☠️👎

DEPARTMENT OF HOMELAND SECURITY ET AL. v. THURAISSIGIAM, 06-25-48

https://www.supremecourt.gov/opinions/19pdf/19-161_g314.pdf

COUIRT SYLLABUS:

Syllabus

DEPARTMENT OF HOMELAND SECURITY ET AL. v. THURAISSIGIAM

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 19–161. Argued March 2, 2020—Decided June 25, 2020

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) provides for the expedited removal of certain “applicants” seeking admission into the United States, whether at a designated port of entry or elsewhere. 8 U. S. C. §1225(a)(1). An applicant may avoid expedited removal by demonstrating to an asylum officer a “credible fear of persecution,” defined as “a significant possibility . . . that the alien could establish eligibility for asylum.” §1225(b)(1)(B)(v). An ap- plicant who makes this showing is entitled to “full consideration” of an asylum claim in a standard removal hearing. 8 CFR §208.30(f). An asylum officer’s rejection of a credible-fear claim is reviewed by a su- pervisor and may then be appealed to an immigration judge. §§208.30(e)(8), 1003.42(c), (d)(1). But IIRIRA limits the review that a federal court may conduct on a petition for a writ of habeas corpus. 8 U. S. C. §1252(e)(2). In particular, courts may not review “the deter- mination” that an applicant lacks a credible fear of persecution. §1252(a)(2)(A)(iii).

Respondent Vijayakumar Thuraissigiam is a Sri Lankan national who was stopped just 25 yards after crossing the southern border with- out inspection or an entry document. He was detained for expedited removal. An asylum officer rejected his credible-fear claim, a super- vising officer agreed, and an Immigration Judge affirmed. Respondent then filed a federal habeas petition, asserting for the first time a fear of persecution based on his Tamil ethnicity and political views and re- questing a new opportunity to apply for asylum. The District Court dismissed the petition, but the Ninth Circuit reversed, holding that, as applied here, §1252(e)(2) violates the Suspension Clause and the Due Process Clause.

2 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

Syllabus

Held:

1. As applied here, §1252(e)(2) does not violate the Suspension

Clause. Pp. 11–33.

(a) The Suspension Clause provides that “[t]he 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.” Art. I, §9, cl. 2. This Court has held that, at a minimum, the Clause “protects the writ as it existed in 1789,” when the Constitution was adopted. INS v. St. Cyr, 533 U. S. 289, 301. Habeas has traditionally provided a means to seek release from unlawful detention. Respondent does not seek release from custody, but an additional opportunity to obtain asy- lum. His claims therefore fall outside the scope of the writ as it existed when the Constitution was adopted. Pp. 11–15.

(b) Respondent contends that three bodies of case law support his argument that the Suspension Clause guarantees a broader habeas right, but none do. Pp. 15–33.

(1) Respondent first points to British and American cases de- cided before or around the Constitution’s adoption. All those cases show is that habeas was used to seek release from detention in a vari- ety of circumstances. Respondent argues that some cases show aliens using habeas to remain in a country. But the relief ordered in those cases was simply release; an alien petitioner’s ability to remain in the country was due to immigration law, or lack thereof. The relief that a habeas court may order and the collateral consequences of that relief are two entirely different things. Pp. 15–23.

(2) Although respondent claims to rely on the writ as it existed in 1789, his argument focuses on this Court’s decisions during the “fi- nality era,” which takes its name from a feature of the Immigration Act of 1891 making certain immigration decisions “final.” In Nishi- mura Ekiu v. United States, 142 U. S. 651, the Court interpreted the Act to preclude judicial review only of questions of fact. Federal courts otherwise retained authority under the Habeas Corpus Act of 1867 to determine whether an alien was detained in violation of federal law. Thus, when aliens sought habeas relief during the finality era, the Court exercised habeas jurisdiction that was conferred by the habeas statute, not because it was required by the Suspension Clause—which the Court did not mention. Pp. 23–32.

(3) The Court’s more recent decisions in Boumediene v. Bush, 553 U. S. 723, and St. Cyr, 533 U. S. 289, also do not support respond- ent’s argument. Boumediene was not about immigration at all, and St. Cyr reaffirmed that the common-law habeas writ provided a vehicle to challenge detention and could be invoked by aliens already in the coun- try who were held in custody pending deportation. It did not approve respondent’s very different attempted use of the writ. Pp. 32–33.

Cite as: 591 U. S. ____ (2020) 3 Syllabus

2. As applied here, §1252(e)(2) does not violate the Due Process Clause. More than a century of precedent establishes that, for aliens seeking initial entry, “the decisions of executive or administrative of- ficers, acting within powers expressly conferred by Congress, are due process of law.” Nishimura Ekiu, 142 U. S., at 660. Respondent ar- gues that this rule does not apply to him because he succeeded in mak- ing it 25 yards into U. S. territory. But the rule would be meaningless if it became inoperative as soon as an arriving alien set foot on U. S. soil. An alien who is detained shortly after unlawful entry cannot be said to have “effected an entry.” Zadvydas v. Davis, 533 U. S. 678, 693. An alien in respondent’s position, therefore, has only those rights re- garding admission that Congress has provided by statute. In respond- ent’s case, Congress provided the right to a “determin[ation]” whether he had “a significant possibility” of “establish[ing] eligibility for asy- lum,” and he was given that right. §§1225(b)(1)(B)(ii), (v). Pp. 34–36.

917 F. 3d 1097, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., andTHOMAS,GORSUCH,andKAVANAUGH,JJ.,joined. THOMAS,J.,fileda concurring opinion. BREYER, J., filed an opinion concurring in the judg- ment, in which GINSBURG, J., joined. SOTOMAYOR, J., filed a dissenting opinion, in which KAGAN, J., joined.

********************

A very sad, tragic moment for American Justice, as seven Justices turn their collective backs on Constitutional Due Process, international asylum protections, common sense, and human decency. 

It also shows their appalling intellectual dishonesty and/or lack of knowledge about how asylum seekers lives and human rights are being trashed by this Administration’s White Nationalist agenda. One could only hope that these seven Justices are someday “reincarnated” and condemned to being refugees seeking justice, mercy, and humanity from America in the “age of Trump.” Little wonder that Stephen Miller and his White Nationalist gang believe they will get away with eliminating asylum law under the guise of bogus “regulations” that eliminate eligibility for everyone who might need protection.

In the end, despite the denial of this tone-deaf judicial group, human rights are everyone’s rights and demeaning and disregarding them will come back to haunt and disfigure our nation and our world for generations to come.

The only part of this decision worth reading is the Sotomayor/Kagan dissent, which I set forth in full as a “marker” for future historians chronicling the “death of the Constitution and humanity in America” and the Supreme Court’s key enabling and encouraging role in “Dred Scottifying” and “dehumanizing” the other, largely along racial, ethnic, and religious lines. Sotomayor’s critique of her colleagues is correct.

The good news: The best way to solve Executive abuses is with a new and better Executive. Moreover, a future Administration and a better Congress could restore asylum and refugee laws and “re-codify due process rights as statutes” so that they would be enforced by courts, even the Supremes. The problem started with Congress. A wiser, better, and more humanitarian Congess could end it.

But, in the meantime, back in the grim real world of refugees and asylum seekers, many will die, be tortured, or otherwise harmed because of the Supremes’ willful blindness to the abuses and indignities being inflicted upon the most vulnerable with the aid and active assistance of our own Government. There is a name of that type of conduct.

SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 19–161 _________________

DEPARTMENT OF HOMELAND SECURITY, ET AL., PETITIONERS v. VIJAYAKUMAR THURAISSIGIAM

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

[June 25, 2020]

JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN joins, dissenting.

The majority declares that the Executive Branch’s denial of asylum claims in expedited removal proceedings shall be functionally unreviewable through the writ of habeas cor- pus, no matter whether the denial is arbitrary or irrational or contrary to governing law. That determination flouts over a century of this Court’s practice. In case after case, we have heard claims indistinguishable from those re- spondent raises here, which fall within the heartland of ha- beas jurisdiction going directly to the origins of the Great Writ.

The Court thus purges an entire class of legal challenges to executive detention from habeas review, circumscribing that foundational and “stable bulwark of our liberties,” 1 W. Blackstone, Commentaries 99 (Am. ed. 1832). By self-im- posing this limitation on habeas relief in the absence of a congressional suspension, the Court abdicates its constitu- tional duty and rejects precedent extending to the founda- tions of our common law.

Making matters worse, the Court holds that the Consti- tution’s due process protections do not extend to noncitizens like respondent, who challenge the procedures used to de- termine whether they may seek shelter in this country or

2 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

whether they may be cast to an unknown fate. The decision deprives them of any means to ensure the integrity of an expedited removal order, an order which, the Court has just held, is not subject to any meaningful judicial oversight as to its substance. In doing so, the Court upends settled con- stitutional law and paves the way toward transforming al- ready summary expedited removal proceedings into arbi- trary administrative adjudications.

Today’s decision handcuffs the Judiciary’s ability to per- form its constitutional duty to safeguard individual liberty and dismantles a critical component of the separation of powers. It will leave significant exercises of executive dis- cretion unchecked in the very circumstance where the writ’s protections “have been strongest.” INS v. St. Cyr, 533 U. S. 289, 301 (2001). And it increases the risk of erroneous immigration decisions that contravene governing statutes and treaties.

The Court appears to justify its decision by adverting to the burdens of affording robust judicial review of asylum decisions. But our constitutional protections should not hinge on the vicissitudes of the political climate or bend to accommodate burdens on the Judiciary. I respectfully dis- sent.

I

The as-applied challenge here largely turns on how the Court construes respondent’s requests for relief. Its de- scriptions, as well as those of one of the concurrences, skew the essence of these claims. A proper reframing thus is in order.

