Vijayakumar Thuraissigiam v. Usdhs , 917 F.3d 1097 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIJAYAKUMAR THURAISSIGIAM, No. 18-55313
Petitioner-Appellant,
D.C. No.
v. CV 18-135 AJB
U.S. DEPARTMENT OF HOMELAND
SECURITY; U.S. CUSTOMS AND
BORDER PROTECTION; U.S. OPINION
CITIZENSHIP AND IMMIGRATION
SERVICES; U.S. IMMIGRATION AND
CUSTOMS ENFORCEMENT; KIRSTJEN
NIELSEN, Secretary of DHS;
WILLIAM P. BARR, Attorney
General; KEVIN K. MCALEENAN,
Acting Commissioner of CBP;
THOMAS HOMAN; L. FRANCIS
CISSNA, Director of USCIS; PETE
FLORES, San Diego Field Director,
CBP; GREGORY ARCHAMBEAULT,
San Diego Field Office Director,
ICE; FRED FIGUEROA, Warden, Otay
Mesa Detention Center,
Respondents-Appellees.
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
2 THURAISSIGIAM v. USDHS
Argued and Submitted May 17, 2018
Portland, Oregon
Filed March 7, 2019
Before: A. Wallace Tashima, M. Margaret McKeown,
and Richard A. Paez, Circuit Judges.
Opinion by Judge Tashima
SUMMARY*
Immigration
In an action in which Vijayakumar Thuraissigiam filed a
habeas petition to challenge procedures leading to his
expedited removal order, the panel reversed the district
court’s dismissal of the petition for lack of subject matter
jurisdiction, held that 8 U.S.C. § 1252(e)(2) violates the
Suspension Clause as applied to Thuraissigiam, and
remanded.
Under 8 U.S.C. § 1225(b)(1)(A)(i), when a U.S. Customs
and Border Protection (“CBP”) officer determines that a
noncitizen arriving at a port of entry is inadmissible for
misrepresenting a material fact or lacking necessary
documentation, the officer must place the noncitizen in so-
called “expedited removal” proceedings. Expedited removal
also applies to inadmissible noncitizens arrested within 100
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
THURAISSIGIAM v. USDHS 3
miles of the border and unable to prove that they have been
in the United States for more than the prior two weeks.
The Department of Homeland Security (“DHS”) removes
noncitizens eligible for expedited removal without further
hearing or review, subject to only one exception: If, in an
interview with a CBP officer, the noncitizen indicates an
intent to apply for asylum or a fear of persecution, DHS must
refer the noncitizen for an interview with an asylum officer.
If the asylum officer finds no credible fear of persecution, the
noncitizen will be removed. A supervisor reviews the asylum
officer’s credible fear determination, and the noncitizen may
also request de novo review by an immigration judge.
Congress sharply circumscribed judicial review of the
expedited removal process such that “no court shall have
jurisdiction to review . . . any individual determination [or]
. . . the application of [§ 1225(b)(1)] to individual aliens”
outside of the review permitted by the habeas review
provision, § 1252(e). 8 U.S.C. § 1252(a)(2)(A)(iii). Under
§ 1252(e)(2), a person in expedited removal proceedings may
file a habeas petition in federal district court to contest three
DHS determinations: whether the person is a noncitizen,
whether he “was ordered removed” via expedited removal,
and whether he is a lawful permanent resident or has another
status exempting him from expedited removal.
Thuraissigiam is a native and citizen of Sri Lanka and a
Tamil, an ethnic minority group in Sri Lanka. After crossing
into the United States, he was arrested 25 yards north of the
Mexican border, and placed in expedited removal
proceedings. He was referred for a credible fear interview
after he indicated a fear of persecution in Sri Lanka, but an
asylum officer determined that Thuraissigiam had not
4 THURAISSIGIAM v. USDHS
established a credible fear of persecution. A supervisor
approved the decision, and an immigration judge affirmed the
negative credible fear finding in a check-box decision and
returned the case to DHS for Thuraissigiam’s removal.
Thuraissigiam filed a habeas petition in federal district
court, arguing that his expedited removal order violated his
statutory, regulatory, and constitutional rights. The district
court dismissed the petition for lack of subject matter
jurisdiction, concluding that § 1252(e) did not authorize
jurisdiction over Thuraissigiam’s claims and rejecting his
Suspension Clause arguments.
The panel concluded, in line with this court’s precedents,
that § 1252(e)(2) does not authorize jurisdiction over
Thuraissigiam’s petition because § 1252(e)(2) limits a district
court to reviewing three basic factual determinations related
to an expedited removal order, and Thuraissigiam’s petition
does not challenge any of those determinations.
The panel next considered whether the habeas review
available to Thuraissigiam under § 1252(e)(2) satisfied the
requirements of the Suspension Clause. In doing so, the
panel observed that Boumediene v. Bush, 553 U.S. 723(2008), provides an analytical template for evaluating a
Suspension Clause challenge: at step one, the court examines
whether the Suspension Clause applies to the petitioner; and,
if so, at step two, the court examines whether the substitute
procedure provides review that satisfies the Clause.
The panel also observed that INS v. St. Cyr, 533 U.S. 289,
302 (2001), illuminates how to approach both Boumediene
steps. The panel explained that, like Boumedine, St. Cyr
looked to the 1789-era historical application of the writ of
THURAISSIGIAM v. USDHS 5
habeas corpus, but that St. Cyr also looked to habeas
precedents from the co-called “finality era,” a period from
1891 to 1952 during which the statutory scheme precluded
judicial intervention in immigration enforcement, except as
required by the Constitution.
Drawing from Boumedine and St. Cyr, the panel
concluded that it must evaluate Thuraissigiam’s Suspension
Clause challenge in two steps: First, to determine whether
Thuraissigiam may invoke the Suspension Clause, the court
examines 1789-era practice, the finality era cases, and other
relevant precedents. Second, the court asks whether
§ 1252(e)(2) provides Thuraissigiam a “meaningful
opportunity to demonstrate that he is being held pursuant to
‘the erroneous application or interpretation’ of relevant law.”
Boumediene, 553 U.S. at 779 (quoting St. Cyr, 533 U.S. at
302).
In applying Boumediene step one, which concerns the
reach of the Suspension Clause, the panel concluded that
Thuraissigiam, who was arrested within the United States,
may invoke the Suspension Clause. In so concluding, the
panel observed that, in the finality era, the Court permitted
even arriving noncitizens to invoke habeas review.
The panel considered at Boumediene step two whether
habeas review under § 1252(e) is so limited so as effectively
to suspend the writ as applied to Thuraissigiam. In doing so,
the panel rejected the government’s contention that because,
in its view, Thuraissigiam lacks due process rights, there are
no rights for the Suspension Clause to protect, explaining that
Boumediene foreclosed that argument by holding that,
whether or not due process was satisfied, the Suspension
Clause might require more. Reviewing the relevant
6 THURAISSIGIAM v. USDHS
precedent, the panel concluded that the Suspension Clause
requires review of Thuraissigiam’s claims.
The panel held that 8 U.S.C. § 1252(e)(2) violates the
Suspension Clause as applied to Thuraissigiam. Noting the
meager procedural protections afforded by the administrative
scheme governing credible fear determinations in this
context, and the fact that § 1252(a)(2) prevents any judicial
review of whether DHS complied with the procedures in an
individual case or applied the correct standard, the panel
concluded that it is obvious that the constitutional minimum
– whether Thuraissigiam was detained pursuant to the
“erroneous interpretation or application of relevant law” – is
not satisfied by the scheme set out by § 1252(e)(2).
The panel further declined to interpret § 1252(e)(2) to
avoid the serious Suspension Clause problems engendered by
the statute, explaining that the constitutional avoidance canon
does not apply because the statute cannot bear a reading that
avoids the constitutional problems it creates.
Finally, the panel observed that it did not profess to
decide in this opinion what right or rights Thuraissigiam may
vindicate via use of the writ, and remanded the case for the
district court to exercise jurisdiction to consider
Thuraissigiam’s legal challenges to the procedures leading to
his expedited removal order.
THURAISSIGIAM v. USDHS 7
COUNSEL
Lee P. Gelernt (argued) and David Hausman, American Civil
Liberties Union Foundation Immigrants’ Rights Project, New
York, New York; Jennifer Chang Newell and Cody Wofsy,
American Civil Liberties Union Foundation Immigrants’
Rights Project, San Francisco, California; David Loy, ACLU
Foundation of San Diego & Imperial Counties, San Diego,
California; for Petitioner-Appellant.
Joshua S. Press (argued), and Joseph A. Darrow, Trial
Attorneys; Erez Reuveni, Assistant Director; William C.
Peachey, Director; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent-Appellees.
Matthew E. Price, Jenner & Block, New York, New York;
Blaine Bookey, Karen Musalo, and Eunice Lee, Center for
Gender & Refugee Studies, University of California Hastings
College of the Law, San Francisco, Calfornia; for Amici
Curiae Refugee and Human Rights Organizations and
Scholars.
Ethan D. Dettmer, Soolean Choy, Priyah Kaul, and Eli M.
Lazarus, Gibson Dunn & Crutcher, San Francisco, California;
Joshua S. Lipshutz, Gibson Dunn & Crutcher, Washington,
D.C.; for Amici Curiae Scholars of Immigration Law.
Noah A. Levine, Wilmer Cutler Pickering Hale & Dorr, New
York, New York, for Amici Curiae Scholars of Habeas
Corpus Law.
8 THURAISSIGIAM v. USDHS
Anjali Srinivasan and Leo L. Lam, Keker Van Nest & Peters,
San Francisco, California, for Amici Curiae Scholars of Sri
Lankan Politics.
OPINION
TASHIMA, Circuit Judge:
Vijayakumar Thuraissigiam filed a habeas petition in
district court pursuant to 8 U.S.C. § 1252(e)(2) to challenge
the procedures leading to his expedited removal order. The
court dismissed the petition for lack of subject matter
jurisdiction. We reverse. Although § 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,
requires that Thuraissigiam have a “meaningful opportunity
to demonstrate that he is being held pursuant to ‘the
erroneous application or interpretation’ of relevant law.”
