The Supreme Court and a Bright Line

Sunday, February 14th, 2021
By: Jonathan MontagJ.D.

The end of the Trump presidency hopefully means the end to the war on legal immigration. It also means undoing the damage done, a difficult task.  While putting Humpty Dumpty together again will take some time, in the spirit of “back to normal” I would like to take a look at Department of Homeland Security v. Thuraissigiam decided June 25, 2020.

Thuraissigiam is about expedited removal. Expedited removal is a process whereby immigration officers, not immigration judges, order removal when a non-citizen is arrested at the border when seeking admission into the United States or sneaking into the United States (say, concealed in a vehicle or with fake papers) or inside the United States with only a short period of presence in the United States. It is at INA § 235(b). I last wrote about expedited removal here. An earlier article can be found here.

Initially part of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), it initially was implemented for people caught at the border. As discussed in my April 21, 2019, posting, there was a bright line in immigration law between those who were found in the United States and those caught at the border. People applying for admission had fewer rights that people caught inside the United States. These rights included the right to due process, the amount of legal proceedings a person could pursue in seeking to remain in the United States and habeas corpus, the judicial process challenging unlawful detention and to a certain extent laws that resulted in the detention. (Thuraissigiam discusses just what habeas corpus provides judicial review of, making a distinction between habeas statutes and the Constitution’s suspension [of habeas corpus] clause.

It is important to note that expedited removal can be avoided if the non-citizen expresses a credible fear of persecution for certain reasons and thus has a basis to seek asylum or related relief. That credible fear determination by an immigration officer is subject to review by an immigration judge. There is no other review – no more process due than that.

The initial limited application of expedited removal was expanded, most dramatically in an announcement on July 23, 2019, by the Department of Homeland Security, to include not just non-citizens caught at the border without the right to enter the United States, but non-citizens caught within two years of entry anywhere in the United States. Expanding expedited removal to this extent impacted the distinction between those caught inside the United States at those caught at the border.

In Thuraissigiam, the non-citizen, was caught 25 yards after crossing the southern border without inspection or an entry document. He sought habeas corpus review of an expedited removal order and challenged the process leading to the expedited removal order, asserting that because he successfully entered the United States, he had more rights than the extremely limited rights of a person apprehended at the border.

Justice Alito wrote for the Court:

Respondent argues that this rule does not apply to him because he was not taken into custody the instant he attempted to enter the country (as would have been the case had he arrived at a lawful port of entry). Because he succeeded in making it 25 yards into U. S. territory before he was caught, he claims the right to be treated more favorably. The Ninth Circuit agreed with this argument.

We reject it. It disregards the reason for our century-old rule regarding the due process rights of an alien seeking initial entry. That rule rests on fundamental propositions: “[T]he power to admit or exclude aliens is a sovereign prerogative,”; the Constitution gives “the political department of the government” plenary authority to decide which aliens to admit, and a concomitant of that power is the power to set the procedures to be followed in determining whether an alien should be admitted.

This rule would be meaningless if it became inoperative as soon as an arriving alien set foot on U. S. soil. When an alien arrives at a port of entry—for example, an international airport—the alien is on U. S. soil, but the alien is not considered to have entered the country for the purposes of this rule. On the contrary, aliens who arrive at ports of entry—even those paroled elsewhere in the country for years pending removal—are “treated” for due process purposes “as if stopped at the border.”

The same must be true of an alien like respondent. As previously noted, an alien who tries to enter the country illegally is treated as an “applicant for admission,” and an alien who is detained shortly after unlawful entry cannot be said to have “effected an entry.” Like an alien detained after arriving at a port of entry, an alien like respondent is “on the threshold.” The rule advocated by respondent and adopted by the Ninth Circuit would undermine the “sovereign prerogative” of governing admission to this country and create a perverse incentive to enter at an unlawful rather than a lawful location. [citations omitted].

The erasure of the bright line rule about different treatment of those found inside the country and those caught at the border impacts more than expedited removal law. One consequence of the bright line rule was that aliens caught at the border could be released only by an immigration officer while a non-citizen caught inside the United States could seek release from an immigration judge. The Board of Immigration Appeals, in 2005 Matter of X-K-, enforced the bright line rule. In the case, a non-citizen who accomplished entry and was caught in the United States and subjected to expedited removal procedures and successfully demonstrated a credible fear of persecution, because he was not an alien arrested at the border, asserted that he was entitled to seek release from an immigration judge. Even though the expedited removal process limited the rights of an alien caught inside the United States, the limitation of those rights did not extend to limiting the right to a custody determination by an immigration judge.

On April 16, 2019, the then attorney general, William Barr, issued Matter of M-S-,  which held that an alien who is transferred from expedited removal proceedings to full removal proceedings after establishing a credible fear of persecution or torture is ineligible to seek release from an immigration judge. Such an alien must be detained until his removal proceedings conclude, unless he is granted parole by an immigration officer.

This decision, breaking down the bright line between those caught inside and those caught at the border, was challenged. In the Ninth Circuit, a district court recognized a class of aliens who entered without inspection and found to have a credible fear of persecution as entitled to a custody determination by an immigration judge.  The Ninth Circuit affirmed the order in Padilla v. ICE.  However, on January 11, 2021, the Supreme Court vacated the order, writing, in ICE v. Padilla, “The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit for further consideration in light of Department of Homeland Security v. Thuraissigiam.

Thus we can see in real time the harsh consequence of the erasure of the bright line rule between those inside the United States and those knocking on the proverbial door seeking entry into the United States.

It remains to be seen if the Biden administration will restore limits on the scope of expedited removal and re-draw the bright line. Since for now, asylum seeking is precluded at the ports of entry and all asylum seekers are denied entry under an emergency public health rule, 42 USC § 265,  because of the pandemic, there will have to be other restorations before we can expect movement putting the expedited removal and bright line issues together again. Posted February 14, 2021.


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