ 4

8 C.F.R. § 208.30(d)(5) ................................................ 5

8 C.F.R. § 208.30(f) ................................................... 23

OTHER AUTHORITIES

3 William Blackstone, Commentaries on the Laws of

England (1st ed. 1768) .......................................... 27

vi

Gerald L. Neuman, Habeas Corpus, Executive

Detention, and the Removal of Aliens,

98 Colum. L. Rev. 961 (1998) ................... 20, 28, 36

John Baker, An Introduction to English Legal

History (5th ed. 2019) ........................................... 27

Lucy Salyer, Laws as Harsh as Tigers (2000) ... 12, 13

Paul D. Halliday & G. Edward White, The

Suspension Clause: English Text, Imperial

Contexts, and American Implications,

94 Va. L. Rev. 575 (2008) ..................................... 34

Paul D. Halliday, Habeas Corpus: From England to

Empire (2010) ........................................... 26, 27, 28

Sri Lanka’s Sinister White Van Abductions,

BBC (March 14, 2012), bbc.com/news/world-asia17356575 ................................................................. 5

Tr. Oral Arg., Clark v. Martinez, 543 U.S. 371 (2005)

(Nos. 03-878, 03-7434), 2004 WL 2396844 .......... 39

U.N. High Commissioner for Refugees, UNHCR

Eligibility Guidelines for Assessing the

International Protection Needs of Asylum-Seekers

from Sri Lanka, U.N. Doc. HCR/EG/LKA/12/04

(Dec. 21, 2012) ........................................................ 5

U.S. Br., Kwong Hai Chew v. Colding, 344 U.S. 590

(1953) (No. 52-17), 1952 WL 82372 ...................... 39

U.S. Br., Martinez v. Neelly, 344 U.S. 916 (1953)

(No. 52-218), 1952 WL 82610 ............. 17, 18, 19, 22

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

(No. 52-426), 1953 WL 78378 ............................... 17

U.S. Br., Boumediene v. Bush, 553 U.S. 723 (2008)

(Nos. 06-1195, 06-1196), 2007 WL 2972541 ........ 30

vii

U.S. Comm’n on Int’l Religious Freedom, Barriers to

Protection: The Treatment of Asylum Seekers in

Expedited Removal (2016) ...................................... 6

U.S. Reply Br., Clark v. Martinez, 543 U.S. 371

(2005) (Nos. 03-878, 03-7434), 2004 WL

2006590 ................................................................. 39

U.S. Supp. Br., Boumediene v. Bush, 553 U.S. 723

(2008) (Nos. 06-1195, 06-1196), 2008 WL

877874 ................................................................... 30

viii

INTRODUCTION

For as long as Congress has regulated

immigration, this Court has recognized that

deportation involves a restraint on liberty triggering

habeas corpus. The Court accordingly has never

permitted a noncitizen’s expulsion without affording

the opportunity for judicial review over legal and

constitutional claims. The Court’s fidelity to habeas

corpus in the immigration context was starkly tested

during the 60-year “finality era” when Congress

insulated removal orders from all judicial scrutiny

and left courts with only that review “required by the

Constitution.” Heikkila v. Barber, 345 U.S. 229, 235

(1953). If the government is correct that the

Suspension Clause does not guarantee habeas review

of deportation at all, then none of the review during

the “finality era” could have occurred. Yet this Court

consistently reviewed the legality of removal orders –

including on behalf of noncitizens who entered

unlawfully or were denied initial entry at a port. As

the Court explained, “an alien immigrant, prevented

from landing . . . and thereby restrained of his liberty,

is doubtless entitled to a writ of habeas corpus to

ascertain whether the restraint is lawful.”

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

(1892) (emphasis added). Notably, and contrary to its

current

position,

the

government

itself

contemporaneously asserted during the finality era

that the courts’ review was limited to that required

by the Constitution. More recently, in INS v. St. Cyr,

533 U.S. 289, 300 (2001), this Court invoked the

finality-era cases in reiterating that the Suspension

Clause “unquestionably” guarantees habeas review

of deportation orders. The finality-era cases squarely

answer the question in this case.

1

Respondent, Vijayakumar Thuraissigiam,

asserts the same type of claims reviewed during the

finality era: violations of statutes, regulations, and

due process. Yet 8 U.S.C. § 1252(e)(2), the statute

governing jurisdiction here, precludes all such

review, even to ensure that the minimal, but critical,

statutory and regulatory procedures are followed. A

court is powerless to intervene even if, for instance,

asylum officers refused to conduct an interview

altogether or to provide translation to non-English

speakers, placed an unaccompanied minor into

expedited removal in violation of the statute, or

based their decisions on race or religion. The statute

thus fails to provide even that level of review

available in Boumediene v. Bush, where a “court”

could at least review “whether [the] procedures were

followed in a particular case.” 553 U.S. 723, 811

(2008) (Roberts, C.J., dissenting); see id. at 779

(majority opinion) (holding that Suspension Clause

requires review of the “‘application or interpretation’

of relevant law”) (quoting St. Cyr, 533 U.S. at 302).

The government’s new theory that deportation

does not constitute the type of restraint triggering

habeas corpus is at odds with unbroken case law

from this Court, as well as common-law courts that

issued the writ to prevent all forms of restraint,

including transfers out of the realm. If accepted, it

would mean that no noncitizen – even a legal

permanent resident – could ever invoke the Clause to

prevent an illegal deportation. The government’s

alternative argument – that Mr. Thuraissigiam

cannot invoke the Suspension Clause because he

lacks due process rights to challenge his removal –

would mean that asylum seekers and millions of

other noncitizens could be summarily removed

2

without any process, judicial or administrative. It is

also doubly wrong. The habeas protection enshrined

in the Constitution is not solely about the

individual’s rights, but about preserving the rule of

law by forbidding the Legislature and Executive from

restraining liberty without judicial examination. This

Court has thus repeatedly made clear that the

structural guarantee of habeas corpus is entirely

distinct from whether due process applies and that

courts must be able to ensure compliance with the

governing statutes and regulations even when

individuals lack procedural due process rights. In

any event, Mr. Thuraissigiam, as a “person” who

entered the country and was apprehended inside our

borders, has procedural due process rights under

established doctrine.

Migration has ebbed and flowed throughout

the country’s history. Vociferous objections to judicial

review as an inconvenient obstacle to immigration

enforcement led to the finality-era restrictions. Yet

even at the height of that effort to stem immigration,

this Court never wavered in preserving habeas.

Congress has broad substantive latitude over the

terms of immigration, but it cannot eliminate habeas

review over legal claims challenging removal and

oust federal courts from their historic role in our

constitutional architecture. Otherwise, people’s

liberty and lives – including those fleeing persecution

– would hinge on the unreviewable decisions of

administrative officers.

3

STATEMENT

A.

The Expedited Removal System

Under the summary “expedited removal”

process (recently expanded to noncitizens detained

within two years of unlawfully entering, see Pet. Br.

6 n.2), noncitizens expressing a fear of return are

statutorily entitled to a brief “credible fear interview”

with an asylum officer, 8 U.S.C. § 1225(b)(1)(B).

Meaningful participation by counsel is rare and

subject to agency discretion. 8 C.F.R. § 208.30(d)(4).

The interview’s purpose is to determine whether the

applicant has a “significant possibility” of satisfying

the ultimate “well-founded fear” asylum standard.

8 U.S.C. § 1225(b)(1)(B)(ii), (v). Applicants who

satisfy the credible fear standard are entitled to a

full asylum hearing.

Applicants who do not pass the screening

interview may request immigration judge review.

8 U.S.C. § 1225(b)(1)(B)(iii)(III). Such reviews are

brief, however, and attorneys are not permitted to

assist applicants. Under 8 U.S.C. § 1252(e)(2),

judicial review is available by habeas in district

court, but petitioners are allowed to assert only

claims of mistaken identity or that they had

previously been granted a specific category of lawful

status.1

A different provision allows review of “written” expedited

removal statutes, regulations, and policies, within 60 days of

their “implementation.” 8 U.S.C. § 1252(e)(3). It is thus

inapplicable here.

1

4

B.

Factual Background And Administrative

Proceedings

1. Mr. Thuraissigiam, a Sri Lankan Tamil,

was denied asylum after an interview that violated

the requirements imposed by statute, regulations,

and due process. The record indicates that Mr.

Thuraissigiam failed to fully understand the

proceedings. See, e.g., J.A. 66 (Q: “How long were you

[in India]?” A: “41 years [Respondent’s age]”); J.A. 64

(Q: “Do you have any question about the purpose of

today’s interview?” A: “Yes.” Q: “What is your

question?” A: “Yes, I understand.”); see also 8 C.F.R.

§ 208.30(d)(2), (5) (mandating interpretation).

The Sri Lankan government has engaged in a

long, vicious campaign of abduction and torture

against Tamils. J.A. 24-25 ¶ 46 (collecting reports).

In particular, there is a well-documented pattern of

Sri Lankan security forces kidnapping Tamils in

white vans, blindfolding them, and torturing them –

widely known as the “white van” abductions. J.A. 25

¶ 47; see, e.g., U.N. High Commissioner for Refugees,

UNHCR Eligibility Guidelines for Assessing the

International Protection Needs of Asylum-Seekers

from

Sri

Lanka,

41

n.287,

U.N.

Doc.

HCR/EG/LKA/12/04 (Dec. 21, 2012); Sri Lanka’s

Sinister White Van Abductions, BBC (March 14,

2012), bbc.com/news/world-asia-17356575. Tamils

who unsuccessfully seek asylum abroad are

especially vulnerable to the risk of torture if

returned. Gaksakuman v. U.S. Att’y Gen., 767 F.3d

1164, 1170 (11th Cir. 2014).