Boumediene v. Bush, 553 U.S. 723, 779 (2008) (quoting INS
v. St. Cyr, 533 U.S. 289, 302 (2001)). Because § 1252(e)(2)
does not provide that meaningful opportunity, the provision
violates the Suspension Clause as applied to Thuraissigiam.
BACKGROUND
I. Statutory Background
When a U.S. Customs and Border Protection (“CBP”)
officer determines that a noncitizen arriving at a port of entry
is inadmissible for misrepresenting a material fact or lacking
THURAISSIGIAM v. USDHS 9
necessary documentation,1 the officer must place the
noncitizen in so-called “expedited removal” proceedings.
8 U.S.C. § 1225(b)(1)(A)(i). By regulation, the Department
of Homeland Security (“DHS”), of which CBP is a
constituent agency, also applies expedited removal to
inadmissible noncitizens arrested within 100 miles of the
border and unable to prove that they have been in the United
States for more than the prior two weeks. Designating Aliens
for Expedited Removal, 69 Fed. Reg. 48877-01, 48879-80
(Aug. 11, 2004);2 see also 8 U.S.C. § 1225(b)(1)(A)(iii)(II).
DHS removes noncitizens eligible for expedited removal
“without further hearing or review,” subject to only one
exception. 8 U.S.C. § 1225(b)(1)(A)(i). If, in an interview
with a CBP officer, the noncitizen indicates an intent to apply
for asylum or a fear of persecution, DHS must refer the
noncitizen for an interview with an asylum officer. Id.§ 1225(b)(1)(A)(ii); 8 C.F.R. § 208.30. If that asylum officer
determines that the noncitizen’s fear of persecution is
1
See 8 U.S.C. § 1182(a)(6)(C) (misrepresentation bar); id.§ 1182(a)(7) (documentation bar).
2
Congress gave the Attorney General the authority to extend
expedited removal to some or all inadmissible noncitizens who cannot
prove that they have been in the United States for more than two years
prior; thus, the current regime does not represent the full exercise of
executive authority permitted by statute. 8 U.S.C. § 1225(b)(1)(A)(iii).
DHS also applies expedited removal to noncitizens who entered the
United States by sea and who have not been in the United States for two
years. See Notice Designating Aliens Subject to Expedited Removal
Under Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act,
67 Fed. Reg. 68,924, 68,924–25 (Nov. 13, 2002). The current regime
may, however, expand; a January 2017 executive order instructs the
Secretary of DHS to apply expedited removal to the fullest extent of the
law. See Exec. Order No. 13,767, 82 Fed. Reg. 8793 (Jan. 25, 2017).
10 THURAISSIGIAM v. USDHS
credible, the noncitizen is referred to non-expedited removal
proceedings, in which the noncitizen may apply for asylum or
other forms of relief from removal. See 8 U.S.C.
§ 1225(b)(1)(B)(ii); 8 C.F.R. § 208.30(f); 8 C.F.R.
§ 1003.42(f). If the asylum officer finds no credible fear of
persecution, the noncitizen will be removed. 8 U.S.C.
§ 1225(b)(1)(B)(iii). A supervisor reviews the asylum
officer’s credible fear determination, 8 C.F.R.
§§ 208.30(e)(7), 235.3(b)(2), (b)(7), and a noncitizen may
also request de novo review by an immigration judge (“IJ”).
8 U.S.C. § 1225(b)(1)(B)(iii)(III); 8 C.F.R. § 1003.42. In
2016, DHS conducted over 141,000 expedited removals. See
Refugee and Human Rights Amicus Br. 10. All individuals
placed in expedited removal proceedings are subject to
mandatory detention pending a final determination of credible
fear of persecution or until they are removed. 8 U.S.C.
§ 1225(b)(1)(B)(iii)(IV).
Congress sharply circumscribed judicial review of the
expedited removal process. “[N]o court shall have
jurisdiction to review . . . any individual determination [or]
. . . the application of [§ 1225(b)(1)] to individual aliens”
outside of the review permitted by the habeas review
provision, § 1252(e). 8 U.S.C. § 1252(a)(2)(A)(iii). Under
§ 1252(e)(2), a person in expedited removal proceedings may
file a habeas petition in federal district court to contest three
DHS determinations: whether the person is a noncitizen,
whether he “was ordered removed” via expedited removal,
and whether he is a lawful permanent resident or has another
status exempting him from expedited removal. Id.
§ 1252(e)(2)(A)–(C). Review of whether a petitioner “was
ordered removed” is “limited to whether such an order in fact
was issued and whether it relates to the petitioner. Id.
§ 1252(e)(5). “There shall be no review of whether the alien
THURAISSIGIAM v. USDHS 11
is actually inadmissible or entitled to any relief from
removal.” Id.; see also 8 C.F.R. § 1003.42(f) (“No appeal
shall lie from a review of an adverse credible fear
determination made by an immigration judge.”).3
II. Factual Background
Thuraissigiam is a native and citizen of Sri Lanka and a
Tamil, an ethnic minority group in Sri Lanka. See Scholars
of Sri Lankan Politics Amicus Br. 3. Thuraissigiam fled his
home country in June 2016 and made his way to Mexico. On
February 17, 2017, Thuraissigiam crossed the border into the
United States. Late that night, he was arrested by a CBP
officer four miles west of the San Ysidro, California, port of
entry, 25 yards north of the border.
DHS placed Thuraissigiam in expedited removal
proceedings. Pursuant to 8 U.S.C. § 1225(b)(1)(A)(ii), CBP
referred Thuraissigiam for an interview with an asylum
officer after he indicated a fear of persecution in Sri Lanka.
On March 9, an asylum officer from the United States
Citizenship and Immigration Services (“USCIS”) interviewed
Thuraissigiam and determined that he had not established a
credible fear of persecution. A supervisor approved the
3
Under 8 U.S.C. § 1252(e)(3), a person may challenge the
constitutionality and legality of the expedited removal provisions,
regulations implementing those provisions, or written policies to
implement the provisions. Such challenges, however, must be brought
within 60 days after implementation and only in the District of Columbia.
Id. § 1252(e)(3)(A)–(B). Various expedited removal provisions and
implementing regulations survived a § 1252(e)(3) challenge in American
Immigration Lawyers Ass’n v. Reno, 18 F. Supp. 2d 38 (D.D.C. 1998),
although the plaintiffs did not raise a Suspension Clause argument about
the extent of habeas review. See id. at 41.
12 THURAISSIGIAM v. USDHS
decision. Thuraissigiam then requested review by an IJ, who
affirmed the negative credible fear finding in a check-box
decision and returned the case to DHS for Thuraissigiam’s
removal.
III. District Court Proceedings
In January 2018, Thuraissigiam filed a habeas petition in
federal district court, naming as respondents DHS, several of
its constituent agencies, and individual agency officials.
Thuraissigiam argued that his “expedited removal order
violated his statutory, regulatory, and constitutional rights,”
sought to vacate the order, and requested relief in the form of
a “new, meaningful opportunity to apply for asylum and other
relief from removal.” Thuraissigiam alleged that in Sri Lanka
he had been harassed for supporting a Tamil political
candidate. In 2007, he was “detained and beaten” by Sri
Lankan army officers, and told not to support the candidate.
In 2014, after Thuraissigiam continued to support the
candidate, government intelligence officers kidnapped,
bound, and beat him during an interrogation about his
political activities. Thuraissigiam alleged that he “was
lowered into a well, simulating drowning, threatened with
death, and then suffocated, causing him to lose
consciousness.”
Thuraissigiam also made various factual allegations about
the expedited removal procedures to which he was subject
after being apprehended. For one, he alleged that the asylum
officer failed to “elicit all relevant and useful information
bearing on whether the applicant has a credible fear of
persecution or torture” in violation of 8 C.F.R. § 208.30(d)
and “failed to consider relevant country conditions evidence”
in violation of 8 U.S.C. § 1225(b)(1)(B)(v) and 8 C.F.R.
THURAISSIGIAM v. USDHS 13
§ 208.30(e)(2). Thuraissigiam also alleged that there were
“communication problems” between the asylum officer,
Thuraissigiam, and the translator, in violation of 8 C.F.R.
§ 208.30(d)(1)–(2). Thuraissigiam alleged that the IJ hearing
included the same procedural and substantive flaws, and that
at both hearings, he was unaware whether “information he
offered would be shared with the Sri Lankan government.”
Thuraissigiam’s petition asserted two causes of action:
First, DHS’ credible fear screening deprived
Thuraissigiam “of a meaningful right to apply for asylum”
and other forms of relief, in violation of 8 U.S.C.
§ 1225(b)(1), its implementing regulations, and the United
States Convention Against Torture, implemented in the
Foreign Affairs Reform and Restructuring Act of 1998
(“FARRA”), Pub. L. No. 105-277, div. G., Title XXII,
§ 2242, 112 Stat. 2681 (1998). The asylum officer and IJ also
violated those statutes “by applying an incorrect legal
standard” to Thuraissigiam’s credible fear application.
Second, the asylum officer and IJ violated
Thuraissigiam’s rights under the Due Process Clause of the
Fifth Amendment by “not providing him with a meaningful
opportunity to establish his claims, failing to comply with the
applicable statutory and regulatory requirements, and in not
providing him with a reasoned explanation for their
decisions.”
The district court dismissed the habeas petition for lack of
subject matter jurisdiction. Thuraissigiam v. U.S. Dep’t of
Homeland Sec., 287 F. Supp. 3d 1077 (S.D. Cal. 2018).
Relying on our precedents, the district court concluded that
8 U.S.C. § 1252(e) did not authorize jurisdiction over the
claims in Thuraissigiam’s petition. Id. at 1082. Next, the
14 THURAISSIGIAM v. USDHS
court rejected Thuraissigiam’s Suspension Clause arguments.
