Friday, June 26, 2020
SCOTUS Upholds IIRIRA's Restrictions on Federal Habeas Review of Asylum Claims: DHS v. Thuraissigiam
Yesterday the Supreme Court issued a 5-2-2 decision in Department of Homeland Security v. Thuraissigiam. The majority rejected a constitutional challenge—based on the Suspension Clause and the Due Process Clause—to provisions of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) that restrict federal habeas review of rejected asylum claims.
Justice Alito authored the majority opinion, joined by Chief Justice Roberts and Justices Thomas, Gorsuch, and Kavanaugh. Alito writes:
Respondent’s Suspension Clause argument fails because it would extend the writ of habeas corpus far beyond its scope “when the Constitution was drafted and ratified.” Boumediene v. Bush, 553 U. S. 723, 746 (2008). Indeed, respondent’s use of the writ would have been unrecognizable at that time. 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.
Respondent’s due process argument fares no better. While 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. See Nishimura Ekiu v. United States, 142 U. S. 651, 660 (1892). 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.
Justice Breyer authors a concurring opinion, joined by Justice Ginsburg, which agrees only that IIRIRA’s limit on federal habeas review comports with the Suspension Clause as applied “in this particular case” (emphasis in original). He reasons that the respondent had been apprehended “just 25 yards inside the border” and “has never lived in, or been lawfully admitted to, the United States.” And Breyer also argues that the respondent’s claims were either “challenges to factual findings” rather than claims of “legal error,” or “procedural claims” that “concern not the outright denial (or constructive denial) of a process, but the precise way in which the relevant procedures were administered.”
Justice Sotomayor authors a dissenting opinion, joined by Justice Kagan, which begins:
The majority declares that the Executive Branch’s denial of asylum claims in expedited removal proceedings shall be functionally unreviewable through the writ of habeas corpus, no matter whether the denial is arbitrary or irrational or contrary to governing law. That determination flouts over a century of this Court’s practice. In case after case, we have heard claims indistinguishable from those respondent raises here, which fall within the heartland of habeas jurisdiction going directly to the origins of the Great Writ. ***
Making matters worse, the Court holds that the Constitution’s due process protections do not extend to noncitizens like respondent, who challenge the procedures used to determine whether they may seek shelter in this country or whether they may be cast to an unknown fate. The decision deprives them of any means to ensure the integrity of an expedited removal order, an order which, the Court has just held, is not subject to any meaningful judicial oversight as to its substance.