Thuraissigiam and the Future of the Suspension Clause

On June 25, the Supreme Court issued its much-anticipated holding in Department of Homeland Security v. Thuraissigiam, rejecting Suspension Clause and due process challenges to restrictions on the ability of asylum-seekers to obtain review of expedited administrative removal proceedings. As explored below, the potential ramifications of the decision are significant for a number of reasons, not the least of which is that it calls into question several aspects of the Supreme Court’s earlier decision in Boumediene v. Bush and more generally signals a more limited vision of the Suspension Clause than Boumediene embraced.

The Decision

Thuraissigiam crossed into the United States clandestinely, and a Border Patrol agent apprehended him within 25 yards of the border. Once in government custody, he sought asylum in the administrative proceedings prescribed in various immigration provisions by Congress, but he failed to convince immigration officials that he had a “credible fear of persecution” upon return to his native country of Sri Lanka. Had he succeeded in demonstrating a “credible fear,” Thuraissigiam would have been spared “expedited removal” under 8 U.S.C. §1252(e)(2) and afforded additional procedural opportunities to seek asylum in the United States. Instead, an immigration judge approved his removal—which, under the statutory scheme, normally would have concluded the matter. Thuraissigiam next sought a writ of habeas corpus in federal court, contending that he satisfied the credible fear test and that he had been denied a full and fair opportunity in the prescribed proceedings to demonstrate that he satisfied the relevant standard. Challenging the immigration provisions that purported to restrict federal court review of his case (including one that specifically precluded any and all judicial review of a credible fear determination), Thuraissigiam’s habeas petition sought a new opportunity to present his asylum claim before administrative officials.

Justice Samuel Alito’s opinion for the Supreme Court (joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh) addressed Thuraissigiam’s claims sequentially. As discussed below, however, much of the analysis worked in tandem. First, in addressing Thuraissigiam’s argument that the federal court should exercise jurisdiction and grant him relief in the form of a new hearing by reason of the Suspension Clause, Alito posited that the inquiry should ask how the Founding generation understood that clause in 1789. The court framed its inquiry this way in reliance on a footnote in Thuraissigiam’s brief, which maintained that “there is no reason” for the court “to decide whether the scope of the Clause has expanded since 1789.” (It is far from clear that Thuraissigiam’s counsel intended to disclaim reliance on an argument that the writ of habeas corpus may have expanded since 1789.)

Thuraissigiam’s claim failed because, in the Supreme Court’s view, habeas at the time of the Founding was “a means to secure release from unlawful detention” and did not extend to an invocation of the writ “to achieve an entirely different end, namely, to obtain additional administrative review of his asylum claim and ultimately to obtain authorization to stay in this country.” Neither the Supreme Court’s earlier immigration decision in INS v. St. Cyr (2001), nor its blockbuster decision in Boumediene (2008), counseled otherwise. This was because, as the court explained, the principle embraced by St. Cyr—namely, that “the writ could be invoked by aliens already in the country who were held in custody pending deportation”—could not help Thuraissigiam, who by contrast sought entry into the United States. Boumediene, in turn, was inapposite because it involved individuals who “had been ‘apprehended on the battlefield in Afghanistan’ and elsewhere, not while crossing the border” and who “sought only to be released from Guantanamo, not to enter this country.”

As for petitioner’s due process argument, the Supreme Court noted that “[w]hile aliens who have established connections in this country have due process rights in deportation proceedings, the Court long ago held that Congress is entitled to set the conditions for an alien’s lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the Due Process Clause.” That Thuraissigiam was taken into custody on U.S. soil did not matter in light of Congress’s “plenary authority to decide which aliens to admit” and precedents providing that “even those paroled elsewhere in the country for years pending removal ... are ‘treated’ for due process purposes ‘as if stopped at the border’[.]” Thuraissigiam, accordingly, had “no entitlement to procedural rights other than those afforded by statute.” In sum, Thuraissigiam was not entitled to any further review of his removal order. All the same, the majority opinion dropped a final footnote in which it observed that “Department officials and immigration judges may reopen cases or reconsider decisions ... , and the Executive always has discretion not to remove[.]”

Thomas wrote a concurring opinion exploring the original meaning of the Suspension Clause, concluding that the expedited removal procedures here at issue bore “little resemblance to a suspension as that term was understood at the founding.” This followed because they did “not allow the executive to detain based on mere suspicion of a crime or dangerousness,” the purpose regularly animating suspensions during and before the Founding period.

Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, concurred in the judgment. He believed that the statutory scheme was constitutional as applied to Thuraissigiam but reserved judgment in a host of hypothetical situations that could come before the Supreme Court in the future. Breyer emphasized Thuraissigiam’s “status” as akin to one stopped at the border and opined that “[t]o interpret the Suspension Clause as insisting upon habeas review of these claims would require, by constitutional command, that the habeas court make indeterminate and highly record-intensive judgments on matters of degree.” In his view, Thuraissigiam’s claims failed because there existed no precedent “suggesting that the Suspension Clause demands parsing procedural compliance at so granular a level.”

Justice Sonia Sotomayor, joined by Justice Elena Kagan, dissented. Sotomayor maintained that the Supreme Court had long heard “claims indistinguishable from those” raised by Thuraissigiam, which, in her view, encompassed both mixed questions of law and fact and legal challenges to “procedural defects” in the removal procedures that Congress had prescribed. She also took issue with the majority’s originalist approach to the case, pointing out (as the majority opinion acknowledged) that no analogous immigration restrictions were in existence at the Founding. Finally, in analyzing Thuraissigiam’s claims under the Due Process Clause, Sotomayor emphasized that he “was actually within the territorial limits of the United States” when captured—a fact that, in her view, raised a host of questions as to just how far the majority’s holding would sweep in future cases.

Methodology

There is a great deal that must be unpacked in order to understand Thuraissigiam’s potential ramifications. To start, consider the constitutional interpretive methodology employed by the majority opinion.

Alito started and ended his inquiry with 1789 as the key benchmark for the Suspension Clause inquiry. His decision to do so implicates some interesting issues. To begin, the justification he offered for this approach was an apparent concession in a footnote in Thuraissigiam’s brief. This explanation should mean that Thuraissigiam has no precedential value in terms of its methodology for a future case where a petitioner makes a Suspension Clause claim based on post-1789 developments with respect to the writ of habeas corpus—a possibility that the Supreme Court has held open in other cases. For example, Justice Anthony Kennedy’s majority opinion in Boumediene stated that the Supreme Court “has been careful not to foreclose the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments.”

Further, the majority apparently deemed it irrelevant that during the Founding period and for decades thereafter, federal policy provided (as the majority acknowledged) an “open door to the immigrant.” In other words, a challenge to a limitation on review of immigration determinations could never have arisen during that period, because there were no such limitations. How does one reconstruct an originalist answer to a question that was never asked at the Founding?

As noted, Thomas’s concurrence also analyzed the case from an originalist perspective. He last wrote about the Suspension Clause case in his separate opinion in Hamdi v. Rumsfeld (2004), arguing there that the clause does not constrain the executive’s ability to detain a citizen outside the criminal process and in the absence of a suspension. This followed, he argued, from recognition of a broad understanding of the government’s power “to wage war successfully” along with more general concerns that the limited opportunities in which the Suspension Clause might permit a suspension (specifically, in times of “Rebellion or Invasion”) might not encompass “many ... emergencies during which this detention authority might be necessary.” In this respect, Thomas joined camp with the Hamdi plurality’s bottom line, namely that “[t]here is no bar to this Nation’s holding one of its own citizens as an enemy combatant.”

Dissenting in Hamdi, Justice Antonin Scalia, joined by Justice John Paul Stevens, relied on extensive historical evidence to explain that the entire point of the Suspension Clause was to prohibit the government from detaining someone who fell within the Constitution’s protections in the absence of a criminal trial unless and until Congress enacted a suspension. The dissent also underscored the influence of the 1679 English Habeas Corpus Act—what Blackstone once described as nothing short of a “second magna carta”—on the Suspension Clause.

Notably, Thomas’s opinion in Thuraissigiam set forth a view of the Suspension Clause very much in line with Scalia’s Hamdi dissent. Citing a host of suspensions predating and during the Founding period (including those adopted in Britain and several states during the Revolutionary War), Thomas concluded that the original meaning of a suspension “likely [encompassed] a statute granting the executive the power to detain without bail or trial based on mere suspicion of a crime or dangerousness.” It followed, in his view, that the Suspension Clause “enshrined” “a substantive right”—specifically, “freedom from discretionary detention” at the hands of the executive.

I have previously criticized Thomas’s opinion in Hamdi for being out-of-step with his avowed originalist methodology. His Thuraissigiam opinion suggests that he now recognizes the error of his earlier ways. I hope so.

The Appropriate Remedy

Another interesting aspect of Thuraissigiam is the majority opinion’s emphasis on the appropriate remedy in Suspension Clause cases. The majority found problematic Thuraissigiam’s desire for additional procedures to make out his asylum claim and ultimate release into this country because, in Alito’s view, the traditional remedy in habeas proceedings was discharge, not additional process. As the Supreme Court explained things, historically, “[t]he writ simply provided a means of contesting the lawfulness of restraint and securing release.” In the court’s view, the problem was that Thuraissigiam “did not ask to be released. Instead, he sought entirely different relief: vacatur of his ‘removal order’ and ‘an order directing [the Department] to provide him with a new ... opportunity to apply for asylum and other relief from removal[]’ ” (quoting Thuraissigiam’s habeas petition).