2. Both the asylum officer and the immigration

judge expressly credited Mr. Thuraissigiam’s

testimony: that he fled Sri Lanka after men arrived

5

at the farm where he was working and “arrested”

him, by abducting him in a “van,” blindfolding him,

and beating him with “wooden rods” so severely that

he lost consciousness and spent 11 days in the

hospital. J.A. 70-71, 73; J.A. 30 ¶ 61. The officer and

immigration judge nonetheless concluded that he had

not shown a “significant possibility” of establishing

asylum eligibility at a later hearing because he did

not identify his assailants or the motivation for the

attack during his interview, and thus did not show

that his abduction was “on account of” a protected

ground for asylum, 8 U.S.C. § 1101(a)(42)(A).

Accordingly, he was denied the opportunity to pursue

asylum, withholding of removal, 8 U.S.C.

§ 1231(b)(3), and relief under the Convention Against

Torture.

C.

Proceedings Below

1. Mr. Thuraissigiam’s habeas petition did not

seek review of factual determinations. It alleged only

that his expedited removal order violated statutory

and regulatory requirements, and due process. J.A.

31-32. The petition asserted that the failure to find

that he had a credible fear constituted a

misunderstanding and misapplication of the statute’s

“significant

possibility”

standard.

Congress

purposefully made the statutory standard low, and

directed officers to consider potential success in

future full proceedings, because interviews would

normally take place within days of the applicant’s

arrival, the applicant would rarely have the benefit

of consultation with counsel, and the applicant often

would be scared, uneducated, and speak little or no

English. See U.S. Comm’n on Int’l Religious

Freedom, Barriers to Protection: The Treatment of

6

Asylum Seekers in Expedited Removal 43-45, 5053 (2016).

The petition additionally alleged that even if

the interview testimony was insufficient to meet the

“significant possibility” standard as properly

understood, the asylum officer violated her essential

regulatory duties. Asylum officers must “elicit all

relevant and useful information,” 8 C.F.R.

§ 208.30(d), and are also required to understand the

“conditions” in the applicant’s home country, 8 U.S.C.

§§ 1225(b)(1)(B)(v), 1225(b)(1)(E)(i), to know what

information will be “relevant and useful” in

individual cases.

Here, the officer demonstrated a fatal lack of

knowledge. And, coupled with the translation

difficulties, the officer’s failure to ask obviously

pertinent questions about the nature of the

abduction all but guaranteed that the firm factual

basis of Mr. Thuraissigiam’s asylum claim would not

be revealed. The officer faulted Mr. Thuraissigiam

for not explaining who his abductors were and why

they kidnapped him. But asylum applicants

frequently will fear disclosing the identity of

government persecutors or will not understand what

information is required. Balasubramanrim v. INS,

143 F.3d 157, 163 (3d Cir. 1998). The officer did not

take obvious steps to “elicit” that information or to

explain that such information was essential. She did

not, for instance, ask Mr. Thuraissigiam why he

believed he had been “arrested,” J.A. 70-71 –

something only government officials generally do – or

the color of the “van,” despite the widely known

campaign of “white van” abductions, J.A. 71. Nor did

the officer probe whether he had ever been involved

in any political activity, except to ask a boilerplate

7

question about previous harm due to his “political

opinion.” J.A. 76. In fact, Mr. Thuraissigiam had

been politically active and his abductors interrogated

him about his political activities. J.A. 23 ¶ 42

(habeas petition).2

2. The district court acknowledged that Mr.

Thuraissigiam’s petition raised legal claims, but

dismissed for lack of jurisdiction. The court did not

dispute that the Suspension Clause applied to Mr.

Thuraissigiam’s challenge but concluded that the

statutory scope of judicial review, although limited to

essentially mistaken identity claims, satisfied the

Clause. Pet. App. 53a-55a.

3. The court of appeals reversed, concluding

that under this Court’s precedents the statute’s

restriction on judicial review violated the Suspension

Clause because it bars “any judicial review of

whether DHS complied with the [expedited removal]

procedures” or “applied the correct legal standards.”

Pet. App. 40a (emphasis omitted). The court further

concluded that “Boumediene foreclosed” the notion

that the Suspension Clause hinges on due process

rights, Pet. App. 36a, but noted that, in any event,

Mr. Thuraissigiam had procedural due process rights

to challenge his removal under longstanding doctrine

because he had entered the country. Pet. App. 26a

n.15.

2 The government cites a question asked by a border agent (who

has no role in the credible fear assessment), not the asylum

officer, regarding membership in a political party. Pet. Br. 12.

8

SUMMARY OF ARGUMENT

I. The forcible removal of a noncitizen is a

restraint on liberty triggering habeas corpus. The

Suspension Clause therefore “unquestionably”

guarantees judicial habeas review of legal challenges

to deportation orders. St. Cyr, 533 U.S. at 300.

Indeed, during the finality era, Congress eliminated

all review, leaving courts with jurisdiction to review

immigration orders only to the extent required by the

Constitution. Yet this Court consistently reviewed

removals via habeas corpus to ensure their legal

validity.

The

government’s

argument

that

deportation falls outside of constitutional habeas is

therefore foreclosed by this Court’s precedent, as well

as inconsistent with common-law habeas. Nor is this

constitutionally guaranteed review negated by Mr.

Thuraissigiam’s recent unlawful entry. Finality-era

courts exercised jurisdiction where noncitizens had

entered unlawfully or were at a port of entry seeking

initial admission.

These principles were reaffirmed in St. Cyr,

where the Court construed a statute to preserve

review of legal challenges to deportation in order to

avoid Suspension Clause problems, and in

Boumediene, where the Court extended the

Suspension Clause to noncitizens held as “enemy

combatants” at Guantanamo Bay. If “enemy

combatants” who have never entered are

constitutionally entitled to habeas corpus, then Mr.

Thuraissigiam is as well.

II. The government’s contention that Mr.

Thuraissigiam cannot invoke the Suspension Clause

because he lacks due process rights to challenge his

removal is wrong. The Suspension Clause is an

9

essential structural check on the unlawful use of

coercive executive power, which Congress cannot

abridge “unless when in Cases of Rebellion or

Invasion the public Safety may require it.” U.S.

Const. art. I, § 9. Because habeas is triggered by

restraints on liberty, and is designed to ensure that

those restraints conform to all applicable law,

including statutory and regulatory requirements, it

applies even where one lacks procedural due process

rights.

In any event, under longstanding doctrine that

the government has accepted for decades, Mr.

Thuraissigiam has procedural due process rights as a

“person” who entered the country. U.S. Const.

amend. V. The government now radically suggests

that the Court expand the controversial “entry

fiction” doctrine – historically applicable only to

those stopped at ports – to cover any noncitizen who

has not been lawfully admitted. That would deny

both procedural due process and constitutional

habeas to millions of people living in the United

States, and allow their summary removal, without

either administrative or judicial review, even to

challenge legal errors apart from due process, such

as compliance with statutory requirements. The

government’s alternative contention – that only those

who can satisfy an ill-defined “meaningful ties” test

are entitled to procedural due process – is equally

unprecedented, and would result in endless litigation

given the standard’s indeterminacy.

III. The statute, which bars review of

constitutional and legal claims, is not an adequate

substitute under the Suspension Clause. Whatever

else the Suspension Clause requires, it is

“uncontroversial” that there must be review of the

10

“application or interpretation of relevant law.”

Boumediene, 553 U.S. at 779 (internal quotation

marks omitted). The government’s contention that

judicial review of legal claims can be eliminated

because there is sufficient administrative review is

wrong: The expedited removal process is patently

insufficient,

and,

more

fundamentally,

the

Suspension

Clause’s

separation-of-powers

requirement that legal claims be judicially

reviewable is not affected by the amount of

administrative process. Nor can the political

branches eliminate the constitutionally required

judicial oversight based on the perceived burdens of

habeas review – the same concerns raised during the

finality era. The Suspension Clause expressly

prohibits the elimination of habeas in the name of

expediency.

ARGUMENT

I.

THE SUSPENSION CLAUSE REQUIRES

REVIEW OF MR. THURAISSIGIAM’S

REMOVAL.

A.

The

Finality-Era

Cases

Demonstrate That The Suspension

Clause Guarantees Judicial Review

Of

The

Legality

Of

Mr.

Thuraissigiam’s Removal Order.

This Court has already determined that the

Suspension Clause guarantees judicial review of the

legality of removal orders, even if a noncitizen has

not yet developed ties to the nation. The history of

this Court’s response to congressional efforts to

eliminate judicial review of removal orders

demonstrates that the Suspension Clause mandates

a minimum level of judicial review to ensure that the

11

Executive complies with the law in effectuating

removal. The Court recounted that history in St. Cyr,

reviewing a different jurisdictional bar enacted by

the same Congress that enacted the statute here.

From the decades of finality-era cases establishing

the constitutionally minimal habeas review over

removals, to St. Cyr’s conclusion that the Suspension

Clause “unquestionably” demands such review, to

Boumediene’s confirmation that constitutionally

minimal habeas must provide review of legal claims,

the Court has made clear for over a century that

Congress cannot eliminate judicial review of the

legality of removal orders.

1. Until 1891, Congress permitted full judicial

review of immigration orders, including all factual

and legal questions. United States v. Jung Ah Lung,

124 U.S. 621, 632 (1888). Congress became

dissatisfied, however, with the growing number of

immigrants arriving at the border (especially from

China) and with what it viewed as the increasing

interference of courts in overturning immigration

decisions. See, e.g., H.R. Rep. No. 51-3807, at 2 (1891)

(discussing “[t]he inadequacy of the laws” to deal

with “the increased number” of “undesirable

immigrants”).

As Congress noted at the time, court

challenges were initially quite successful. Select

Comm. on Immigration & Naturalization, Chinese

Immigration, H.R. Rep. No. 51-4048, at 272-73 (1891)

(federal district court in San Francisco reversed

exclusion orders in 86% of cases). The result was a

public outcry against the courts for hindering the

implementation of restrictive immigration policies.