A

Respondent first advances a straightforward legal ques- tion that courts have heard in habeas corpus proceedings in “case after case.” Id., at 306. His habeas petition claimed that an asylum officer and Immigration Judge “appl[ied] an

Cite as: 591 U. S. ____ (2020) 3

SOTOMAYOR, J., dissenting

incorrect legal standard” by ordering him removed despite a showing of a significant possibility of credible fear to es- tablish “eligibility for asylum, withholding of removal, and [Convention Against Torture] claims.” App. 31–32; see also 8 U. S. C. §1225(b)(1)(B)(v) (setting standard for credible fear as “a significant possibility, taking into account the . . . statements made by the alien . . . and such other facts as are known to the officer, that the alien could establish eli- gibility for asylum”). The Government itself has character- ized that claim as a challenge to the “ ‘application of a legal standard to factual determinations . . . underlying the Ex- ecutive’snegativecredible-fearfindings.’” 917F.3d1097, 1117, n. 20 (CA9 2019) (case below). At bottom, respondent alleged that he was unlawfully denied admission under gov- erning asylum statutes and regulations.

The Court disagrees, flattening respondent’s claim into a mere plea “ultimately to obtain authorization to stay in this country.” Ante, at 2; see also ante, at 12 (describing the re- quest as a “right to enter or remain in a country”); ante, at 13, n. 14 (framing relief sought as “gaining a right to remain in this country”); ante, at 16 (equating relief with “authori- zation . . . to remain in a country other than his own”). Yet while the Court repeatedly says that respondent seeks nothing more than admission as a matter of grace, its own descriptions of respondent’s habeas petition belie its asser- tions. See, e.g., ante, at 5, n. 5 (“[T]he gravamen of his pe- tition is that [respondent] faces persecution in Sri Lanka ‘because of’ his Tamil ethnicity and political opinions”); ibid. (suggesting that the same persecution inquiry governs respondent’s Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment claim); ante, at 36, n. 28 (observing that respondent’s habeas peti- tion contains factual allegations that resemble documented persecution on the basis of ethnicity or political opinion). Though the Court refuses to admit as much, its descriptions of respondent’s arguments illustrate, at bottom, claims that

4 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

immigration officials legally erred in their review of his asy- lum application.

In papering over the true nature of respondent’s claims, the Court transforms his assertions of legal error in the ex- ercise of executive discretion into a naked demand for exec- utive action. But the distinction between those forms of re- lief makes all the difference. The law has long permitted habeas petitioners to challenge the legality of the exercise of executive power, even if the executive action ultimately sought is discretionary. See St. Cyr, 533 U. S., at 307 (citing cases). That principle has even more force today, where an entire scheme of statutes and regulations cabins the Exec- utive’s discretion in evaluating asylum applications. For that reason, the Court’s observation that the ultimate “grant of asylum is discretionary” is beside the point. Ante, at 5, n. 4.

For its part, one concurring opinion seems to acknowledge that claims that assert something other than pure factual error may constitutionally require some judi- cial review. Ante, at 3–5 (BREYER, J., concurring in judg- ment). It simply determines that respondent’s credible-fear claims amount to nothing more than a “disagreement with immigration officials’ findings about the two brute facts un- derlying their credible-fear determination,” namely, the identity of his attackers and their motivations. Ante, at 5. It also faults respondent for failing to develop his claims of legal error with citations “indicating that immigration offi- cials misidentified or misunderstood the proper legal stand- ard” or that they “disregarded” or were not properly trained in identifying relevant country conditions. Ante, at 5–6.

But the essence of respondent’s petition is that the facts as presented (that he, a Tamil minority in Sri Lanka, was abducted by unidentified men in a van and severely beaten), when considered in light of known country condi- tions (as required by statute), amount at least to a “signifi- cant possibility” that he could show a well-founded fear of

Cite as: 591 U. S. ____ (2020) 5

SOTOMAYOR, J., dissenting

persecution. So viewed, respondent’s challenge does not quibble with historic facts, but rather claims that those “settled facts satisfy a legal standard,” which this Court has held amounts to a “legal inquiry.” Guerrero-Lasprilla v. Barr, 589 U. S. ___, ___ (2020) (slip op., at 4). The concur- ring opinion suggests that any conclusions drawn from the discrete settled facts here could not be “so egregiously wrong” as to amount to legal error. Ante, at 6. But the ul- timate inquiry is simply whether the facts presented satisfy a statutory standard. While this concurring opinion may believe that the facts presented here do not show that re- spondent is entitled to relief, its view of the merits does not alter the legal nature of respondent’s challenge.

B

Second, respondent contended that the inadequate proce- dures afforded to him in his removal proceedings violated constitutional due process. Among other things, he as- serted that the removal proceedings by design did not pro- vide him a meaningful opportunity to establish his claims, that the translator and asylum officer misunderstood him, and that he was not given a “reasoned explanation” for the decision. App. 27, 32; see also id., at 32 (arguing that “[u]nder constitutionally adequate procedures, [respond- ent] would have prevailed on his claims”). Again, however, the Court falls short of capturing the procedural relief ac- tually requested. The Court vaguely suggests that respond- ent merely wanted more cracks at obtaining review of his asylum claims, not that he wanted to challenge the existing expedited removal framework or the process actually ren- dered in his case as constitutionally inadequate. See ante, at 2 (characterizing respondent as asking for “additional administrative review of his asylum claim”); see also ante, at 5, n. 5 (describing petition as seeking “another oppor- tunity to apply for asylum”). That misconstrues respond-

6 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

ent’s procedural challenges to the expedited removal pro- ceedings, which matters crucially; a constitutional chal- lenge to executive detention is just the sort of claim the com- mon law has long recognized as cognizable in habeas. See generally Part II, infra.

One concurring opinion, meanwhile, properly character- izes respondent’s claims on this score as “procedural” chal- lenges. Ante, at 7 (opinion of BREYER, J.). Yet it concludes that those claims are not reviewable because they do not allege sufficiently serious defects. See ante, at 7–8 (describ- ing cognizable claims as those involving “ ‘no [factual] find- ing[s],’” contentions that officials “skipped a layer of intra- agency review altogether,” the “outright denial (or construc- tive denial) of a process,” or an official’s “fail[ure] entirely to take obligatory procedural steps”). But these are simply distinctions of degree, not of kind. Respondent claimed that officials violated governing asylum regulations and de- prived him of due process by conducting an inadequate in- terview and providing incomplete translation services. It is difficult to see the difference between those claims and the ones that the concurring opinion upholds as cognizable. Cf. ante, at 7–8 (finding cognizable claims that an official “short-circuit[ed] altogether legally prescribed adjudication procedures by ‘dictating’ an immigration decision” and that an official deprived a noncitizen of “ ‘an opportunity to prove his right to enter the country, as the statute meant that he should have’”).

Indeed, the concurring opinion notes that the core ques- tion is whether a defect “fundamentally undermined the ef- ficacy of process prescribed by law.” Ante, at 7. Respond- ent’s petition plainly posits procedural defects that violate, or at least call into question, the “efficacy of process pre- scribed by law” and the Constitution. Ibid. The concurring opinion might think that respondent is not entitled to addi- tional protections as a matter of law or that the facts do not show he was denied any required process. But conclusions

Cite as: 591 U. S. ____ (2020) 7

SOTOMAYOR, J., dissenting

about the merits of respondent’s procedural challenges should not foreclose his ability to bring them in the first place.

C

Finally, the Court asserts that respondent did not specif- ically seek “release” from custody in what the Court styles as the “traditional” sense of the term as understood in ha- beas jurisprudence. Ante, at 10, 13; cf. ante, at 14 (suggest- ing that respondent “does not claim an entitlement to re- lease”). Instead, the Court seems to argue that respondent seeks only a peculiar form of release: admission into the United States or additional asylum procedures that would allow for admission into the United States. Such a request, the Court implies, is more akin to mandamus and injunc- tive relief. Ante, at 13.

But it is the Court’s directionality requirement that bucks tradition. Respondent asks merely to be freed from wrongful executive custody. He asserts that he has a cred- ible fear of persecution, and asylum statutes authorize him to remain in the country if he does. That request is indis- tinguishable from, and no less “traditional” than, those long made by noncitizens challenging restraints that prevented them from otherwise entering or remaining in a country not their own. See Part II–B–1, infra.

The Court has also never described “release” as the sole remedy of the Great Writ. Nevertheless, respondent’s peti- tion is not limited in the way the Court claims. As it acknowledges, ante, at 10, respondent directly asked the District Court to “[i]ssue a writ of habeas corpus” without further limitation on the kind of relief that might entail, App. 33. Respondent also sought “an [o]rder directing [the Government] to show cause why the writ should not be granted” and an order “directing [the Government] to va- cate the expedited removal order entered against [him].” Ibid. As the petition’s plain language indicates, respondent

8 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

raised a garden-variety plea for habeas relief in whatever form available and appropriate, including, but not limited to, release.

***

Fairly characterized, respondent’s claims allege legal er- ror (for violations of governing asylum law and for viola- tions of procedural due process) and an open-ended request for habeas relief. It is “uncontroversial” that the writ en- compasses such claims. See Boumediene v. Bush, 553 U. S. 723, 779 (2008) (concluding that release is but one form of relief available); see also St. Cyr., 533 U. S., at 302, 304– 308 (citing cases predating the founding to show that the writ could challenge “the erroneous application or interpre- tation” of relevant law); see also Part II–D, infra.