My book “Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay” chronicles the role of habeas cases tethered to the English Habeas Corpus Act and its suspension model. As the book details, this model heavily influenced the development of early American habeas jurisprudence and specifically the drafting of the Suspension Clause. As this history reveals, Alito is correct that the classic remedy in such habeas cases was discharge, not additional process. (No less than Chief Justice John Marshall said as much, moreover, in Ex parte Bollman.)

All the same, as a matter of precedent, two recent Supreme Court Suspension Clause decisions remanded petitions for additional judicial process as opposed to awarding outright discharge. They are, of course, Hamdi and Boumediene. In both cases, the court ordered additional hearings for the habeas petitioners to challenge their classification by the government as enemy combatants in the war on terrorism. I have been critical of this aspect of both decisions because, among other reasons, this approach led to a holding in Hamdi that is at odds with the core purpose that drove ratification of the Suspension Clause and established what some might call a constitutional “floor.” Regardless of whether my position is right on this score, the decision in Thuraissigiam is noteworthy for charting a different course from Hamdi and Boumediene and potentially scaling back the range of remedies now available under the Suspension Clause to habeas petitioners going forward.

An additional note is warranted here. In Thuraissigiam, the majority opinion (at note 12), as well as Sotomayor’s dissent (at note 1), both state that the Supreme Court has left open the question whether the Suspension Clause creates an affirmative right to review. But Boumediene squarely held that the clause does precisely this. (In the Court’s words, “[t]he Clause ... ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the ‘delicate balance of governance’ that is itself the surest safeguard of liberty.”) I argue in my book that Boumediene was correct on this score in light of the “extensive [historical] evidence ... demonstrating that the Founding generation simply took for granted that a constitutional privilege born out of the protections of the Habeas Corpus Act would be available unless suspended.” That the Thuraissigiam majority apparently reopens this issue begs the question of just what, if any, of the Boumediene majority opinion remains good law. (More on this below.)

The Intersection of the Suspension Clause With Due Process

Next is the question of how Suspension Clause and due process jurisprudence intersect. The court’s decisions in St. Cyr and Boumediene were grounded in the Suspension Clause. The due process case law in the immigration context, moreover, is not exactly friendly to the would-be immigrant—even though the Fifth Amendment Due Process Clause applies to “persons” as opposed to “citizens.” This likely explains why Thuraissigiam’s counsel primarily pushed a Suspension Clause argument as opposed to a due process one.

But it is worth thinking about the relationship between the two kinds of claims and asking whether they should stand or fall together. For the majority in Thuraissigiam, the due process and Suspension Clause inquiries seemed interrelated, with geographic and citizenship status both weighing heavily in the balance. (More on that below.)

This distinction between the due process and Suspension Clause inquiries, muddied in Thuraissigiam, could matter a great deal in future cases because of the Thuraissigiam court’s diminished view of the range of remedies available under the Suspension Clause as well as its seemingly formalist approach to elements of Thuraissigiam’s case. (More on that below.)

Take the example of someone who is picked up after years of living in this country as an undocumented alien or the example of an immigration hearing officer who either does not conduct any actual review of a credible fear claim or applies an absurd standard. (Breyer here offered the example of a hearing officer who denies “a refugee asylum based on the dead-wrong legal interpretation that Judaism does not qualify as a ‘religion’ under governing law[.]”) Breyer observed that he would view a Suspension Clause claim differently in such cases, and one can presume from Sotomayor’s dissent that she would too.

In Breyer’s view, the Suspension Clause is well equipped to address such cases because habeas corpus is, as Boumediene said, an “adaptable remedy,” whose guarantees may change “depending upon the circumstances.” But the Thuraissigiam court’s emphasis on discharge as the appropriate remedy under the Suspension Clause renders uncertain whether a Suspension Clause argument could prevail in such cases under the majority’s approach and therefore more generally calls into question whether Boumediene’s vision of habeas fully survives.

Thus, in the wake of Thuraissigiam, it might warrant consideration whether the Suspension Clause and due process inquiries should be disconnected to permit a different approach—namely, analyzing cases akin to the above hypotheticals instead through a due process lens. Indeed, one might think that the modern due process doctrine with its balancing test is better equipped to take into account how different factors might alter the balance in determining whether the government must afford certain individuals greater procedural protections before turning them away at the proverbial gates and removing them once already in the country. On this point, recall that Justice Sandra Day O’Connor’s plurality opinion in Hamdi—instead of looking to history or any Suspension Clause precedents—relied on the modern due process decision in Mathews v. Eldridge to set forth the parameters of the hearing that Hamdi was to receive on remand.

