Stranger Still: Thuraissigiam and the Shrinking Constitution

Jennifer M. Chacón*

At the end of the 2019 Term, the U.S. Supreme Court released a slew of important decisions: on the short-term fate of DACA recipients,[1] the scope of federal antidiscrimination protections for LGBTQ employees,[2] the continuing validity of treaties guaranteeing the Muscogee Creek and other Indigenous nations’ land rights,[3] and much more. One case that drew a good deal of attention from legal scholars and immigration advocates but that received less attention in the popular press was Department of Homeland Security v. Thuraissigiam.[4] It is understandable that a case brought by an asylum seeker seized near the U.S.-Mexico border would not generate the same kind of buzz as the other Term blockbusters. But in a country where seven percent of the population is comprised of noncitizens and over eleven million residents lack legal immigration status, a case that strikes a blow at the constitutional rights of noncitizens in this country is very important. And although it purports to answer a narrow question about the availability of judicial review for the legal claims of an asylum seeker near the border, Thuraissigiam is actually a watershed constitutional case.

With the 2019 Term in the rear view, it is time to take account of the full implications of Thuraissigiam. The case is definitely a significant loss for asylum seekers. Their ability to access the legal protections guaranteed to them by international and domestic law has been dealt a series of body blows by the Trump administration, to the point where asylum processes are essentially shut down at the U.S. border today.[5] For these individuals, the closing of the courthouse door functions as yet another nail in the coffin of the legal protections that asylum is supposed to provide. But the decision also has the potential to upend many other lives as well, including the lives of U.S. residents with strong ties to the country.

This essay grapples with the full significance of the decision, starting with a summary of the decision in Part I. Part II then evaluates the significant ways that the decision deviates from precedent. Part III places the decision in the context of the broader legal and political landscape. The decision certainly leaves room for advocates to argue for narrow interpretations that could avert its most disastrous potential consequences. But even at its narrowest, the decision marks an abdication of judicial responsibility—a particularly dangerous abdication in a moment when the executive branch routinely flouts the law in its bid to implement a xenophobic immigration policy unbounded by law.

I. Breaking Down the Decision

Vijayakumar Thuraissigiam is a Sri Lankan national and a member of the Tamil ethnic minority. He left Sri Lanka in June 2016 and flew to Mexico. In February 2017, he entered the United States, crossing the U.S.-Mexico border without inspection or authorization. He was apprehended by a Customs and Border Patrol agent just twenty-five yards north of the border, four miles to the west of the San Ysidro border crossing.[6]

The Department of Homeland Security (DHS) placed Thuraissigiam in expedited removal proceedings. As the result of changes in U.S. immigration law that Congress made in 1996 with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act,[7] individuals arriving at the border, as well as a small, defined subset of those who already have entered the United States without legal authorization, are subject to expedited removal.[8] At the time Thursaissigiam was apprehended, expedited removal applied to those who could not demonstrate that they had been “admitted or paroled” and who were apprehended within one hundred miles of the border and could not establish that they had been in the country for more than fourteen days.[9] Because Thuraissigiam had entered the U.S. only a short time before he was arrested near the border, and because he had no visa to authorize his entry, he was placed in this expedited process.

Through expedited removal, a person can be removed from the U.S. based solely upon the decision of an immigration officer. As a practical matter, this means that a Border Patrol agent can decide that a person who lacks proper entry documents should be removed and can directly effectuate that person’s removal. There is no right of appeal,[10] so most individuals subject to expedited removal never see an immigration judge, let alone an actual courtroom. However, the law specifies that if a person “indicates either an intention to apply for asylum . . . or a fear of persecution,”[11] that person is entitled to additional review. Specifically, she is entitled to have her claim reviewed by an “asylum officer,” who is required to determine whether she “has a credible fear of persecution,” in which case, she is detained pending further consideration of her asylum claim.[12] Negative determinations by an asylum officer can be appealed and are subject to review by an immigration judge,[13] but the statute provides for no additional review. This “credible fear” process was designed to flag anyone potentially entitled to protection under the Refugee Convention and related domestic law and to ensure that no immigrant with a valid asylum claim would be inappropriately turned away.[14]

Thuraissigiam asserted such a fear of persecution. He communicated to the agents who apprehended him that he feared returning to his country. He was granted an interview with an asylum officer to determine whether he had a credible fear that would require the government to allow him to file an asylum claim. The asylum officer found that Thuraissigiam credibly testified that he had been kidnapped and beaten by a gang of men but concluded that Thuraissigiam had failed to demonstrate that the persecution he had suffered and feared suffering in the future was on account of a protected characteristic under the law. Following the Refugee Convention, U.S. immigration law provides asylum protection for those who fear returning to their country of nationality “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”[15] In Thuraissigiam’s case, the asylum officer concluded that he had failed to demonstrate the “significant possibility” that he would be able to establish in asylum proceedings that his persecution was on account of one of these protected characteristics.[16]