II

Only by recasting respondent’s claims and precedents does the Court reach its decision on the merits. By its ac- count, none of our governing cases, recent or centuries old, recognize that the Suspension Clause guards a habeas right to the type of release that respondent allegedly seeks.1

——————

1 The Court wisely declines to explore whether the Suspension Clause

independently guarantees the availability of the writ or simply restricts the temporary withholding of its operation, a point of disagreement be- tween the majority and dissent in INS v. St. Cyr, 533 U. S. 289 (2001). Ante, at 11, n. 12. Justice Scalia, dissenting in St. Cyr, wrote that the Suspension Clause “does not guarantee any content to (or even the exist- ence of ) the writ of habeas corpus, but merely provides that the writ shall not (except in case of rebellion or invasion) be suspended.” 533 U. S., at 337. But no majority of this Court, at any time, has adopted that theory. Notably, moreover, even Justice Scalia appears to have abandoned his position just three years later in Hamdi v. Rumsfeld, 542 U. S. 507, 555– 556 (2004) (dissenting opinion) (“The two ideas central to Blackstone’s understanding—due process as the right secured, and habeas corpus as the instrument by which due process could be insisted upon by a citizen illegally imprisoned—found expression in the Constitution’s Due Process and Suspension Clauses”); see also id., at 558 (“The writ of habeas corpus

Cite as: 591 U. S. ____ (2020) 9 SOTOMAYOR, J., dissenting

Ante, at 13, n. 14 (finding no evidence that the writ was un- derstood in 1789 to grant relief that would amount to “gain- ing a right to remain in this country”); ante, at 13 (charac- terizing a “‘meaningful opportunity’” for review of asylum claims as falling outside of traditional notions of release from custody). An overview of cases starting from the colo- nial period to the present reveals that the Court is incor- rect, even accepting its improper framing of respondent’s claims.

A

The critical inquiry, the Court contends, is whether re- spondent’s specific requests for relief (namely, admission into the United States or additional asylum procedures al- lowing for admission into the United States) fall within the scope of the kind of release afforded by the writ as it existed in 1789. Ante, at 11, 12; see also ante, at 10 (criticizing the court below for holding §1252(e)(2) unconstitutional “with- out citing any pre-1789 case about the scope of the writ”). This scope, it explains, is what the Suspension Clause pro- tects “at a minimum.” Ante, at 11. But as the Court implic- itly acknowledges, its inquiry is impossible. The inquiry also runs headlong into precedent, which has never de- manded the kind of precise factual match with pre-1789 case law that today’s Court demands.

To start, the Court recognizes the pitfalls of relying on pre-1789 cases to establish principles relevant to immigra- tion and asylum: “At the time, England had nothing like modern immigration restrictions.” Ante, at 18–19 (“As late as 1816, the word ‘deportation’ apparently ‘was not to be found in any English dictionary’”). It notes, too, that our

——————

was preserved in the Constitution—the only common-law writ to be ex- plicitly mentioned”). Even one concurring opinion seems to recognize that the Suspension Clause “protect[s] a substantive right.” Ante, at 3– 4 (opinion of THOMAS, J.).

10 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

cases have repeatedly observed the relative novelty of im- migration laws in the early days of this country. Ante, at 20 (citing Harisiades v. Shaughnessy, 342 U. S. 580, 588, n. 15 (1952) (“An open door to the immigrant was the early federal policy”); St. Cyr, 533 U. S., at 305 (remarking that the first immigration regulation was enacted in 1875)); see also Demore v. Kim, 538 U. S. 510, 539 (2003) (O’Connor, J., concurring in part and concurring in judgment) (“Because colonial America imposed few restrictions on immigration, there is little case law prior to that time about the availa- bility of habeas review to challenge temporary detention pending exclusion or deportation”).

The Court nevertheless seems to require respondent to engage in an exercise in futility. It demands that respond- ent unearth cases predating comprehensive federal immi- gration regulation showing that noncitizens obtained re- lease from federal custody onto national soil. But no federal statutes at that time spoke to the permissibility of their en- try in the first instance; the United States lacked a compre- hensive asylum regime until the latter half of the 20th cen- tury. Despite the limitations inherent in this exercise, the Court appears to insist on a wealth of cases mirroring the precise relief requested at a granular level; nothing short of that, in the Court’s view, would demonstrate that a noncit- izen in respondent’s position is entitled to the writ. See ante, at 18, n. 18 (dismissing respondent’s cited cases on the ground that “[w]hether the founding generation understood habeas relief more broadly than described by Blackstone, Justice Story, and our prior cases . . . cannot be settled by a single case or even a few obscure and possibly aberrant cases”); see also Neuman, Habeas Corpus, Executive Deten- tion, and the Removal of Aliens, 98 Colum. L. Rev. 961 (1998) (noting the inherent difficulties of a strict originalist approach in the habeas context because of, among other things, the dearth of reasoned habeas decisions at the founding).

Cite as: 591 U. S. ____ (2020) 11

SOTOMAYOR, J., dissenting

But this Court has never rigidly demanded a one-to-one match between a habeas petition and a common-law habeas analog. In St. Cyr, for example, the Court considered whether a noncitizen with a controlled substance conviction could challenge on habeas the denial of a discretionary waiver of his deportation order. 533 U. S., at 293. In doing so, the Court did not search high and low for founding-era parallels to waivers of deportation for criminal noncitizens. It simply asked, at a far more general level, whether habeas jurisdiction was historically “invoked on behalf of nonciti- zens . . . in the immigration context” to “challenge Execu- tive . . . detention in civil cases.” Id., at 302, 305. That in- cluded determining whether “[h]abeas courts . . . answered questions of law that arose in the context of discretionary relief ” (including questions regarding the allegedly “erro- neous application or interpretation of statutes”). Id., at 302, and n. 18, 307.

Boumediene is even clearer that the Suspension Clause inquiry does not require a close (much less precise) factual match with historical habeas precedent. There, the Court concluded that the writ applied to noncitizen detainees held in Guantanamo, 553 U. S., at 771, despite frankly admit- ting that a “[d]iligent search by all parties reveal[ed] no cer- tain conclusions” about the relevant scope of the common- law writ in 1789, id., at 746. Indeed, the Court reasoned that none of the cited cases illustrated whether a “common- law court would or would not have granted . . . a petition for a writ of habeas corpus” like that brought by the noncitizen- detainee petitioners, and candidly acknowledged that “the common-law courts simply may not have confronted cases with close parallels.” Id., at 746, 752. But crucially, the Court declined to “infer too much, one way or the other, from the lack of historical evidence on point.” Id., at 752. Instead, it sought to find comparable common-law habeas cases by “analogy.” Id., at 748–752.

There is no squaring the Court’s methodology today with

12 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

St. Cyr or Boumediene. As those cases show, requiring near-complete equivalence between common-law habeas cases and respondent’s habeas claim is out of step with this Court’s longstanding approach in immigration cases.

B 1

Applying the correct (and commonsense) approach to de- fining the Great Writ’s historic scope reveals that respond- ent’s claims have long been recognized in habeas.

Respondent cites Somerset v. Stewart, Lofft. 1, 98 Eng. Rep. 499 (K. B. 1772), as an example on point. There, Lord Mansfield issued a writ ordering release of a slave bound for Jamaica, holding that there was no basis in English law for “sending . . . him over” to another country. Id., at 17– 19, 98 Eng. Rep., at 509–510. Thus, the writ issued even though it “did not free [the] slave so much as it protected him from deportation.” P. Halliday, Habeas Corpus: From England to Empire 175 (2010). Somerset establishes the longstanding availability of the writ to challenge the legal- ity of removal and to secure release into a country in which a petitioner sought shelter. Scholarly discussions of Mur- ray’s Case suggest much of the same. There, the King’s Bench granted habeas to allow a nonnative to remain in England and to prevent his removal to Scotland for trial. Halliday, Habeas Corpus, at 236.

The Court dismisses these examples outright. It acknowledges that the petitioner in Somerset may have been allowed to remain in England because of his release on habeas, yet declares that this was “due not to the wri[t] ordering [his] release” but rather to the existing state of the law. Ante, at 20. But the writ clearly did more than permit the petitioner to disembark from a vessel; it prevented him from being “sen[t] . . . over” to Jamaica. Lofft., at 17, 98 Eng. Rep., at 509. What England’s immigration laws might have prescribed after the writ’s issuance did not bear on the

Cite as: 591 U. S. ____ (2020) 13

SOTOMAYOR, J., dissenting

availability of the writ as a means to remain in the country in the first instance.

The Court also casts aside the facts of Murray’s Case, even though they, too, reveal that habeas was used to per- mit a nonnative detainee to remain in a country. Ante, at 18, n. 18. The Court minimizes the decision as “obscure and possibly aberrant.” Ibid. But given the relative paucity of habeas cases from this era, it is telling that the case serves as another example of the writ being used to allow a noncit- izen to remain in England.2

The reasoning of Somerset and Murray’s Case carried over to the Colonies, where colonial governments presumed habeas available to noncitizens to secure their residence in a territory. See generally Oldham & Wishnie, The Histori- cal Scope of Habeas Corpus and INS v. St. Cyr, 16 Geo. Im- migration L. J. 485 (2002). For example, in 1755, British authorities sought to deport French Acadian settlers from Nova Scotia, then under the control of Great Britain, to the American Colonies. Id., at 497. The Governor and Assem- bly of South Carolina resisted the migrants’ arrival and de- tained them in ships off the coast of Charleston. They rec- ognized, however, that the exclusion could not persist because the migrants would be entitled to avail themselves of habeas corpus. Id., at 498. Ultimately, the Governor re- leased most of the Acadian migrants for resettlement throughout the Colony. Ibid.

Founding era courts accepted this view of the writ’s scope. Rather than credit these decisions, the Court marches

——————

2 The Court notes “the ‘delicate’ relationship between England and

Scotland at the time” of Murray’s Case. Ante, at 18, n. 18. Interestingly, the Court does not mention the delicate nature of the relationship be- tween the United States and Iraq in Munaf v. Geren, 553 U. S. 674 (2008), the centerpiece of the Court’s argument, even though that case arose during a military conflict. Ante, at 14–15. Nor does it acknowledge the impact that the relationship had on the Munaf Court’s decision to refrain from issuing the writ. See Part II–B–3, infra.

