Reply Brief — Department of Homeland Security, et al., Petitioners v. Vijayakumar Thuraissigiam
Supreme Court briefFeb 14, 2020
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No. 19-161
In the Supreme Court of the United States
DEPARTMENT OF HOMELAND SECURITY, ET AL.,
PETITIONERS
v.
VIJAYAKUMAR THURAISSIGIAM
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REPLY BRIEF FOR THE PETITIONERS
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
TABLE OF CONTENTS
Page
I.
II.
The Suspension Clause does not guarantee
judicial review of respondent’s claims ......................... 3
A. Aliens like respondent have no constitutional
rights regarding their admission ......................... 3
B. Respondent’s claims fall outside the
historical core of habeas corpus ......................... 10
The expedited-removal framework satisfies any
constitutional constraints ............................................ 20
TABLE OF AUTHORITIES
Cases:
Boumediene v. Bush, 553 U.S. 723 (2008)......5, 15, 16, 20, 21
Castro v. United States Dep’t of Homeland Sec.,
835 F.3d 422 (2016), cert. denied, 137 S. Ct. 1581
(2017) .................................................................................... 19
D’Olivera, Ex parte, 7 F. Cas. 853
(C.C.D. Mass. 1813) ............................................................ 18
Demore v. Kim, 538 U.S. 510 (2003) .................................... 19
Gegiow v. Uhl, 239 U.S. 3 (1915) .................................... 12, 13
Gonzales v. Williams, 192 U.S. 1 (1904) ............................. 13
Heikkila v. Barber, 345 U.S. 229 (1953) .............................. 12
INS v. St. Cyr, 533 U.S. 289 (2001) ................................ 11, 15
INS v. Stevic, 467 U.S. 407 (1984) .......................................... 6
Kleindienst v. Mandel, 408 U.S. 753 (1972) ......................... 4
Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) ............... 7
Landon v. Plasencia, 459 U.S. 21 (1982) ...................... 3, 4, 7
Mathews v. Eldridge, 424 U.S. 319 (1976) .......................... 22
Munaf v. Geren, 553 U.S. 674 (2008) ................. 16, 18, 19, 20
Nishimura Ekiu v. United States, 142 U.S. 651
(1892) .......................................................................... 8, 13, 14
(I)
II
Cases—Continued:
Page
Omar v. McHugh, 646 F.3d 13 (D.C. Cir. 2011) ................. 19
Preiser v. Rodriguez, 411 U.S. 475 (1973)........................... 16
Richard Blake’s Case, (1814) 105 Eng. Rep. 440
(K.B.) .................................................................................... 18
Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155
(1993) ...................................................................................... 5
Shaughnessy v. United States ex rel. Mezei,
345 U.S. 206 (1953).......................................................... 4, 13
Sheazle, In re, 21 F. Cas. 1214 (C.C.D. Mass. 1845) .......... 18
Somerset v. Stewart, (1772) 98 Eng. Rep. 499 (K.B.) ........ 17
United States v. Di Re, 332 U.S. 581 (1948) ......................... 2
United States v. Vanbiervliet, 284 U.S. 590 (1931) ............ 14
United States ex rel. Accardi v. Shaughnessy,
347 U.S. 260 (1954).............................................................. 13
United States ex rel. Johnson v. Shaughnessy,
336 U.S. 806 (1949).............................................................. 13
United States ex rel. Knauff v. Shaughnessy,
338 U.S. 537 (1950).............................................. 3, 4, 5, 7, 13
United States ex rel. Polymeris v. Trudell,
284 U.S. 279 (1932).............................................................. 13
United States ex rel. Turner v. Williams,
194 U.S. 279 (1904).............................................................. 11
Wong Wing v. United States, 163 U.S. 228 (1896) ............... 6
Wong Yang Sung v. McGrath, 339 U.S. 33 (1950) ........... 7, 9
Yamataya v. Fisher, 189 U.S. 86 (1903) ............................ 7, 9
Yee Won v. White, 256 U.S. 399 (1921) ................................ 13
Constitution, treaties, statutes, and regulations:
U.S. Const.:
Art. I, § 9, Cl. 2 (Suspension Clause).................... passim
Amend. V (Due Process Clause) ...................................... 7
III
Treaties, statutes, and regulations—Continued:
Page
Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment,
adopted Dec. 10, 1984, S. Treaty Doc. No. 20,
100th Cong., 2d Sess. 19 (1988), 1465 U.N.T.S. 85 ............ 2
United Nations Convention Relating to the Status
of Refugees, July 28, 1951, 189 U.N.T.S. 150,
reprinted in 19 U.S.T. 6259 ................................................. 6
United Nations Protocol Relating to the Status of
Refugees, Jan. 31, 1967, 19 U.S.T. 6223 ............................. 6
8 U.S.C. 1101(a)(42)(A) ......................................................... 23
8 U.S.C. 1158(b)(1)(A) ............................................................. 5
8 U.S.C. 1225(b)(1) ............................................................. 1, 21
8 U.S.C. 1225(b)(1)(A)(i).......................................................... 1
8 U.S.C. 1225(b)(1)(A)(iii) ................................................... 1, 9
8 U.S.C. 1225(b)(1)(B)(iii)(III).............................................. 22
8 U.S.C. 1225(b)(1)(B)(iii)(IV) ........................................ 19, 20
8 U.S.C. 1229a ........................................................................ 22
8 U.S.C. 1231(b)(3)(A) ............................................................. 6
8 U.S.C. 1252(a)(2)(A)(iii) ........................................................ 2