Although the court concluded that Thuraissigiam could
invoke the Suspension Clause, it held that the statute’s “strict
restraints” on habeas review of expedited removal orders did
not effectively suspend the writ of habeas corpus and were
therefore constitutionally sound. Id. at 1082–83.4
Thuraissigiam timely appealed the district court’s
dismissal and moved for a stay of removal pending appeal.
A motions panel of our court initially denied Thuraissigiam’s
stay motion, but later vacated that order and stayed
Thuraissigiam’s removal pending appeal.
STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. We review
de novo the district court’s dismissal of Thuraissigiam’s
habeas petition for lack of subject matter jurisdiction. Bishop
Paiute Tribe v. Inyo County, 863 F.3d 1144, 1151 (9th Cir.
2017); see also Garcia de Rincon v. Dep’t of Homeland Sec.,
539 F.3d 1133, 1136 (9th Cir. 2008).
DISCUSSION
We must decide whether a federal district court has
jurisdiction to review the claims in Thuraissigiam’s petition.
We first inquire whether 8 U.S.C. § 1252(e)(2) authorizes
jurisdiction over Thuraissigiam’s petition. Concluding that
§ 1252(e)(2) does not authorize jurisdiction, we then address
4
The district court also denied various stay motions that
Thuraissigiam had filed, concluding that they were moot due to the
petition’s dismissal. 287 F. Supp. 3d at 1078.
THURAISSIGIAM v. USDHS 15
whether the provision restricting habeas review violates the
Suspension Clause.
I. Jurisdiction Under 8 U.S.C. § 1252(e)(2)
Thuraissigiam contends that 8 U.S.C. § 1252(e)(2)(B)
authorizes review of the statutory, regulatory, and
constitutional claims raised in his habeas petition. We
disagree. Section 1252(e)(2), including Subsection (B), limits
a district court to reviewing three basic factual determinations
related to an expedited removal order. Because
Thuraissigiam’s petition does not challenge any of those
determinations, § 1252(e)(2) does not authorize jurisdiction
over the petition.
A court applying habeas review under § 1252(e)(2) is
limited to determining:
(A) whether the petitioner is an alien,
(B) whether the petitioner was ordered
removed under such section, and
(C) whether the petitioner can prove by a
preponderance of the evidence that the
petitioner is an alien lawfully admitted for
permanent residence, has been admitted as a
refugee under section 1157 of this title, or has
been granted asylum under section 1158 of
this title . . . .
Congress also provided express limitations on review under
Subsection (B):
16 THURAISSIGIAM v. USDHS
In determining whether an alien has been
ordered removed under section 1225(b)(1) of
this title, the court’s inquiry shall be limited to
whether such an order in fact was issued and
whether it relates to the petitioner. There
shall be no review of whether the alien is
actually inadmissible or entitled to any relief
from removal.
Id. § 1252(e)(5). Nonetheless, Thuraissigiam stakes his claim
on Subsection (B).
We considered and rejected a nearly identical argument
in Garcia de Rincon. The petitioner in Garcia de Rincon
raised a due process challenge to an expedited removal order.
539 F.3d at 1136. Characterizing § 1252(e) as among the
“most stringent” jurisdiction-limiting provisions in the
immigration statutes, we held that § 1252(e)(2) permits
review only of “habeas petitions alleging that the petitioner
is not an alien or was never subject to an expedited removal
order.” Id. at 1135, 1139. We therefore lacked jurisdiction
because the petitioner’s due process claims were not
encompassed by those enumerated grounds. Id. at 1139.
Likewise, Thuraissigiam’s claims of procedural violations are
plainly not claims about whether Thuraissigiam “was never
subject to an expedited removal order.” 8 U.S.C. § 1252(e).
Thuraissigiam contends that such a reading of Subsection
(B) renders superfluous the prohibition in § 1252(e)(5)
against “review of whether the alien is actually inadmissible
or entitled to any relief from removal.” However,
§ 1252(e)(5) functions not to repeat § 1252(e)(2)(B), but to
explain it. Moreover, Thuraissigiam’s petition is barred by
the first sentence in § 1252(e)(5), not the second sentence.
THURAISSIGIAM v. USDHS 17
Because he asks the district court to review the government’s
procedures, those claims are beyond the scope of “whether
such an [expedited removal] order in fact was issued and
whether it relates to the petitioner.”5 8 U.S.C. § 1252(e); see
also United States v. Barajas-Alvarado, 655 F.3d 1077, 1082
(9th Cir. 2011) (reaffirming that jurisdiction under
§ 1252(e)(2) “does not extend to review of the claim that an
alien was wrongfully deprived of the administrative review
permitted under the statute and applicable regulations”).
Thuraissigiam relies on Smith v. U.S. Customs & Border
Protection, 741 F.3d 1016 (9th Cir. 2014), to contend that we
have adopted a more expansive view of Subsection (B).
Specifically, he contends that Smith reviewed “whether the
petitioner belonged in the expedited removal system,” and
that a court may thus review his petition. Smith, however,
does not support Thuraissigiam’s argument. In Smith, CBP
placed the petitioner, a Canadian citizen arriving at the
border, in expedited removal proceedings for lacking certain
documents. Id. at 1019. The petitioner alleged that CBP
exceeded its authority under the expedited removal statute
because certain document requirements are waived for
Canadians, and argued that Subsection (B) authorized review.
Id. at 1019, 1021. “Accepting [petitioner’s] theory at face
value,” we reviewed whether CBP in fact classified him as an
“intending immigrant.” Id. at 1021. Concluding that CBP had
done so, we held that § 1252(e)(2) “permit[ted] us to go no
5
Thuraissigiam also makes a structural argument, contending that
because Congress provided for some review of asylum claims even in
expedited removal cases, Congress must not have intended to strip judicial
review to “police the boundaries of those limits.” This argument ignores
the plain language of the statute, which evidences Congress’ intent to do
just that.
18 THURAISSIGIAM v. USDHS
further” and did not discuss the merits of CBP’s
classification. Id. at 1021–22 & n.4.6 Therefore, Smith
reviewed only how CBP classified the petitioner, which is
fairly encompassed by whether “[the petitioner] was ordered
removed” under the expedited removal provision. Id. at 1022
(internal quotation marks omitted). By contrast,
Thuraissigiam asks the district court to pass judgment on the
procedures leading to his removal order. The limited review
provided under § 1252(e)(2) does not encompass such
claims.7
Therefore, in line with our precedents, we conclude that
§ 1252(e) does not authorize habeas review of
Thuraissigiam’s petition. We do not here address
Thuraissigiam’s request that we apply the canon of
constitutional avoidance to interpret § 1252(e) to provide
jurisdiction over his legal claims. That canon only comes
into play if we conclude that § 1252(e) raises serious
constitutional questions; thus, we first address
Thuraissigiam’s Suspension Clause argument before
contemplating the application of that canon. See St. Cyr,
533 U.S. at 299–300, 314 (explaining constitutional
avoidance canon and applying it upon concluding that the
statute in question raised serious constitutional questions).
6
The Smith petitioner also contended that § 1252(e)(2) violated the
Suspension Clause, but we did not reach the argument because we held
that the statute permitted limited review of his petition. 741 F.3d at 1022
n.6.
7
We have held that in appeals from convictions for criminal reentry,
a defendant may collaterally attack a removal order that forms the basis
for his conviction. See United States v. Ochoa-Oregel, 904 F.3d 682, 686
(9th Cir. 2018) (considering collateral attack on expedited removal order).
But that rule does not apply to this case.
THURAISSIGIAM v. USDHS 19
II. Suspension Clause
The Suspension Clause mandates, “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.” U.S. Const. art. I, § 9, cl. 2. Our nation’s
founders viewed the writ as a “vital instrument” to secure
individual liberty. Boumediene, 553 U.S. at 743. “The
Clause protects the rights of the detained by a means
consistent with the essential design of the Constitution. It
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.” Id. at 745 (citing Hamdi v. Rumsfeld,
542 U.S. 507, 536 (2004) (opinion of O’Connor, J.)). The
Suspension Clause prevents Congress from passing a statute
that effectively suspends the writ absent rebellion or invasion.
See Felker v. Turpin, 518 U.S. 651, 663–64 (1996). Thus, the
question in this case is whether 8 U.S.C. § 1252(e)(2)
effectively suspends the writ. Put another way, the question
is whether the habeas review available to Thuraissigiam
under § 1252(e)(2) satisfies the requirements of the
Suspension Clause.
The Supreme Court has not yet answered that question.
In fact, the Court has rarely addressed who may invoke the
Suspension Clause and the extent of review the Clause
requires. For example, only in Boumediene has the Court
concluded that a statute violated the Suspension Clause.
Gerald L. Neuman, The Habeas Corpus Suspension Clause
After Boumediene v. Bush, 110 Colum. L. Rev. 537, 538
(2010). In the Court’s other most recent Suspension Clause
case, St. Cyr, the Court, after extensive analysis of the
Suspension Clause issues at play, interpreted the statute to
20 THURAISSIGIAM v. USDHS
avoid those issues. 533 U.S. at 336–37. Of the federal courts
of appeals, only the Third Circuit has addressed the precise
question before us, whether § 1252(e)(2) as applied to
noncitizen petitioners in expedited removal violates the
Suspension Clause. See Castro v. U.S. Dep’t of Homeland
Sec., 835 F.3d 422 (3d Cir. 2016) (concluding that, due to
their status, such petitioners could not invoke the Suspension
Clause), cert. denied, 137 S. Ct. 1581 (2017).
Boumediene traced the writ of habeas corpus to its origins
as a tool of the English crown, citing the detailed historical
account in Paul D. Halliday and G. Edward White, The
Suspension Clause: English Text, Imperial Contexts, and
American Implications, 94 Va. L. Rev. 575 (2008). 553 U.S.
at 740. As Halliday and White explain, the writ in England
was the vehicle “to determine the rightness of constraints
imposed on the bodies of the king’s subjects of all kinds.” 94
Va. L. Rev. at 607. The writ was on occasion suspended in
England. Id. at 619; see Boumediene, 553 U.S. at 741.
