On Friday, June 26, 2020, the Supreme Court of the United States decided a Suspension Clause challenge to expedited immigration proceedings. In the widely anticipated judgment, the Court determined that no habeas could be brought as the original habeas petitioner was not in fact asking for the habeas relief of release. In so many words, the Suspension Clause case never happened. The petitioner, Mr. Vijayakumar Thuraissigiam, and his counsel, the American Civil Liberties Union (ACLU), must have been somewhat surprised. Like many immigration and constitutional lawyers, they are likely struggling to decipher the Court’s decision.
Late one January evening in 2017, Mr. Thuraissigiam crossed into the US without inspection. This was observed by the US Border Patrol and he was detained 25 yards after he crossed the southern border. According to US immigration law, he was then subject to expedited removal proceedings. When Mr. Thuraissigiam was apprehended in the US, similar to most asylum seekers, he merely stated his interest in coming to the US and his fear of persecution in his native Sri Lanka. He did not organize his pleas into neatly arranged claims of fear of persecution based on his race, political opinions, or other protected characteristics enumerated by the UN Refugee Convention, and incorporated into US law by the Refugee Act of 1980.
In Sri Lanka, he had been abducted by men in a white van who blindfolded him, tortured him, and threatened to kill him. This was commonly known to be how death squads working on behalf of, or, with the consent of, the government disappeared Tamils. The government had waged a 26-year civil war against the predominately Tamil north that only ended with the defeat of the insurgent Tamil Tigers in 2009. Mr. Thuraissigiam was one of the lucky Tamils, who against the odds had managed to escape and come to the US.
Fernando Chang-Muy, Adjunct Professor of Law at the University of Pennsylvania’s Carey School of Law notes that “Vijayakumar Thuraissigiam, fled Sri Lanka to escape an abduction, beatings, and torture through simulated drownings . . . [h]ad he stayed, he may have been killed.”
Expedited removal proceedings provide a minimal opportunity for noncitizens to prove their claims for protection. It is an opportunity that is usually lost because it does not include legal representation, rules of evidence, or even a thoroughly reasoned decision. Sometimes, no reasons at all are given. These proceedings are provided to any person who enters the US without an inspection, lacks a valid entry document, and is apprehended within two years. It entitles an asylum seeker to an interview by an asylum officer, an official of the Department of Homeland Security (DHS), who is usually not a lawyer. The asylum seeker has no right to legal representation at this interview and his or her life is often subject to the discretionary impressions of this DHS official. If the claimant is found not to have a credible fear of persecution that entitles him or her to protection, a supervisor reviews the asylum officer’s decision. If the supervisor agrees, he remains in expedited removal proceedings.
The asylum seeker is then referred to another process before an administrative official called an immigration judge, but who is also a government employee subject to the discipline of the head of the Department of Justice, the Attorney General, who is chosen by the President. Usually, the hearing before the immigration judge lasts only a few minutes. If the immigration judge finds no error in the asylum officer’s decision, the asylum seeker is often then deported in short order by Immigration and Customs Enforcement, a part of DHS.
The expedited removal process was applied to Mr. Thuraissigiam, but after the immigration judge ordered his removal, he brought a petition seeking a writ of habeas corpus from a federal court where judges are named for life. He claimed that the process was unfair and violated his due process rights. A California federal court denied his petition. The District Court for the Southern District of California found that 28 U.S.C. § 1252(e)(2) prohibited it from considering a habeas petition that challenges the fairness of an expedited removal proceeding. Mr. Thuraissigiam, flanked by the ACLU, appealed.
The Ninth Circuit Court of Appeals reversed the District Court, holding “the fact that § 1252(e)(2) prevents any judicial review of whether DHS complied with the procedures in an individual case, or applied the correct legal standards” violated the Suspension Clause of the U.S. Constitution, Article One, Section 9, clause 2. The Court cited a Supreme Court decision that gave persons who were classified as enemy combatants in the war on terror and detained at the Guantanamo Bay Naval Base the right to bring a habeas petition challenging the legality of their detention.
The Supreme Court was asked to decide whether an asylum seeker who had just entered the country was entitled to file a petition for the extraordinary writ of habeas corpus. Mr. Thuraissigiam claimed that he had a right to file and be granted a writ of habeas corpus because to prevent him from doing so would constitute the suspension of the writ of habeas corpus. He also claimed that his due process rights had been violated. The Court dealt with each of these claims separately.