Determinations in a credible fear hearing are reviewable. Thuraissigiam, accordingly, requested that an immigration judge review this decision, but the immigration judge agreed with the asylum officer and ordered Thuraissigiam’s removal. The statute provides for no further direct review, but Thuraissigiam filed a petition for writ of habeas corpus in federal district court. In his petition, he urged that his abduction and torture clearly fit the pattern of widespread persecution of Tamils in Sri Lanka and that he now faced additional risk because of a documented pattern of state-sponsored violence against failed asylum seekers.[17] He argued that the asylum officer in his case had failed to “elicit all relevant and useful information,” as required by regulation,[18] notably failing to provide translation services adequate to ensure that such elicitation could occur.[19] Nor did the officer understand the “conditions” in Sri Lanka, thus making it impossible for the officer to know what information would be “relevant and useful” in his case, though this was also required by law.[20] Thuraissigiam argued that, as a result, the government applied an incorrect legal standard to his claim, misapplying the statutory requirement that he show a “significant possibility” of establishing asylum eligibility.[21]

The immigration statute provides for extremely limited judicial review of an administrative expedited removal decision. Such review is limited to questions of whether the petitioner is a noncitizen, whether he was, in fact, ordered removed under the grounds covered by the expedited removal provision, and whether he has been admitted as a lawful permanent resident, refugee, or asylum seeker.[22] Thuraissigiam’s petition did not fit these categories, but he argued instead that review of his claims were nonetheless required by the Constitution. To the extent the statute prohibited federal courts from reviewing the mixed question of law and fact presented by his habeas petition, he argued that the statute violated the Suspension Clause of the Constitution.[23] Although the federal district court dismissed his petition for lack of jurisdiction, the U.S. Court of Appeals for the Ninth Circuit reversed, agreeing with Thuraissigiam that the Constitution required review of his claim.[24]

On June 25, 2020, the Supreme Court reversed the decision of the Ninth Circuit by a vote of 7–2.[25] Justice Samuel Alito wrote the majority opinion, in which he was joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh. In his opinion, Justice Alito rejected the notion that review of Thuraissigiam’s claim was required by the Suspension Clause. Assuming without deciding that the relevant jurisdiction-stripping provisions of the immigration code could constitute a “suspension” of the writ of habeas corpus, Justice Alito concluded that Thuraissigiam was not entitled to the relief he sought, because it was not covered by the writ of habeas corpus as it was understood at the time of the founding. “Habeas has traditionally been a means to secure release from unlawful detention, but respondent invokes 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.”[26] Although his decision on this point obviated the due process question, he also expressly rejected Thuraissigiam’s due process claim. Citing the 1892 case of Nishimura Ekiu v. United States,[27] Justice Alito opined that “an alien at the threshold of initial entry cannot claim any greater rights [than those provided by Congress]. . . . Respondent attempted to enter the country illegally and was apprehended just 25 yards from the border. He therefore has no entitlement to procedural rights other than those afforded by statute.”[28]

Justice Stephen Breyer wrote a concurring opinion, joined by Justice Ruth Bader Ginsberg, expressing the view that the Court’s holding was only justified in light of the particular facts of this case. Specifically, they focused on Thuraissigiam’s lack of ties to the United States, as a noncitizen apprehended only “25 yards inside the border” who “has never lived in, or been lawfully admitted to, the United States.”[29] They also emphasized that “though [Thuraissigiam] framed his two primary claims as asserting legal error . . . both claims are, at their core, challenges to factual findings.”[30]

Justice Sonia Sotomayor wrote a vigorous dissent, in which she was joined by Justice Elena Kagan. Justice Sotomayor observed that both parties understood Thuraissigiam’s legal challenge as one challenging the administrative adjudicators’ application of law to fact. Federal courts have routinely reviewed this kind of claim upon petitions for writ of habeas corpus throughout history. Notably, these courts did so throughout the “finality era” of immigration law (from the late nineteenth century through the mid-twentieth century)[31] when the statute provided for no review beyond the administrative agency.[32] The dissent also rejected the notion that Thuraissigiam’s status excluded him from the procedural protection of the Constitution. “As a noncitizen within the territory of the United States, respondent is entitled to invoke the protections of the Due Process Clause.”[33]

II. Thuraissigiam’s Break with the Past

Thuraissigiam marks a break with past precedent in three significant ways. First, it signals a novel, restrictive understanding of the nature of possible habeas relief—one sharply at odds with recent precedent. Second, it advances a newly constrained vision of who is entitled to constitutional habeas protections. Finally, it misreads over one hundred years of immigration case law to advance an impoverished understanding of constitutional due process protections for noncitizens.