8 U.S.C. 1252(e) ..................................................2, 3, 16, 20, 21
8 U.S.C. 1252(e)(2) ....................................................... 1, 10, 21
8 U.S.C. 1252(e)(3) ................................................................. 21
8 U.S.C. 1252(e)(5) ................................................................. 10
28 U.S.C. 2241(c)(1) ............................................................... 10
8 C.F.R.:
Section 208.16(a) ................................................................ 6
Section 208.16(f ) ................................................................ 6
Section 208.17(a) ................................................................ 6
Section 208.30 .................................................................... 2
Section 235.3(b)(4) ............................................................. 2
IV
Miscellaneous:
Page
3 William Blackstone, Commentaries on the
Laws of England (1768) ..................................................... 17
84 Fed. Reg. 33,829 (July 16, 2019) ...................................... 23
H.R. Rep. No. 469, 104th Cong., 2d Sess. Pt. 1
(1996) ................................................................................ 8, 22
Gerald L. Neuman, Habeas Corpus, Executive
Detention, and the Removal of Aliens,
98 Colum. L. Rev. 961 (1998) ............................................. 18
S. Exec. Rep. No. 30, 101st Cong., 2d Sess. (1990) .............. 6
3 Joseph Story, Commentaries on the Constitution
of the United States (1833)................................................. 16
In the Supreme Court of the United States
No. 19-161
DEPARTMENT OF HOMELAND SECURITY, ET AL.,
PETITIONERS
v.
VIJAYAKUMAR THURAISSIGIAM
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REPLY BRIEF FOR THE PETITIONERS
In 1996, Congress enacted expedited-removal procedures that may be applied to aliens arriving at a port
of entry who are inadmissible because of lack of documentation or fraud, or aliens inadmissible on the
same grounds who entered the United States illegally
and have been unlawfully present for a limited time.
8 U.S.C. 1225(b)(1)(A)(i) and (iii). In order to streamline the removal of such aliens, Congress limited judicial
review of final removal orders entered under expeditedremoval procedures. It provided that judicial review remains “available in habeas corpus proceedings, but shall
be limited to determinations” of whether the habeas petitioner is an alien; was ordered removed under Section
1225(b)(1); and is a refugee, asylee, or lawful permanent
resident. 8 U.S.C. 1252(e)(2). And Congress further provided that, “[n]otwithstanding any other provision of
law[,] * * * no court shall have jurisdiction to review,”
(1)
2
as relevant here, “the application of [expedited removal]
to individual aliens, including the determination” that
an alien lacks a credible fear for purposes of asylum,
withholding of removal, or protection under regulations
implementing the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), adopted Dec. 10, 1984, S. Treaty Doc.
No. 20, 100th Cong., 2d Sess. 19 (1988), 1465 U.N.T.S.
85, 113. 8 U.S.C. 1252(a)(2)(A)(iii); see 8 C.F.R. 208.30,
235.3(b)(4).
Respondent asks this Court to hold Section 1252(e)
unconstitutional and to declare for the first time that
the Suspension Clause guarantees judicial review of
Executive Branch determinations regarding an alien’s
initial admission to the United States beyond the habeas review that Congress has provided. But for three
reasons, respondent has not carried his burden to overcome “the strong presumption of constitutionality due
to an Act of Congress.” United States v. Di Re, 332 U.S.
581, 585 (1948).
First, the Constitution does not guarantee any procedures beyond what Congress has authorized relating
to an alien’s efforts to seek admission to the United
States—regardless of what constitutional provision the
alien invokes. That is especially so for concededly inadmissible aliens who request affirmative relief or protection from removal.
Second, respondent’s claims do not fall within the
common-law writ of habeas corpus that the Suspension
Clause protects. Respondent does not challenge his detention as such; indeed, he is currently entitled to be returned to his home country. And he does not challenge
the determination that he is inadmissible. Rather, he
3
seeks review of his failure to pass a threshold screening
of his potential eligibility for certain forms of relief or
protection from removal notwithstanding his inadmissibility. That claim falls well outside the historical core of
habeas.
Third, even if the Constitution guarantees respondent some limited protections with respect to his admission to the United States, Congress’s carefully crafted
system of expedited removal satisfies that guarantee.
Congress has not eliminated habeas review in the
expedited-removal context. To the contrary, Section
1252(e) authorizes habeas review of core questions, and
a multilayer administrative process safeguards any other
protected interest that respondent may have.
I. THE SUSPENSION CLAUSE DOES NOT GUARANTEE
JUDICIAL REVIEW OF RESPONDENT’S CLAIMS
A. Aliens Like Respondent Have No Constitutional Rights
Regarding Their Admission
1. a. In Landon v. Plasencia, 459 U.S. 21 (1982), this
Court made clear that “an alien seeking initial admission to the United States requests a privilege and has
no constitutional rights regarding his application.” Id.
at 32. Rather, “[w]hatever the procedure authorized by
Congress is, it is due process as far as an alien denied
entry is concerned.” United States ex rel. Knauff v.