According to Boumediene, that history “no doubt confirmed
[the Framers’] view that pendular swings to and away from
individual liberty were endemic to undivided, uncontrolled
power.” Id. at 742; see also Amanda L. Tyler, A “Second
Magna Carta”: The English Habeas Corpus Act and the
Statutory Origins of the Habeas Privilege, 91 Notre Dame L.
Rev. 1949, 1985–86 (2016) (describing how suspensions of
the writ in colonial America motivated the States’ desire to
import similar habeas protections after gaining
independence); Halliday & White, 94 Va. L. Rev. at 671
(highlighting the Framers’ desire to restore “the traditional
order of writs and suspensions”).
As Boumediene summed it up, the Suspension Clause is
rooted in the Framers’ first-hand experience “that the
THURAISSIGIAM v. USDHS 21
common-law writ all too often had been insufficient to guard
against the abuse of monarchial power.” 553 U.S. at 739–40.
The Clause, therefore, is “not merely about suspending the
privilege of the writ of habeas corpus, but about the meaning
of the ‘privilege of the writ’ itself.” Halliday & White,
94 Va. L. Rev. at 699. “Indeed, common law habeas corpus
was, above all, an adaptable remedy . . . [whose] precise
application and scope changed depending upon the
circumstances.” Boumediene, 553 U.S. at 779–80 (citing,
inter alia, Richard H. Fallon, Jr. & Daniel J. Meltzer, Habeas
Corpus Jurisdiction, Substantive Rights, and the War on
Terror, 120 Harv. L. Rev. 2029, 2102 (2007)).
In examining how the Supreme Court has defined the
Suspension Clause’s requirements, Boumediene is our
starting point, even if it does not provide a direct answer to
Thuraissigiam’s challenge. Boumediene and its predecessors,
like St. Cyr, do provide an analytical blueprint. We therefore
review those precedents before deciding how best to apply
their principles to this appeal.
A. Boumediene v. Bush
In Boumediene, the Supreme Court struck down a War on
Terror-era law after detainees at the Guantanamo Bay prison
in Cuba brought a Suspension Clause challenge. 553 U.S. at732–33. In the wake of the September 11, 2001, attacks, the
U.S. Department of Defense created Combatant Status
Review Tribunals (“CSRTs”) to decide if detainees were
“enemy combatants.” Id. at 733. The Boumediene
petitioners, who had all appeared before CSRTs and been
deemed enemy combatants, sought a writ of habeas corpus
under the general habeas statute, 28 U.S.C. § 2241. Id. at
734. After protracted litigation, Congress passed the
22 THURAISSIGIAM v. USDHS
Detainee Treatment Act of 2005 (“DTA”), which amended
§ 2241 to bar judicial review of habeas petitions filed by
Guantanamo detainees and to vest review of CSRT decisions
exclusively in the D.C. Circuit. Id. at 735 (citing DTA
§ 1005(e), 119 Stat. 2742). Section 7 of the Military
Commissions Act of 2006 (“MCA”) made those provisions
retroactive. Id. at 736. See generally Hamad v. Gates,
732 F.3d 990, 996–99 (9th Cir. 2013) (describing
Boumediene’s place in the line of Guantanamo detainee
cases). The Court took a two-step approach to evaluating the
detainees’ challenge to the MCA.
At step one, the Court evaluated whether the Guantanamo
detainees – as enemy combatants detained on foreign soil –
could even invoke the Suspension Clause. See Boumediene,
553 U.S. at 739. In so doing, the Court affirmed that
although the writ’s protections may have expanded since the
Constitution’s drafting, “at the absolute minimum,” the
Clause protects the writ as it existed in 1789. Id. at 746
(citing St. Cyr, 533 U.S. at 301). The Court therefore
examined historical authorities to determine the scope of the
writ in 1789, and whether it ran to “an enemy alien detained
abroad.” Id. at 752. Although noting that “at common law a
petitioner’s status as an alien was not a categorical bar to
habeas corpus,” the Court concluded that the historical record
did not provide a definitive answer. Id. at 747, 752. Instead,
the Court turned to its extraterritoriality precedents and from
them concluded that “questions of extraterritoriality turn on
objective factors and practical concerns, not formalism.” Id.
at 764. Boumediene drew from Johnson v. Eisentrager,
339 U.S. 763 (1950), another case about the extraterritorial
application of the Suspension Clause, three non-exclusive
factors relevant to the Clause’s extraterritorial scope:
THURAISSIGIAM v. USDHS 23
(1) the citizenship and status of the detainee
and the adequacy of the process through
which that status determination was made;
(2) the nature of the sites where apprehension
and then detention took place; and (3) the
practical obstacles inherent in resolving the
prisoner’s entitlement to the writ.
553 U.S. at 766.8 Applying those factors, the Court
concluded that the detainees could invoke the Suspension
Clause. Id. at 771.
At step two, the Court considered whether Congress had
suspended the writ without an adequate substitute. The Court
acknowledged that there are “few precedents addressing what
features an adequate substitute for habeas corpus must
contain.” Id. at 772. For example, the Court had previously
upheld provisions of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) against a Suspension Clause
challenge because the provisions “did not constitute a
substantial departure from common-law habeas procedures.”
Id. at 774 (citing Felker, 518 U.S. at 664); see also Neuman,
110 Colum. L. Rev. at 542 (stating that “what matters is the
substance, not the form, of the Great Writ,” and that
“Congress can rename or reconfigure the procedure by which
courts examine the lawfulness of detention,” as long as the
substitute is adequate).
8
In Rasul v. Bush, 542 U.S. 466 (2004), the Court had first discussed
Eisentrager’s applicability to the question of who may invoke the
Suspension Clause. Id. at 487 (Kennedy, J., concurring) (“A faithful
application of Eisentrager, then, requires an initial inquiry into the general
circumstances of the detention to determine whether the Court has the
authority to entertain the petition and to grant relief after considering all
of the facts presented.”).
24 THURAISSIGIAM v. USDHS
In Boumediene, the Court gleaned from its precedents two
“easily identified attributes of any constitutionally adequate
habeas corpus proceeding.” 553 U.S. at 779. First, the
“privilege of habeas corpus entitles the prisoner to a
meaningful opportunity to demonstrate that he is being held
pursuant to ‘the erroneous application or interpretation’ of
relevant law.” Id. (quoting St. Cyr, 533 U.S. at 302). Second,
“the habeas court must have the power to order the
conditional release of an individual unlawfully detained.” Id.Beyond those minimum requirements, “depending on the
circumstances, more may be required.” Id.The Court further emphasized that “the necessary scope
of habeas review in part depends upon the rigor of any earlier
proceedings.” Id. at 781; see also id. at 786 (noting that
“habeas corpus review may be more circumscribed if the
underlying detention proceedings are more thorough”). For
that reason, courts sitting in habeas afford deference when
reviewing another court’s decision, but when a petitioner is
“detained by executive order . . . the need for collateral
review is most pressing.” Id. at 783. To be effective, the
“habeas court must have sufficient authority to conduct a
meaningful review of both the cause for detention and the
Executive’s power to detain.” Id. Applying those principles
to the CSRTs and D.C. Circuit review, the Court concluded
that the MCA did not provide an adequate substitute because
the D.C. Circuit could not “consider newly discovered
evidence that could not have been made part of the CSRT
record.” Id. at 790. The Court then concluded that it was not
possible to read into the statute provisions for the procedures
necessary to satisfy the Suspension Clause, and therefore held
it unconstitutional. Id. at 792.
THURAISSIGIAM v. USDHS 25
Boumediene provides an analytical template for
evaluating a Suspension Clause challenge: at step one, we
examine whether the Suspension Clause applies to the
petitioner; and, if so, at step two, we examine whether the
substitute procedure provides review that satisfies the Clause.
How more specifically to apply that template is less clear,
given that the Court generated its three-factor test at step one
in light of the extraterritoriality question in Boumediene. See
id. at 764, 766. Those factors, as both parties acknowledge,
do not map precisely onto this case because Thuraissigiam
was apprehended and is detained on U.S. soil.9 Yet, the
manner in which the Court divined those factors informs our
approach here. Boumediene relied on Eisentrager and related
cases, but also looked to 1789-era application of the writ to
determine whether petitioners similarly situated to
Guantanamo detainees had been able to invoke the Clause.
Although the Court emphasized that the history was not
dispositive, it made clear that “settled precedents or legal
commentaries in 1789 . . . can be instructive.” Id. at 739.10
9
We too have applied the three Boumediene factors more readily
when asking whether a noncitizen outside the United States – again,
unlike Thuraissigiam – can claim the Constitution’s protections. See
Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983, 995 (9th Cir. 2012)
(evaluating extraterritoriality in context of First and Fifth Amendment
claims).
10
Indeed, the Supreme Court’s proposition that the Suspension Clause
at least protects the writ as it existed in 1789 “necessarily invites reference
to history when interpreting and applying the Suspension Clause.”
Amanda L. Tyler, Habeas Corpus in Wartime 9 (2017); see also Omar v.
McHugh, 646 F.3d 13, 19 (D.C. Cir. 2011) (Kavanaugh, J.) (“[H]istory
matters: In habeas cases, we seek guidance from history ‘addressing the
specific question before us.’” (quoting Boumediene, 553 U.S. at 746)).
26 THURAISSIGIAM v. USDHS
At step two, Boumediene held that, at a minimum, the
Suspension Clause entitles a petitioner “to a meaningful
opportunity to demonstrate he is being held to ‘the erroneous
application or interpretation’ of relevant law.” Id. at 779(quoting St. Cyr, 533 U.S. at 302). In considering whether
the Clause required more in the circumstances of
Boumediene, the Court impliedly considered the rigor and
character of the proceedings preceding habeas review. Also
relevant to Thuraissigiam’s case, the Court affirmed that the
Suspension Clause protects “a right of first importance,” even
in circumstances – such as national security, in Boumediene
– where the executive’s power is at its zenith. Id. at 797–98.