A. Restricting Suspension Clause Relief

Thuraissigiam was detained pending removal as he challenged the insufficiency of his asylum screening process. It was this detention that he challenged through the filing of his habeas petition, and in this posture that he challenged the lawfulness of his restraint. Yet the majority concluded that the relief he sought extended beyond the power of a court deciding a Suspension Clause challenge. Justice Alito wrote:

[N]either respondent nor his amici have shown that the writ of habeas corpus was understood at the time of the adoption of the Constitution to permit a petitioner to claim the right to enter or remain in a country or to obtain administrative review potentially leading to that result. The writ simply provided a means of contesting the lawfulness of restraint and securing release.[34]

There are three debatable claims embedded here: that habeas relief must be granted only in the form that it took at the time of the founding; that habeas relief could not create the possibility of release within the U.S.; and that habeas relief does not encompass access to administrative review.

On the first point, it suffices to say that it is difficult to apply founding-era conceptions of habeas corpus to a contemporary immigration fact pattern given the complete absence of comparable immigration regulation in the era.[35] This is why “requiring near-complete equivalence between common-law habeas cases and respondent’s habeas claim is out of step with” the Court’s approach in recent cases like Boumediene v. Bush[36] and INS v. St. Cyr,[37] as well as in older immigration cases.[38] Nevertheless, in Thuraissigiam, both parties cited to evidence that pre-dates and encompasses the founding era in support of their arguments, and both majority and dissent (along with Justice Thomas’s concurrence) were clearly guided by their understandings of that evidence, though their interpretations of it differed.

The majority construed the founding-era evidence (along with more recent precedent) to conclude that the privilege of habeas corpus does not carry with it a right to remain in the country of release. In this view, habeas relief does not include anything other than “simple release,”[39] while Thuraissigiam’s petition requires additional administrative proceedings and possible release into the U.S. But the majority’s notion that habeas only provides for simple release, and not into the U.S., is a crabbed vision of the kinds of habeas relief that courts can grant, and at odds with the kinds of relief that courts have routinely granted.

For support of this narrow view of habeas, the majority relied most heavily not on founding-era cases, but on Munaf v. Geren,[40] a 2008 case involving a U.S. citizen held in custody in Iraq by the U.S.-led Multinational Force-Iraq pending his transfer to Iraqi authorities for criminal prosecution.[41] Munaf is of questionable relevance. That case fits into a line of cases denying habeas relief to individuals seeking to avoid extradition.

Much more relevant to Thuraissigiam’s situation are the many, many cases spanning a period from before the founding through the present in which “courts routinely granted the writ to release wrongfully detained noncitizens into Territories other than the detainees’ ‘own.’”[42] This practice necessarily involved functional protection from deportation (at least in the short term), despite the absence of a formal deportation scheme and immigration regulation.[43]

Of course, Thuraissigiam was not arguing that he had an unequivocal right to remain in the U.S.—only that the law gave him certain procedural protections from expulsion. There may be valid disagreement over whether, historically, courts viewed themselves as empowered to grant additional process in response to Suspension Clause claims.[44] But recent precedent resolves this question decisively, too. Both Hamdi v. Rumsfeld[45] and Boumediene “remanded petitions for additional judicial process as opposed to awarding outright discharge.”[46] Additionally, in St. Cyr, the Court “considered whether a noncitizen with a controlled substance conviction could challenge on habeas the denial of a discretionary waiver of his deportation order,” and decided the question in the affirmative.[47] Just like Thurissigiam, St. Cyr involved the petition of a detained noncitizen seeking additional process in a proceeding involving discretionary determinations. In St. Cyr, the Court concluded that “[f]rom its origins, the writ did not require immediate release, but contained procedures that would allow the state to proceed against a detainee.”[48] In deciding Thuraissigiam as they did, and apparently limiting habeas to situations of “immediate release,” the five justices in the majority quietly unsettled precedent in a way that significantly and inexplicably narrows the scope of potential habeas remedies.[49]

Interestingly, both the majority[50] and the dissent[51] in Thuraissigiam also suggest at various points that there is an open question as to whether the Suspension Clause creates an affirmative right to review of an administrative decision. As Amanda Tyler points out, this is puzzling given that Boumediene held that, “[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.”[52]

In short, the Thuraissigiam decision is full of backtracking on the scope of habeas remedies. It also backtracks on the question of who is entitled to the protections of the writ.