Shaughnessy, 338 U.S. 537, 544 (1950).
Respondent contends (Br. 33-37) that this principle
is irrelevant here, and that the Suspension Clause guarantees judicial review beyond what Congress has provided even if he lacks due process rights. But as Plasencia explains, Congress has plenary power to determine the procedures available to an alien seeking initial
4
admission. 459 U.S. at 32. And “the Court’s general reaffirmations of this principle have been legion.” Kleindienst
v. Mandel, 408 U.S. 753, 765-766 (1972). It makes no
difference what constitutional provision respondent invokes, if he is seeking additional procedures that Congress has not authorized relating to his request for admission. And he plainly is. See J.A. 31-32 (seeking judicial review of adverse credible-fear determination and
asserting due process right to additional administrative
procedures).
Respondent cites (Br. 35-36) three cases for the proposition that the Suspension Clause guarantees him habeas
review of an adverse credible-fear determination, even
if he lacks other constitutional rights in seeking admission. None supports him here. The first two cases,
Shaughnessy v. United States ex rel. Mezei, 345 U.S.
206 (1953), and Knauff, supra, concerned whether certain aliens were, under their unique circumstances, entitled by statute or due process to procedures beyond
those afforded to ordinary aliens excluded from entry.
In Mezei, the Court reaffirmed that Congress can make
“final and conclusive” the Executive Branch’s determinations about an alien’s admission. 345 U.S. at 212. The
Court then rejected a claim by a former longtime resident housed at Ellis Island that his prolonged detention
entitled him to additional process. Id. at 213, 215-216.
Similarly, in Knauff, the Court observed that “the decision to admit or to exclude an alien may be lawfully
placed with” the Executive Branch, and courts may review that decision only if “expressly authorized by law.”
338 U.S. at 543. The Court then rejected a claim that a
different statute granted additional procedures to “war
5
brides.” Id. at 544-547. In both cases, the habeas petition was simply the vehicle to assess whether the petitioner fell outside the class of aliens for whom the order
of exclusion was final.
In the third case, Boumediene v. Bush, 553 U.S. 723
(2008), the Court determined that the Suspension Clause
permitted military detainees to seek judicial review of
their ongoing detention, without determining whether
due process required the same. See id. at 785. But
Boumediene concluded only that, even in the possible
absence of a due process violation, habeas review was
available to challenge executive detention “for the duration of hostilities that may last a generation or more.”
Ibid.
b. In any event, the Court need not address the full
scope of Congress’s plenary power over admission. Even
if, in some circumstances, the Constitution, including
the Suspension Clause, constrains Congress’s ability to
limit the procedures governing admissibility determinations, respondent does not challenge the determination that he is inadmissible. Instead, he seeks affirmative relief or protection from removal notwithstanding
his conceded inadmissibility. Respondent offers no support for the proposition that Congress is required to attach certain procedures, including judicial review, to a
decision that an inadmissible alien has failed a threshold
screening for potential affirmative relief.
Congress may determine the class of inadmissible aliens to whom it extends an opportunity to seek such relief.
See Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155,
188 (1993). Congress has designated asylum a form of
discretionary relief, not a right. See 8 U.S.C. 1158(b)(1)(A).
And withholding of removal and CAT protection, while
6
mandatory when the criteria are satisfied, provide only
protection from removal to a particular country, not a
right to enter and live in the United States. See 8 U.S.C.
1231(b)(3)(A); 8 C.F.R. 208.16(a) and (f ), 208.17(a). 1 Congress at a minimum has plenary authority to determine
how to screen inadmissible aliens for the limited types
of affirmative relief that it has chosen to offer.
2. a. Respondent next contends (Br. 38-45) that because he was apprehended after illegally entering the
United States, he enjoys expanded constitutional rights
with respect to his request for relief. As support, he
cites (Br. 38-40) decisions stating that someone inside
the United States is a “person” within the meaning of
the Due Process Clause. But the government has never
suggested otherwise. Respondent is indeed entitled to
the protections of the Due Process Clause while he is in
the United States; he could not, for example, be subjected to torture or to infamous punishment without
criminal process. See Wong Wing v. United States,
163 U.S. 228 (1896). The relevant point, however, is that
CAT and Article 33 of the United Nations Convention Relating
to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150, reprinted
in 19 U.S.T. 6259, 6276, to which the withholding-of-removal statute
was meant to conform, are non-self-executing. See S. Exec. Rep.
No. 30, 101st Cong., 2d Sess. 2 (1990) (CAT is non-self-executing);
INS v. Stevic, 467 U.S. 407, 428 n.22 (1984) (1967 United Nations
Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T.
6223, through which the United States undertook obligations under
the Refugee Convention, is non-self-executing). Accordingly, Congress has the power under domestic law to define the procedures by
which it offers such protections.