B. INS v. St. Cyr
St. Cyr, which predated Boumediene by several years,
sheds additional light on the Court’s approach to Suspension
Clause questions. The petitioner, St. Cyr, was a lawful
permanent resident admitted to the United States in 1986.
533 U.S. at 293. In 1996, St. Cyr pleaded guilty to a criminal
charge that made him removable, although under pre-AEDPA
law (applicable at the time of his conviction), he was eligible
for a discretionary waiver from the Attorney General. Id.After AEDPA was passed, the government began removal
proceedings, with the Attorney General interpreting AEDPA
to have removed his discretion to grant St. Cyr a waiver. Id.St. Cyr filed a habeas petition alleging that the Attorney
General’s interpretation was erroneous because St. Cyr’s
conviction predated AEDPA. Id. After the district court and
Second Circuit agreed with St. Cyr, the government argued to
THURAISSIGIAM v. USDHS 27
the Supreme Court that the courts lacked jurisdiction to
review the Attorney General’s interpretation. Id. at 297–98.
The Court stated that the government’s position had to
overcome several presumptions, chief among them the
“strong presumption in favor of judicial review of
administrative action and the longstanding rule requiring a
clear statement of congressional intent to repeal habeas
jurisdiction.” Id. at 298 (citing Ex parte Yerger, 75 U.S.
(8 Wall.) 85, 102 (1869)). To address whether the statute
raised serious Suspension Clause questions, the Court started
from the principle that “[b]ecause of [the] Clause, some
‘judicial intervention in deportation cases’ is unquestionably
‘required by the Constitution.’” Id. at 300 (citing Heikkila v.
Barber, 345 U.S. 229, 235 (1953)). Because “at the absolute
minimum, the Suspension Clause protects the writ ‘as it
existed in 1789,’” the Court looked at the writ’s application
before and after the drafting of the Constitution. Id. at 301(quoting Felker, 518 U.S. at 663–64). Legal and historical
authorities indicated that in both England and the United
States “the writ of habeas corpus has served as a means of
reviewing the legality of Executive detention, and it is in that
context that its protections have been strongest.” Id.Moreover, the writ was available both to “nonenemy aliens as
well as citizens” and “encompassed detentions based on
errors of law, including the erroneous application or
interpretation of statutes.” Id. at 301–02.
28 THURAISSIGIAM v. USDHS
St. Cyr also looked to the so-called “finality era,”11 during
which the statutory scheme precluded judicial intervention in
immigration enforcement, except as required by the
Constitution. Id. at 304–06. Despite that statutory bar, the
Court in the finality era “allow[ed] for review on habeas of
questions of law.” Id. at 304. Accordingly, the government’s
reading of the statute – to prohibit any judicial review of the
Attorney General’s interpretation – raised “Suspension
Clause questions that . . . are difficult and significant.” Id.
More directly, “to conclude that the writ is no longer
available in this context would represent a departure from
historical practice in immigration law.” Id. at 305. After
canvassing that historical practice, and noting that it was
consistent with the writ’s “common-law antecedents,” the
Court concluded that St. Cyr could have brought his habeas
claims under that regime. Id. at 308. Thus, due to the serious
constitutional questions raised, and because Congress had not
provided a “clear, unambiguous, and express” intent to
preclude habeas jurisdiction over questions of law, the Court
concluded that the statutes at issue did not repeal habeas
jurisdiction. Id. at 314.
St. Cyr further illuminates how to approach both
Boumediene steps. Like Boumediene, St. Cyr looked to the
1789-era historical application of the writ. St. Cyr also
looked to the finality era because it provides evidence of what
11
The “finality era” refers to “an approximately sixty-year period
when federal immigration law rendered final (hence, the ‘finality’ era) the
Executive’s decisions to admit, exclude, or deport noncitizens. This
period began with the passage of the Immigration Act of 1891, ch. 551,
26 Stat. 1084, and concluded when Congress enacted the Immigration and
Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163, which
permitted judicial review of deportation orders through declaratory
judgment actions in federal district courts.” Castro, 835 F.3d at 436.
THURAISSIGIAM v. USDHS 29
degree of habeas review is required under the Suspension
Clause and to whom such review is guaranteed in the
immigration enforcement context. St. Cyr’s resort to prior
habeas cases aligns with Boumediene’s similar reliance on
Eisentrager to resolve ambiguities in the 1789-era application
of the writ. That St. Cyr ultimately avoided the Suspension
Clause question does not diminish its wisdom or relevance as
an example of the Court’s analytical approach to Suspension
Clause questions. Consistent with Boumediene and St. Cyr,
we conclude that both the common-law history of the writ
and the Court’s finality era cases are relevant to what and
whom the Suspension Clause protects. See also Flores-
Miramontes v. INS, 212 F.3d 1133, 1141–43 (9th Cir. 2000)
(relying on common-law history and finality era cases in
addressing Suspension Clause challenge); see also Trinidad
y Garcia v. Thomas, 683 F.3d 952, 960 (9th Cir. 2012) (en
banc) (Thomas, J., concurring) (discussing finality era cases
as evidence of rights protected by the Suspension Clause).
C. The Third Circuit’s Decision in Castro
Before addressing Thuraissigiam’s Suspension Clause
challenge, we discuss the Third Circuit’s decision in Castro,
which involved an analogous challenge to § 1252(e).12 The
12
The government’s contention that the Second and Seventh Circuits
have addressed the question before us is incorrect. Neither case addresses
the Suspension Clause. See Shunaula v. Holder, 732 F.3d 143, 147 (2d
Cir. 2013) (addressing due process challenge to § 1252(e)(2) and
§ 1252(a)(2)(A)); Khan v. Holder, 608 F.3d 325, 328 (7th Cir. 2010)
(addressing § 1252(e)(2) in light of that circuit’s “safety valve” doctrine
for “judicial correction of bizarre miscarriages of justice”). Likewise, the
case cited in the government’s Rule 28(j) letter, Hamama v. Adducci,
912 F.3d 869 (6th Cir. 2018), does not address the Suspension Clause in
the context of the procedures leading up to an expedited removal order.
30 THURAISSIGIAM v. USDHS
Third Circuit concluded that § 1252(e) does not violate the
Suspension Clause as applied to 28 asylum-seeking families
who, like Thuraissigiam, raised constitutional, statutory, and
regulatory claims relating to their negative credible fear
determinations. 835 F.3d at 425, 428. The families were all
apprehended shortly after entering the country, placed in
expedited removal, and found not to have credible fear. Id.
at 427–28. As we do, the Third Circuit rejected the argument
that § 1252(e)(2) provides jurisdiction over claims of legal
error. Id. at 434.
Turning to the petitioners’ Suspension Clause challenge,
the court opined that the Supreme Court’s habeas cases are
“perhaps even competing” with the plenary power doctrine.
Id. After reviewing Boumediene and St. Cyr, Castro
discussed the Court’s “commitment to the full breadth of
[that] doctrine, at least as to aliens at the border seeking
initial admission to the country.” Id. at 443. Castro
approached step one of Boumediene by reference to the
petitioners’ status in light of Landon v. Plascencia, 459 U.S.
21 (1982), a case addressing due process, not habeas, rights.
Castro concluded that petitioners, as “recent surreptitious
entrants,” should be treated for constitutional purposes as
“alien[s] seeking initial admission to the United States.”
835 F.3d at 448. In Landon, the Court stated that such a
noncitizen “has no constitutional rights regarding his
application” for entry into the country. 459 U.S. at 32.
Accordingly, the Third Circuit concluded that the petitioners’
challenge failed at step one, and did not address whether
§ 1252(e) was an adequate habeas substitute. 835 F.3d at
446. The court acknowledged that its discussion of the
petitioners’ status “appear[ed] to ignore” Supreme Court
precedent relating to the due process rights of noncitizens
physically present in the country, but concluded that no case
THURAISSIGIAM v. USDHS 31
had clearly held that “arriving aliens” were entitled to due
process protections. Id. at 447–48.13
We disagree with Castro’s resolution of how Boumediene
and St. Cyr require us to approach a Suspension Clause
challenge. As explained at length above, the Court’s mode of
analysis in both of those cases addressed the scope of the
Suspension Clause by reference to the writ as it stood in 1789
and relevant habeas corpus precedents. Castro explained that
it did not rely on St. Cyr’s description of the Court’s habeas
approach in immigration cases in the finality era by
emphasizing that, unlike the Castro petitioners, St. Cyr was
a lawful permanent resident, and that St. Cyr discussed only
what the Suspension Clause might protect. Id. at 446.
That St. Cyr did not affirmatively hold that the
Suspension Clause was violated does not render its
description of the finality era cases incorrect or its approach
irrelevant. Moreover, Castro’s decision to rely instead on
Landon is misplaced. Landon held that a permanent resident
who traveled abroad and was detained when attempting to
reenter the United States should be placed in exclusion
13
After argument, the Third Circuit decided Osorio-Martinez v.
Attorney General, 893 F.3d 153 (3d Cir. 2018), involving four juvenile
petitioners from Castro. After their original habeas petitions were
dismissed, the juveniles had been granted Special Immigrant Juvenile
(“SIJ”) status under 8 U.S.C. § 1108(a)(27)(J). Id. at 160. Applying
Castro, the Third Circuit held that § 1252(e) was an unconstitutional
suspension of the writ as applied to the petitioners, by virtue of their
“significant ties to this country” and the constitutional and statutory rights
flowing to SIJ designees under 8 U.S.C. § 1255(a) & (h)(1). Id. at 167.