The 7-2 majority opinion was penned by Justice Samuel Alito and joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh. Justice Stephen Breyer filed a concurring opinion joined by Justice Ruth Ginsberg. Justice Clarence Thomas also wrote a concurring opinion. Justices Sonia Sotomayor filed a dissenting opinion, that was longer than the Court’s majority opinion, which Justice Elena Kagan joined.
The majority opinion had seven concurrences in its holding that in this particular case there was no violation of the Suspension Clause. However, while observers had anxiously awaited a determination as to whether the expedited removal proceedings “as-applied” to Mr. Thuraissigiam constituted a violation of Suspension Clause, they instead were provided a perhaps disappointing version of constitutional avoidance.
The Supreme Court decided in effect that Mr. Thuraissigiam’s claim that Section 1252(e)(2) violated the Suspension Clause could not be heard because he was not entitled to use the writ of habeas corpus. This was somewhat surprising because the U.S. District Court for the Southern District of California had addressed the Suspension Clause issue. The District Court had noted that “[t]he Court does not dispute that the Suspension Clause applies to Petitioner” but found that the suspension of habeas by Section 1252(e)(2) was allowed because expedited removal proceedings provided a sufficient alternative. The Ninth Circuit Court of Appeals also addressed the Suspension Clause argument holding in an three-judge panel opinion written by Senior Judge Atsushi Wallace Tashima that “[a]lthough § 1252(e)(2) does not authorize jurisdiction over the claims in Thuraissigiam’s petition, the Suspension Clause, U.S. Const. art. I, § 9, cl. 2, does. The Court of Appeals relied on Boumediene v. Bush and INS v. St. Cyr to require that Mr. Thuraissigiam be given a “meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law.”
Boumediene has become the standard test for determining whether the Suspension Clause is violated. It is a test that has two parts. First, the court asks: is the petitioner entitled to the writ of habeas corpus. The answer to this first question depends on who the petitioner is and where he or she is found. In addition, according to Thuraissigiam, it also depends on what relief the petitioner claims. The majority opinion and Justice Breyer, with significant concern from Justice Sotomayor in her and Justice Kagan’s dissent, were of the opinion that unless a petitioner expressly seeks release and nothing more, their action cannot be characterized as a habeas petition. With this holding, the Court disposed of the case.
Although the Court provides some obiter dicta, it does not address the second question in Boumediene, which was the focus of both the District and Circuit courts below. This question would have been: Is the expedited removal procedure that is allowed by Congress one that provides procedural protections equivalent to a habeas procedure? This was also the question on which many observers, including the majority of the dozen amici curiae, had focused their attention.
By deciding the case on the basis of the first Boumediene question, the Court avoided the more difficult question about the legitimacy of expedited removal proceedings. Instead, the Court appeared to merely say this was not the case to challenge these proceedings. Indeed, the petitioner had not sought mere release, as that could have been affected by his deportation to Sri Lanka, where he feared for his life. Instead, he wanted release and a new opportunity, in a fair procedure, to have his claim for protection heard.
The Court complicated its holding by dealing with the due process issue as a distinct claim. It is admitted, as Respondents also conceded in oral argument, that unlike the issue of the Suspension Clause and habeas corpus, which predates the founding of the U.S., the due process is embedded in the U.S. Constitution in the Fifth Amendment as a distinct claim. While this is undoubtedly true, it is also inextricably linked to the Suspension Clause claim. While the Suspension Clause could have provided the justification for finding habeas to be the appropriate procedure, the due process clause provides the substantive claim that could have allowed the Court to uphold the right to a fair procedure. Having found it now had the ability to consider the substantive claim because it was not properly brought in habeas, the Court had no need to address the due process claim. Indeed, it does so as an afterthought, that gave an essentially important issue of whether the abbreviated procedure proscribed by Congress was consistent with due process a facetious response. Accordingly, “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned,” stated the Court in is brief final two and a half pages quoting two cases from the 1950s, Knauff v. Shaughnessy and Shaughnessy v. Mezei. Both cases are from a time long before the United States repeatedly agreed in legally binding international instruments to apply human rights to all persons under its jurisdiction.