1
7
the Due Process Clause does not guarantee any particular procedures with respect to a decision concerning
his admission. See Knauff, 338 U.S. at 544. 2
Importantly, that principle applies to anyone
properly classified as seeking initial admission. This
Court has repeatedly indicated that an alien cannot circumvent Congress’s plenary power over admission
merely by stepping across the U.S. border. See Yamataya v. Fisher, 189 U.S. 86, 100 (1903) (leaving open the
question whether an alien “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,” can “rightfully invoke the due process clause
of the Constitution” to challenge his removal); see also,
e.g., Plasencia, 459 U.S. at 32 (extending due process
protections applicable to deportation to an alien who
“gains admission to our country and begins to develop
the ties that go with permanent residence”); Kwong Hai
Chew v. Colding, 344 U.S. 590, 596 n.5 (1953) (explaining
that “[t]he Bill of Rights is a futile authority for the alien seeking admission for the first time,” in contrast to
an alien who “lawfully enters and resides in this country”); Wong Yang Sung v. McGrath, 339 U.S. 33, 49-50
Counsel for the United States explained that important distinction in the oral argument that respondent partially quotes (Br. 39).
See Tr. at 24-25, Clark v. Martinez, No. 03-878 (Oct. 13, 2004) (explaining that “[t]he question is * * * what process is due” and that
“there are no constitutional rights in connection with his admission
to the United States”). Although counsel also stated without elaboration that an alien who crossed the border illegally is “entitled to
procedural due process rights,” id. at 25, that statement did not address the length of illegal presence after entry (see pp. 7-8, infra)
or whether the alien would be entitled to any procedures beyond
what Congress afforded.
2
8
(1950) (observing that due process requires “a hearing
at least for aliens who had not entered clandestinely and
who had been here some time even if illegally”). Respondent objects (Br. 40) that the Court in those cases
“did not decide” that clandestine entrants who have not
yet become part of the population are entitled to only
the process that Congress affords with respect to their
admission to the United States. But while the Court has
not yet needed to squarely decide the issue, that is no
basis for holding an Act of Congress unconstitutional by
repudiating a principle that it has frequently articulated.
To the contrary, strong reasons support adhering to
the classification advanced in Yamataya. As a matter
of the separation of powers, when the Executive apprehends an inadmissible alien—whether at the border or
after the alien has illegally entered—and makes the congressionally authorized determination that he should
not be granted relief from inadmissibility, a judicial order overturning that decision and compelling additional
process would contravene this Court’s repeated admonition that “[i]t is not within the province of the judiciary
to order that foreigners who have never * * * even
been admitted into the country” should “be permitted
to enter, in opposition to” the joint decision of the political
Branches. Nishimura Ekiu v. United States, 142 U.S.
651, 660 (1892). And as a matter of common sense,
granting broader judicial review to inadmissible aliens
who unlawfully cross the border and express a fear of
return, as compared to inadmissible aliens who do so at
a port of entry, would create perverse incentives to engage in unlawful entry. H.R. Rep. No. 469, 104th Cong.,
2d Sess. Pt. 1, at 225 (1996) (House Report). Respondent’s only response—that someone at a port of entry
9
could likewise file a habeas petition challenging the
screening of her asylum claim (Br. 44-45)—is both unsupported and indicative of the breadth of his constitutional
theory.
b. Respondent offers three objections. First, he
contends (Br. 40, 42) that applying the classification articulated in Yamataya would “eliminate procedural due
process rights * * * for any noncitizen deemed to have
entered the country unlawfully.” That contention ignores that this Court’s statement in Yamataya referred
to aliens who have both “entered the country clandestinely” and not yet “become, in any real sense, a part of
our population.” 189 U.S. at 100; see Wong Yang Sung,
339 U.S. at 49-50.
Second, respondent contends (Br. 43, 45) that treating some unlawful entrants as applicants for initial admission would fail to provide a workable rule. But Congress has selected a two-year limit on the period of unlawful presence during which DHS may place an alien
in expedited removal. 8 U.S.C. 1225(b)(1)(A)(iii). In any
event, respondent—who was apprehended 25 yards
from the U.S.-Mexico border, almost immediately upon
surreptitiously entering the country, J.A. 38—plainly
falls within the class of illegal entrants who may
properly be treated as seeking initial admission.
Finally, respondent suggests in passing (Br. 43) that
he has “a strong tie to this country—his right to seek
relief from persecution.” But the potential availability
of asylum is not an independent connection to the United
States that triggers due process rights. Congress conditioned that availability on, inter alia, passing a threshold screening procedure that it deemed adequate and
10
not subject to judicial review. Under respondent’s reasoning, however, any alien who seeks humanitarian protection offered by Congress could claim a constitutional
entitlement to more procedures than Congress has attached to that protection. The Constitution does not require such bootstrapping.
B. Respondent’s Claims Fall Outside The Historical Core
Of Habeas Corpus
Respondent’s Suspension Clause claim fails for the
additional reason that the common-law writ of habeas
corpus at the time of ratification offered a means of
seeking relief from unlawful detention as such. Respondent does not dispute that he is inadmissible, that
his detention was lawful, and that he is currently entitled to be returned to his home country. Instead, the
relief that he seeks—a new decision and additional procedures in his threshold screening for asylum, withholding of removal, or CAT protection—bears no resemblance to the common-law writ.