To see why the distinction might matter, consider a hypothetical that Daniel Meltzer raised in a 1998 Georgetown Law Journal article. In that hypothetical, a resident alien is removed from the United States before being afforded an opportunity to get into court. It would be hard to mount a habeas case under existing law if the individual is not in government custody, but the individual might still have important legal claims to present challenging the removal and/or the process by which it occurred—maybe even claims identical to those that the Supreme Court held in St. Cyr must receive the benefit of judicial review. One would hope that any preclusion of judicial review in such a case would be viewed as constitutionally problematic, but the question then implicated is on what basis if not the Suspension Clause? The answer could be very important for future cases.

The Importance of Geography

Finally, Thuraissigiam implicates the larger question of how the Constitution functions abroad— and, more specifically, what qualifies as abroad in the first instance. The Supreme Court held that Thuraissigiam’s case was categorically different from that of one who is “already in the country [and] held in custody pending deportation.” Giving deference to Congress’s “plenary authority to decide which aliens to admit,” it was of no relevance to the majority that he had crossed the border and been apprehended some 25 yards inside the United States. (On this point, Sotomayor disagreed.) Such a conclusion was important, the majority opined, lest the rule reward those who cross the border illegally.

Just days after deciding Thuraissigiam, the Supreme Court reaffirmed the importance of the border to constitutional analysis. In Agency for International Development v. Alliance for Open Society International, Inc, a five-justice majority rejected the proposition that foreign affiliates of American organizations could bring a First Amendment challenge to conditions that Congress attached to funding grants made to combat HIV/AIDS abroad. Kavanaugh’s opinion for the court posited that “it is long settled as a matter of American constitutional law that foreign citizens outside U. S. territory do not possess rights under the U. S. Constitution.” He further warned that “[i]f the rule were otherwise, actions by American military, intelligence, and law enforcement personnel against foreign organizations or foreign citizens in foreign countries would be constrained by the foreign citizens’ purported rights under the U. S. Constitution.” He distinguished the situation of foreign citizens inside the United States, who “may enjoy certain constitutional rights[,]” such as “the right to due process in a criminal trial.” Finally, the court set apart those cases in which “under some circumstances, foreign citizens in the U. S. Territories—or in ‘a territory’ under the ‘indefinite’ and ‘complete and total control’ and ‘within the constant jurisdiction’ of the United States—may possess certain constitutional rights” (citing and quoting Boumediene). (Writing for three dissenters, Breyer maintained that “this Court has studiously avoided establishing an absolute rule” governing the application of the Constitution to foreign citizens abroad, relying on not one, but two, Kennedy opinions—his Boumediene majority opinion and his decisive but narrow concurrence in United States v. Verdugo-Urquidez.)

The decisions in Thuraissigiam and Alliance for Open Society International highlight that for at least five members of the current Supreme Court, the border and one’s formal connection to the United States play an outsized role in constitutional analysis. On this score, consider that Thuraissigiam distinguished the situation of a citizen who is detained in the United States for deportation, clarifying that “today’s opinion would not prevent the citizen from petitioning for release.”

Notably, moreover, Alliance for Open Society International seems to have relegated Boumediene to a small role in future cases—suggesting that its application is limited to cases arising in territories under the full (even if not formal) control of the U.S. government. (To be sure, Boumediene may have done this by its own terms, highlighting as it did the “unique status of Guantanamo Bay[.]”) Even in such places, moreover, Kavanaugh said only that a foreign citizen “may possess certain constitutional rights,” not that they necessarily would (emphasis added). Again, one is left to wonder how much influence Boumediene will have in future cases.

Going forward, this development could be quite significant. Consider anew the example of one who enters the United States without legal authorization and who is apprehended years later and put into removal proceedings. Taken to their extremes, the majority opinions in Thuraissigiam and Alliance for Open Society International could be read to suggest that the Constitution does not impose any constraints on how the government goes about removing the individual from the United States because such a person may be treated as a foreigner who stands functionally outside the border even if that individual is physically within the country. Needless to say, a large number of persons living inside the United States right now might fall into this category. As Breyer noted in his Thuraissigiam concurrence, moreover, the fact that under current federal law, “noncitizens who have lived in the United States for up to two years may be placed in expedited-removal proceedings”—that is, the same abbreviated proceedings upheld in Thuraissigiam—the potential for such a case to arise is hardly trivial.

The court’s decision in Thuraissigiam is a big deal. How big remains to be seen.