Lucy Salyer, Laws as Harsh as Tigers 20 (2000).

Newspapers called for “curbs on the courts;”

12

community groups, “incensed by the court decisions,

called for the impeachment of the judges;” and even

some of the judges who had been granting habeas

petitions themselves supported “sterner measures,”

“primarily out of their despair over their crushing

caseload.” Id. at 20-21, 97. Indeed, an administrative

immigration inspector concluded that “landing the

Chinese under the writ of habeas corpus by the

United States courts” was the primary impediment

to implementing the Chinese Exclusion Act. H.R.

Rep. No. 51-4048, at 272; see also id. at 274-75

(noting a single attorney had 27 immigration cases

pending before this Court).

In response, Congress enacted a series of

statutes that governed from 1891 to 1952,

eliminating judicial review by making administrative

immigration orders “final” (hence the term “finality

era”). See Act of Mar. 3, 1891, ch. 551, § 8, 26 Stat.

1084, 1085; Act of Aug. 18, 1894, ch. 301, 28 Stat.

252, 372, 390; Immigration Act of 1907, ch. 1134,

§ 25, 34 Stat. 898, 906-07; Immigration Act of 1917,

ch. 29, § 17, 39 Stat. 874, 887.

In Heikkila v. Barber, the Court explained that

these finality provisions eliminated all review

“except insofar as it was required by the

Constitution.” 345 U.S. 229, 235 (1953) (emphasis

added). The Court expressly acknowledged that

“Congress

had

intended

to

make

these

administrative

[immigration]

decisions

nonreviewable to the fullest extent possible under

the Constitution.” Id. at 234. Yet the Court

emphasized that, despite these statutory bars, the

courts, including this Court, continued to exercise

habeas review over legal claims in case after case.

See id. at 235.

13

Because the courts could exercise review

during the finality period only if it was “required by

the Constitution,” an examination of the dozens of

cases decided during this 60-year span maps the

constitutional floor set by the Suspension Clause.

Critically, courts in this era exercised habeas review

even where noncitizens had unlawfully entered the

country or were seeking initial admission at a port of

entry. While the Court did not review factual

determinations (except to satisfy the due process

requirement that there be “some evidence”

supporting the factual finding), it routinely reviewed

legal claims that the Executive’s decisions did not

comply with the Constitution, statutes, and

regulations. This history demonstrates that

immigration expulsion orders constitute a “restraint”

for purposes of habeas corpus and that review of

legal claims is required.

This principle was established in the very first

case decided under the finality scheme, Nishimura

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

involved an immigrant seeking initial admission at a

port of entry. The Court observed that Congress had

previously authorized full judicial review of both

facts and law. See id. at 660. Given the 1891

provision making immigration decisions “final,” the

Court held that it could no longer review “the facts

on which the right to land depends,” because such

factual determinations could constitutionally be

“entrusted by congress to executive officers.” Id.

Nevertheless, the Court reviewed legal challenges to

the exclusion order, explaining: “An alien immigrant,

prevented from landing by any such officer claiming

authority to do so under an act of congress, and

thereby restrained of his liberty, is doubtless entitled

14

to a writ of habeas corpus to ascertain whether the

restraint is lawful.” Id. (emphasis added). It

therefore reviewed, though rejected on the merits,

the petitioner’s legal claims. Id. at 663.

Similarly, in Gegiow v. Uhl, 239 U.S. 3 (1915),

the Court exercised review over legal claims despite

the finality provision. The Court reversed the

exclusion orders of “Russians seeking to enter the

United States” at the border, explaining that when “a

commissioner of immigration is exceeding his power,

the alien may demand his release upon habeas

corpus.” Id. at 8-9 (holding that the officers’ decision

was inconsistent with statute). Thus, although these

petitioners had not entered at all, the Court

underscored that they were entitled to habeas review

of the legality of their exclusion. Nor did the

possibility that they could voluntarily turn back to

their countries alter the availability of that

jurisdiction.

Throughout the 60-year finality period, this

Court (and lower courts) continued to exercise

habeas review in cases involving noncitizens seeking

initial admission at a port of entry. See, e.g.,

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

206, 208 (1953); United States ex rel. Knauff v.

Shaughnessy, 338 U.S. 537, 539 (1950); United States

ex rel. Johnson v. Shaughnessy, 336 U.S. 806, 808,

815 (1949); United States ex rel. Polymeris v. Trudell,

284 U.S. 279, 280 (1932); Yee Won v. White, 256 U.S.

399, 399-400 (1921); Gonzales v. Williams, 192 U.S.

1, 7, 15 (1904).

Likewise, courts during the finality era

reviewed cases where the petitioners challenging

their deportation had entered the country illegally.

15

In United States ex rel. Accardi v. Shaughnessy, 347

U.S. 260, 262 (1954), decided under the pre-1952

finality statute, the Court overturned a deportation

order on regulatory grounds, despite acknowledging

that the petitioner “entered the United States . . .

without immigration inspection and without an

immigration visa.” See also, e.g., United States v.

Vanbiervliet, 284 U.S. 590 (1931) (mem.) (answering

certified question regarding merits claim of habeas

petitioner who “entered without inspection”);

Kanaszczyc v. Mathews, 30 F.2d 573, 573 (6th Cir.

1929) (granting habeas to petitioner who entered

unlawfully); MacKusick v. Johnson, 3 F.2d 398, 399

(1st Cir. 1924) (denying habeas on the merits to

petitioner who entered unlawfully).3

2. The government argues that (a)

notwithstanding Heikkila’s unambiguous conclusion

that the finality provisions eliminated all review

except that “required by the Constitution,” the

provisions may not have done so, and that in any

event Heikkila’s conclusion was only “dictum”; (b) the

courts during the finality era did not specifically

state that they were exercising constitutionally

mandated review; and (c) even if the courts exercised

constitutionally required review, that review may

3 The government (at 22) cites Zakonaite v. Wolf, but there the

Court reviewed the legal claims, and refused only to review

“findings of fact.”

226 U.S. 272, 274-75 (1912).

The

government’s reliance (at 22) on Carlson v. Landon is similarly

misplaced, because the Court noted only that full judicial

review of law and facts was not required, but stated that

deportation “is, of course, subject to judicial intervention under

the ‘paramount law of the constitution.’” 342 U.S. 524, 537

(1952) (citing habeas decision in Ekiu).

16

have been mandated by a provision other than the

Suspension Clause. Pet. Br. 38-40.

a. The government first suggests that the

finality provisions may simply have been intended to

preclude review of only factual questions, thereby

allowing the courts to continue reviewing legal

challenges. Pet. Br. 39-40. But the text of the finality

provisions nowhere distinguished between law and

fact, instead categorically providing that: “All

decisions made by the inspection officers . . . touching

the right of any alien to land . . . shall be final . . . .”

Act of Mar. 3, 1891, ch. 551, § 8, 26 Stat. 1084, 1085.4

Indeed, the government told this Court at the

time that the finality provisions reduced review to

the constitutional minimum: “The clear purpose of

this provision was to preclude judicial review of the

Attorney General’s decisions in alien deportation

cases insofar as the Congress could do so under the

Constitution.” U.S. Br. 19, Martinez v. Neelly, 344

U.S. 916 (1953) (No. 52-218), 1952 WL 82610

(“Martinez Br.”) (emphasis added); see id. at 13-14

(stating that “the finality provision . . . had long been

construed as making the Attorney General’s decision

in deportation cases ‘final’ so far as Congress may do

under the Constitution”).5 This Court agreed.

The government now argues (at 39) that

Heikkila’s conclusion that the finality provisions

The subsequent finality provisions used materially identical

language.

4

In Heikkila, the government adopted the discussion of this

issue from its Martinez brief. See U.S. Br. 10-11, 14, Heikkila,

1953 WL 78378. Martinez was affirmed by an equally divided

Court. 344 U.S. 916 (1953).

5

17

reduced review to that “required by the Constitution”

was merely dictum. But this Court subsequently

endorsed Heikkila’s reading of the finality provisions,

over the dissenting opinion on which the government

now relies. St. Cyr, 533 U.S. at 301. In any event, the

conclusion that the finality provisions reduced review

to the constitutional minimum was necessary to the

Court’s ultimate holding in Heikkila – as the

government itself explained at the time. Martinez Br.

at 35.

The issue in Heikkila was whether the

plaintiff could challenge his deportation on legal

grounds in an Administrative Procedure Act (“APA”)

action. Because the APA was inapplicable “so far as”

Congress sought to “preclude judicial review” in

other statutes, 345 U.S. at 231 n.3 (internal

quotation marks omitted), the case turned on the

proper interpretation of the governing finality

provision. If that provision precluded review only “so

far as” one sought review of facts, then the plaintiff

could have brought his legal claim under the APA.

See id. at 240 (Frankfurter, J., dissenting). But

because the Court held that Congress had eliminated

all review, leaving only that jurisdiction “required by

the Constitution,” the plaintiff was barred from

bringing an APA action to raise even his legal claim.

The government said precisely this at the

time:

Where the Congress, in an area where it

may constitutionally do so, provides

that administrative findings of fact shall

be conclusive, the [APA] . . . will govern

the review of questions of law. Where,

as in the Immigration Act . . . Congress

18

deliberately

provides

that

the

administrative decisions shall be “final,”

the only review permitted . . . is that

required by the Constitution—in habeas

corpus proceedings.

Martinez Br. at 35. This Court adopted the

government’s view that the finality provisions barred

all review, not just of factual questions, and for that

reason held that the plaintiff could not proceed under

the APA. 345 U.S. at 235. The Court’s conclusion

that the finality provisions barred the courts from

exercising any review except that “required by the

Constitution” was therefore a holding necessary to

the judgment.

b. The government alternatively argues that

even if the finality provisions did reduce review to

the constitutional minimum, courts during that era

may not have understood that limitation. That

argument is wrong for several reasons.