B. Restricting the Applicability of the Constitution

For over a century, U.S. courts have interpreted the U.S. Constitution to require federal court review of constitutional questions and questions of law—including mixed questions of law and fact—in cases involving immigrants seeking admission.[53] This was true even when, beginning in 1891, Congress enacted legislation purporting to make the attorney general’s determinations in immigration cases “final,” and therefore immune from judicial review.[54] Throughout this “finality period”—which spanned from the late-1800s to the mid-1950s—courts reviewed these determinations to the extent that such review was “required by the Constitution.”[55] And yet the majority in Thuraissigiam concluded that such review was not constitutionally required for immigrants seeking admission.

To reach this conclusion, the Court leaned upon a questionable deployment of a foundational “finality period” case—Nishimura Ekiu v. United States.[56] Ekiu filed a habeas petition after receiving an exclusion order issued by an administrative agent and upheld by the secretary of the Treasury. Though the Court rejected her substantive claims, it never questioned her ability to lodge her habeas petition in federal court, notwithstanding language in the 1891 Act purporting to make “final” the secretary of the Treasury’s determination. Justice Alito opined that the 1891 Act “preclude[d] judicial review only with respect to questions of fact,”[57] so the Court “had no occasion to decide whether the Suspension Clause would have tolerated a broader limitation . . . .”[58] In his view, it would. His opinion invoked Ekiu for the proposition that Congress has the absolute power to set the constitutional floor for the procedural protections of noncitizens seeking admission.[59]

The dissent rejected this characterization of Ekiu, instead concluding that the Court avoided the Suspension Clause question in Ekiu through its narrow, saving construction of the jurisdiction limitations in the 1891 Act, as applying only to questions of fact. Far from proving the point that Congress can suspend habeas review of an immigrant’s legal and constitutional claims, the Court’s constitutional avoidance in Ekiu, particularly when read in light of what happened in the wake of that decision, proves the opposite. The dissent observed that “in case after case following Ekiu, [the Court] recognized the availability of habeas to review a range of legal and constitutional questions arising in immigration decisions.”[60] The dissent highlighted in particular the Ekiu Court’s statement that a noncitizen “prevented from landing [in the United States] by any [executive] officer . . . and thereby restrained of his liberty, is doubtless entitled to a writ of habeas corpus to ascertain whether the restraint is lawful.”[61]

The Court previously embraced the dissent’s reading of Ekiu and other finality era cases. In St. Cyr, for example, the Court invoked the finality era cases to conclude that the Suspension Clause “unquestionably” guarantees habeas review of legal and constitutional challenges to deportation orders, notwithstanding the government’s arguments that Congress intended to divest the courts of jurisdiction.[62] In deciding that the Suspension Clause does not protect noncitizens from being denied access to courts for review of their legal and constitutional claims, the Thuraissigiam decision retracts habeas protections that the Court had previously acknowledged applied to immigrants seeking admission.

C. Due Process

The backsliding in Thuraissigiam is also evident in the majority’s due process analysis. Given that the Court decided it has no jurisdiction to hear Thuraissigiam’s habeas petition, it is not clear why it weighed in on his due process claim. But it did, and in this entirely unnecessary discussion, it got the due process analysis wrong, too.

The majority opinion treats Thuraissigiam as an intending immigrant—and one who had not been admitted to the country. Citing Ekiu again, Justice Alito wrote:

In 1892, the Court wrote that as to “foreigners who have never been naturalized, nor acquired any domicile or residence within the United States, nor even been admitted into the country pursuant to law,” “the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.” Nishimura Ekiu, 142 U. S., at 660. Since then, the Court has often reiterated this important rule.[63]

Justice Alito then claimed that the Court had unquestioningly reiterated this premise in more recent cases.[64] But his summary of those cases was misleading. While Justice Alito’s opinion invokes “admission” as the critical inflection point for due process analysis—and, indeed, the word admission appears in the Ekiu decision—his invocation of the term in the contemporary context is ahistorical. The evolution of procedural due process protections for noncitizens over the last century, and statutory changes to the meaning of “admission” in recent years, combine to render this quotation from Ekiu inapposite today.

Until 1996, immigration law delineated entry, not admission, as the critical point at which a noncitizen with no previous ties to the United States[65] became eligible for additional procedural protections under the statute.[66] The focus on entry may well have been informed by constitutional concerns about providing insufficient process for individuals on U.S. soil. But regardless, the focus on entry meant that individuals who had made their way into the U.S. were able to claim additional procedural protection whether they had been authorized to enter—that is, “admitted”—or not.[67]

In 1996, in a problematic effort to disincentivize entry without authorization, Congress passed a law that gave much greater importance to whether an immigrant had been formally admitted, providing more legal process for admitted immigrants than for those who had entered but had not been admitted.[68] Among other things, individuals in the latter category could, under some circumstances, be subject to expedited removal. But congressional changes to the nature of the process required for individuals in the U.S. does not change the fact that individuals who have entered the U.S. are entitled to due process protections.[69] In the case of immigrants who have entered, the constitutional question of what constitutes sufficient process for those individuals historically has not been and should not now be determined by looking to the congressionally-set floor. While Congress can certainly provide different procedures for those admitted and those who have not been admitted, it cannot avoid the applicability of the Constitution to people in the U.S. by playing with definitions. Because admission in its current form dates from 1996, none of the pre-1996 cases provide insight as to how the Court should handle this question. At the same time, the post-1996 case Zadvydas v. Davis[70] makes it clear that entry, not statutorily defined admission, remains a constitutional touchstone for due process.