32 THURAISSIGIAM v. USDHS
proceedings rather than deportation. 459 U.S. at 22.14
Addressing the petitioner’s due process challenge to her
exclusion proceedings, the Court noted it had “long held that
an alien seeking initial admission to the United States
requests a privilege and has no constitutional rights regarding
his application.” Id. As explained by Judge Hardiman, the
Court in Landon did not “purport to resolve a jurisdictional
question raising the possibility of an unconstitutional
suspension of the writ of habeas corpus”; rather it addressed
only the due process rights of a permanent resident. Castro,
835 F.3d at 450 (Hardiman, J., concurring dubitante); see
Landon, 459 U.S. at 32–35. Landon could not and did not
address the much different question of whether a petitioner
like Thuraissigiam may invoke the Suspension Clause.15
Although often conflated, the rights protected by the
Suspension Clause are not identical to those under the Fifth
Amendment’s guarantee of due process. See Lee Kovarsky,
14
At the time, Congress provided that removable noncitizens in the
United States were subject to deportation and those seeking initial entry
were subject to exclusion. Id. at 25. Now all noncitizens are subject to
removal, whether via 8 U.S.C. § 1225(b)(1) expedited removal or the
removal procedures under 8 U.S.C. § 1229a.
15
Regardless, we disagree with the government’s contention and
Castro’s conclusion that a person like Thuraissigiam lacks all procedural
due process rights. See 835 F.3d at 447–48. The Supreme Court has been
clear that presence matters to due process. See, e.g., Mathews v. Diaz,
426 U.S. 67, 77 (1976); Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
And we have held that a noncitizen situated almost exactly like
Thuraissigiam had a constitutional right “to expedited removal
proceedings that conformed to the dictates of due process.” United States
v. Raya-Vaca, 771 F.3d 1195, 1203 (9th Cir. 2014); see also Immigration
Scholars Amicus Br. (explaining why Thuraissigiam has procedural due
process rights).
THURAISSIGIAM v. USDHS 33
Custodial and Collateral Process: A Response to Professor
Garrett, 98 Cornell L. Rev. Online 1, 1 (2013) (“Due process
and the habeas privilege are distinct constitutional
phenomena, [but] federal courts almost pathologically
confuse them.”). It is true that, historically, the Fifth
Amendment’s due process guarantee and the Suspension
Clause have been applied in tandem, as their applicability was
rarely disputed. See Mary Van Houten, The Post-
Boumediene Paradox: Habeas Corpus or Due Process?,
67 Stan. L. Rev. Online 9, 10 (2014) (observing that these
provisions “were almost always jointly applied before
Boumediene”). But this fact does not mean these rights
should be elided, as made clear by the fact that the
Constitution, ratified two-and-a-half years before the Fifth
Amendment, see Bute v. People of State of Ill., 333 U.S. 640,
650 (1948), presupposed the existence of the writ of habeas
corpus, see Boumediene, 553 U.S. at 739 (“Protection for the
privilege of habeas corpus was one of the few safeguards of
liberty specified in a Constitution that, at the outset, had no
Bill of Rights.”). Indeed, the writ “is almost the only remedy
mentioned in the Constitution” as originally ratified. Fallon
& Meltzer, 120 Harv. L. Rev. at 2037.
Boumediene itself clearly recognized the distinction
between the Fifth Amendment’s due process rights and the
Suspension Clause – providing further reason not to treat
Landon’s discussion of due process rights as having any
bearing on the application of the Suspension Clause. In
Boumediene, the Court decided that the Guantanamo
detainees could invoke the Suspension Clause without
addressing whether they had due process rights or whether
the CSRTs satisfied due process. 553 U.S. at 785; see also id.
at 739 (starting from the proposition that “protection for the
privilege of habeas corpus was one of the few safeguards of
34 THURAISSIGIAM v. USDHS
liberty specified in a Constitution that, at the outset, had no
Bill of Rights[]”); Flores-Miramontes, 212 F.3d at 1142(noting that habeas was available at common law prior to the
drafting of the Constitution). The Court in Boumediene
therefore explicitly declined to link due process rights and
Suspension Clause rights. See Hamad, 732 F.3d at 999
(noting that Boumediene did not address whether the due
process clause applied to the Guantanamo detainees); see also
Kiyemba v. Obama, 555 F.3d 1022, 1027 (D.C. Cir. 2009)
(concluding on habeas review that Guantanamo detainees
lacked due process rights), vacated by 559 U.S. 131 (2010),
reinstated by 605 F.3d 1046, 1047 (D.C. Cir. 2010). Landon,
a due process case, is not relevant to whether Thuraissigiam
can invoke the Suspension Clause. For that reason, we
decline to follow Castro’s approach and reject the
government’s argument that Thuraissigiam’s purported lack
of due process rights is determinative of whether he can
invoke the Suspension Clause.
Instead, in accordance with Boumediene, we evaluate
Thuraissigiam’s Suspension Clause challenge in two steps:
First, to determine whether Thuraissigiam may invoke the
Suspension Clause, we examine 1789-era practice, the
finality era cases, and other relevant precedents. Second, we
ask whether § 1252(e)(2) provides Thuraissigiam a
“meaningful opportunity to demonstrate that he is being held
pursuant to ‘the erroneous application or interpretation’ of
relevant law.” Boumediene, 553 U.S. at 779. At step two, we
keep in mind that the character of the earlier proceedings
bears on the level of habeas review required. Id. at 781.
THURAISSIGIAM v. USDHS 35
III. Application
A. Garcia de Rincon and Pena
At the outset, the government contends that our decisions
in Garcia de Rincon, 539 F.3d 1133, and Pena v. Lynch,
815 F.3d 452 (9th Cir. 2016), require us to affirm. Although
in both cases we rejected arguments that § 1252(e)(2)
authorized jurisdiction, neither case answered the
constitutional question before us today.
In Garcia de Rincon, the petitioner was a noncitizen
living in the United States who was stopped at the border
attempting to reenter after a visit to Mexico, and placed in
expedited removal. 539 F.3d at 1135. After rejecting the
petitioner’s statutory challenge, we dismissed her argument
– “although . . . not articulated” as such – that the Suspension
Clause required review of her petition. Id. at 1141. The
precise question considered was whether “the INA provides
no adequate substitute for habeas review and therefore
suspends the writ” – a Boumediene step two question,
although Garcia de Rincon never addressed Boumediene,
which had been decided months earlier. Id. We concluded
that Li v. Eddy, 259 F.3d 1132 (9th Cir. 2001), vacated on
reh’g as moot, 324 F.3d 1109 (9th Cir. 2003), discredited the
petitioner’s “generalized due process argument,” the only
right she sought to vindicate via her petition. Id. Garcia de
Rincon says nothing about whether Thuraissigiam can invoke
the Suspension Clause, whether the Clause requires habeas
review of statutory or legal claims, or what the Clause
requires for a petitioner like Thuraissigiam who is within the
United States. Instead, the case addressed only whether
§ 1252(e)(2) suspends the writ when a petitioner lacks due
process rights. Put in Boumediene step-two terms, the due
36 THURAISSIGIAM v. USDHS
process clause was not “relevant law” for the Garcia de
Rincon petitioner.16
Pena also did not settle the question before us. In Pena,
a noncitizen placed in expedited removal filed a petition for
review of the Board of Immigration Appeals’ dismissal of his
appeal from an IJ’s decision affirming a negative credible
fear determination. 815 F.3d at 454. Because the petition
was not brought under § 1252(e)(2), we concluded that we
lacked jurisdiction. Id. at 457. We went on to note that in
Webster v. Doe, 486 U.S. 592, 603 (1988), the Court had
“suggested that a litigant may be unconstitutionally denied a
forum when there is absolutely no avenue for judicial review
of a colorable claim of constitutional deprivation.” 815 F.3d
at 456 (emphasis in original). We concluded that Pena’s
petition did not raise Webster concerns because he lacked a
colorable constitutional claim,17 and further noted that
§ 1252(e)(2) provides “some avenues of judicial review.” Id.
at 456–57. All that Pena says, therefore, is that § 1252(e)
does not implicate the Webster doctrine when a petitioner
fails to raise colorable constitutional claims. Pena never
addressed the Suspension Clause.
Because neither Garcia de Rincon nor Pena addressed
whether § 1252(e)(2) unlawfully suspends the writ as applied
16
In case there were any doubt, Smith subsequently reserved the
question of whether, as applied to a noncitizen in expedited removal, the
Suspension Clause requires review beyond that provided for in
§ 1252(e)(2). See 741 F.3d at 1022 n.6. That reservation necessarily
determined that Garcia de Rincon had not settled the question.
17
Pena claimed that the IJ violated due process by failing to elicit a
voluntary waiver of his right to counsel, but we noted that that claim was
contradicted by the record. Id. at 455–56.
THURAISSIGIAM v. USDHS 37
to a petitioner like Thuraissigiam, we reject the government’s
argument that those cases alone require us to affirm.
B. Reach of the Suspension Clause
At Boumediene step one, we must consider the reach of
the Suspension Clause, or, in other words, whether
Thuraissigiam is “barred from seeking the writ or invoking
the protections of the Suspension Clause . . . because of [his]
status . . . .” Boumediene, 553 U.S. at 739. In Boumediene,
the Court answered this question by reference to its
precedents and the common law history of the writ. We
therefore do the same.18
18
As described above, the Court in Boumediene generated a three-
factor test at step one in light of the extraterritoriality question presented.
This test does not clearly fit in the present case, given that Thuraissigiam
was apprehended and detained in the United States. See 553 U.S. at 764,
766. However, even were we to apply Boumediene’s three-factor test
here, it would, as in Boumediene, support application of the Suspension
Clause.
The first factor, Thuraissigiam’s “citizenship and status” and “the
adequacy of the process through which that status determination was
made,” Id. at 766, weighs in favor of applying the Suspension Clause.