14 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

through an assorted selection of cases and throws up its hands, contending that the case law merely reflects a wide range of circumstances for which individuals were deprived of their liberty. See ante, at 16–17. Thus, the Court con- cludes, the common law simply did not speak to whether individuals could seek “release” that would allow them to enter a country (as opposed to being expelled from it).

At the same time, notwithstanding its professed keen in- terest in precedent, the Court seems to discount decisions supporting respondent’s view that habeas permitted re- lease from custody into the country. At least two other clas- ses of cases demonstrate that the writ was available from around the founding onward to noncitizens who were de- tained, and wanted to remain, including those who were prevented from entering the United States at all.

First, common-law courts historically granted the writ to discharge deserting foreign sailors found and imprisoned in the United States. In Commonwealth v. Holloway, 1 Serg. & Rawle 392 (1815), the Pennsylvania Supreme Court granted a writ of habeas corpus to a Danish sailor who had deserted his vessel in violation of both an employment con- tract and Danish law. The court explained that the deser- tion did not violate any domestic law or treaty, and thus imprisonment was inappropriate. Id., at 396 (opinion of Tilghman, C. J.). By ordering an unconditional discharge and declining to return the noncitizen sailor to the custody of any foreign power, the court used the writ to order a re- lease that authorized a noncitizen to remain in the United States, a country “other than his own.” Ante, at 16. The same was true in similar cases that even the Court cites. See ante, at 19 (citing Case of the Deserters from the British Frigate L’Africaine, 3 Am. L. J. & Misc. Repertory 132 (Md. 1810) (reporting on a decision discharging deserters); Case of Hippolyte Dumas, 2 Am. L. J. & Misc. Repertory 86 (Pa. 1809) (same)).

Curiously, the Court does not contest that the writs in

Cite as: 591 U. S. ____ (2020) 15

SOTOMAYOR, J., dissenting

these cases were used to secure the liberty of foreign sailors, and consequently their right to enter the country.3 Rather, it remarks that judges at the time “chafed at having to or- der even release,” ante, at 19, which some saw as incon- sistent with principles of comity, Holloway, 1 Serg. & Rawle, at 394. But reluctance is not inability. That those judges followed the law’s dictates despite their distaste for the result should give today’s Court pause.

The Court seizes on one case where a court ordered a de- serting sailor to be returned to his foreign vessel-master. See ante, at 14, 19 (citing Ex parte D’Olivera, 7 F. Cas. 853, 854 (No. 3,967) (CC Mass. 1813)). But it reads too much into this one decision. In D’Olivera, the court held that de- serting sailors were unlawfully confined and granted a writ of habeas corpus, but directed that they be discharged to their vessel-master out of “a desire not to encourage deser- tion among foreign seamen.” Id., at 854. As illustrated by other deserter cases supra, the kind of results-oriented de- cisionmaking in D’Olivera does not seem to be the norm. The Court’s proclamation about how the scope of common- law habeas cannot hinge on a “single case” should have equal force here. Ante, at 18, n. 18.

Next, courts routinely granted the writ to release wrong- fully detained noncitizens into Territories other than the detainees’ “own.” Many involved the release of fugitive or former slaves outside their home State. In these cases, courts decided legal questions as to the status of these peti- tioners. In Arabas v. Ivers, 1 Root 92 (Conn. Super. Ct. 1784), for example, a Connecticut court determined that a former slave from New York held in local jail on his alleged master’s instructions had, in fact, been freed through his service in the Continental Army. The court ordered him

——————

3 Indeed, the Court highlights a striking similarity to the present asy-

lum challenge by observing that the foreign-deserter cases show the “use of habeas to secure release from custody when not in compliance with . . . statute[s] and relevant treaties.” Ante, at 21.

16 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

discharged “upon the ground that he was a freeman, abso- lutely manumitted from his master by enlisting and serving in the army.” Id., at 93. See also In re Belt, 7 N. Y. Leg. Obs. 80 (1848) (granting habeas to discharge an imprisoned fugitive slave whose owner did not timely apply for his re- turn to Maryland); In re Ralph, 1 Morris 1 (Iowa 1839) (dis- charging person from custody on the grounds that he was not a fugitive slave subject to return to Missouri when he had been allowed to travel to the Iowa Territory by his for- mer master); Commonwealth v. Holloway, 2 Serg. & Rawle 305 (Pa. 1816) (holding on habeas corpus that a child born in a free State to a slave was free); In re Richardson’s Case, 20 F. Cas. 703 (No. 11,778) (CC DC 1837) (ordering prisoner to be discharged in the District of Columbia because war- rant was insufficient to establish that he was a runaway slave from Maryland); Commonwealth v. Griffith, 19 Mass. 11 (1823) (contemplating that the status of a freeman seized in Massachusetts as an alleged fugitive from Virginia could be determined on habeas corpus).

The weight of historical evidence demonstrates that com- mon-law courts at and near the founding granted habeas to noncitizen detainees to enter Territories not considered their own, and thus ordered the kind of release that the Court claims falls outside the purview of the common-law writ.

The Court argues that none of this evidence is persuasive because the writ could not be used to compel authorization to enter the United States. Ante, at 20. But that analogy is inapt. Perhaps if respondent here sought to use the writ to grant naturalization, the comparison would be closer. But respondent sought only the proper interpretation and application of asylum law (which statutorily permits him to remain if he shows a credible fear of persecution), or in the alternative, release pursuant to the writ (despite being cog- nizant that he could be denied asylum or rearrested upon release if he were found within the country without legal

Cite as: 591 U. S. ____ (2020) 17

SOTOMAYOR, J., dissenting

authorization). But that consequence does not deprive re- spondent of the ability to invoke the writ in the first in- stance. See, e.g., Lewis v. Fullerton, 22 Va. 15 (1821) (af- firming that a judgment on habeas corpus in favor of a slave was not conclusive of her rights but merely permitted re- lease from custody on the record before the court and did not prohibit recapture by a master); Ralph, 1 Morris, at 1 (noting that an adjudication that petitioner was not a fugi- tive only exempted him from fugitive-slave laws but did not prohibit master from entering Territory to reclaim him on his own accord).

For these reasons, the Court is wrong to dispute that com- mon-law habeas practice encompassed the kind of release respondent seeks here.

2

The Court also appears to contend that respondent sought merely additional procedures in his habeas adjudi- cation and that this kind of relief does not fall within the traditional scope of the writ. That reflects a misunder- standing of the writ. Habeas courts regularly afforded the state additional opportunities to show that a detention was lawful before ordering what the Court now considers a re- lease outright.

The common-law writ of habeas corpus ad subjiciendum evolved into what we know and hail as the “Great Writ.” See 3 W. Blackstone, Commentaries on the Laws of Eng- land 131 (1768). That writ, at bottom, allowed a court to elicit the cause for an individual’s imprisonment and to en- sure that he be released, granted bail, or promptly tried. See Oaks, Habeas Corpus in the States—1776–1865, 32 U. Chi. L. Rev. 243, 244 (1965). From its origins, the writ did not require immediate release, but contained procedures that would allow the state to proceed against a detainee. Under the English Habeas Corpus Act of 1679, jailers were ordered to make a “return” to a writ within a designated

18 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

time period and certify the true causes of imprisonment. Id., at 252–253. Justices of the King’s Bench obtained re- turns that provided full legal accounts justifying detention. Halliday & White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L. Rev. 575, 599–600 (2008) (Halliday & White). They also examined and were guided by depositions upon which a de- tention was founded to determine whether to admit a peti- tioner to bail. Oaks, 32 U. Chi. L. Rev., at 258. Indeed, the King’s Bench routinely considered facts not asserted in the return to assist scrutiny of detentions. Halliday & White 610; see also id., at 611 (documenting instances where the court would consider affidavits of testimony beyond what was included in the return).

Moreover, early practice showed that common-law ha- beas courts routinely held proceedings to determine whether detainees should be discharged immediately or whether the state could subject them to further proceed- ings, including trial in compliance with proper procedures. See Ex parte Bollman, 4 Cranch 75, 125 (1807) (taking tes- timony in conjunction with an “inquiry” to determine whether “the accused shall be discharged or held to trial”). In Ex parte Kaine, 14 F. Cas. 78 (No. 7,597) (CC SDNY 1853), for example, a federal court analyzed whether a pe- titioner, who had been found guilty of an offense by a com- missioner, was subject to extradition. The court passed on questions of law concerning whether the commissioner had the power to adjudicate petitioner’s criminality. Id., at 80. Ultimately, the court found that petitioner was “entitled to be discharged from imprisonment” due to defects in the pro- ceedings before the commissioner, but entertained further evidence on whether he could nevertheless be extradited. Id., at 82. Only after finding no additional evidence that would permit extradition did the court order release. Ibid.

Similarly, in Coleman v. Tennessee, 97 U. S. 509 (1879), the petitioner had been convicted of a capital offense by a

Cite as: 591 U. S. ____ (2020) 19

SOTOMAYOR, J., dissenting

state court, even though he had committed the offense while a soldier in the United States Army. Id., at 510–511. This Court granted habeas on the grounds that the state- court judgment was void but, because the petitioner had also been found guilty of murder by a military court, never- theless turned the prisoner over to the custody of the mili- tary for appropriate punishment. Id., at 518–520. Not sur- prisingly, then, the Court has found that habeas courts may discharge detainees in a manner that would allow defects in a proceeding below to be corrected. In re Bonner, 151 U. S. 242, 261 (1894).