There is a long and tortured line of cases seeking to tease out the point at which a noncitizen has “entered” the U.S.[71] To the extent that Thuraissigiam was not free from official monitoring from the time of his entry through the time of his apprehension, he arguably had not “entered” at all. The entry fiction is a dangerous one, and worth critiquing in its own right, but it would have done far less constitutional violence for the Court to decide that the congressional procedural baseline would suffice in his case because Thuraissigiam never entered the country. Among other things, this would have reflected a far better understanding of the factual limits of the case than the one offered in Justice Breyer’s concurrence, which incorrectly accepts congressionally-defined admission as a critical, constitutional moment.

The majority did something more dangerous in maintaining that individuals who have entered the U.S. but have not been admitted are entitled to no constitutional floor of procedural protection. As the dissent points out, if it is true that congressionally authorized procedures constitute the full range of process due to individuals who have entered the country but are not admitted, individuals could be subject to summary expulsion no matter how strong their ties to the U.S., provided they could not prove to the satisfaction of an immigration officer that they had been in the U.S. for more than two years. It also means that Congress can change the rules to move the admission line to another, later point in an immigrant’s sojourn and also could allow for the summary expulsion of “unadmitted’ immigrants (however defined by Congress) without any process at all. Nothing in the U.S. history of immigration law, as draconian as it has often been, suggests that this is the correct interpretation of the Due Process Clause of the Constitution as applied to resident noncitizens.

Justice Alito equated individuals apprehended and detained within the U.S. with those who are excluded from the country (including those who are paroled into the country under the legal fiction that they remain outside of it). Without citation, he assumed they “must” be in the same constitutional boat.[72] But his assumption does not necessarily follow. As the dissent noted, his interpretation creates “an atextual gap in the Constitution’s coverage” and “lacks any limiting principle. . . . This Court has long affirmed that noncitizens have due process protections in proceedings to remove them from the country once they have entered.”[73] Changes in the “constitutional status” of noncitizens are created by virtue of their functional ties to and presence in the U.S., not by Congress.[74] Both the majority and the concurrences in Thuraissigiam lose sight of this.

III. Thuraissigiam in Context

The Court’s abdication of its role as a guarantor of basic constitutional protections for new entrants could hardly have come at a worse time. Until recently, DHS applied the expedited removal provision only to noncitizens within one hundred miles of the border who could not establish that they had been in the country for two weeks or more. But under President Trump, DHS issued a new regulation that applies the provision to the full extent of the statutory authorization,[75] so as to include those individuals not admitted or paroled who cannot establish that they entered the U.S. more than two years prior.[76] Officials in previous administrations, including Julie Myers Wood, who directed Immigration and Customs Enforcement (ICE) under President George W. Bush with memorable zeal, avoided expanding expedited removal in this way out of concern that a broader application of the law would create constitutional due process problems.[77] But a respect for the due process rights of immigrants certainly did not deter the Trump administration from expanding the application of expedited removal. And instead of flagging the dangerous legal black hole that expedited removal creates, the Thuraissigiam majority seems to declare that it is entirely up to the political branches to decide whether and how to regulate the rights of all noncitizens who might fall into that legislatively adjustable hole.

Similarly, the Court’s refusal to extend to asylum seekers the protections they are guaranteed by the Constitution is compounded by the Trump administration’s failure to extend to those same asylum seekers even the protections that Congress intended for them. By undercutting the protective features of the credible fear process, disregarding statutory protections for asylum seekers and using the ongoing global pandemic as an excuse to end asylum processing on the Southern border, this administration has demonstrated the need for courts to hold the executive branch to the letter of the law that it is charged with enforcing.