The question here is not whether respondent was “in
custody” for purposes of filing a habeas petition under
the general habeas statute, 28 U.S.C. 2241(c)(1); Congress has withdrawn that statutory authorization,
8 U.S.C. 1252(e)(2) and (5). Respondent’s repeated insistence (e.g., Br. 1, 25-26, 32) that the denial of initial
admission to the United States may generally constitute
a restraint sufficient to file a habeas petition is thus beside the point. Instead, the question is whether a habeas petition challenging the denial of admission to the
United States—or, more specifically, the alien’s failure
to pass a threshold screening for potential eligibility for
relief notwithstanding his inadmissibility—falls within
11
the “historical core” of habeas corpus that the Suspension Clause protects. INS v. St. Cyr, 533 U.S. 289, 301
(2001).
Notably, respondent does not advocate (Br. 26 n.12)
a “one-way ratchet” theory of the Suspension Clause,
under which expansions of the habeas statute similarly
expand the Constitution’s protections. St. Cyr, 533 U.S.
at 342 (Scalia, J., dissenting). He instead offers (Br.
11-33) three sources for believing that his habeas petition falls within the common-law scope of habeas corpus. His reliance on those sources is misplaced.
1. Respondent primarily focuses (Br. 11-22) on this
Court’s finality-era decisions. But those decisions do
not once mention the Suspension Clause. 3 Respondent
misapprehends both whether the finality-era decisions
reveal anything about the Suspension Clause and, if so,
whether they support respondent’s position here.
a. As an initial matter, this Court’s finality-era decisions do not represent a body of precedent about the
Suspension Clause. Respondent contends (Br. 13-17)
that the finality-era immigration statutes barred the
One separate opinion for a single Justice did so. See United
States ex rel. Turner v. Williams, 194 U.S. 279, 295 (1904) (separate
concurring opinion by Brewer, J.). In addition, respondent correctly observes (Br. 17-19) that a finality-era government brief indicated that the Suspension Clause precluded the complete denial
of habeas review. See U.S. Br. at 35-36, Martinez v. Neelly,
No. 52-218 (Dec. 13, 1952). But that brief described the Constitution
as guaranteeing “limited review in habeas corpus proceedings,” id.
at 36, of questions whether the Executive exceeded its statutory authority, see id. at 20, 22, not of individual administrative determinations.
3
12
Court from exercising all habeas review, yet the Suspension Clause compelled it to conduct such “review
over legal claims in case after case.” Resp. Br. 13. That
is not how the Court characterized its review. Notwithstanding the admittedly sweeping language in the various statutes (e.g., id. at 17), the Court made clear that
“courts are not forbidden by the statute to consider
whether the reasons [for deportation], when they are
given, agree with the requirements of the act. * * * The
conclusiveness of the decisions of immigration officers
under [the finality statute] is conclusiveness upon matters of fact.” Gegiow v. Uhl, 239 U.S. 3, 9 (1915) (emphasis added).
It is true that the Court in Heikkila v. Barber,
345 U.S. 229 (1953), stated that the finality statutes
“had the effect of precluding judicial intervention in deportation cases except insofar as it was required by the
Constitution.” Id. at 234-235. But that statement does
not mean that every time the Court exercised habeas
review during the finality era, it did so because it had
(silently) concluded that the statute was unconstitutional as applied in that case. More to the point, Heikkila did not indicate that the Suspension Clause—which
it did not mention—required judicial review of the underlying administrative order in such cases. The Court
instead reiterated that courts could not review individual administrative determinations, id. at 233-235, and
stated that the “function of the courts” in habeas “has
always been limited to the enforcement of due process
requirements,” id. at 236.
b. In any event, even if this Court looks to finalityera decisions for guidance, those decisions do not support respondent. The only relevant decisions that could
13
suggest that the Court (again, silently) applied the Suspension Clause to require habeas review are those in
which (1) the statute foreclosed such review; and (2) the
habeas petitioner sought initial admission. Respondent
does not cite (Br. 14-16, 21-22) a single decision that
meets both criteria. In every case, the Court confronted
a legal question of the sort that it had treated as falling
outside the finality statutes, addressed a habeas petitioner who was not applying for initial admission, or
both. See Ekiu, 142 U.S. at 662-664 (concluding that
immigration official had been validly appointed and his
decision was within his statutory authority, and was
therefore “final and conclusive”); Gegiow, 239 U.S. at 9-10
(determining that “[t]he conclusiveness of the decisions
of immigration officers under [the finality statute]” did
not reach the question whether someone could be
deemed a public charge because of market conditions);
Mezei, 345 U.S. at 211-212 (challenge in effect to continued confinement to Ellis Island); Knauff, 338 U.S. at
542-543 (challenge to statute and regulations and their
application to war brides); United States ex rel. Johnson v. Shaughnessy, 336 U.S. 806, 808-809 (1949) (challenge to another agency’s medical determination);
United States ex rel. Polymeris v. Trudell, 284 U.S. 279,
280 (1932) (question of legal requirements for reentry);
Yee Won v. White, 256 U.S. 399, 400-402 (1921) (question whether statute and treaty provided right of entry
for wife and minor children of Chinese laborer); Gonzales v. Williams, 192 U.S. 1, 7 (1904) (question whether
native of Puerto Rico was an “alien” under the statute);
United States ex rel. Accardi v. Shaughnessy, 347 U.S.