These examples confirm that outright habeas release was not always immediately awarded. But they also show that common-law courts understood that relief short of release, such as ordering officials to comply with the law and to cor- rect underlying errors, nevertheless fell within the scope of a request for habeas corpus.4

3

Despite exalting the value of pre-1789 precedent, the Court’s key rationale for why respondent does not seek “re- lease” in the so-called traditional sense rests on an inappo- site, contemporary case: Munaf v. Geren, 553 U. S. 674 (2008).5 Ante, at 14. Munaf, the Court claims, shows that

——————

4 The Court considers irrelevant cases demonstrating that the execu-

tive was permitted to cure defects in detention because “the legality of [respondent’s] detention is not in question” here. Ante, at 17; see also ante, at 32–33 (acknowledging that it is “often ‘appropriate’ to allow the executive to cure defects in a detention” in habeas cases (quoting Boumediene, 553 U. S., at 779)). But as explained in Part I–A, supra, that is exactly what respondent questions by arguing that his detention violated governing asylum law.

5 Oddly, the Court embraces Munaf—a recent decision involving de- tainees held outside the territorial limits of the United States who were subject to prosecution by a foreign sovereign—to support its conclusion about the availability of habeas review. Yet at the same time, it dis- misses respondent’s reliance on Boumediene v. Bush, 553 U. S. 723 (2008), outright on the grounds that the case is “not about immigration

20 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

habeas is not available to seek an order to be brought into this country. Ante, at 14. But that case is in a category of its own and has no bearing on respondent’s claims here. Munaf addressed a one-of-a-kind scenario involving the transfer of individuals between different sovereigns. There, two United States citizens in Iraq filed habeas petitions seeking to block their transfer to Iraqi authorities after be- ing accused of committing crimes and detained by Ameri- can-led coalition forces pending investigation and prosecu- tion in Iraqi courts. 553 U. S., at 679–680, 692. The central question, this Court repeatedly stated, was “whether United States district courts may exercise their habeas ju- risdiction to enjoin our Armed Forces from transferring in- dividuals detained within another sovereign’s territory to that sovereign’s government for criminal prosecution.” Id., at 689; see also id., at 704.

In concluding that habeas did not extend to the relief sought by the citizens detained in Iraq, the Munaf Court relied on cases involving habeas petitions filed to avoid ex- tradition. Id., at 695–696 (citing Wilson v. Girard, 354 U. S. 524 (1957) (per curiam), and Neely v. Henkel, 180 U. S. 109 (1901)). These decisions, the Court concluded, established that American courts lack habeas jurisdiction to enjoin an extradition or similar transfer to a foreign sovereign exer- cising a right to prosecution. 553 U. S., at 696–697. These circumstances, which today’s Court overlooks, mean that Munaf is more like the extradition cases that the Court deems not “pertinent.” Ante, at 20.6

——————

at all.” Ante, at 32.

6 Nor is the Court correct in dismissing common-law extradition prec- edents as inapposite because they show “nothing more than the use of habeas to secure release from custody.” Ante, at 21. Indeed, these extra- dition cases demonstrate that the common-law writ encompassed exactly the kind of permission to remain in a country that the Court claims falls outside its scope. Ante, at 12, 14. In re Stupp, 23 F. Cas. 296 (No. 13,563) (CC SDNY 1875), which the Court cites in passing, emphatically af- firmed that habeas corpus was available to challenge detention pending

Cite as: 591 U. S. ____ (2020) 21

SOTOMAYOR, J., dissenting

In any event, respondent is not similarly situated to the petitioners in Munaf, who sought habeas to thwart removal from the United States in the face of a competing sover- eign’s interests. Mindful that the case implicated “sensitive foreign policy issues in the context of ongoing military op- erations,” the Munaf Court observed that granting habeas relief would “interfere with Iraq’s sovereign right to punish offenses against its laws committed within its borders.” 553 U. S., at 692 (internal quotation marks omitted); see also id., at 689, 694, 700. For that reason, it proceeded “‘with the circumspection appropriate when this Court is adjudi- cating issues inevitably entangled in the conduct of . . . in- ternational relations.’ ” Id., at 689, 692. Here, of course, no foreign sovereign is exercising a similar claim to custody over respondent during an ongoing conflict that would trig- ger the comity concerns that animated Munaf.

——————

extradition: “[T]he great purposes of the writ of habeas corpus can be maintained, as they must be. The court issuing the writ must inquire and adjudge whether the commissioner acquired jurisdiction . . . and had before him legal and competent evidence of facts whereon to pass judg- ment as to the fact of criminality, and did not arbitrarily commit the ac- cused for surrender.” Id., at 303. Although the Stupp court did not ulti- mately issue the writ, other courts have. See, e.g., Ex parte Kaine, 14 F. Cas. 78, 82 (No. 7,597) (CC SDNY 1853) (granting the writ to a pris- oner whose detention was “in consequence of illegality in the proceedings under the [extradition] treaty”); Pettit v. Walshe, 194 U. S. 205, 219–220 (1904) (affirming a grant of habeas where a prisoner’s detention violated the terms of an extradition treaty with Great Britain); In re Washburn, 4 Johns. Ch. 106, 114 (N. Y. 1819) (granting a habeas petition of a noncit- izen after a request for extradition); People v. Goodhue, 2 Johns. Ch. 198, 200 (N. Y. 1816) (releasing prisoner subject to possible interstate extra- dition). These extradition-related habeas cases show that the writ was undoubtedly used to grant release in the very direction—that is, away from a foreign country and into the United States—that the Court today derides. Indeed, the same scholar the Court cites makes the point that extradition specifically allowed courts to hear challenges to the Execu- tive’s ability to “detain aliens for removal to another country at the re- quest of [the] government.” Neuman, Habeas Corpus, Executive Deten- tion, and the Removal of Aliens, 98 Colum. L. Rev. 961, 1003 (1998).

22 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

C

Next, the Court casually dismisses nearly 70 years of precedent from the finality era, the most relevant historic period for examining judicial review of immigration deci- sions. It concludes that, in case after case, this Court exer- cised habeas review over legal questions arising in immi- gration cases akin to those at issue here, not because the Constitution required it but only because a statute permit- ted it. Ante, at 23–24. That conclusion is both wrong in its own right and repeats arguments this Court rejected a half century ago when reviewing this same body of cases.

At the turn of the 20th century, immigration to the United States was relatively unrestricted. Public senti- ment, however, grew hostile toward many recent entrants, particularly migrant laborers from China. In response, Congress enacted the so-called Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58, which prohibited the entry of Chi- nese laborers to the United States. The Scott Act, ch. 1064, 25 Stat. 504, enacted in 1888, forbade reentry of Chinese laborers who had left after previously residing in this coun- try. Although immigration officials routinely denied entry to arriving migrants on the basis of these laws, many of these decisions were overturned by federal courts on habeas review. See, e.g., United States v. Jung Ah Lung, 124 U. S. 621 (1888).

This did not escape Congress’ attention. See Select Com- mittee on Immigration & Naturalization, H. R. Rep. No. 4048, 51st Cong., 2d Sess., 273–275 (1891) (documenting rate of reversal of immigration exclusion orders by Federal District Court in San Francisco). Congress responded by enacting the Immigration Act of 1891, which stripped fed- eral courts of their power to review immigration denials: “All decisions made by the inspection officers or their assis- tants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the

Cite as: 591 U. S. ____ (2020) 23

SOTOMAYOR, J., dissenting

superintendent of immigration, whose action shall be sub- ject to review by the Secretary of the Treasury.” Act of Mar. 3, 1891, §8, 26 Stat. 1085. By its terms, that restriction on federal judicial power was not limited to review of some un- defined subset of issues, such as questions of law or fact; it made executive immigration decisions final in all respects.

The Court, however, quickly construed the statute in Nishimura Ekiu v. United States, 142 U. S. 651 (1892) (Ekiu), to preclude only review of executive factfinding. Having so construed the statute, the Court in Ekiu, and in case after case following Ekiu, recognized the availability of habeas to review a range of legal and constitutional ques- tions arising in immigration decisions. The crucial question here is whether the finality-era Courts adopted that con- struction of jurisdiction-stripping statutes because it was simply the correct interpretation of the statute’s terms and nothing more or because that construction was constitu- tionally compelled to ensure the availability of habeas re- view. The better view is that Ekiu’s construction of the 1891 statute was constitutionally compelled.

In Ekiu, the Court recognized that a Japanese national was entitled to seek a writ of habeas corpus to review an exclusion decision issued almost immediately upon her ar- rival to the United States. As the Court notes, ante, at 26, the relevant issue in that case was whether the 1891 Act, “if construed as vesting . . . exclusive authority” in the Ex- ecutive to determine a noncitizen’s right to enter the United States, violated petitioner’s constitutional “right to the writ of habeas corpus, which carried with it the right to a deter- mination by the court as to the legality of her detention,” 142 U. S., at 656 (statement of the case). That is, the Ekiu Court confronted whether construing the 1891 Act as pre- cluding all judicial review of immigration decisions like the exclusion order at issue would violate the constitutional guarantee to habeas.

The Court answered that question by construing the 1891

24 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

Act as precluding judicial review only of questions of fact. “An alien immigrant,” the Court first held, who is “pre- vented from landing [in the United States] by any [execu- tive] officer . . . 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 then explained that it had authority to hear the case (de- spite Congress’ clear elimination of judicial review) because it interpreted the 1891 Act as meaning only that an immi- gration official’s determination of “facts” was final and un- reviewable. Ibid. (explaining that Congress could entrust the final determination of facts to executive officers).

After so articulating the 1891 Act’s limits on judicial re- view, the Court analyzed two challenges to the integrity of the proceedings, neither of which raised questions of histor- ical fact. See id., at 662–663 (considering whether immi- gration officer’s appointment was unconstitutional such that his actions were invalid); id., at 663 (determining whether proceedings were unlawful because the officer failed to take sworn testimony or make a record of the deci- sion).7 Although the Court ultimately concluded that those legal and constitutional challenges lacked merit, id., at 662–664, what matters is that the Court evaluated the ar- guments and recognized them as possible grounds for ha- beas relief.

