140 S. Ct. 1959 (U.S. 2020)
Department of Homeland Security v. Thuraissigiam is a watershed decision at the intersection of immigration, constitutional, and habeas corpus law.
Does 8 U.S.C. § 1252(e)(2)'s restriction on judicial review of expedited removal orders, as applied to an alien apprehended shortly after unlawful entry and seeking review of a negative credible-fear determination via habeas, violate the Suspension Clause, and does the Due Process Clause require additional judicial review beyond what Congress provided?
1) Suspension Clause: The Constitution protects the writ of habeas corpus as it existed at the Founding. Historically, habeas allowed a detainee to challenge unlawful custody and obtain release; it did not furnish a vehicle to obtain new administrative procedures, additional process, or the right to enter or remain in the country. Congress may channel or limit review so long as the traditional core of the writ—relief from unlawful detention—is not eliminated. 2) Due Process/Entry Fiction: Noncitizens seeking initial entry—treated as applicants for admission even if physically present—have limited due process rights with respect to admission decisions. The political branches possess broad authority over admission, and courts have long deferred to Congress's chosen procedures for excluding or expeditiously removing such applicants (Nishimura Ekiu; Knauff; Mezei). 3) Statutory Framework: Under 8 U.S.C. § 1225(b)(1), certain recent entrants are subject to expedited removal unless they establish a credible fear of persecution. Judicial review is strictly limited by 8 U.S.C. § 1252(a)(2)(A) and § 1252(e)(2), which confine habeas to verifying identity, the existence of an expedited removal order, and narrow status claims (e.g., LPR, refugee, asylee).
No. Section 1252(e)(2)'s strict limits on judicial review do not violate the Suspension Clause as applied because the relief sought—additional credible-fear procedures or the opportunity to apply for asylum—is beyond the traditional core of habeas (release from unlawful custody). Nor does the Due Process Clause require more process for an applicant for admission in expedited removal. The Supreme Court reversed the Ninth Circuit and reinstated the district court's dismissal.
For law students, Thuraissigiam is essential for three reasons: (1) it sharpens the historical scope of the Suspension Clause, teaching that habeas protects freedom from unlawful custody but does not guarantee new administrative procedures or admission-related remedies; (2) it reaffirms the entry fiction and the limited due process applicable to applicants for admission, even if physically present; and (3) it illustrates Congress's power to design streamlined immigration procedures and to cabin judicial review, with courts deferring so long as the traditional core of habeas is preserved. Practically, the decision curtails judicial oversight of negative credible-fear determinations and channels most expedited removal disputes away from federal courts.