These days, most discussions of the US Constitution’s Suspension Clause — and the entitlement to judicial review that it codifies — center upon non-citizen terrorism suspects subjected to military detention at Guantánamo or elsewhere overseas. The assumption that has typically pervaded that litigation is that non-citizens physically in the United States are protected by the Suspension Clause regardless of their status — as reflected in decades of precedent in which federal courts have allowed anyone on US soil to seek habeas relief, without regard to statutory jurisdictional constraints. As we explain in the post that follows, though, the position taken by the Justice Department in recent litigation involving migrants fleeing violence and persecution is testing these assumptions.

More importantly, the government’s arguments — which are difficult to square with a number of Supreme Court precedents and with the deeper principles behind them — threaten to make rights under the Suspension Clause contingent upon a person’s immigration status, and to thereby undo more than a century of precedent on access to habeas corpus in immigration removal proceedings. They would also give Congress unprecedented — and deeply problematic — authority to determine the scope of the Suspension Clause by legislating new definitions of immigration status, something that, in the current climate, hardly seems beyond the realm of possibility. For all these reasons, the government should either drop this argument, or the courts should repudiate it.

I.  The Central American Migrant Cases

This issue first surfaced last year in response to the sharp uptick in migrants fleeing abuse and oppression in Central America — mainly women and children — who sought asylum and other relief in the United States. The government subjected these migrants to the expedited removal provisions of the Immigration and Nationality Act (INA). Although typically applied to non-citizens stopped at the border, the provisions were also applied in these cases to individuals seized within 100 miles of the border who could not show they had been physically present in the United States for 14 days.

At the same time, under the INA, an asylum officer initially determines whether an individual subject to expedited removal has shown a credible fear of persecution. If the asylum officer concludes he or she has not, that determination is reviewed by an immigration judge. If no credible fear is found, the individual is summarily removed under 8 U.S.C. § 1225. If a credible fear determination is made at any point, the case is referred for a full hearing before an immigration judge, whose decision is subject to review by the Bureau of Immigration Appeals and, in turn, the relevant geographic US Court of Appeals. To prevail on the merits of an asylum claim, an individual must show there is at least a 10 percent chance of persecution if returned to his or her home country; a credible fear determination, however, requires only a significant possibility that there is a 10 percent chance of persecution if the person is returned.

In expedited removal cases, however, this merits standard is complicated by a jurisdiction-stripping provision, 8 U.S.C. § 1252(e), which limits habeas jurisdiction in expedited removal cases brought by non-citizens (without some more permanent immigration status) to determining “whether the petitioner is an alien” and “whether the petitioner was ordered removed under [the expedited removal] section.” In other contexts, courts have found creative ways to interpret this language so as not to preclude habeas review in light of the serious constitutional questions that would otherwise arise under the Suspension Clause. In the migrant cases, however, courts, at the government’s encouragement, have taken a more surprising tack.

II.  The Litigation to Date

A number of migrants who were ordered removed last year under the INA’s expedited removal provisions filed habeas petitions asserting serious defects in the credible fear assessment process, which, they claim, have denied to them a meaningful opportunity to present claims for asylum and other relief, including claims under the UN Convention Against Torture. These deficits include a lack of adequate notice, denial of access to counsel, and the imposition of a higher standard for a credible fear determination than required by the INA and its regulations.

Several of the challenges brought last year involved migrants held in Artesia, New Mexico. The government not only defended the expedited removal orders on the merits, but it also defended the jurisdiction-stripping provision on the ground that non-citizens, even when physically present in the United States, have no constitutional right to habeas corpus or due process unless they have been lawfully admitted to the country. As the government argued in one of these cases,

Petitioner has no Suspension Clause rights or due process rights to vindicate in a habeas because a non-admitted alien seeking admission into the United States at the border does not have the same rights as a lawfully admitted alien subject to removal proceedings after having entered the United States lawfully, or even an unlawful alien who has lived here for some period of time sufficient to create substantial voluntary ties to the United States.

In siding with the government, one district judge concluded that habeas rights do indeed depend on immigration status. See MSPC v. CBP. This decision was vacated, however, and other legal challenges were mooted, after the government agreed to provide petitioners with new asylum hearings. Thus, for the moment, it had appeared that the government’s surprising Suspension Clause theory would go untested.

But the issue has returned to the forefront, thanks to a brief the government has now filed in response to over a dozen new habeas petitions filed in the Eastern District of Pennsylvania — where many of the Central American migrants were recently transferred.

In some of its briefs opposing the habeas petitions last summer, the Justice Department had asserted that federal courts cannot review the petitioners’ claims because, as “non-admitted aliens,” they categorically have no protections under the Suspension Clause. Instead, the government argued, judicial review is confined to the narrow questions specified by the INA: whether a petitioner is an alien, was ordered removed on an expedited basis, and can prove that he is either a lawfully admitted permanent resident or has been granted asylum. The government thus sought to place statutory and constitutional challenges to the agency’s assessment of credible fear on the part of individuals physically present in the United States — no matter how cursory or flawed the process — entirely beyond judicial review solely because of their immigration status.

The government’s new brief is a smidge more nuanced, although it repeats last summer’s bottom-line: “non-admitted aliens lack Suspension Clause rights in relation to their admission and the Suspension Clause is not implicated by applying section 1252(e)’s limited habeas review to petitioners.”

III.  The Flaws in the Suspension Clause Argument

The argument that the Suspension Clause does not protect non-citizens physically present in, but not lawfully admitted to, the United States, is problematic in at least three different respects.