What, then, can Ekiu tell us? Today’s Court finds signif- icant that the brief opinion makes no explicit mention of the Suspension Clause. Ante, at 28. This omission, it con- cludes, can only mean that the Ekiu Court did not think that (or had no occasion to consider whether) the Suspen- sion Clause “imposed any limitations on the authority of Congress to restrict the issuance of writs of habeas corpus

——————

7 These claims are uncannily reminiscent of the kinds of claims re-

spondent advances here. See Parts II–A and II–B, supra.

Cite as: 591 U. S. ____ (2020) 25 SOTOMAYOR, J., dissenting

in immigration matters.” Ante, at 27. According to this the- ory, Ekiu concluded that the plain terms of the1891 Act pro- hibited judicial review of executive factfinding alone, and nothing more can be said.

But this myopic interpretation ignores many salient facts. To start, the 1891 Act was enacted for the purpose of limiting all judicial review of immigration decisions, not just a subset of factual issues that may arise in those deci- sions. Further, the plain terms of the statute did not cabin the limitation on judicial review to historical facts found by an immigration officer. Ekiu, moreover, evaluated the Act’s constitutionality in view of the petitioner’s argument that the limitation on judicial review violated the constitutional “right to the writ of habeas corpus.” 142 U. S., at 656 (state- ment of the case). These considerations all point in one di- rection: Even if the Ekiu Court did not explicitly hold that the Suspension Clause prohibits Congress from broadly limiting all judicial review in immigration proceedings, it certainly decided the case in a manner that avoided raising this constitutional question. Indeed, faced with a jurisdic- tion-stripping statute, the only review left for the Ekiu Court was that required by the Constitution and, by exten- sion, protected by the guarantee of habeas corpus.

The Court also maintains that Ekiu concluded that “ ‘the act of 1891 is constitutional’” in full, not “only in part.” Ante, at 27 (quoting Ekiu, 142 U. S., at 664). Yet as the Court acknowledges, it was only “after interpreting the 1891 Act” as precluding judicial review of questions of fact alone that the Ekiu Court deemed it constitutional. Ante, at 26; see also Ekiu, 142 U. S., at 664 (concluding that “[t]he result” of its construction is that the 1891 Act “is constitu- tional”). That cannot mean that Ekiu found the 1891 Act constitutional even to the extent that it prevented all judi- cial review of immigration decisions, even those brought on habeas. What it can only mean, instead, is that Ekiu’s con-

26 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

struction of the 1891 Act was an answer to the constitu- tional question posed by the case: whether and to what ex- tent denying judicial review under the 1891 Act would vio- late the constitutional “right to the writ of habeas corpus.” 142 U. S., at 656 (statement of the case).8

Bolstering this interpretation is that the Court has re- peatedly reached the same result when interpreting subse- quent statutes purporting to strip federal courts of all juris- diction over immigration decisions. In Gegiow v. Uhl, 239 U. S. 3 (1915), for example, the Court observed that Ekiu decided that “[t]he conclusiveness of the decisions of immi- gration officers under [the 1891 Act]” referred only to “con- clusiveness upon matters of fact.” 239 U. S., at 9. It relied heavily on Ekiu to support its determination that the Im- migration Act of 1907, 34 Stat. 898, which also rendered decisions of immigration officers to be “final,” §25, id., at 907, similarly only barred judicial review of questions of fact, 239 U. S., at 9. Indeed, time and again, against a back- drop of statutes purporting to bar all judicial review of ex- ecutive immigration decisions, this Court has entertained habeas petitions raising a host of issues other than historic facts found by immigration authorities.9

——————

8 The Court also claims that because Ekiu stated that the 1891 Act was

constitutional, respondent must be wrong that Ekiu found the 1891 Act “unconstitutional in most of its applications (i.e., to all questions other than questions of fact).” Ante, at 27. But the point here is not that Ekiu actually found the 1891 Act unconstitutional in part; it is that Ekiu in- terpreted the 1891 Act to avoid rendering it unconstitutional in part.

9 See, e.g., The Japanese Immigrant Case, 189 U. S. 86 (1903) (habeas petition filed by noncitizen alleged to have entered unlawfully and ap- prehended four days after being let on shore); Gonzales v. Williams, 192 U. S. 1 (1904) (habeas petition filed by resident of Puerto Rico detained at the port, who claimed that Puerto Rican nationals are United States citizens allowed to enter the mainland as a matter of course); United States ex rel. Turner v. Williams, 194 U. S. 279 (1904) (habeas petition by noncitizen found within the United States 10 days after entry alleging his arrest was unconstitutional); Chin Yow v. United States, 208 U. S. 8 (1908) (habeas petition filed by a Chinese individual with a claim of U. S.

Cite as: 591 U. S. ____ (2020) 27

SOTOMAYOR, J., dissenting

To be sure, this entrenched line of cases does not directly state that habeas review of immigration decisions is consti- tutionally compelled. But an alternate understanding of those cases rests on an assumption that is farfetched at best: that, year after year, and in case after case, this Court simply ignored the unambiguous texts of the serial Immi- gration Acts limiting judicial review altogether. The Court’s pattern of hearing habeas cases despite those stat- utes’ contrary mandate reflects that the Court understood habeas review in those cases as not statutorily permitted but constitutionally compelled.

In any event, we need not speculate now about whether the Ekiu Court, or the Courts that followed, had the consti- tutional right to habeas corpus in mind when they inter- preted jurisdiction-stripping statutes only to preclude re- view of historic facts. This Court has already identified which view is correct. In Heikkila v. Barber, 345 U. S. 229 (1953), the Court explained that Ekiu and its progeny had, in fact, construed the finality statutes to avoid serious con- stitutional questions about Congress’ ability to strip federal courts of their habeas power. As Heikkila reiterated, the key question in Ekiu (and in later cases analyzing finality statutes) was the extent to which the Constitution allowed Congress to make administrative decisions unreviewable. 345 U. S., at 234. And it concluded that the jurisdiction- stripping immigration statute in that case, a successor to

——————

citizenship who was detained on a steamship and prohibited from disem- barking); Yee Won v. White, 256 U. S. 399 (1921) (habeas petition filed on behalf of noncitizen wife and child denied admission to the United States upon arrival despite claiming legal right to join a family member residing in the country); Tod v. Waldman, 266 U. S. 113 (1924) (habeas petition by family fleeing religious persecution in Russia denied entry on the grounds that they were likely to become a public charge); United States ex rel. Polymeris v. Trudell, 284 U. S. 279 (1932) (habeas petition filed by residents of Greek ancestry who left the United States and sought reentry after a lengthy trip abroad).

28 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

the 1891 Act, “preclud[ed] judicial intervention in deporta- tion cases except insofar as it was required by the Consti- tution.” Id., at 234–235.

Heikkila thus settles the matter; during the finality era, this Court either believed that the Constitution required ju- dicial review on habeas of constitutional and legal questions arising in immigration decisions or, at the very least, thought that there was a serious question about whether the Constitution so required. Although the Court tries to minimize that conclusion as not dispositive of the question presented, ante, at 29, such a conclusion undoubtedly weighs against finding §1252(e)(2) constitutional in spite of its broad prohibition on reviewing constitutional and legal questions.

The Court dismisses Heikkila and its explanation of the finality-era cases outright. It fixates on the fact that Heik- kila was not itself a habeas case and instead analyzed whether judicial review of immigration orders was availa- ble under the Administrative Procedure Act (APA). Ante, at 31–32. Heikkila’s discussion of the APA does not detract from its affirmation that when the language of a jurisdic- tion-stripping statute precludes all judicial review, the only review that is left is that required by the constitutional guarantee of habeas corpus. 345 U. S., at 235.10 Most im- portantly, Heikkila concluded that APA review was not equivalent to that judicial review. Second, the Court also

——————

10 Indeed, the Government itself embraced that position in a brief to

the Court during that time. Brief for Respondent in Martinez v. Neelly, O. T. 1952, No. 218, p. 19 (“The clear purpose of this [finality] provision was to preclude judicial review of the Attorney General’s decisions in al- ien deportation cases insofar as the Congress could do so under the Con- stitution”); id., at 33 (“[T]he courts have long recognized” the finality pro- visions “restric[t] review of deportation orders as far as the Constitution permits”); see also id., at 18 (explaining that the finality provisions “pre- cluded judicial review of deportation orders except for the collateral re- view in habeas corpus which the Constitution prescribes in cases of per- sonal detention”).

Cite as: 591 U. S. ____ (2020) 29 SOTOMAYOR, J., dissenting

states that Heikkila never interpreted Ekiu as having found the 1891 Act “partly unconstitutional.” Ante, at 32. But there was no need for the Ekiu Court to find the 1891 Act unconstitutional in part to construe it as prohibiting only review of historic facts. Instead, as Heikkila explained, Ekiu reached its decision by exercising constitutional avoid- ance.

By disregarding Heikkila, the Court ignores principles of stare decisis to stir up a settled debate. Cf. Ramos v. Loui- siana, 590 U. S. ___, ___, ___ (2020) (ALITO, J., dissenting) (slip op., at 1, 12). Perhaps its view is tinted by the fact that it doubts the Suspension Clause could limit Congress’ abil- ity to eliminate habeas jurisdiction at all. The Court scoffs at the notion that a limitation on judicial review would have been understood as an unconstitutional suspension of ha- beas, noting and distinguishing the limited number of occa- sions that this Court has found a suspension of the writ of habeas corpus. See ante, at 28–29; but see ante, at 7, n. 4 (THOMAS, J., concurring) (noting that historically, suspen- sions of habeas did not necessarily mention the availability of the writ). The references to those major historic mo- ments where this Court has identified a suspension only es- tablish the outer bounds of Congress’ suspension powers; it says nothing about whether, and to what extent, more lim- ited restrictions on judicial review might also be found un- constitutional.