First, the Trump administration has watered down the credible fear process in disturbing ways. Beginning last fall, in some cases it was Border Patrol agents, not trained asylum officers, who were conducting these interviews.[78] These agents are far less knowledgeable about relevant law and facts than the asylum officers who previously conducted these interviews.[79] Unsurprisingly, these enforcement agents appear to be finding credible fear at a much lower rate than has historically been the case.[80] But through its decisions in Thuraissigium, along with the Hernandez v. Mesa case also decided this term,[81] the Court has shown its unwillingness to hold the Border Patrol accountable for the harm it visits on people the Court determines to be outside of the scope of the Constitution’s protections—even when those people die.[82]

Justice Alito’s notion that “nearly 77% of screenings have resulted in a finding of credible fear”—a finding that he cited as a means of assuaging concerns about insufficient process for asylum seekers in expedited removal—is a thing of the past. Drastic drops in credible fear grant rates—to as low as ten percent in places that once saw rates in the nineties—led to lawsuits from immigrants, thus far successful, arguing that the administration has made unlawful regulatory changes to the credible fear standard.[83] But the Thuraissigiam decision will make it almost impossible to hold the administration accountable for illegalities in individual cases.

Ongoing changes to the asylum process are much deeper and broader than this. The Trump administration started uprooting major components of the U.S. asylum system from the very beginning of Trump’s presidency. The avalanche of changes is too numerous to exhaustively catalogue here. Just a few examples include the “safe third country” agreements with Honduras, El Salvador, and Guatemala that allowed the administration to offload asylum seekers to countries with underdeveloped asylum infrastructures; the so-called Migration Protection Protocol that has required non-Mexican asylum seekers at the Southern border to remain in Mexico (often in dangerous conditions) pending the resolution of their asylum claims; new limits on asylum eligibility for domestic violence survivors and individuals targeted by gangs; a ban on asylum seekers who pass through a third country en route to the U.S.; and family detention, family separation, and systematic efforts to undercut protections for minor children seeking asylum and other humanitarian protections.[84] Many of these changes appear at odds with statutorily required protections for asylum seekers; some courts accordingly have taken the administration to task for its legal failures.[85]

Rather than rethinking these aggressive changes, however, this administration is doubling down with proposed sweeping regulatory changes to the asylum system. One scholar has noted that these new regulations, if they go into effect, “would effectively abolish asylum in the U.S.”[86] But we need not wait for those regulations to see the shutdown of asylum; the administration is currently expelling asylum seekers without any process whatsoever, citing the COVID-19 pandemic as a justification.[87] Those individuals, expelled absent any process, fall into the category of people declared rightless by the Court in Thuraissigiam.

But this administration is not just seeking to prevent new asylum seekers from entering; it is also trying to expel long-time residents. It will use expedited removal against residents unable to “affirmatively show, to the satisfaction of an immigration officer,”[88] that they have been continuously present for two years or more. Most unauthorized residents have been here much longer, but they have not been “admitted,” so how will they challenge wrongful applications of expedited removal? Thuraissigiam not only provides no roadmap for such challenges, it actually builds a dead-end.

***

The Court’s use of history in its evaluation of both the Suspension Clause and the application of the Due Process Clause to noncitizens is selective and problematic. The conclusions reached by the Court are out of line with precedent and rights-restrictive in novel and troubling ways. What happened here?

With his introductory discussion, Justice Alito made it very clear what is motivating him. He has embraced the restrictionist narrative that an overly generous U.S. asylum system is being completely overwhelmed by bogus asylum seekers. In this view of the world, the administration is merely seeking to streamline a bloated process in a way that will not require either lengthy, expensive detentions for asylum seekers or their release into the U.S. (where, Justice Alito suggests, they will abscond).[89] This dystopic vision of the asylum system, undergirded by a racist, xenophobic view toward certain kinds of immigrants, involves a hyperbolic distortion of what is actually happening along the U.S.-Mexico border, as well as a deliberate underestimation of both the U.S. government’s legal obligations and its capacity to fulfill them.

“No human being subject to the governance of the United States should be a stranger to the Constitution.”[90] Yet the Thuraissigiam decision trims the protective reach of the U.S. Constitution. It leaves the most vulnerable subjects of U.S. governance exposed not only to the caprices of Congress but also, and more dangerously in this moment, to the unchecked and illegal impulses of the executive branch.

* Professor of Law, UCLA School of Law.

[1] Dep't of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891 (2020) and consolidated cases.

[2] Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731 (2020) and consolidated cases.

[3] McGirt v. Oklahoma, 140 S. Ct. 2452 (2020).

[4] Dep't of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959 (2020).

[5] See discussion infra at Part III.

[6] Basem Besada & Grant Shillington, Department of Homeland Security v. Thuraissigiam, Legal Info. Inst. Sup. Ct. Bulletin (July 28, 2020).

[7] Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. no. 104–208, 110 Stat. 3009–546 (2012).

[8] 8 U.S.C. § 1225(b) (2012).

[9] Designating Aliens for Expedited Removal, 69 Fed. Reg. 48,877–81 (August 11, 2004).

[10] 8 U.S.C. § 1225(b)(1)(B)(iii)(I) (2012).

[11] Id. § 1225(b)(1)(A)(i).