260, 262 (1954) (deportation after 15 years’ residence);
14
United States v. Vanbiervliet, 284 U.S. 590 (1931) (per
curiam) (deportation after six years’ residence).
Respondent contends (Br. 21-22) that, in particular,
the Court in Ekiu exercised habeas review that Congress had barred by statute but that the Court considered “constitutionally required.” That is incorrect. In
Ekiu, the Court explained that when
a statute gives a discretionary power to an officer, to
be exercised by him upon his own opinion of certain
facts, he is made the sole and exclusive judge of the
existence of those facts, and no other tribunal, unless
expressly authorized by law to do so, is at liberty to
reëxamine or controvert the sufficiency of the evidence on which he acted.
142 U.S. at 660. The Court then determined that the
finality statute “manifestly intended to prevent the
question of an alien immigrant’s right to land, when
once decided adversely by an inspector, acting within
the jurisdiction conferred upon him, from being impeached or reviewed, in the courts or otherwise.” Id. at
663-664. The Court reviewed particular purely legal
questions—not covered by the finality statute—about
whether the inspector had been appointed in violation
of the law and whether the statute required testimony.
Id. at 662-663. But once it found that the entry determination was within the inspector’s statutory authority,
it concluded that his “decision was final and conclusive.”
Id. at 664. Ekiu thus illustrates that, in the finality era,
the Court did not exercise habeas review to secondguess the Executive’s case-specific decisions regarding
an alien’s admission. And at a minimum, the Court did
not exercise habeas review to review decisions whether
15
to grant affirmative relief to a concededly inadmissible
alien. See pp. 5-6, supra.
2. Respondent next turns (Br. 23-25) to this Court’s
decisions in St. Cyr and Boumediene. For the reasons
explained at greater length in the government’s opening brief (at 31-33, 36-38), neither decision suggests that
the Suspension Clause guarantees judicial review of respondent’s claims.
a. St. Cyr stated that the Suspension Clause requires “some judicial intervention in deportation cases.”
533 U.S. at 300 (citation and internal quotation marks
omitted). But that was not a constitutional holding with
respect to the issue in St. Cyr. The Court instead construed the relevant statutory provision to avoid “serious
constitutional questions.” Id. at 314.
In any event, the critical point is not that this Court
should reject St. Cyr’s statement that the Suspension
Clause requires some judicial review of deportation orders; the critical point is that the Court should not extend that statement to an order denying initial admission. St. Cyr involved a lawful permanent resident with
a significant liberty interest in remaining in this country, and the Court noted the existence of constitutional
concerns about the deportation of such a resident without access to judicial review. 533 U.S. at 300. But the
Court did not suggest that aliens seeking initial admission (let alone relief notwithstanding their inadmissibility), who have no protected liberty interest in entering
or remaining in the United States, have a comparable
constitutional entitlement.
b. Boumediene arose in dramatically different circumstances. As respondent notes (Br. 24-25), Boumediene reaffirmed that the Suspension Clause, within
16
its traditional scope, guarantees review of certain legal
claims, see 553 U.S. at 779. But that does not answer
the question concerning application of the Suspension
Clause here. Nor does it matter, as respondent urges
(Br. 25), that the enemy combatants held at Guantanamo “had never set foot in the United States.” Boumediene reasoned that the detainees were held by the
United States in a location over which it exercised de
facto sovereignty. 553 U.S. at 755. And the case otherwise involved a classic application of habeas corpus: a
petition for relief from ongoing, allegedly unlawful, executive detention. Id. at 732, 785, 788.
3. Finally, respondent contends (Br. 25-33) that the
common-law writ of habeas, as it existed in 1789, would
have recognized a claim like the one he asserts here.
Respondent’s support for that contention falls well
short of carrying his burden to demonstrate Section
1252(e)’s unconstitutionality.
As the government’s opening brief explains (at 27-35),
“the common-law history of the writ” makes clear “that
the essence of habeas corpus is an attack by a person in
custody upon the legality of that custody.” Preiser v.
Rodriguez, 411 U.S. 475, 484 (1973); see 3 Joseph Story,
Commentaries on the Constitution of the United States
§ 1333 (1833) (explaining that habeas is “the appropriate remedy to ascertain[] whether any person is rightfully in confinement” and “is entitled to his immediate
discharge”). The historical “remedy for such detention
is, of course, release.” Munaf v. Geren, 553 U.S. 674,
693 (2008). Yet respondent does not challenge his detention upon unlawfully entering the country or seek release from any wrongful confinement. Nor does he challenge the determination that he is inadmissible because
17
he has no valid entry document. Instead, he seeks review of the decision made under proceedings for screening inadmissible aliens for possible eligibility for asylum,
withholding of removal, or CAT protection. J.A. 33.
Respondent nevertheless seeks to bring this case
within the common-law writ. First, he contends (Br. 2627) that habeas was used to test the lawfulness of a variety of physical restraints, from imprisonment to indentured servitude. That illustrates the government’s
point: Habeas traditionally involved challenges to “illegal confinement” itself. 3 William Blackstone, Commentaries on the Laws of England 131 (1768).