Indeed, the Court acknowledges that some thought it an open question during the finality era whether the Suspen- sion Clause imposes limits on Congress’ ability to limit ju- dicial review. See ante, at 31, n. 25 (quoting Justice Brewer’s concurring opinion in United States ex rel. Turner v. Williams, 194 U. S. 279, 295 (1904), raising the question). That this question remained unsettled, see n. 1, supra, suf- fices to support the Court’s conclusion in Heikkila: The fi- nality-era Courts endeavored to construe jurisdiction-strip- ping statutes to avoid serious constitutional questions

30 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

about the extent of congressional power to limit judicial re- view.

At bottom, the better view of the finality-era cases is that they understood the habeas right they sustained to be, or at least likely to be, constitutionally compelled. Certainly the cases do not establish the Court’s simplistic view to the con- trary: That the finality-era Court entertained habeas peti- tions only because no statute limited its ability to do so, and no Constitutional provision required otherwise. That read- ing of precedent disregards significant indications that this Court persistently construed immigration statutes strip- ping courts of judicial review to avoid depriving noncitizens of constitutional habeas guarantees. Ignoring how past courts wrestled with this issue may make it easier for the Court to announce that there is no unconstitutional suspen- sion today. But by sweeping aside most of our immigration history in service of its conclusion, the Court reopens a question that this Court put to rest decades ago, and now decides it differently. The cost of doing so is enormous. The Court, on its own volition, limits a constitutional protection so respected by our Founding Fathers that they forbade its suspension except in the direst of circumstances.

D

Not only does the Court cast to one side our finality-era jurisprudence, it skims over recent habeas precedent. Per- haps that is because these cases undermine today’s deci- sion. Indeed, both INS v. St. Cyr, 533 U. S. 289 (2001), and Boumediene v. Bush, 553 U. S. 723 (2008), instruct that eliminating judicial review of legal and constitutional ques- tions associated with executive detention, like the expe- dited-removal statute at issue here does, is unconstitu- tional.

The Court acknowledges St. Cyr’s holding but does not heed it. St. Cyr concluded that “‘[b]ecause of [the Suspen- sion] Clause some “judicial intervention in deportation

Cite as: 591 U. S. ____ (2020) 31

SOTOMAYOR, J., dissenting

cases” is unquestionably “required by the Constitution.”’” Ante, at 33 (quoting 533 U. S., at 300). This statement af- firms what the finality-era cases long suggested: that the Suspension Clause limits Congress’ power to restrict judi- cial review in immigration cases. Nor did St. Cyr arrive at this conclusion simply based on canons of statutory con- struction. The Court spoke of deeper historical principles, affirming repeatedly that “[a]t its historical core, the writ of habeas corpus has served as a means of reviewing the le- gality of Executive detention, and it is in that context that its protections have been strongest.” Id., at 301; see also id., at 305 (“The writ of habeas corpus has always been available to review the legality of Executive detention”). The Court looked to founding era cases to establish that the scope of this guarantee extended to both the “interpreta- tion” and “application” of governing law, including law that guided the exercise of executive discretion. Id., at 302.

Based on that history, the Court also concluded that “a serious Suspension Clause issue would be presented” by precluding habeas review in the removal context, id., at 305, even where there was “no dispute” that the Govern- ment had the legal authority to detain a noncitizen like St. Cyr, id., at 303. Thus based on the same principles that the Court purports to apply in this case, the St. Cyr Court reached the opposite conclusion: The Suspension Clause likely prevents Congress from eliminating judicial review of discretionary executive action in the deportation context, even when the writ is used to challenge more than the fact of detention itself.

Boumediene reprised many of the rules articulated in St. Cyr. It first confirmed that the Suspension Clause applied to detainees held at Guantanamo Bay, repeating the “un- controversial” proposition that “the privilege of habeas cor- pus entitles” an executive detainee to a “meaningful oppor- tunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law.”

32 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

553 U. S., at 779 (quoting St. Cyr, 533 U. S., at 302). Then the Court detailed the writ’s remedial scope. It affirmed that one of the “easily identified attributes of any constitu- tionally adequate habeas corpus proceeding” is that “the ha- beas court must have the power to order the conditional re- lease of an individual unlawfully detained.” 553 U. S., at 779. Notably, the Court explained that release “need not be the exclusive remedy,” reasoning that “common-law habeas corpus was, above all, an adaptable remedy” whose “precise application and scope changed depending upon the circum- stances.” Ibid. (citing 3 W. Blackstone, Commentaries *131). The Court noted that any habeas remedy might be tempered based on the traditional test for procedural ade- quacy in the due process context and thus could accommo- date the “rigor of any earlier proceedings.” 553 U. S., at 781 (citing Mathews v. Eldridge, 424 U. S. 319, 335 (1976)).

The Court discounts these cases because it objects to the perceived direction of respondent’s requested release. Ante, at 32 (explaining that Boumediene did not suggest that the enemy combatant petitioners were entitled to enter the United States upon release). It similarly contends that re- spondent’s attempted use of the writ is “very different” from that at issue in St. Cyr. Ante, at 33.

Neither rejoinder is sound. St. Cyr and Boumediene con- firm that at minimum, the historic scope of the habeas power guaranteed judicial review of constitutional and le- gal challenges to executive action. They do not require re- lease as an exclusive remedy, let alone a particular direc- tion of release. Rather, both cases built on the legacy of the finality era where the Court, concerned about the constitu- tionality of limiting judicial review, unquestionably enter- tained habeas petitions from arriving migrants who raised the same types of questions respondent poses here. See, e.g., St. Cyr, 533 U. S., at 307 (citing United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 (1954) (habeas case

Cite as: 591 U. S. ____ (2020) 33

SOTOMAYOR, J., dissenting

attacking the denial of an application for suspension of de- portation); see also id., at 268 (“[W]e object to the Board’s alleged failure to exercise its own discretion, contrary to ex- isting valid regulations” (emphasis deleted))).

As discussed above, respondent requests review of immi- gration officials’ allegedly unlawful interpretation of gov- erning asylum law, and seeks to test the constitutional ad- equacy of expedited removal procedures. As a remedy, he requests procedures affording a conditional release, but cer- tainly did not so limit his prayer for relief. His constitu- tional and legal challenges fall within the heartland of what St. Cyr said the common-law writ encompassed, and Boumediene confirms he is entitled to additional procedures as a form of conditional habeas relief. These precedents themselves resolve this case.

***

The Court wrongly declares that §1252(e)(2) can preclude habeas review of respondent’s constitutional and legal chal- lenges to his asylum proceedings. So too the Court errs in concluding that Congress need not provide a substitute mechanism to supply that review. In so holding, the Court manages to flout precedents governing habeas jurispru- dence from three separate eras. Each one shows that re- spondent is entitled to judicial review of his constitutional and legal claims. Because §1252(e)(2) excludes his chal- lenges from habeas proceedings, and because the INA does not otherwise provide for meaningful judicial review of the Executive’s removal determination, respondent has no ef- fective means of vindicating his right to habeas relief. Quite simply, the Constitution requires more.

III

Although the Court concludes that habeas relief is not available because of the particular kind of release that it

34 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

thinks respondent requests, it also suggests that respond- ent’s unlawful status independently prohibits him from challenging the constitutionality of the expedited removal proceedings. By determining that respondent, a recent un- lawful entrant who was apprehended close in time and place to his unauthorized border crossing, has no proce- dural due process rights to vindicate through his habeas challenge, the Court unnecessarily addresses a constitu- tional question in a manner contrary to the text of the Con- stitution and to our precedents.

The Court stretches to reach the issue whether a noncit- izen like respondent is entitled to due process protections in relation to removal proceedings, which the court below mentioned only in a footnote and as an aside. See ante, at 34 (quoting 917 F. 3d, at 1111, n. 15). In so doing, the Court opines on a matter neither necessary to its holding nor se- riously in dispute below.11

The Court is no more correct on the merits. To be sure, our cases have long held that foreigners who had never come into the United States—those “on the threshold of in- itial entry”—are not entitled to any due process with re- spect to their admission. Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206, 212 (1953) (citing Ekiu, 142 U. S., at 660); see also Landon v. Plasencia, 459 U. S. 21, 32 (1982). That follows from this Courts’ holdings that the po- litical branches of Government have “plenary” sovereign power over regulating the admission of noncitizens to the United States. Ante, at 35; see also Ekiu, 142 U. S., at 659.

——————

11 While the Court contends that the writ of habeas corpus does not

allow an individual to “obtain administrative review” or additional pro- cedures, it arrives at this conclusion only in the context of discussing what sorts of “relief ” properly qualified as release from custody at com- mon law. Ante, at 2, 14–16 (contrasting request for additional remedies with a “simple” release from custody). To the extent that this discussion necessarily prohibits federal courts from entertaining habeas petitions alleging due process violations in expedited removal proceedings, the Court’s separate discussion in Part IV is unnecessary.

Cite as: 591 U. S. ____ (2020) 35

SOTOMAYOR, J., dissenting

Noncitizens in this country, however, undeniably have due process rights. In Yick Wo v. Hopkins, 118 U. S. 356 (1886), the Court explained that “[t]he Fourteenth Amend- ment to the Constitution is not confined to the protection of citizens” but rather applies “to all persons within the terri- torial jurisdiction, without regard to any differences of race, of color, or of nationality.” Id., at 369; Zadvydas v. Davis, 533 U. S. 678, 693 (2001) (reiterating that “once an alien enters the country,” he is entitled to due process in his re- moval proceedings because “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent”).