First, it conflicts with this Court’s explanation

in Heikkila that “[d]uring [the finality era], the cases

continued to recognize that Congress had intended to

make these administrative decisions nonreviewable

to the fullest extent possible under the Constitution.”

Id. at 234. The government’s contention that the

courts failed to grasp the significance of the finality

provisions is also at odds with its own view during

that period: “[T]he courts have long recognized” the

finality provisions “restrict[] review of deportation

orders as far as the Constitution permits.” Martinez

Br. at 33 (emphasis added).

Second, Heikkila itself obviously understood

that the finality provisions reduced review to that

required by the Constitution. Yet the Court did not

19

suggest that the plaintiff was therefore unable to

challenge the legal grounds for his deportation by

any means. Rather, the Court expressly affirmed:

“Now, as before, [the plaintiff] may attack a

deportation order only by habeas corpus.” 345 U.S. at

235.6 And, indeed, the Court thereafter continued to

exercise the habeas review that Heikkila held was

constitutionally required – including in Mezei, 345

U.S. 206, decided the very same day as Heikkila, and

Accardi, 347 U.S. 260, decided one year later.7

Third, any suggestion that the finality-era

review was authorized by the habeas statute is

untenable. If that were the case, the finality-era

courts would have had jurisdiction not just over legal

claims, but over facts as well, because the extant

habeas statute, the 1867 Habeas Corpus Act,

expressly provided for review of both. See Habeas

Corpus Act of Feb. 5, 1867, ch. 28, 14 Stat. 385, 386

(a “court or judge shall proceed in a summary way to

determine the facts of the case”); see also Gerald L.

Neuman, Habeas Corpus, Executive Detention, and

the Removal of Aliens, 98 Colum. L. Rev. 961, 987

(1998) (“Neuman”) (cited in St. Cyr and Boumediene);

In re Neagle, 135 U.S. 1, 72, 75 (1890) (explaining

that the 1867 Act was an “extension of the powers of

the court under the writ of habeas corpus” to

“examine into the facts”). Yet, as the government

concedes (at 23), courts did not review facts under

6 The fact that Heikkila was seeking to raise a constitutional

claim is of no significance because the government is arguing

that Mr. Thuraissigiam cannot invoke the Suspension Clause at

all, even for constitutional claims.

7 Both were decided under the same pre-1952 finality provision

Heikkila addressed.

20

the finality provisions. Thus, although petitions were

brought pursuant to the habeas statute, the scope of

review was only that “required by the Constitution.”

Fourth, the government suggests that the four

finality-era cases cited by the Ninth Circuit – which,

as noted, are far from the only finality-era cases –

exercised review only because they interpreted “the

scope of the applicable finality statute” to preserve

review of legal claims, and not because they viewed

review of legal claims as constitutionally required.

Pet. Br. 39-40 (citing Ekiu, Gegiow, Knauff, and

Mezei). That argument is again inconsistent with the

position the government took at the time – and this

Court’s holding in Heikkila. Nor do any of the four

cases remotely suggest that the statute’s categorical

term “final” could be construed to differentiate

between facts and law, and to preclude review of only

the former.

As noted, Ekiu reviewed legal claims brought

by a noncitizen prevented from landing, and did so

because that review was constitutionally required.

The Court explained that the finality provision was

“manifestly intended to prevent the question of an

alien immigrant’s right to land . . . from being

impeached or reviewed, in the courts or otherwise.”

142 U.S. at 663. Contrary to the government’s

position, the Court did not suggest that the

provision’s text allowed legal conclusions, but not

facts, to be “impeached or reviewed.” Instead, the

Court focused on Congress’s constitutional power to

limit judicial review, holding that although “the final

determination of . . . facts may be entrusted by

congress to executive officers,” the petitioner was

“doubtless entitled” in habeas to test whether the

order was “lawful.” Id. at 660-61 (emphasis added).

21

The other three cases all cited Ekiu and reiterated

this same understanding. Gegiow, 239 U.S. at 9

(explaining that although “matters of fact” were

unreviewable, noncitizens could challenge the

legality of their exclusion); Mezei, 345 U.S. at 212-13

(explaining that although the courts could not “retry

the determination of the Attorney General,” a

noncitizen “may by habeas corpus test the validity of

his exclusion”); Knauff, 338 U.S. at 543-44, 546-47

(similar).

c. Finally, the government argues that even if

the courts in the finality-era cases were exercising

constitutionally required review, they may have

believed the constitutional source was not the

Suspension Clause. Pet. Br. 39. The government

offers no basis for that suggestion, and the

government itself contemporaneously viewed the

Suspension Clause as the constitutional source of

review. See Martinez Br. at 18 (explaining that the

finality provisions “precluded judicial review of

deportation orders except for the collateral review in

habeas corpus which the Constitution prescribes in

cases of personal detention”) (emphasis added).

Moreover, as noted infra, St. Cyr relied specifically

on the Suspension Clause in its analysis of the

finality-era decisions. 533 U.S. at 300.

Thus, the finality-era cases establish that the

Suspension Clause extends to Mr. Thuraissigiam,

and guarantees him judicial review of his legal

claims.

22

B.

The Court’s Decisions In St. Cyr

And Boumediene Confirm That The

Suspension

Clause

Guarantees

Review Of The Legality Of Mr.

Thuraissigiam’s Removal Order.

This Court, in St. Cyr and Boumediene, has

twice recently reaffirmed that the Suspension

Clause, at a minimum, guarantees judicial review of

legal challenges to executive restraints on liberty. As

the Court stated in St. Cyr, “[b]ecause of that Clause,

some ‘judicial intervention in deportation cases’ is

unquestionably ‘required by the Constitution.’” 533

U.S. at 300 (emphasis added) (quoting Heikkila, 345

U.S. at 235).8 St. Cyr also made clear that the

baseline level of review required by the Suspension

Clause includes constitutional and legal claims. Id.

at 302-08 (collecting cases).

The government dismisses St. Cyr as involving

only “constitutional avoidance.” Pet. Br. 18. But the

Court’s

position

that

the

Constitution

“unquestionably” requires some judicial review of

deportation orders was the predicate for its

subsequent conclusion, necessary to the judgment,

that a “serious constitutional question” would be

raised if there were no review of the particular claim

at issue: namely, a legal claim regarding a

discretionary form of relief. 533 U.S. at 304-05.9 The

The government acknowledges this sentence but omits the

word “unquestionably.” Pet. Br. 18, 31.

8

9 Here, officers have no discretion to reject a credible fear claim

if the significant possibility standard is met and must place the

individual into full removal proceedings. 8 C.F.R. § 208.30(f).

Additionally, the credible fear proceeding includes screening for

mandatory forms of relief like withholding of removal. See

Moncrieffe v. Holder, 569 U.S. 184, 187 n.1 (2013).

23

Court was able to characterize the latter question,

regarding discretionary relief, as “serious” only

because it first concluded that the Suspension Clause

“unquestionably” applies to deportation.10

The government additionally dismisses St. Cyr

because it involved a lawful permanent resident. Pet.

Br. 18, 33, 37. But this fact was irrelevant to the

Court’s analysis. Rather, the Court relied

interchangeably on finality-era cases in which

noncitizens had entered lawfully, or unlawfully (such

as in Accardi), or were seeking initial admission at a

port (such as in Ekiu and Gegiow). 533 U.S. at 30608. Thus, while St. Cyr itself did not involve a recent

unlawful entrant, it endorsed the finality-era cases,

which draw no such distinction and resolve the

instant case.

The government also notes (at 38) that St. Cyr

involved a pure legal question. But St. Cyr concluded

that habeas has historically covered both the

“interpretation” and “application” of the law. 533

U.S. at 302; see also infra Section III. In any event,

the government’s threshold argument is that the

Suspension

Clause

does

not

provide

Mr.

Thuraissigiam with the right to challenge his

removal on any grounds.

Most recently, Boumediene unambiguously

reaffirmed that the Suspension Clause requires

review

of

“‘the

erroneous

application

or

interpretation’ of relevant law.” 553 U.S. at 779

10 Moreover, even if the Suspension Clause analysis is viewed

entirely as constitutional avoidance, this Court has stressed

that such analysis should “guide” the subsequent resolution of

the constitutional question. Shelby County v. Holder, 570 U.S.

529, 542 (2013).

24

(quoting St. Cyr, 533 U.S. at 302). And it did so in

holding that the Suspension Clause applied even to

alleged enemy combatants held at Guantanamo, who

had never set foot in the United States. The

government dismisses Boumediene on the ground

that it was not a removal case, but Boumediene relies

on St. Cyr for the proposition that legal claims must

be reviewable. Boumediene thus reaffirms the

conclusion of both the finality-era cases and St. Cyr:

Review of legal claims is an indispensable feature of

the constitutional writ.11

C.

The Common Law Reinforces That

The Suspension Clause Guarantees

Habeas Here.

1. Not long after Congress enacted the first

immigration statutes in 1875, this Court rejected the

notion that a noncitizen at a port of entry “was not

restrained of his liberty” for purposes of invoking

habeas corpus. Jung Ah Lung, 124 U.S. at 626. In

rejecting the government’s argument that “the only

restraint of the party was that he was not permitted

to enter the United States,” the Court explained that

the petitioner was in reality restrained at the

direction of the U.S. government. See id. It did not

matter that he sought only to challenge the

lawfulness of his exclusion order, or that the

detention would end after deportation. The petitioner

was restrained of his liberty, and habeas was

therefore available to test the lawfulness of that

restraint. See also Chin Yow v. United States, 208

11 Citing Felker v. Turpin, 518 U.S. 651 (1996), the government

suggests Congress controls the writ’s scope. Pet. Br. 28. But

Congress’s power is limited by the Suspension Clause – as

Boumediene, St. Cyr, and the finality-era cases demonstrate.