First, and most significantly, it is difficult to understand why applicability of the Suspension Clause in such cases doesn’t follow a fortiori from the Supreme Court’s 2008 decision in Boumediene v. Bush. Recall that, in that case, the Supreme Court expressly held that the Suspension Clause “has full effect” with regard to non-citizens held at Guantánamo Bay — individuals who surely had no legal immigration status under US law, and were therefore in no better (and, arguably, quite a bit worse) of a position vis-à-vis the Suspension Clause than non-citizens physically present within the United States. Reasonable folks may well think that Boumediene was wrongly decided (although we certainly don’t), but so long as it’s on the books, it seems to us that it must follow that non-citizens physically present in the United States are protected by the Suspension Clause, whatever their status. It remains, then, to assess whether 8 U.S.C. § 1252(e) violates the Suspension Clause by depriving these petitioners of, as Boumediene requires, a meaningful opportunity to challenge the legal basis for their detention, but given the unavailability of meaningful review through habeas of the denials of asylum in these cases, that conclusion should follow from the conclusion that the Suspension Clause applies.

The government’s new brief argues that Boumediene is inapposite, because “Petitioners are not challenging their detention, indefinite or otherwise, but rather their classification as aliens who lacked a credible fear of persecution and the issuance of expedited removal orders.” But in this context, where such classification triggers detention and removal authorities that might not otherwise apply, that distinction seems to us to be one without a difference. In both contexts, the challenge is to a form of executive detention. And in both contexts, if the Suspension Clause applies at all, it requires a meaningful opportunity to contest the government’s legal basis for such detention. Thus, detaining (and removing) these migrants without providing them the asylum process to which they claim they are legally entitled is just as protected by the Suspension Clause as detaining non-citizen terrorism suspects at Guantánamo.

Second, even if the government’s efforts to distinguish Boumediene are remotely persuasive (and, in our view, they aren’t), there is a long line of Supreme Court immigration cases bending over backwards to recognize even out-of-status immigrants’ right to pre-removal judicial review. As Justice Stevens explained in INS v. St. Cyr, “The fact that this Court would be required to answer the difficult question of what [and who] the Suspension Clause protects is in and of itself a reason to avoid answering the constitutional questions that would be raised by concluding that review was barred entirely.” St. Cyr is hardly alone in this regard. The line of cases interpreting jurisdiction-stripping statutes like the one at issue in the migrant cases to not actually foreclose habeas review dates back to shortly after the Civil War — and, in the immigration cases, to the early 1950s, at the latest. Thus, even if the Supreme Court hadn’t already clarified that individuals with even less of a connection to the United States are protected by the Suspension Clause, courts would have every incentive (if not obligation) to interpret the jurisdiction-stripping provision to not apply in this case, lest it violate the Suspension Clause.

As significantly, these cases have never turned on the status of the petitioners. As the Supreme Court explained in Heikkila v. Barber (and reiterated in St. Cyr), from 1891 until after the INA was enacted, “habeas corpus was the only remedy by which deportation orders could be challenged,” and courts never conditioned the availability of the writ upon whether the petitioner was lawfully present prior to the commencement of removal proceedings. Instead, in a number of cases (such as United States ex rel. Accardi v. Shaughnessy), the Supreme Court has actually granted relief to habeas petitioners who were not lawfully admitted to the United States — even though their status as “excludable” aliens was abundantly clear on the record. The government’s brief offers no explanation for (or citations to) these cases, or the historical understanding to which they testify. It’s true that none of these cases expressly held that the Suspension Clause protects out-of-status immigrants in the United States, but if it didn’t, it’s hard to fathom why the Court would have gone to such trouble to preserve judicial review.

Finally, if the government is correct that out-of-status immigrants in the United States aren’t protected by the Suspension Clause, the scope of the Suspension Clause would thus turn entirely on a creature of statutory construction — an immigrant’s “status.” For a provision so central to the separation of powers and to protecting the judiciary from the political branches to nevertheless be subject to the legislature’s whim would turn the Suspension Clause on its head, since it would at once affirmatively incentivize Congress to expand the category of individuals in the United States who don’t have “lawful” status while minimizing the ability of courts to ensure that individuals within that category receive even the most rudimentary process before being removed from the United States — and, quite possibly, returned to countries in which they credibly fear torture or other forms of cruel, inhuman, or degrading treatment.

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We’re hardly free of bias on this issue; We are both signatories to an amicus brief in support of the petitioners on the Suspension Clause issue. But it seems to us that it should be beyond question, even in this day and age, that individuals in the United States are entitled to meaningful judicial review before they are removed from the country — especially where, as in the migrant cases, the entire fact pattern traces its roots to oppression and persecution by the very governments to which the detainees may well be returned in the absence of such review. We don’t mean to pre-judge the merits; some of these petitioners may be entitled to asylum, others may not be — and the merits may turn on the scope of whatever due process protections they might have. Our bottom line, though, is that their asylum claims ought to be resolved on their merits, and not on the unconvincing conclusion that they’re not even entitled to judicial review in the first place.

Of course, these aren’t national security cases — but that should only bolster the argument for why constitutional principles handed down in that context (like the access of even non-citizen terrorism suspects to the Suspension Clause, and, through it, the federal courts) ought to apply here, as well. Here’s hoping that the district court ultimately agrees — and that, if it doesn’t, the Third Circuit does.