In the end, it may merely be, that instead of applying the two elements of the Boumediene test, the Court relied on the almost 120-year-old precedent of Nishimura Ekiu v. United States, to focus on form. Mr. Thuraissigiam had sought correction of the unfair process he faced by raising a Fifth Amendment due process claims in his habeas application. He had however sought the relief of a ‘corrected’ process that was fair or provided due process. He had not expressly requested the relief of ‘release’ in his habeas petition. That error of form seemed to be enough for the Court to forego an examination of the underlying process. The Court’s claim that whatever process Congress declares is fair for noncitizens in the immigration laws is due process was not necessary for the disposition of the case. The case had already been decided when the Court determined that Section 1252(e)(2) could not be challenged in this case since Mr. Thuraissigiam had not made an express claim for release and was therefore not entitled to petition for habeas corpus.
The Court failed to consider the argument of amicus curiae International Lawyers who had argued that the expedited removal proceedings were contrary to international human rights law. Justice Sotomayor did express, in her dissent with Justice Kagan, the concern that failure to scrutinize the expedited removal procedure “increases the risk of erroneous immigration decisions that contravene governing statutes and treaties.” Her dissent, the longest of the four opinions in the case, criticized the narrow inquiry of the majority opinion. She regretted that the Court’s opinion seemed “to turn on how the Court construes respondent’s requests for relief.”
Justice Sotomayor instead would have allowed review under the “as applied” standard that Boumediene suggests and have reviewed whether expedited removal provided fundamental due process protections. Referring to Justice Breyer’s separate opinion, Justice Sotomayor suggests that Mr. Thuraissigiam’s petition plainly posits procedural defects that violate, or at least call into question, the “efficacy of process prescribed by law” and the Constitution.
She also criticizes the Court’s reliance on Munaf v. Geren, which she distinguishes because of its particular political circumstances and the U.S. special relationship with Iraq. The Court found that the Petitioners in Munaf, American citizens, were entitled to habeas, but the Court determined they did not have a right to the relief of preventing their transfer to Iraq forces. The consequence of this holding was that an American citizen, Mr. Shawki Ahmed Omar has been detained a tortured in Iraq. The Court’s failure to allow review or the treatment of Mr. Omar has meant that he has been held without charge in an Iraqi prison of the better part of 20 years. He is held without ever receiving a fair trial according to every United Nations human rights expert that has examined his case. This inhumanity has been a consequence of the Court’s failure to require the examination of a habeas petition.
Justice Clarence Thomas in a concurring opinion thought that the Suspension Clause should be narrowly interpreted in a manner, it appeared, that limited its application to instances when Congress states expressly that it is suspending the writ of habeas corpus. Justice Stephen Gerald Breyer, like Justice Sotomayor, would have limited the inquiry to Congress’s power to limit access to habeas in ‘fact claims’, which he interpreted Mr. Thuraissigiam to be making. Thus, applying the Boumediene ‘as-applied’ test he would find that Congress was permitted to suspend habeas in this particular instance due to the nature of the claims.
As a result of the majority’s reasoning, what was expected to be one of the more far-reaching decisions of the Court, seems to have turned out to be a procedural decision of limited applicability that focused more on form than on substance. The Supreme Court may not be the last say on this matter as the Inter-American Commission on Human Rights, which has contradicted the US’ highest Court in the past, may be asked to rule on this question of vital fair trial rights of noncitizens. The fact that the Supreme Court avoided the question may not protect the United States from the ridicule that will undoubtedly follow if this international human rights body ultimately has to determine a Suspension Clause challenge that never was for the Supreme Court.
Curtis Doebbler, Research Professor, University of Makeni, Sierra Leone, and visiting professor of law, Webster University Geneva. Emily Kempa, University of Michigan Law School, provided review and editing assistance.
Please note: The author participated in authoring the International Lawyers amicus curiae brief to the Supreme Court.
Suggested Citation: Curtis Doebbler, The Suspension Clause Challenge That Never Was, JURIST – Academic Commentary, July 8, 2020, https://www.jurist.org/commentary/2020/07/curtis-doebbler-suspension-clause
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org.