25

U.S. 8, 12-13 (1908) (explaining that, “niceties” aside,

“it would be difficult to say that [the petitioner] was

not imprisoned, theoretically as well as practically,

when to turn him back meant that he must get into a

vessel against his wish and be carried to China”);

Ekiu, 142 U.S. at 660 (a noncitizen prevented from

“landing” is “restrained” for purposes of habeas

corpus).

Those holdings reflected the long tradition of

common-law habeas as it existed at the time of the

Framing.12 As this Court has recognized, in 1789

habeas was a powerful tool for judicial examination

of the lawfulness of restraint in a wide range of

contexts. St. Cyr, 533 U.S. at 301-02 & nn.16-22

(collecting cases). The writ was particularly robust

where, as here, petitioners challenged executive

restraint, “where there had been little or no previous

judicial review of the cause for detention.”

Boumediene, 553 U.S. at 780; see also St. Cyr, 533

U.S. at 301.

The writ’s “central premise” was that it

“empower[ed] the justices to examine detention in all

forms,” meaning that “the court might inspect

imprisonment orders made at any time, anywhere,

by any authority.” Paul D. Halliday, Habeas Corpus:

From England to

Empire 160,

176

(2010)

(“Halliday”). Habeas “was appropriate,” for example,

to test whether a woman “was being constrained by

12 To the extent the government is asking the Court to decide

whether the scope of the Clause has expanded since 1789 – an

issue the Court has been “careful” to reserve, Boumediene, 553

U.S. at 746 – there is no reason to do so here. The Clause as the

Court has interpreted it, and the writ as it existed in 1789,

guarantee review in this case.

26

her guardians to stay away from her husband,” or

the lawfulness of covenants of indentured servitude.

Jones v. Cunningham, 371 U.S. 236, 238 (1963)

(citing cases). “The test used was simply whether she

was ‘at her liberty to go where she please(d).’” Id.

(quoting R. v. Clarkson, 93 Eng. Rep. 625 (K.B.

1722)). Habeas was, as Blackstone put it, “efficacious

. . . in all manner of illegal confinement.” 3 William

Blackstone, Commentaries on the Laws of England

131 (1st ed. 1768).

Consistent with this general conception of

habeas as available to test all forms of physical

restraint, the common-law courts used habeas to

assess the lawfulness of transfers outside the

country. In Murray’s Case, for example, a Scot was

imprisoned in 1677 on two occasions “in order to his

being sent into Scotland to be tried there according to

law for several crimes.” Halliday at 236 (internal

quotation marks omitted). The King’s Bench issued

the writ, and ultimately prevented his removal to

Scotland. Id.

Similarly, in Somerset’s Case, 98 Eng. Rep. 499

(K.B. 1772), the King’s Bench issued the writ to

prevent an individual allegedly bound to slavery

from being sent to Jamaica. See Halliday at 174-76;

St. Cyr, 533 U.S. at 302 n.16. Notably, Chief Justice

Mansfield avoided the question of the lawfulness of

slavery per se, instead ruling only that there was no

authority under English law to force a slave to leave

the country against his will. John Baker, An

Introduction to English Legal History 514 (5th ed.

2019). Thus, “the Somerset judgment did not free a

slave so much as it protected him from deportation.”

Halliday at 175; see also id. at 255-56 (explaining

that in 1793 Parliament deemed it “necessary” to

27

suspend habeas for aliens detained “as a prelude to

deportation”) (citing 33 Geo. 3 c.4).

Habeas was similarly available to challenge

the legality of extradition. See Neuman at 994-1004;

Halliday at 165-66 (describing English soldier’s 1814

use of habeas to “avoid being sent to court martial in

the Netherlands”).13

2. The government argues – without citation –

that the common-law writ applied only to a category

of claims it identifies as challenges to “detention as

such,” and that the custody and forcible restraint

involved in deportation and the denial of admission

fall outside that category. Pet. Br. 30.

The government’s position has extraordinary

implications. On its view, no immigration removal

order would be subject to Suspension Clause review,

no matter how legally erroneous. Individuals subject

to the nationwide expanded expedited removal

procedures – who have been in the country up to two

years – would not be entitled to challenge their

removal orders, even if the orders were patently in

violation of the governing law. Indeed, under the

government’s argument, Congress could eliminate

review even for lawful permanent residents who have

been residing in the United States for decades,

served in the armed forces, and raised U.S. citizen

children. Recognizing that such a result would be

untenable, the government suggests that because

such individuals have stronger “liberty interests,”

they might still be entitled to habeas protection. Pet.

Br. 33. But that concession is irrelevant to its

The government does not explain why it views extradition

transfers as “distinct.” Pet. Br. 32.

13

28

contention that a common-law habeas court lacked

the power to issue the writ to block an unlawful

removal. The government is simply trying to hide the

transformative sweep of its unprecedented position –

which would allow for the summary arrest and

detention of lawful permanent residents without any

judicial review, on the say-so of an administrative

officer.

The government’s argument also misreads

common-law precedent and offers no basis for

undoing this Court’s decisions. The government

appears to be making two arguments why the

common-law writ would not apply: (a) Mr.

Thuraissigiam is seeking a new hearing, not

unconditional release; and (b) common-law courts

could not issue the writ to block a removal. Both are

wrong.

a. The government suggests (at 34, 37) that

habeas is not available because Mr. Thuraissigiam

seeks a new asylum interview, not an order

categorically prohibiting his removal or vacating the

removal order with prejudice. But he requests an

entirely ordinary habeas remedy: conditional release

pending a lawful adjudication. J.A. 33.

If the government is arguing that the writ

applies only where the petitioner seeks unconditional

release, that argument is foreclosed by Boumediene

(as well as the finality-era cases). In Boumediene, the

Court explained that one of the “easily identified

attributes of any constitutionally adequate habeas

corpus proceeding” is that “the habeas court must

have the power to order the conditional release of an

individual unlawfully detained.” 553 U.S. at 779

(emphasis added). Release must be available, but

29

“need not be the exclusive remedy.” Id. In thus

allowing for conditional release, the Court in

Boumediene accepted the government’s argument in

that case that it should be afforded another

opportunity to obtain a lawful order justifying

detention. See U.S. Supp. Br. 9, Boumediene, 2008

WL 877874 (arguing that “even if courts are

recognized to have the authority to order release, in

the ordinary case, remand, rather than release,

would be the appropriate remedy”); see also U.S. Br.

60-61, Boumediene, 2007 WL 2972541 (urging

remand “to allow the application of appropriate

procedures”).

This same rule has always applied “in habeas

corpus proceedings to test the legality of confinement

under the decision of an administrative tribunal . . .

in deportation cases.” Mahler v. Eby, 264 U.S. 32, 46

(1924); see also, e.g., Tod v. Waldman, 266 U.S. 113,

120 (1924); Chin Yow, 208 U.S. at 13. That is the

essence of the habeas claim in countless of this

Court’s cases: a reprieve from expulsion pending a

new hearing.

b. The government also suggests (at 32) that a

common-law habeas court could not block a transfer.

The government recognizes that Mr. Thuraissigiam

spent two years in detention and does not dispute

that he will again be detained and forcibly relocated

if his removal order is executed. The government

appears to argue, however, that because the ultimate

purpose of that custody and restraint is not to

imprison him, but to remove him, it falls outside the

common-law writ. But, as noted, common-law courts

blocked transfers, and physical restraints more

generally, regardless of the purpose. See also, e.g., R.

v. Nathan, 93 Eng. Rep. 914 (K.B. 1724) (habeas

30

review of restraint intended to coerce financial

disclosure). The government offers no authority that

deportation and the associated physical restraint are

an exception to this otherwise sweeping common-law

power to inquire into the legality of any restraint

(including forcible transfers), whatever its purpose or

context.14

Similarly, the government’s suggestion (at 18,

34, 37, 42) that Mr. Thuraissigiam’s removal falls

outside of habeas because the corresponding

detention “is designed to be brief,” and he will be

“released” upon return to Sri Lanka, has no basis in

the common law. There is no temporal exemption to

habeas, permitting lawless restraints if they are

brief. Nor did the length of one’s prior presence in the

country limit access to habeas, which was available

“the moment a man land[ed]” in England. R. v.

Thames Ditton, (K.B. 1785), reprinted in 2 Francis

Const, Laws Relating to the Poor 331 (3d ed. 1793)

(discussing Somerset’s Case).

The government emphasizes that this Court’s

habeas cases often refer to “executive detention.” Pet.

Br. 28-29 (citing, e.g., St. Cyr). But the language the

government cites simply drew the fundamental

distinction between habeas challenges to criminal

convictions (where there has already been full

judicial review and often a jury trial) and habeas

14 The government notes that there was no federal immigration

regulation before 1875. But there need not, of course, be

common-law precedent addressing the precise circumstances for

the Suspension Clause to apply. See Boumediene, 553 U.S. at

752 (conducting exhaustive search of English precedent but

concluding that “the common-law courts simply may not have

confronted cases with close parallels to this one”).

31

challenges to executive detention (where there has

been none). See, e.g., Boumediene, 553 U.S. at 780. In

any event, the inescapable reality, recognized in Ekiu

and numerous other cases, is that removal requires a

restraint of physical liberty – including detention.

Ekiu, 142 U.S. at 660.

Finally, the government’s reliance on Munaf v.

Geren, 553 U.S. 674 (2008), is misplaced. Munaf

addressed the unique wartime circumstances where

the United States was holding prisoners on Iraqi soil

who sought to avoid Iraqi criminal process. The

petitioners were not asking the Court to prohibit

their transfer out of the territory but to compel it.