Second, respondent contends (Br. 27-28) that “the
common-law courts used habeas to assess the lawfulness of transfers outside the country.” Resp. Br. 27.
But his historical support for this point is extremely
thin. Respondent identifies only two cases, Murray’s
Case and Somerset v. Stewart, (1772) 98 Eng. Rep. 499
(K.B.) 499, that he believes involved challenges to transfers. The government has been unable to locate any report of Murray’s Case, and the basis for the challenge
is unclear from respondent’s description (Br. 27). In
Somerset, although the ultimate effect of the court’s
holding was to protect a slave from a transfer out of
England, the court’s analysis asked “whether any dominion, authority or coercion can be exercised in this
country, on a slave according to the American laws,” not
whether a transfer was proper. 98 Eng. Rep. at 509.
And the court ordered that the habeas petitioner “be
discharged” from custody, not that he merely not be
transferred. Id. at 510.
18
Respondent also briefly draws an analogy (Br. 28) to
extradition. As one source cited by respondent explains, however, no tradition of challenging extradition
via habeas existed at the Founding, as England was not
at that time a party to any extradition treaty and the
U.S. government extradited just one person before the
mid-nineteenth century. See Gerald L. Neuman, Habeas Corpus, Executive Detention, and the Removal of
Aliens, 98 Colum. L. Rev. 961, 994-996 (1998). Respondent’s other source relies on an 1814 English case that
did not appear to involve extradition. See Richard
Blake’s Case, (1814) 105 Eng. Rep. 440 (K.B.) (assessing
permissibility of delay in holding court martial where
key witnesses had deployed overseas). Moreover, later
challenges to extradition often focused—consistent
with traditional habeas—on the authority to arrest and
detain the prisoner, not the propriety of a foreign transfer itself. See, e.g., In re Sheazle, 21 F. Cas. 1214, 1217
(C.C.D. Mass. 1845) (No. 12,734) (Woodbury, J., on circuit) (rejecting challenge to arrest warrant); cf. Ex
parte D’Olivera, 7 F. Cas. 853, 854 (C.C.D. Mass. 1813)
(No. 3967) (Story, J., on circuit) (finding no jurisdiction
to detain deserting seamen, but “direct[ing] an officer
to deliver them to the master on board of his vessel”).
And in any event, the analogy to extradition undermines
respondent’s position here: Under the rule of noninquiry, questions about the conditions an individual
might face upon transfer are “to be addressed by the
political branches, not the Judiciary.” Munaf, 553 U.S.
at 700.
Third, respondent contends (Br. 29-32) that he is
in fact challenging a wrongful detention. But respondent admits that he entered the country unlawfully
19
and was therefore lawfully detained during the pendency of expedited-removal procedures. See 8 U.S.C.
1225(b)(1)(B)(iii)(IV); see also Demore v. Kim, 538 U.S.
510, 531 (2003). Contrary to his assertion (Br. 29), his
habeas petition nowhere requests “conditional release
pending a lawful adjudication.” Rather, it seeks “a writ
of habeas corpus * * * directing [the government] to
provide [him] a new opportunity to apply for asylum and
other applicable forms of relief.” J.A. 33; see J.A. 31-32.
That request has no parallel in the common-law uses of
habeas to challenge unlawful detention as such. See Castro v. United States Dep’t of Homeland Sec., 835 F.3d
422, 450 (2016), cert. denied, 137 S. Ct. 1581 (2017) (Hardiman, J., concurring dubitante) (explaining that similarly situated habeas petitioners sought not to be released, but rather “to alter their status in the United
States in the hope of avoiding release to their homelands”). Indeed, respondent’s suggestion (Br. 49) that
he could be removed to his home country pending the
adjudication of his habeas petition underscores that his
concern is not with avoiding unlawful confinement but
with obtaining additional review of his request for relief.
Finally, respondent attempts (Br. 32-33) to distinguish Munaf. But in both Munaf and this case, the habeas petitioners did not request outright release. See
553 U.S. at 692. Instead, they effectively sought “a
court order requiring the United States to shelter them
from [a foreign] government.” Id. at 694; see Omar v.
McHugh, 646 F.3d 13, 15 (D.C. Cir. 2011) (Kavanaugh,
J.) (rejecting argument that Suspension Clause entitled
petitioner “to judicial review of conditions in the receiving
country”). To be sure, the habeas petitioners in Munaf
were located outside the United States. See 553 U.S. at
20
679. But because respondent is seeking initial admission to the United States and is not challenging his
inadmissibility or his detention upon his unlawful entry,
the basic point remains the same: He wishes to use habeas review to acquire humanitarian protection that the
Executive Branch has determined is unwarranted, not
to contest executive detention as such. If that sort of
request fell outside the scope of the habeas statute in
Munaf, id. at 692, 702, it a fortiori falls outside the
scope of the narrower common-law habeas right guaranteed by the Suspension Clause.
II. THE EXPEDITED-REMOVAL FRAMEWORK SATISFIES
ANY CONSTITUTIONAL CONSTRAINTS
Even if respondent may properly invoke the Suspension Clause to challenge the limitations on habeas corpus review in the context of his denial of initial admission to the United States, he is not entitled to relief.