Thuraissigiam is a foreign national who contests his status – he contends
that he has a credible fear of persecution and therefore qualifies as a
refugee entitled to asylum. Like the CRST process at issue in
Boumediene, the determination as to whether a noncitizen has a credible
fear is not made via a “rigorous adversarial process to test the legality of
[his] detention.” Id. at 767. The determination is made by an asylum
officer, 8 C.F.R. § 208.30(d), and although the noncitizen may consult
others and even have them present a statement at the end of the interview,
8 C.F.R. § 208.30(d)(4), other hallmarks of the adversarial process are
lacking. If the noncitizen then chooses to contest an asylum officer’s
negative credible fear determination, the noncitizen is entitled only to
cursory review by an IJ. 8 C.F.R. § 208.30(g); 8 C.F.R. § 1208.39(g)(2).
38 THURAISSIGIAM v. USDHS
As explained, in St. Cyr, the Court canvassed cases from
England and historical accounts to conclude that the writ was
available before 1789 to “nonenemy aliens as well as to
citizens.” 533 U.S. at 301; accord Boumediene, 553 U.S. at
747 (“We know that at common law a petitioner’s status as an
Critically, unlike in Boumediene, a noncitizen cannot seek review of the
credible fear determination in an Article III court. See 8 U.S.C.
§ 1252(e)(2); cf. Boumediene, 553 U.S. at 767 (“And although the
detainee can seek review of his status determination in the Court of
Appeals, that review process cannot cure all defects in the earlier
proceedings.”). Accordingly, the procedural protections available to
Thuraissigiam and other noncitizens in expedited removal “fall well short
of the procedures and adversarial mechanisms that would eliminate the
need for habeas corpus review.” Boumediene, 553 U.S. at 767 (internal
quotation marks omitted).
As to the second factor, there is no question that Thuraissigiam was
apprehended and detained within the sovereign territory of the United
States. This factor weighs strongly in favor of finding Thuraissigiam has
rights under the Suspension Clause. See id. at 768–69. The government
insists that the nature and length of a noncitizen’s detention is relevant to
this factor. Not so. Boumediene only invokes these considerations under
step two. The second factor (under step one) is wholly focused on the
level and duration of control exerted by the United States over the territory
– which is not at issue here, where the territory is the United States.
Boumediene, 553 U.S. at 768–69.
As in Boumediene, the third factor is somewhat equivocal: “there are
costs to holding the Suspension Clause applicable in a case of [asylum-
seekers in expedited removal proceedings.]” Id. at 769. But
“[c]ompliance with any judicial process requires some incremental
expenditure of resources,” and direct review by the courts already exists
and functions in non-expedited removal proceedings. Id. Thus, here, as
in Boumediene, “[w]hile we are sensitive to [the government’s] concerns,
we do not find them dispositive.” Id.Consequently, Boumediene’s extraterritorial step one factors, if they
were relevant here, would support application of the Suspension Clause.
THURAISSIGIAM v. USDHS 39
alien was not a categorical bar to habeas corpus relief.”);
Rasul, 542 U.S. at 481 (“At common law, courts exercised
habeas jurisdiction over the claims of aliens detained within
sovereign territory of the realm. . . .”); see also Gerald L.
Neuman, Habeas Corpus, Executive Detention, and the
Removal of Aliens, 98 Colum. L. Rev. 961, 989–90 (1998)
(collecting cases).
After the adoption of the Constitution and its Suspension
Clause, courts in the United States applied the same
approach. For example, in Ex parte D’Olivera, 7 F. Cas. 853(C.C.D. Mass. 1813) (No. 3,967), a federal court in
Massachusetts permitted an arrested noncitizen seaman to
invoke habeas. In later years, the Supreme Court continued
to hold that habeas was available to noncitizens – even
excluded noncitizens stopped at the border. United States v.
Jung Ah Lung, 124 U.S. 621, 628–32 (1888); see also
Neuman, 98 Colum. L. Rev. at 1006. Cases throughout the
finality era, from the 1890s to the 1950s, which carry
significant weight here, held firm to this constitutional
premise. In Nishimura Ekiu v. United States, 142 U.S. 651(1892), the Court affirmed that despite the finality law, “[a]n
alien immigrant, prevented from landing by any such officer
claiming authority to do so under an act of congress, and
thereby restrained of his liberty, is doubtless entitled to a writ
of habeas corpus to ascertain whether the restraint is lawful.”
Id. at 660.
The Court continued that approach later in the finality era.
Gegiow v. Uhl, 239 U.S. 3, 9 (1915) (“The courts are not
forbidden by the [finality] statute to consider whether the
reasons, when they are given, agree with the requirements of
the act.”). In Gegiow, for example, the Court reversed the
government’s legal conclusion that the petitioner was subject
40 THURAISSIGIAM v. USDHS
to exclusion as a public charge based on a lack of labor
opportunities in his immediate destination. Id. at 9–10; see
also Shaughnessy v. United States ex rel. Mezei, 345 U.S.
206, 212–13 (1953) (stating that even though a noncitizen
who had not entered the country lacks due process, he “may
by habeas corpus test the validity of his exclusion”); United
States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544
(1950) (addressing, but rejecting, noncitizen’s “contention
that the regulations were not ‘reasonable’ as they were
required to be [under a federal statute]”). In United States ex
rel. Accardi v. Shaughnessy, the Court granted habeas on
legal grounds to a noncitizen who entered from Canada
“without immigration inspection and without an immigration
visa.” 347 U.S. 260, 262, 268 (1954). In Heikkila, the Court
explained that the Constitution was the source for habeas
review during the finality era, 345 U.S. at 234–35, and in St.
Cyr, the Court clarified that the Suspension Clause was the
specific source of such review. See 533 U.S. at 304. Indeed,
the government points to no alternative reading.
More broadly, the government offers no convincing
reason to discount the finality era, nor does it offer a
competing account of the common-law scope of the writ or of
the finality era. The government, citing Mezei, 345 U.S. at
214, answers Boumediene step one by contending that
Thuraissigiam, “as an alien apprehended immediately after
crossing the border illegally, is no different from other aliens
at the border, and is therefore ‘assimilated to [that] status’ for
constitutional purposes.” However, Mezei spoke only of such
assimilation for the purposes of due process, and it otherwise
affirmed the principle that habeas is available even when a
petitioner lacks due process rights. Id. at 213. And, crucially,
Boumediene never linked Suspension Clause rights to due
process rights. The government provides no authority from
THURAISSIGIAM v. USDHS 41
Suspension Clause cases to support its contention that
Thuraissigiam lacks Suspension Clause rights. Because in
the finality era the Court permitted even arriving noncitizens
to invoke habeas review, we conclude that Thuraissigiam,
who was arrested within the United States, may invoke the
Suspension Clause.19
C. Compliance with the Suspension Clause
Having concluded that Thuraissigiam may invoke the
Suspension Clause, we must consider at Boumediene step two
whether habeas review under § 1252(e) is so limited so as
effectively to suspend the writ as applied to Thuraissigiam.
At a minimum, the Suspension Clause “entitles the
[petitioner] to a meaningful opportunity to demonstrate that
he is being held pursuant to ‘the erroneous application or
interpretation of relevant law.’” Boumediene, 553 U.S. at 779(quoting St. Cyr, 553 U.S. at 302).
Congress may modify the scope of habeas review so long
as the review “is neither inadequate nor ineffective to test the
legality of a person’s detention.” Swain v. Pressley, 430 U.S.
372, 381 (1977); see Crater v. Galarza, 491 F.3d 1119,
1124–25 (9th Cir. 2007) (noting, in the context of a challenge
to AEDPA, that not all restrictions on habeas review
effectively suspend the writ). We bear in mind that “[a]t its
historical core, the writ of habeas corpus has served as a
19
In so doing, we reject any argument that only noncitizens who have
“been lawfully admitted” may invoke the Suspension Clause. Because the
writ is an indispensable separation of powers mechanism, “[t]he test for
determining the scope of this provision must not be subject to
manipulation by those whose power it is designed to restrain.”
Boumediene, 553 U.S. at 765–66.
42 THURAISSIGIAM v. USDHS
means of reviewing the legality of Executive detention, and
it is in that context that its protections have been strongest.”
St. Cyr, 533 U.S. at 300–01; see also Boumediene, 553 U.S.
at 783 (noting that in cases of executive detention, “the need
for habeas corpus is more urgent”). Therefore, when
evaluating whether a substitute is adequate, we consider “the
rigor of any earlier proceedings” and “the intended duration
of the detention and the reasons for it.” Id. at 781, 783.
The government urges a different approach to step two.
The government contends that Thuraissigiam’s status matters
to the extent of review the Suspension Clause requires. The
government even suggests we should apply the Boumediene
step one extraterritorial factors to determine whether
§ 1252(e)(2) provides sufficient review. However, those
factors have no bearing on step two; only step one considers
the petitioner’s status. See Boumediene, 533 U.S. at 773–93
(considering, without any reference to Guantanamo
detainees’ status, whether the DTA was an adequate habeas
statute by assessing “the sum total of procedural protections
afforded to the detainee at all stages, direct and collateral”).
Both logically and as applied in Boumediene, the
circumstances relevant to step two – the extent of review the
Suspension Clause requires – are those relating to the
detainer, not the detainee. We also reject the government’s
contention that because, in its view, Thuraissigiam lacks due
process rights, there are no rights for the Suspension Clause
to protect. Boumediene foreclosed that argument by holding
that, whether or not due process was satisfied, the Suspension
Clause might require more. 553 U.S. at 785.
As a reminder, Thuraissigiam’s petition contends that the
government denied him a “fair procedure,” “appl[ied] an
incorrect legal standard” to his credible fear contentions, and
THURAISSIGIAM v. USDHS 43
“fail[ed] to comply with the applicable statutory and
regulatory requirements.” The core of his claim is that the
government failed to follow the required procedures and
apply the correct legal standards when evaluating his credible
fear claim. As Thuraissigiam’s brief states: “Petitioner’s
claims merely assert his right to the meaningful credible fear
procedure to which he is entitled under the immigration
statute, regulations, and Constitution.” We therefore consider
whether the Suspension Clause requires review of those
claims.20 We conclude that the Clause requires such review
in Thuraissigiam’s case and that because § 1252(e)(2) fails to
provide a meaningful opportunity for such review, it raises
serious Suspension Clause questions.