The Court thus observed that “the ‘release’

petitioners seek is nothing less than an order

commanding our forces to smuggle them out of Iraq.”

Id. at 697. As the D.C. Circuit explained, Munaf’s

holding has no bearing on the kind of claim in this

case:

None of this means that the Executive

Branch may detain or transfer

Americans or individuals in U.S.

territory at will, without any judicial

review of the positive legal authority for

the detention or transfer. In light of the

Constitution’s guarantee of habeas

corpus, Congress cannot deny an

American citizen or detainee in U.S.

territory the ability to contest the

positive legal authority (and in some

situations, also the factual basis) for his

detention or transfer unless Congress

suspends the writ because of rebellion

or invasion.

32

Omar v. McHugh, 646 F.3d 13, 24 (D.C. Cir. 2011)

(Kavanaugh, J.).

In short, from the common law through the

finality era to Boumediene, the courts have

reaffirmed the availability of the writ to those, like

Mr. Thuraissigiam, who challenge the legality of a

restraint on their liberty. To deny habeas here would

be the first time in this Court’s history that it denied

habeas review of a challenge to deportation.

II.

THE SUSPENSION CLAUSE DOES NOT

HINGE ON DUE PROCESS RIGHTS AND,

IN ANY EVENT, MR. THURAISSIGIAM IS

ENTITLED TO PROCEDURAL DUE

PROCESS REGARDING HIS REMOVAL.

The Suspension Clause, as a structural

safeguard against the unlawful restraint of liberty by

the political branches, guarantees Mr. Thuraissigiam

judicial review of whether his removal is in violation

of the governing statute and regulations, regardless

of whether he also has procedural due process rights

in contesting his removal. In any case, Mr.

Thuraissigiam is entitled to procedural due process

because he entered the country. The government’s

proposal to adopt an entirely new due process test is

contrary to precedent, unworkable, and ultimately

beside the point, because the Suspension Clause

applies independently of due process.

A.

The Suspension Clause Does Not

Hinge On Due Process Rights.

Habeas and due process are distinct

constitutional safeguards appearing in different

clauses of the Constitution. The Suspension Clause

does not provide the legal standards for restraints on

33

liberty, but guarantees a mechanism – court review –

to ensure that restraints comport with positive law,

including, where applicable, constitutional law.

Thus, even where one lacks due process rights (or

due process is satisfied), the Suspension Clause

guarantees a judicial forum to ensure that custody

complies with statutory and regulatory law. Indeed,

the Framers could not have intended the Suspension

Clause to guarantee habeas corpus only where one

could invoke the Due Process Clause given that the

Bill of Rights was adopted four years after the

Suspension Clause. Boumediene, 553 U.S. at 739

(stressing chronology).

To conceive of access to habeas as turning on

the

rights

one

can

claim

fundamentally

misunderstands its role. At common law, habeas was

a “high prerogative writ,” Ex parte Watkins, 28 U.S.

193, 202 (1830), meaning that it served to enforce

“the King’s prerogative to inquire into the authority

of a jailer to hold a prisoner,” Boumediene, 553 U.S.

at 741 (emphasis added). Thus, “the writ’s strength

arose less from its concern with the rights of

prisoners than with the wrongs of jailers, the wrongs

committed by someone commissioned to act in the

king’s name.” Paul D. Halliday & G. Edward

White, The Suspension Clause: English Text,

Imperial Contexts, and American Implications, 94

Va. L. Rev. 575, 644 (2008) (cited in Boumediene).

When the Framers enshrined the writ into our

Constitution, they did so as part of “the

constitutional plan that allocated powers among

three independent branches.” Boumediene, 553 U.S.

at 742. In place of a King’s prerogative to call any

jailer to account, they dictated that judges would

always be empowered to inquire into the legality of

34

physical restraint by the other branches, except

during formal, and carefully circumscribed,

suspensions. Id. at 743; see also id. at 744 (noting

that Alexander Hamilton had “explained that by

providing the detainee a judicial forum to challenge

detention, the writ preserves limited government”).

The Suspension Clause thus serves as a structural

constraint on the power of the Executive and

Legislature.

For the Framers, this “separation-of-powers”

check was an essential feature of non-arbitrary

government based on the rule of law. Id. at 742-44.

Like other structural constraints, the Suspension

Clause in no way hinges on whether one has – or is

asserting – other constitutional rights. See id. at 743

(“foreign nationals who have the privilege of

litigating in our courts can seek to enforce

separation-of-powers principles”) (citing INS v.

Chadha, 462 U.S. 919, 958-59 (1983)). Indeed,

common-law habeas courts routinely enforced the

requirements of positive statutory law. St. Cyr, 533

U.S. at 302-03 (noting that habeas was not “only

available for constitutional error,” and collecting

cases).

Consistent with this history, the Court’s

decisions leave no doubt the reach of the Suspension

Clause does not hinge on whether one has due

process rights. In Boumediene, for instance, the

Court enforced the Suspension Clause without

deciding whether the detainees also had Fifth

Amendment due process rights. See 553 U.S. at 801

(Roberts, C.J., dissenting) (noting that the majority

had not decided “what due process rights the

detainees possess”).

35

Likewise, in Mezei – which, as noted, was

decided the same day as Heikkila – the Court

expressly held that the petitioner lacked procedural

due process rights regarding his denial of entry, yet

exercised habeas review required by the Suspension

Clause to ensure that the exclusion order was

consistent with the governing statutes and

regulations. Mezei, 345 U.S. at 212-13 (stating that,

“[w]hatever the procedure authorized by Congress is,

it is due process as far as an alien denied entry is

concerned” but that “he may by habeas corpus test

the validity of his exclusion”) (internal quotation

marks omitted); id. at 211 (holding on the merits

that the Attorney General had “proceeded in accord

with” the relevant statutory and regulatory

provisions

and

“made

the

necessary

determinations”); see also Knauff, 338 U.S. at 542-47

(similar).

The government mistakenly relies on Heikkila

to suggest that habeas is limited to the “enforcement

of due process requirements.” Pet. Br. 23. But the

Court there merely described the minimal

constitutionally required review of facts – namely,

the due process requirement that there be “some

evidence” to support a factual determination. Facts

were therefore reviewable to that limited extent

under a regime otherwise permitting review of only

legal and constitutional claims. See Neuman at 101819 & n.363.15

The government’s reliance on Fay v. Noia, 372 U.S. 391

(1963), is also misplaced. Fay was a collateral criminal habeas

case, and in no way limited the rights that one could assert in

habeas review of executive actions.

15

36

The government also incorrectly relies on

language in Landon v. Plasencia that “an alien

seeking initial admission . . . requests a privilege and

has no constitutional rights regarding his

application.” 459 U.S. 21, 32 (1982). Plasencia did not

involve any question regarding habeas or judicial

review. See id. at 26 (noting that petitioner was

entitled to judicial review by statute). The only

constitutional issue was whether the petitioner was

entitled to procedural due process even though she

was at a port of entry. Id. at 32. The Court noted that

noncitizens at a port generally do not have

procedural due process rights in contesting the

denial of entry, but held that Plasencia, as a

returning lawful permanent resident, was entitled to

procedural due process. Id. at 32-34. The government

misreads the language “no constitutional rights” to

have decided issues far beyond the due process claim

at issue there. That language cannot be understood

to have decided a momentous Suspension Clause

question not even presented. See Castro v. U.S. Dep’t

of Homeland Sec., 835 F.3d 422, 450 (3d Cir. 2016)

(Hardiman, J., concurring dubitante) (acknowledging

that Plasencia did not “purport to resolve” any

jurisdictional or Suspension Clause question).

That constitutional habeas does not hinge on

due process is unremarkable given their very

different objectives and histories. Indeed, the fewer

one’s constitutional rights, the more critical habeas

becomes.

37

B.

In Any Event, Mr. Thuraissigiam Is

Entitled To Procedural Due Process

In Contesting His Removal.

1. Mr. Thuraissigiam is entitled to due

process, because he entered the United States, and

was not at a port of entry when arrested. That rule

flows from the text of the Fifth Amendment: “No

person shall . . . be deprived of . . . liberty . . . without

due process of law.” U.S. Const. amend. V (emphasis

added). Every person within U.S. territory is entitled

to due process.

The only exception to this rule is the

controversial “entry fiction” doctrine originating in a

pair of 1950s Cold War national security cases.

Under that doctrine, those stopped at a port before

entering the country – and only those stopped at a

port – are deemed to be outside the county and not

entitled to procedural due process rights to challenge

their exclusions. See Mezei, 345 U.S. at 213; Knauff,

338 U.S. at 544; see also Zadvydas v. Davis, 533 U.S.

678, 693-94 (2001) (refusing to expand the scope of

the entry fiction doctrine, and reiterating that “once

an alien enters the country,” he is entitled to due

process in his removal proceedings because “the Due

Process Clause applies to all ‘persons’ within the

United States, including aliens, whether their

presence here is lawful, unlawful, temporary, or

permanent”).16

16 The circuits have adhered to this due process line for decades.

See, e.g., Rios-Berrios v. INS, 776 F.2d 859, 860, 862-63 (9th

Cir. 1985) (noncitizen apprehended same day as unlawful entry

entitled to procedural due process); Maldonado-Perez v. INS,

865 F.2d 328, 329-30, 332 (D.C. Cir. 1989) (same, apprehended

day after unlawful entry); Zheng v. Mukasey, 552 F.3d 277, 279,

38

The government itself has long recognized the

limited scope of the entry fiction doctrine:

JUSTICE BREYER: A person who runs

in illegally, a person who crosses the

border illegally, say, from Mexico is

entitled to these rights when you catch

him.

[Government Counsel]: He’s entitled to

procedural due process rights.

See Tr. Oral Arg. at *25, Clark v. Martinez, 543 U.S.