Section 1252(e) does not eliminate habeas review; it
merely restricts review to questions about whether the
habeas petitioner is statutorily subject to expedited removal, 8 U.S.C. 1252(e), and thus is appropriately detained, see 8 U.S.C. 1225(b)(1)(B)(iii)(IV). And the multilayer administrative system that Congress has designed to screen inadmissible aliens who may be eligible
for affirmative relief effectively safeguards whatever
other interest they may have.
A. Contrary to respondent’s contention (Br. 46-47),
the government has not argued that an administrative
process can entirely displace judicial review to the extent the Suspension Clause actually guarantees such review. Boumediene explained that, where the Suspension Clause applies, it guarantees judicial review of “the
21
cause for detention and the Executive’s power to detain.”
553 U.S. at 783. In the context of expedited removal, Section 1252(e) authorizes habeas review of both.
Section 1252(e)(2) provides for habeas review of the
three basic attributes underlying an alien’s expedited
removal: whether the habeas petitioner is in fact an alien; whether he has been ordered removed under Section 1225(b)(1); and whether he is a refugee, asylee, or
lawful permanent resident. 8 U.S.C. 1252(e)(2). That
provision thus allows for judicial review of the underlying
“cause for detention,” Boumediene, 553 U.S. at 783—
i.e., whether an alien is properly subject to expedited
removal under Section 1225(b)(1). And because Congress may commit the determination of whether an individual alien will be admitted exclusively to the Executive, the issuance of an expedited-removal order pursuant to that statutory grant of authority establishes
the lawfulness of the alien’s detention for purposes of
removal.
In addition, Section 1252(e) provides for judicial review of challenges to the constitutionality or legality of
the expedited-removal system itself, if brought in a
timely suit by an appropriate party. 8 U.S.C. 1252(e)(3).
That provision too allows for some judicial review of
“the Executive’s power to detain.” Boumediene, 553 U.S.
at 783.
B. Respondent seeks something more: judicial review of the case- and fact-specific application of the statutory screening framework to his particular claim for
asylum. J.A. 33. But to the extent respondent has any
protected liberty interest here, but see pp. 3-10, supra,
the administrative procedures that Congress has crafted
22
are more than sufficient to protect such an interest. Cf.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
1. As the government’s opening brief explains (at 7-9,
42-43), the expedited-removal procedures—although
streamlined in comparison to removal proceedings
under 8 U.S.C. 1229a—contain significant protections
against legal and factual errors. The statute provides
three opportunities for an alien to demonstrate that he
has a credible fear, including before an independent immigration judge within a different agency. 8 U.S.C.
1225(b)(1)(B)(iii)(III). Respondent briefly suggests
(Br. 4, 46) that those procedures offer few protections,
but he provides no explanation and does not contest the
government’s description of the process required by
statute and regulation.
2. As for the parties’ respective interests, respondent asserts (Br. 49) that he has an interest in avoiding
return to Sri Lanka. But respondent fails to offer any
relevant, constitutionally protected interest in admission to the United States. On the other side of the balance, respondent attempts to downplay the government’s
strong interest in maintaining a functioning expeditedremoval system. But respondent’s speculation (ibid.)
that few habeas claims would be filed, that they would
not require prolonged litigation, and that habeas petitioners would not seek a stay of removal is unsupported.
In reality, Congress made precisely the opposite judgment: that without an efficient expedited-removal system, inadmissible aliens would delay their removal long
enough to be released into the general population and
remain indefinitely. See House Report 117-118. In addition, the number of aliens in expedited removal who
are referred for credible-fear screenings has increased
23
over the last decade from fewer than 5000 aliens a year
to nearly 100,000. 84 Fed. Reg. 33,829, 33,838-33,839
(July 16, 2019). Meanwhile, the backlog of cases in the
administrative immigration courts has increased to
900,000. Id. at 33,839. The harms that respondent’s position would cause are real.
3. Finally, to the extent respondent contends (Br. 5-6,
46, 51) that his credible-fear proceedings demonstrate a
need for judicial review, the record refutes that contention. From the moment respondent was apprehended,
he never gave any indication that his attackers in Sri
Lanka were motivated by a protected ground. See
8 U.S.C. 1101(a)(42)(A). He told an asylum officer that
he did not know who had beaten him or why they had
chosen him, despite a series of questions eliciting information about the attack. J.A. 71-74. And he expressed
no reluctance to seek police protection, except that he
could not identify his attackers. J.A. 72; see J.A. 89.
Respondent also specifically denied any fear of harm on
the basis of his political opinion. J.A. 76-77. The asylum
officer explained to respondent that no nexus existed
between the beating and a protected ground. C.A.
S.E.R. 48. Still, in testimony before an immigration
judge, J.A. 97, respondent maintained that he did not
know who had beaten him and gave no reason to believe
that any such nexus existed. This case thus exemplifies
the appropriate functioning of the administrative
screening process and illustrates why Congress deemed
a costly additional layer of judicial review both unnecessary and unwise.
24
* * * * *
The judgment of the court of appeals should be
reversed.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
FEBRUARY 2020
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.