At step two, the finality era again informs our analysis of
what the Suspension Clause requires when a removal order is
challenged. Finality era precedent establishes that the Court
regularly reviewed on habeas “claims for statutory as well as
constitutional error in deportation proceedings” and “claims
20
Thuraissigiam’s petition indicates that he might be asking a federal
court to review the agency’s credible fear determination, as he contends
that he “can show a significant possibility of prevailing on his claims for
asylum and other forms of relief.” The government accordingly contends
that Thuraissigiam’s petition instead requests “ultimate application of a
legal standard to factual determinations and weighing of evidence
underlying the Executive’s negative credible-fear findings.” However, we
read Thuraissigiam’s petition to be explaining why, in his view, DHS’
procedural errors matter, particularly given his express assertion that he
only wants review of the procedural errors. We therefore do not consider
here whether the Suspension Clause requires judicial review of DHS’
credible fear determination on the merits. Cf. Ortiz-Alfaro v. Holder,
694 F.3d 955, 958 (9th Cir. 2012) (noting, based on St. Cyr, that
“depriving [petitioner] the opportunity for judicial review of a
determination that he lacks a reasonable fear of persecution could raise
serious constitutional concerns”).
44 THURAISSIGIAM v. USDHS
that deportation hearings were conducted unfairly.” Flores-
Miramontes, 212 F.3d at 1143 (citing, inter alia, Fong Haw
Tan v. Phelan, 333 U.S. 6, 8–10 (1948) (interpreting statute
on habeas)); Kessler v. Strecker, 307 U.S. 22, 33–34 (1939)
(same)). In Gegiow, the Court also reviewed the executive’s
application of a legal standard to undisputed facts, concluding
that the government had incorrectly determined that the
petitioner was likely to become a public charge. 239 U.S. at9–10. Similarly, we have interpreted the nature of habeas
review, encompassing inquiry into “the erroneous application
or interpretation of statutes,” St. Cyr, 533 U.S. at 302, to
require that “mixed questions of fact and law – those
involving an application of law to undisputed fact . . . be
provided meaningful judicial review.” Ramadan v. Gonzales,
479 F.3d 646, 652 (9th Cir. 2007) (per curiam).
Thuraissigiam and amici point us to other examples of the
Court reviewing not just pure legal questions like the one at
issue in St. Cyr, but also the application of a legal standard to
undisputed facts. See, e.g., Hansen v. Haff, 291 U.S. 559,
562–63 (1934) (rejecting government determination that
“petitioner’s entry was for the purpose” of immoral
relations); Mahler v. Eby, 264 U.S. 32, 44 (1924) (holding
that the government failed to comply “with all the statutory
requirements”). Those cases suggest that the Suspension
Clause requires review of legal and mixed questions of law
and fact related to removal orders, including expedited
removal orders.
As in Boumediene, the decision to place a noncitizen in
expedited removal and the finding of whether that noncitizen
has a credible fear are both executive determinations,
meaning that the requirements of habeas are “more urgent.”
Cf. Boumediene, 553 U.S. at 783. While the duration of
THURAISSIGIAM v. USDHS 45
Thuraissigiam’s detention may seem to cut against review,
the Court has recognized that an excluded person’s
“movements are restrained by authority of the United States.”
Mezei, 345 U.S. at 213. Moreover, “it would be difficult to
say that [Thuraissigiam] was not imprisoned, theoretically as
well as practically, when to turn him back meant that he must
get into a vessel against his wish and be carried to [Sri
Lanka].” Chin Yow v. United States, 208 U.S. 8, 12 (1908).
The finality era cases also demonstrate that habeas is a viable
means of reviewing exclusion and removal orders.
Most important, habeas review provides important
oversight of whether DHS complied with the required
credible fear procedures.21 Under the existing administrative
scheme, there are no rigorous adversarial proceedings prior
to a negative credible fear determination. First, the credible
fear interview is initiated only after the CBP officer identifies
a noncitizen who fears persecution and refers that individual
to a USCIS officer. See 8 C.F.R. § 235.3(b)(4); see also
Refugee and Human Rights Amicus Br. 11–12. A noncitizen
can consult with someone at his own expense before his
asylum officer interview, but only as long as such
consultation does not “unreasonably delay the process and is
at no expense to the government.” 8 C.F.R. § 208.30(d)(4).
Before the IJ hearing, a noncitizen in expedited removal may
21
Section 1252(e)(2) also restricts judicial oversight of whether the
agency properly placed a person in expedited removal in the first place:
“The troubling reality of the expedited removal procedure is that a CBP
officer can create the § 1182(a)(7) charge by deciding to convert the
person’s status from a non-immigrant with valid papers to an intending
immigrant without the proper papers, and then that same officer, free from
the risk of judicial oversight, can confirm his or her suspicions of the
person’s intentions and find the person guilty of that charge.” Khan,
608 F.3d at 329.
46 THURAISSIGIAM v. USDHS
again consult with someone at his own expense, but the
period to obtain such assistance is extremely abbreviated: an
IJ “shall conclude the review to the maximum extent
practicable within 24 hours” of the supervisory officer’s
approval of the asylum officer’s determination. 8 C.F.R.
§ 1003.42(c), (e). Such review may take place “in person or
via telephonic or video connection.” Jaya Ramji, Legislating
Away International Law: The Refugee Provisions of the
Illegal Immigration Reform and Immigrant Responsibility
Act, 37 Stan. J. Int’l L. 117, 134 –41 (2001). There is also no
requirement that the IJ provide reasons for her decision.
Indeed, in this case, the IJ simply checked a box on a form
stating that the immigration officer’s decision was
“Affirmed.”
These meager procedural protections are compounded by
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.22 We think it
obvious that the constitutional minimum – whether
Thuraissigiam was detained pursuant to the “erroneous
interpretation or application of relevant law” – is not satisfied
by such a scheme.23 Our conclusion is bolstered by the Third
22
One amicus brief describes reports that the agency does not always
follow the required procedures. See Refugee and Human Rights Amicus
Br. 16–27; see also Michele R. Pistone & John J. Hoeffner, Rules Are
Made to Be Broken: How the Process of Expedited Removal Fails Asylum
Seekers, 20 Geo. Immigr. L.J. 167, 175–93 (2006) (describing procedural
errors commonly committed during the expedited removal process). If
true, those reports only underscore the need for judicial review.
23
A petitioner’s perceived ultimate desire – as Judge Hardiman put
it in Castro, to “alter their status in the United States in the hope of
avoiding release to their homelands,” 835 F.3d at 450–51 (Hardiman, J.,
THURAISSIGIAM v. USDHS 47
Circuit’s recent decision in Osorio-Martinez. As Osorio-
Martinez put it, § 1252(e)(2) fails to provide “even [that]
‘uncontroversial’ baseline of review” required by
Boumediene. 893 F.3d at 177. Because the statute prevented
the district court from considering whether the agency
lawfully applied the expedited removal statute, it a fortiori
precluded review of “the erroneous application or
interpretation of relevant law.” Id. (citing Boumediene,
553 U.S. at 779). So too here, because § 1252(e)(2) prevents
a court from reviewing claims of procedural error relating to
a negative credible fear determination, it precludes review of
the agency’s application of relevant law and thus raises
serious Suspension Clause questions.24 Plenary power
concerns cannot in all circumstances overwhelm the
“fundamental procedural protections of habeas corpus . . . , a
right of first importance.” Boumediene, 553 U.S. at 798.
IV. The Canon of Constitutional Avoidance
We further decline to interpret § 1252(e)(2) to avoid the
serious Suspension Clause problems engendered by the
statute. The constitutional avoidance canon applies “if an
otherwise acceptable construction of a statute would raise
concurring dubitante) – is not relevant where a petitioner challenges the
fairness of specific procedures leading to an expedited removal order.
24
Because Thuraissigiam’s petition does not present the question, we
do not consider one amicus’ argument that “there is a compelling case for
allowing habeas courts to review factual challenges to an expedited
removal order.” Scholars of Habeas Corpus Law Amicus Br. 18.
“Generally . . . the court will not consider arguments raised only in amicus
briefs.” United States v. Wahchumwah, 710 F.3d 862, 868 (9th Cir. 2013)
(citation omitted); see also Russian River Watershed Prot. Comm. v. City
of Santa Rosa, 142 F.3d 1136, 1141 n.1 (9th Cir. 1998).
48 THURAISSIGIAM v. USDHS
serious constitutional problems, and where an alternative
interpretation of the statute is ‘fairly possible.’” St. Cyr,
533 U.S. at 299–300 (citation omitted); see also Ramadan,
479 F.3d at 654 (“The Supreme Court has been careful to
construe statutes in light of the Suspension Clause.”).
However, for us to apply the canon, the statute in question
must be “susceptible of more than one construction.” Clark
v. Martinez, 543 U.S. 371, 385 (2005).
As explained at length above, we and other courts have
consistently interpreted § 1252(e)(2) to foreclose review of
claims like Thuraissigiam’s. Section 1252(a)(2)(A)(i)
precludes review of “any other cause or claim arising from or
relating to the implementation of or operation of” an
expedited removal order, which clearly bars claims relating
to procedural error. We do not think the statute can bear a
reading that avoids the constitutional problems it creates.
• ! •
Therefore, we hold that § 1252(e)(2) violates the
Suspension Clause as applied to Thuraissigiam, although we
do not profess to decide in this opinion what right or rights
Thuraissigiam may vindicate via use of the writ. The district
court has jurisdiction and, on remand, should exercise that
jurisdiction to consider Thuraissigiam’s legal challenges to
the procedures leading to his expedited removal order.
The judgment of the district court is REVERSED and the
case is REMANDED for further proceedings consistent with
this opinion.