371 (2005) (Nos. 03-878, 03-7434), 2004 WL 2396844.

That unequivocal answer accurately reflected the

government’s longstanding and consistent position.

See, e.g., U.S. Reply Br. 6-7, Clark, 2004 WL 2006590

(recognizing the “continuing vitality” of “the

fundamental distinction . . . in the Constitution

between aliens stopped at the border and those who

have entered”); U.S. Br. 30-31, Kwong Hai Chew v.

Colding, 344 U.S. 590 (1953) (No. 52-17), 1952 WL

82372 (noting “the well-established doctrine that an

alien who is actually in this country, whether he

entered legally or illegally, is under the mantle of the

Constitution, and hence that proceedings against

him are subject to due process limitations”).

The government now suggests (contrary to its

prior recognition) that the rule is unsettled as to

recent unlawful entrants, pointing to Yamataya v.

Fisher, 189 U.S. 86 (1903). Yamataya held, however,

that the petitioner was entitled to procedural due

286 (2d Cir. 2009) (same, noncitizen apprehended one week

after entry); see also United States v. Campos-Asencio, 822 F.2d

506, 507, 509 (5th Cir. 1987) (same, apprehended same day as

unlawful re-entry).

39

process despite being arrested only four days after

she was illegally admitted. Id. at 101. The

government cites the Court’s statement that it was

putting “on one side” the case of a noncitizen “who

has entered the country clandestinely, and who has

been here for too brief a period to have become, in

any real sense, a part of our population.” Id. at 100.

But the Court plainly did not decide that those who

enter “clandestinely” are not entitled to procedural

due process, and since that time the Court has

regularly reiterated that the entry fiction doctrine

has no application to unlawful entrants. See, e.g.,

Zadvydas, 533 U.S. at 693-94; Mezei, 345 U.S. at 212

(noncitizens who have “passed through our gates,

even illegally” are entitled to due process); see also

Mathews v. Diaz, 426 U.S. 67, 77 (1976) (due process

protects “[e]ven one whose presence in this country is

unlawful, involuntary, or transitory”).

2. The government’s submission is ultimately

that the Court should radically rewrite constitutional

doctrine and expand the entry fiction to eliminate

procedural due process rights not just for those

stopped at a port of entry but for any noncitizen

deemed to have entered the country unlawfully.

Doing so, however, would contravene decades of

settled doctrine and practice and mean that even

those in the country for years could be summarily

removed without any administrative process (and,

because the government links habeas to due process,

without any judicial review).

The government bases its proposal on changes

in the 1996 legislation, under which those at a port of

entry and those who entered unlawfully are now

treated for statutory purposes as seeking

“admission.” The government suggests that the

40

constitutional line should be derived from the

statutory line, and that Congress’s decision to treat

unlawful entrants as seeking “admission” should be

constitutionalized. Pet. Br. 25-27. But Congress’s

decision to change the statutory line cannot dictate

the Constitution’s applicability.17

The government also seeks support for its new

constitutional line from Plasencia, Pet. Br. 21-23, but

that decision demonstrates the opposite: The Court

specifically declined to tether due process to

Congress’s statutory lines. The petitioner argued

that although she was at a port of entry, she should

have been placed into deportation proceedings as a

returning lawful permanent resident, and not into

exclusion proceedings, the typical procedure dictated

by statute for those stopped at the border. The Court

held that, as a statutory matter, she belonged in

exclusion proceedings, 459 U.S. at 30-32, but that, as

a constitutional matter, she was entitled to due

process beyond that normally afforded to those in

exclusion proceedings, id. at 32.

Moreover, the language on which the

government relies from Plasencia – that “an alien

seeking initial admission . . . has no constitutional

rights regarding his application” – offers no support

for its new due process “admissions” test. Id.

(emphasis added). The government contends that the

The government suggests (at 26) that United States v.

Martinez-Fuerte, 428 U.S. 543 (1976), adopted a “functional

analysis” regarding the Fourth Amendment’s applicability near

the border, but there the Court merely held that the “quite

limited” intrusion of suspicionless checkpoints was reasonable

under the Fourth Amendment, not that the Fourth Amendment

was inapplicable – much less that Congress could determine

when the Constitution applies. Id. at 557-58, 562-63.

17

41

Court’s reference to those “seeking admission”

sweeps in unlawful entrants. But that attempts to

take advantage of the 1996 statutory change, which

made “admission,” rather than entry, the statute’s

defining concept. See Vartelas v. Holder, 566 U.S.

257, 262 (2012). The government cannot read the

1996 statutory terminology changes back into this

Court’s pre-1996 decisions. And Plasencia itself

makes clear that the Court (in 1982) used “seeking

admission” to refer to noncitizens at a port seeking

entry, not to those who had already entered. 459 U.S.

at 25 (contrasting deportation proceedings for those

“already physically in the United States” and

exclusion proceedings for those “outside the United

States seeking admission”) (emphasis added).

Additionally, Plasencia’s constitutional analysis had

no reason to address the Due Process Clause’s

application to those who had entered, because the

petitioner was at a port. The Court’s reference to

those “seeking initial admission” was simply

distinguishing

between

a

returning

lawful

permanent resident seeking re-admission at a port of

entry and those at ports seeking admission for the

first time.

The consequences of the government’s

admission-based test cannot be overstated: Congress

could constitutionally eliminate all administrative

process and all judicial review for anyone who the

government claims was not lawfully admitted, and

summarily deport them, no matter how many

decades they have lived here, how settled and

integrated they are, or how many members of their

family are U.S. citizens. That mistakes will occur

where there is no judicial or administrative oversight

hardly needs elaboration.

42

3. Perhaps recognizing the extraordinary

reach of its novel due process “admissions” test, the

government alternatively proposes that the Court

abandon the current bright-line border rule for a

“meaningful ties” test and hold that Mr.

Thuraissigiam lacks such ties. Other than repeating

that Mr. Thuraissigiam was in the country only 25

yards, the government does not explain the criteria

the Court should use: How long would one have to be

here or how far into the country before due process

attached? Would it matter if the individual had U.S.

citizen family in the country? Participation in the

community’s civic, economic, or religious life?

Professional or educational ties? The government’s

open-ended, destabilizing test invites endless

litigation. And, critically, Mr. Thuraissigiam does

have a strong tie to this country – his right to seek

relief from persecution. Congress has expressly

provided for humanitarian protection for those

fearing return, even after illegal entry, see 8 U.S.C.

§ 1158(a)(1), including a mandatory prohibition on

removal for those who meet certain criteria, see

Moncrieffe, 569 U.S. at 187 n.1.

The cases the government cites for its view

that a noncitizen must live here for a “meaningful

period” before receiving due process protection, Pet.

Br. 25, are inapposite. As noted, Plasencia expanded

the rights of lawful permanent residents at a port of

entry and cut back on the controversial entry fiction

doctrine. It did not address the Due Process Clause’s

applicability to those who have actually entered,

unlawfully or not. See also Kwong Hai Chew v.

43

Colding, 344 U.S. 590, 596 n.5 (1953) (Pet. Br. 25)

(same).18

At bottom, the government’s “meaningful ties”

test is not only inconsistent with settled due process

doctrine, but is also an attempted end run around

this Court’s conclusion that the Suspension Clause

applies regardless of a noncitizen’s ties to the

country. In Boumediene, 553 U.S. at 771, for

example, the Court applied the Suspension Clause to

noncitizen enemy combatants with no ties to the

United States. Surely Mr. Thuraissigiam is entitled

to no less. Because the government cannot claim that

Mr. Thuraissigiam’s recent unlawful entry on its own

places him outside the ambit of the Suspension

Clause, it tries to reach the same result by arguing

that procedural due process requires meaningful ties

and that the Suspension Clause applies only where

noncitizens have procedural due process rights to

challenge their removal. But both the premise – that

Mr. Thuraissigiam has no due process rights – and

the conclusion – that habeas applies only where due

process does – are incorrect.

4. The government objects that this Court’s

longstanding doctrine guaranteeing due process to all

persons who entered the United States creates a

“perverse incentive” for noncitizens to enter

surreptitiously. Pet. Br. 26. But the Court’s habeas

doctrine does not create any such incentive, because

The government’s reliance on “substantial connections”

language in extraterritoriality decisions is particularly

misplaced given that this case takes place wholly on U.S. soil.

Pet. Br. 25 (citing United States v. Verdugo-Urquidez, 494 U.S.

259, 271 (1990), involving the Warrant Clause’s application to a

search conducted in Mexico).

18

44

habeas is equally available for both those at a port

and those who entered, lawfully or unlawfully.

In any event, in suggesting that after 70 years

the Court now radically expand the due process entry

fiction doctrine, the government offers the Court no

workable line that would prevent agencies from

summarily removing countless noncitizens without

any process whatsoever. Bright line rules can provide

clarity and administrability that avoid endless

litigation, but can always be criticized for their

application in certain cases. On the one hand, the

line this Court has drawn at the border excludes

from due process protections those seeking entry who

have significant family or other ties and who might

be entitled to due process under a “meaningful ties”

test. On the other the hand, the line recognizes the

longstanding significance of territorial presence and

provides a measure of protection to recent entrants

who could otherwise be removed in violation of law.

The Court should decline the government’s invitation

to dramatically destabilize the rights of millions of

“persons” in this country, long protected by

procedural due process.

III.

THE STATUTE’S SCOPE OF REVIEW

DOES NOT PROVIDE AN ADEQUATE

SUBSTITUTE FOR HABEAS UNDER THE

SUSPENSION CLAUSE.

To fulfill the core constitutional requirement

of habeas corpus, a court must be able to ensure that

the government exercises physical restraint only as

authorized by law. That requirement was recognized

and enforced for centuries under the common law

and by this Court from the finality-era cases through

St. Cyr and Boumediene. The expedited removal

45

statute blatantly violates this baseline requirement

by eliminating judicial review of all legal claims.