[12] Id. § 1225(b)(1)(B)(ii).

[13] Id. § 1225(b)(1)(B)(iii)(III).

[14] These protective features of the law are under heavy assault by the Trump administration. See Part III, infra.

[15] 8 U.S.C. § 1101(a)(42) (2014).

[16] Brief for Respondent at 5, Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959 (2020) (No. 19–161).

[17] Id.

[18] 8 C.F.R. § 208.30(d) (2020).

[19] Brief for Respondent at 5, Thuraissigiam, 140 S. Ct. 1959 (No. 19–161) (“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.’).”). The regulations require interpretation. 8 C.F.R.§208.30(d)(2), (5) (2020).

[20] 8 U.S.C. §§1225(b)(1)(B)(v), 1225(b)(1)(E)(i) (2012).

[21] Brief for Respondent at 6–7, Thuraissigiam, 140 S. Ct. 1959 (No. 19–161).

[22] 8 U.S.C. § 1252(e) (2005).

[23] U.S. Const. Art. I, § 9, cl. 2. (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”).

[24] Thuraissigiam v. U.S. Dep’t of Homeland Sec., 917 F.3d 1097 (9th Cir. 2019).

[25] Thuraissigiam, 140 S. Ct. 1959.

[26] Id.

[27] Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892).

[28] Thuraissigiam, 140 S. Ct. at 1964.

[29] Id. at 1990 (Breyer, J. concurring).

[30] Id.

[31] Id. at 1973–74 (majority opinion) (defining the “finality era”).

[32] Id. at 2004–09 (Sotomayor, J. dissenting).

[33] Id. at 2012.

[34] Id. at 1967 (majority opinion).

[35] Id. at 1997–99 (Sotomayor, J. dissenting); see also Gerald Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961 (1998) (enumerating the problems with a strict originalist approach to habeas in this context).

[36] Boumediene v. Bush, 553 U.S. 723 (2008).

[37] I.N.S. v. St. Cyr, 533 U.S. 289 (2001).

[38] Thuraissigiam, 140 S. Ct. at 1999 (Sotomayor, J. dissenting).

[39] Id. at 1967 (majority opinion).

[40] Munaf v. Geren, 553 U. S. 674, 693 (2008).

[41] For some reason, the majority thinks it is appropriate to joke that the federal government is, of course, happy to release Thurassigiam to “the cabin of a plane bound for Sri Lanka,” though the whole point of this case is that Thurassigiam says he fears he will face torture and persecution there as a politically active Tamil who has now sought asylum in the U.S. Thuraissigiam, 140 S. Ct. at 1968.

[42] Id. at 2001 (Sotomayor, J. dissenting).

[43] Id. at 1999–2000.

[44] See, e.g., Amanda Tyler, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay (2017); see also Thuraissigiam, 140 S. Ct. at 2010 (Sotomayor, J. dissenting) (citing Boumediene v. Bush, 553 U.S. 723, 779 (2008), for the proposition that “release ‘need not be the exclusive remedy,’ [because] ‘common-law habeas corpus was, above all, an adaptable remedy’ whose ‘precise application and scope changed depending upon the circumstances.’”).

[45] Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

[46] Amanda Tyler, Thuraissigiam and the Future of the Suspension Clause, Lawfare (July 2, 2020); Strict Scrutiny: Thanks for the Footnote, Simplecast, (June 29, 2020) (noting that Boumediene decided this point in the affirmative).

[47] Thuraissigiam, 140 S. Ct. at 1998 (Sotomayor, J. dissenting) (citing I.N.S. v. St. Cyr, 533 U.S. 289, 293 (2001)).

[48] Id. at 2002.

[49] Id. at 2010 (“St. Cyr and Boumediene confirm that at minimum, the historic scope of the habeas power guaranteed judicial review of constitutional and legal challenges to executive action. They do not require release as an exclusive remedy, let alone a particular direction of release.”).

[50] Id. at 1967 (majority opinion).

[51] Id. at 2009 (Sotomayor, J. dissenting).

[52] Boumediene v. Bush, 553 U.S. 723, 745 (2008) (quoted in Tyler, supra note 46).

[53] See, e.g., I.N.S. v. St. Cyr, 533 U.S. 289, 304–08 (2001).

[54] Act of Mar. 3, 1891, ch. 551, §8, 26 Stat. 1085 (“All decisions made by the inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the superintendent of immigration, whose action shall be subject to review by the Secretary of the Treasury.”).

[55] Heikkila v. Barber, 345 U.S. 229, 233–235 (1953).

[56] Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892).

[57] Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1975 (2020).

[58] Id. at 1978.

[59] See id. at 1989–90.

[60] Id. at 2005 (Sotomayor, J. dissenting).