In its early cases, the Court speculated whether a noncit- izen could invoke due process protections when he entered the country without permission or had resided here for too brief a period to “have become, in any real sense, a part of our population.” The Japanese Immigrant Case, 189 U. S. 86, 100 (1903); see also ante, at 34 (quoting Ekiu, 142 U. S., at 660 (remarking that for those not “‘admitted into the country pursuant to law,’” the procedures afforded by the political branches are all that are due)). But the Court has since determined that presence in the country is the touch- stone for at least some level of due process protections. See Mezei, 345 U. S., at 212 (explaining that “aliens who have once passed through our gates, even illegally,” possess con- stitutional rights); Mathews v. Diaz, 426 U. S. 67, 77 (1976) (“There are literally millions of aliens within the jurisdic- tion of the United States. The Fifth Amendment . . . pro- tects every one of these persons . . . . Even one whose pres- ence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection”). As a nonciti- zen within the territory of the United States, respondent is entitled to invoke the protections of the Due Process Clause.

In order to reach a contrary conclusion, the Court as- sumes that those who do not enter the country legally have

36 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

the same due process rights as those who do not enter the country at all. The Court deems that respondent possesses only the rights of noncitizens on the “threshold of initial en- try,” skirting binding precedent by assuming that individu- als like respondent have “ ‘assimilated to [the] status’ ” of an arriving noncitizen for purposes of the constitutional anal- ysis. Mezei, 345 U. S., at 212, 214. But that relies on a legal fiction. Respondent, of course, was actually within the ter- ritorial limits of the United States.

More broadly, by drawing the line for due process at legal admission rather than physical entry, the Court tethers constitutional protections to a noncitizen’s legal status as determined under contemporary asylum and immigration law. But the Fifth Amendment, which of course long pre- dated any admissions program, does not contain limits based on immigration status or duration in the country: It applies to “persons” without qualification. Yick Wo, 118 U. S., at 369. The Court has repeatedly affirmed as much long after Congress began regulating entry to the country. Mathews, 426 U. S., at 77; Zadvydas, 533 U. S., at 693–694. The Court lacks any textual basis to craft an exception to this rule, let alone one hinging on dynamic immigration laws that may be amended at any time, to redefine when an “entry” occurs. Fundamentally, it is out of step with how this Court has conceived the scope of the Due Process Clause for over a century: Congressional policy in the im- migration context does not dictate the scope of the Consti- tution.

In addition to creating an atextual gap in the Constitu- tion’s coverage, the Court’s rule lacks any limiting princi- ple. This is not because our case law does not supply one. After all, this Court has long affirmed that noncitizens have due process protections in proceedings to remove them from the country once they have entered. See id., at 693–694; Mezei, 345 U. S., at 212.

Cite as: 591 U. S. ____ (2020) 37

SOTOMAYOR, J., dissenting

Perhaps recognizing the tension between its opinion to- day and those cases, the Court cabins its holding to individ- uals who are “in respondent’s position.” Ante, at 36. Pre- sumably the rule applies to—and only to—individuals found within 25 feet of the border who have entered within the past 24 hours of their apprehension. Where its logic must stop, however, is hard to say. Taken to its extreme, a rule conditioning due process rights on lawful entry would permit Congress to constitutionally eliminate all proce- dural protections for any noncitizen the Government deems unlawfully admitted and summarily deport them no matter how many decades they have lived here, how settled and integrated they are in their communities, or how many members of their family are U. S. citizens or residents.

This judicially fashioned line-drawing is not administra- ble, threatens to create arbitrary divisions between noncit- izens in this country subject to removal proceedings, and, most important, lacks any basis in the Constitution. Both the Constitution and this Court’s cases plainly guarantee due process protections to all “persons” regardless of their immigration status, a guarantee independent of the whims of the political branches. This contrary proclamation by the Court unnecessarily decides a constitutional question in a manner contrary to governing law.12

IV

The Court reaches its decision only by downplaying the

——————

12 The Court notes that noncitizens like respondent seeking legal ad-

mission lack due process rights “‘regarding [their] application.’” Ante, at 34 (quoting Landon v. Plasencia, 459 U. S. 21, 32 (1982)). It does not, however, explain what kinds of challenges are related to one’s applica- tion and what kinds are not. Presumably a challenge to the length or conditions of confinement pending a hearing before an immigration judge falls outside that class of cases. Because respondent only sought prom- ised asylum procedures, however, today’s decision can extend no further than these claims for relief.

38 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

nature of respondent’s claims, ignoring a plethora of com- mon-law immigration cases from a time of relatively open borders, and mischaracterizing the most relevant prece- dents from this Court. Perhaps to shore up this unstable foundation, the Court justifies its decision by pointing to perceived vulnerabilities and abuses in the asylum system. I address the Court’s policy concerns briefly.

In some ways, this country’s asylum laws have repre- sented the best of our Nation. Unrestricted migration at the founding and later, formal asylum statutes, have served as a beacon to the world, broadcasting the vitality of our institutions and our collective potential. For many who come here fleeing religious, political, or ideological persecu- tion, and for many more who have preceded them, asylum has provided both a form of shelter and a start to a better life. That is not to say that this country’s asylum policy has always, or ever, had overwhelming support. Indeed, many times in our past, particularly when the Nation’s future has appeared uncertain or bleak, members of this country have sought to close our borders rather than open them. See S. Legomsky & C. Rodriguez, Immigration and Refugee Law and Policy 875–876 (5th ed. 2009) (explaining that restric- tionist sentiments in the 1930s were fueled in part by the Great Depression). Yet this country has time and again re- affirmed its commitment to providing sanctuary to those es- caping oppression and persecution. Congress and the Ex- ecutive have repeatedly affirmed that choice in response to serial waves of migration from other countries by enacting and amending asylum laws and regulations. In fact, a cen- terpiece of respondent’s claim is that officials were not fol- lowing these statutorily enacted procedures.

The volume of asylum claims submitted, pending, and granted has varied over the years, due to factors like chang- ing international migration patterns, the level of resources devoted to processing and adjudicating asylum applica- tions, and amendments to governing immigration laws. See

Cite as: 591 U. S. ____ (2020) 39

SOTOMAYOR, J., dissenting

Congressional Research Service, Immigration: U. S. Asy- lum Policy 25 (Feb. 19, 2019); see also Dept. of Homeland Security, Office of Immigration Statistics, 2018 Yearbook of Immigration Statistics 43 (2019) (Table 16) (“Individuals Granted Asylum Affirmatively or Defensively: Fiscal Years 1990 to 2018” (quotation modified)). For the past few years, both new asylum applications and pending applications have steadily increased. Immigration: U. S. Asylum Policy, at 25.

It is universally acknowledged that the asylum regime is under strain. It is also clear that, while the reasons for the large pending caseload are complicated,13 delays in adjudi- cations are undesirable for a number of reasons. At bottom, when asylum claims are not resolved in a timely fashion, the protracted decisionmaking harms those eligible for pro- tection and undermines the integrity of the regime as a whole. D. Meissner, F. Hipsman, & T. Aleinikoff, Migration Policy Institute, The U. S. Asylum System in Crisis: Chart- ing a Way Forward 4 (Sept. 2018).

But the political branches have numerous tools at their disposal to reform the asylum system, and debates over the best methods of doing so are legion in the Government, in the academy, and in the public sphere.14 Congress and the

——————

13 In 2018 Senate Judiciary Committee hearings, the Director of the

Executive Office of Immigration Review identified factors contributing to the backlog of cases, including lengthy hiring times for new immigration judges and the continued use of paper files. See Testimony of James McHenry, Strengthening and Reforming America’s Immigration Court System, Hearings before the Subcommittee on Border Security and Im- migration of the Senate Committee on the Judiciary, 115th Cong., 2d Sess., 2 (2018). The Court, meanwhile, insinuates that much of the bur- den on the asylum system can be attributed to frivolous or fraudulent asylum claims. See, e.g., ante, at 1, 7–8, nn. 9 and 10. But the magnitude of asylum fraud has long been debated. See S. Legomsky & C. Rodriguez, Immigration and Refugee Law and Policy 1034 (5th ed. 2009); Immigra- tion: U. S. Asylum Policy, at 28.

14 See, e.g., GAO, Immigration Courts: Actions Needed To Reduce Case Backlog and Address Long-Standing Management and Operational

40 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

Executive are thus well equipped to enact a range of measures to reform asylum in a number of ways and rou- tinely do so.15 Indeed, as the Court notes, the expedited re- moval process at issue here was created by law as one such measure to ease pressures on the immigration system. Ante, at 4.

In the face of these policy choices, the role of the Judiciary is minimal, yet crucial: to ensure that laws passed by Con- gress are consistent with the limits of the Constitution. The Court today ignores its obligation, going out of its way to restrict the scope of the Great Writ and the reach of the Due Process Clause. This may accommodate congressional pol- icy concerns by easing the burdens under which the immi- gration system currently labors. But it is nothing short of a self-imposed injury to the Judiciary, to the separation of powers, and to the values embodied in the promise of the Great Writ.

Because I disagree with the Court’s interpretation of the reach of our Constitution’s protections, I respectfully dis- sent.

——————

Challenges (GAO–17–438, June 2017); Uchimiya, A Blackstone’s Ratio for Asylum: Fighting Fraud While Preserving Procedural Due Process for Asylum Seekers, 26 Pa. St. Int’l L. Rev. 383 (2007); Martin, Reform- ing Asylum Adjudication: On Navigating the Coast of Bohemia, 138 U. Pa. L. Rev. 1247 (1990).

15 P. Alvarez & G. Sands, Trump Administration Proposes Sweeping Changes to U. S. Asylum System in New Rule, CNN, June 10, 2020 (online source archived at www.supremecourt.gov).

Congratulations to Priscilla Alvarez and Geneva Sands of CNN, frequent contributors to “Courtside” for being cited by Justice Sotomayor in FN 15.

This November, vote like your life and everyone’s rights depend on it. Because they do!

PWS

06-25-48