The government seeks to save the statute by

incorrectly arguing that (1) the available

administrative review adequately compensates for

the virtually complete absence of judicial review; (2)

the government’s interest in conducting expedited

proceedings outweighs the right to judicial review of

legal claims; and (3) Mr. Thuraissigiam is raising

only factual claims.

1. The government characterizes the available

administrative process as more than sufficient and

argues that judicial review of legal claims is

therefore not required. Pet. Br. 41. On its view,

sufficient

administrative

procedure

warrants

elimination of judicial review, even though the lack

of judicial review means the agency could, in turn,

ignore those very procedures with impunity. Here,

the summary procedures provided in expedited

removal offer little protection against legal errors.

See supra Statement. More fundamentally, habeas

requires review by courts, to ensure that the

administrative rules are followed. “[T]he Framers

deemed the writ to be an essential mechanism in the

separation-of-powers scheme” precisely because it is

a judicial check on executive and legislative

authority. Boumediene, 553 U.S. at 743; see also id.

at 744 (noting that Hamilton emphasized the

importance of “a judicial forum”) (emphasis added);

accord id. at 808 (Roberts, C.J., dissenting)

(emphasizing that, “[b]ecause the central purpose of

habeas corpus is to test the legality of executive

detention, the writ requires most fundamentally an

Article III court able to hear the prisoner’s claims”).

46

In St. Cyr, for example, the petitioners were

entitled to full administrative hearings and

administrative appellate review, yet the Court

concluded that a serious constitutional question

would have been raised by the lack of judicial review.

533 U.S. at 300-05. Similarly, in Boumediene, the

Court did not ask whether the administrative process

provided an adequate substitute for habeas, but

whether the statute permitted “the Court of Appeals

to conduct a proceeding meeting” the requirements of

constitutional habeas. 553 U.S. at 787 (emphasis

added). The finality provisions even included

administrative appeal all the way to a cabinet

Secretary, yet this Court still required court review

of legal claims.

A habeas theory that would permit Executive

Branch oversight over its own actions to displace

judicial review is patently inconsistent with the

Suspension Clause as an “indispensable mechanism

for monitoring the separation of powers.” Id. at 765.

2. The government relatedly argues that the

Court should employ a balancing test, as it does in

the due process context, to determine whether legal

claims must be judicially reviewable. The

government relies on Boumediene, but the Court

there directly stated that the two fundamental

requirements – review of legal claims and authority

to release – were the “easily identified attributes of

any constitutionally adequate habeas corpus

proceeding.” Id. at 779 (emphasis added). The Court

did not suggest that those fundamental requirements

could be balanced away. Rather, it stated that

“depending on the circumstances, more may be

required.” Id. at 779 (emphasis added). Only in

addressing what “more” beyond review of legal

47

claims might be required did the Court analogize to

due process balancing and hold that, under the

circumstances of that case, review of facts was also

required. Id. at 780-81, 786.

The Framers included express language

governing the very limited circumstances under

which Congress could suspend the writ – invasion or

rebellion – precisely to ensure that its protections

would not be “balanced” away whenever the political

branches deemed it inconvenient or burdensome. If a

balancing of policy interests were enough to justify

reducing habeas to an empty shell, the “care” the

Framers took to define the circumstances when

habeas could be suspended would be meaningless. Id.

at 743; cf. Chadha, 462 U.S. at 959 (invalidating the

one-House veto and stating that “the Framers

ranked other values higher than efficiency”).

The government states that the 1996 Congress

believed that providing habeas would be a burden.

That was also true of the finality-era Congress. See

supra Section I. Yet even in the face of clear

congressional intent to hasten removal proceedings,

the Court ensured that constitutionally required

habeas remained available. Whatever other

measures Congress may take in the immigration

area to limit rights, habeas must remain.19

In other contexts, the burdens of judicial review likewise

cannot override a constitutional command. See Stern v.

Marshall, 564 U.S. 462, 501 (2011) (rejecting argument based

on burdens of court review, explaining that “[i]t goes without

saying that ‘the fact that a given law or procedure is efficient,

convenient, and useful in facilitating functions of government,

standing alone, will not save it if it is contrary to the

Constitution.’”) (quoting Chadha, 462 U.S. at 944). That is only

19

48

Moreover, even if balancing were proper in the

habeas context, the government understates the

interests for an asylum seeker. Mr. Thuraissigiam

faces a very real risk of being beaten, tortured, and

killed if returned to Sri Lanka. See J.A. 83 (crediting

his testimony). Indeed, Mr. Thuraissigiam spent two

years in detention rather than face return to Sri

Lanka.

The government also overstates the burdens.

Few noncitizens will be in a position to file habeas

petitions given how quickly they are removed and the

difficulty of doing so pro se; and, of course, even those

in a position to file will not necessarily choose to do

so (just as many who receive ordinary removal

orders, including those who have applied for asylum,

do not appeal). Moreover, review of legal claims will

not require prolonged litigation. Likewise, rulings on

the legality of certain practices can definitively

address entire categories of future cases through

precedent, and also provide needed guidance to

asylum officers, reducing errors and the need for

litigation. The government’s assertion that the

availability of review would make expedited removal

“impossible,” Pet. Br. 46 (internal quotation marks

omitted), is also wrong. The availability of habeas

jurisdiction does not guarantee a stay of removal

while courts adjudicate the habeas petition. Cf. Nken

v. Holder, 556 U.S. 418, 425 (2009).

3. Finally, the government suggests (at 38, 45)

that Mr. Thuraissigiam raises only factual claims.

The district court and court of appeals accepted,

however, that Mr. Thuraissigiam’s petition alleged

more true here, because the Constitution precisely specifies

when habeas can be suspended.

49

legal and constitutional claims. Pet. App. 37a, 47a

n.2, 53a. If this Court finds that Mr. Thuraissigiam

can invoke the Suspension Clause to raise legal

claims, it is appropriate for the district court to

initially assess the precise nature of his claims.

In any event, Mr. Thuraissigiam is not

challenging historical facts, such as whether or

where he was beaten. Insofar as any of his claims

raise mixed questions, those claims are also

reviewable because, as noted, the Suspension Clause

mandates review of “‘the erroneous application or

interpretation’ of relevant law.” Boumediene, 553

U.S. at 779; see also St. Cyr, 533 U.S. at 302-03, 30607 & nn.18-23, 27-29 (collecting common-law and

finality-era cases). Indeed, finality-era courts

routinely considered mixed questions. See, e.g.,

Rowoldt v. Perfetto, 355 U.S. 115, 120-21 (1957)

(holding that the facts did not show petitioner had

the “meaningful association” with the Communist

Party required by the statute); Bridges v. Wixon, 326

U.S. 135, 145-47 (1945) (holding particular

circumstances of applicant’s association with the

Communist party constituted cooperation, not

affiliation); Hansen v. Haff, 291 U.S. 559, 560 (1934)

(determining noncitizen did not enter for prostitution

or “any other immoral purpose,” based on her

extramarital relationship, employment history, and

travel outside the country); see also Johnson, 336

U.S. at 812-14; Delgadillo v. Carmichael, 332 U.S.

388, 390-91 (1947); Mahler, 264 U.S. at 43.

With judicial review, statutes and regulations

may ultimately receive sufficient elaboration that at

some point only the routine application of settled

standards remains, resulting in few incorrect

decisions. But on the government’s view, even the

50

most basic elaboration of the statutory and

regulatory requirements, and the correction of

flagrant legal errors, are prohibited.

Here, for example, the asylum officer and

immigration judge plainly misunderstood or

misapplied the statute’s purposefully low “significant

possibility” standard and the regulatory requirement

that the asylum officer “elicit all relevant and useful

information.” See supra Statement. They concluded

that Mr. Thuraissigiam had not met the screening

standard even though they accepted that he was a

Tamil who had been “arrested,” abducted in a “van,”

and severely beaten. Id. They reached that

conclusion only by treating the wrong question as

dispositive: Whether, at the time of the interview,

there was testimony identifying who abducted Mr.

Thuraissigiam. But the statute directs officers to

assess the case an applicant may be able to marshal

at a future full asylum hearing, after consultation

with lawyers and time to gather facts and witnesses.

With that proper understanding, no asylum officer

charged with knowing the conditions in each country

could have concluded that Mr. Thuraissigiam –

whose account of the abduction fit precisely the welldocumented government tactics used against Tamils

– lacked a “significant possibility” of establishing

that government forces were responsible. Id.

Relatedly, no asylum officer charged with knowing

the conditions in Sri Lanka could have properly

understood the elicitation requirement and not asked

Mr. Thuraissigiam follow-up questions when he said

he had been “arrested” and abducted in a “van.” Id.

51

*

*

*

For habeas corpus to serve its time-tested

structural function, the meaning of the law cannot be

insulated from judicial scrutiny. The Court should

not allow the legality of deportations to go untested

for the first time ever.

CONCLUSION

The Court should affirm the judgment of the

court of appeals.

Respectfully Submitted,

Cody Wofsy

Stephen B. Kang

Adrienne Harrold

Morgan Russell

Cecillia D. Wang

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

39 Drumm Street

San Francisco, CA 94111

Lucas Guttentag

559 Nathan Abbott Way

Stanford, CA 94305

David Loy

Sarah Thompson

ACLU FOUNDATION OF SAN

DIEGO & IMPERIAL

COUNTIES

P.O. Box 87131

San Diego, CA 92138-7131

Lee Gelernt

Counsel of Record

Omar C. Jadwat

Jonathan Hafetz

Anand V. Balakrishnan

Celso J. Perez

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

212-549-2500

lgelernt@aclu.org

David D. Cole

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, NW

Washington, DC 20005

Date: January 15, 2020

52