[61] Id. at 2012 (citing Ekiu, 142 U.S. at 660).

[62] I.N.S. v. St. Cyr, 533 U.S. 289, 300 (2001).

[63] Thuraissigiam, 140 S. Ct. at 1980.

[64] Id.; see, e.g., U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950) (“Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned”); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) (same); Landon v. Plasencia, 459 U.S. 21, 32 (1982) (“This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens . . . is a sovereign prerogative.”).

[65] Those with ties need not even be on U.S. soil to enjoy due process protections in immigration proceedings. See Landon, 459 U.S. at 32 (finding the Due Process Clause applicable to returning long-time U.S. residents in exclusion proceedings).

[66] See, e.g., Matter of Ching and Chen, 19 I. & N. Dec. 203 (BIA 1984).

[67] See, e.g., Leng May Ma v. Barber, 357 U.S. 185, 187 (1958) (distinguishing between noncitizens who “come to our shores seeking admission . . . and those who are within the U.S. after an entry, irrespective of it’s [sic] legality”). Perhaps this is why Congress did not even attempt to apply the expedited removal provision to individuals who had been paroled, but not admitted, to the U.S.

[68] Interestingly, it did not dispense with the notion of entry, which still appears at various points in the statute and therefore retains legal vitality.

[69] This is the bare minimum that is required. Constitutional protections also ought to extend outside of the U.S. in certain categories of cases. See generally Gerald Neuman, Strangers to the Constitution, 72–96 (1996).

[70] Zadvydas v. Davis, 533 U. S. 678, 693 (2001) (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”) (emphasis added).

[71] See, e.g., Matter of Ching and Chen, 19 I. & N. Dec. 203 (BIA 1984).

[72] Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1980 (2020) (“The same must be true of an alien like respondent.”).

[73] Id. at 2013 (Sotomayor, J. dissenting).

[74] Landon v. Plasencia, 459 U.S. 21, 32 (1982).

[75] 8 U.S.C. § 1225(b) (2012).

[76] 8 C.F.R. § 235.3 (2017).

[77] Alan Gomez, Trump’s Quick Deportation Plan May Be Illegal, Past Immigration Chiefs Say, USA Today (Feb. 26, 2017); see also Jennifer M. Chacón, Immigration and the Bully Pulpit, 130 Harv. L. Rev. F. 243, 259–261 (2017) (discussing the implications of the then-proposed expansion of expedited removal).

[78] Molly O’Toole, Border Patrol Agents, Rather than Asylum Officers, Interviewing Families for ‘Credible Fear’, L.A. Times (Sept. 19. 2019).

[79] Id.

[80] Id. (“According to separate records obtained by The Times, as of last month, Border Patrol agents had completed 178 credible-fear screenings with asylum seekers from more than 15 countries—all of whom were single adults. They determined 54% met the credible-fear standard and 35% did not.”).

[81] Hernandez v. Mesa, 140 S. Ct. 735 (2020).

[82] See, e.g., id. (denying a Bivens remedy to the family of a child killed by a Border Patrol agent who stood in the U.S. and shot the child across the border); see also discussion supra note 41 (noting Alito’s joke that Thuraissigiam could be released to “the cabin of a plane bound for Sri Lanka,” where he fears governmental persecution). The pairing of these two cases also illustrates the ironic way that constitutional protections against the Border Patrol end instantaneously at the border, but the converse proposition that the Border Patrol can be held constitutionally accountable within the border does not follow. Strict Scrutiny, supra note 46 (noting the irony).

[83] Amanda Holpuch, Asylum: 90% of Claims Fall at First Hurdle After US Process Change, Lawsuit Alleges, Guardian (Nov. 13, 2019); Grace v. Barr, No. 19–5013, 2020 WL 4032652 (D.C. Cir., July 17, 2020) (affirming a district court injunction of DHS policies raising the bar for credible fear determinations as inconsistent with the Immigration and Nationality Act and the Administrative Procedures Act).

[84] For a detailed timeline of these changes through November 2019, see Nat’l Immigr. Just. Ctr., A Timeline of the Trump Administration’s Efforts to End Asylum (2019).

[85] See, e.g., Grace v. Barr, No. 19–5013, 2020 WL 4032652 (D.C. Cir., July 17, 2020).

[86] Sarah Sherman-Stokes, Trump's Proposed Changes Would Effectively Abolish Asylum, WBUR (June 25, 2020).

[87] Lucas Guttentag, Coronavirus Border Expulsions: CDC’s Assault on Asylum Seekers and Unaccompanied Minors, Just Security (Apr. 13, 2020).

[88] 8 U.S.C. § 1225(b)(iii)(II) (2012).

[89] Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959 (2020).

[90] Neuman, supra note 69, at 189.